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Showing 101 to 120 of 658 Records
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2008 (10) TMI 633
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... ... ..... an earlier period, goods cleared from the appellant’s depot in identical manner to consignment agent were held to have been correctly assessed to duty by the assessee and demand of differential duty was set aside vide Final Order No. 1088/08, dated 1-8-2008 2009 (239) E.L.T. 103 (Tribunal) passed by the Coordinate Bench at Bangalore in Central Excise Appeal No. 1440/2000 (Carbonandum Universal Ltd. v. Commissioner of Central Excise, Chennai). The case considered by the Coordinate Bench has not been distinguished before us. 2. In the result, following the cited precedent, we set aside the impugned order and allow these appeals. (Dictated and pronounced in open Court)
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2008 (10) TMI 632
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... ... ..... r the judgment of the High Court the State Government has passed an order on March 19, 1971, the effect of which is to equate the Sales Tax Officers of the erstwhile Madhya Pradesh State with the Sales Tax Officers, Grade III of Bombay. This order, in our opinion, has been passed by the State Government only to comply with the directions given by the High Court. It was made during a period when the appeal against the judgment was pending in this Court. The fact that the State Government took steps to comply with the directions of the High Court cannot lead to the inference that the appeal by the Union of India has become infructuous." 6. Above position was also noted in Union of India v. Narender Singh 2005(6) SCC 106 . 7. Above being the position the impugned order of the High Court cannot be maintained and is set aside. The writ appeal shall be heard by the High Court on merits about which we express no opinion. The appeal is allowed to the aforesaid extent. No costs.
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2008 (10) TMI 631
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... ... ..... dismissed on the ground of delay as also on merits.
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2008 (10) TMI 630
Whether the Corporation had jurisdiction and authority to assess and recover the property tax from respondent No.1 for the buildings, superstructure constructed in the market yard within the area of Municipal Corporation, Ratlam?
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2008 (10) TMI 629
Whether there is a valid arbitration agreement in terms of Section 7 of the Arbitration and Conciliation Act, 1996?
Whether the person before him with the request is a party to the arbitration agreement?
Whether there was no dispute subsisting which was capable of being arbitrated upon?
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2008 (10) TMI 628
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... ... ..... ich is the only aim of an enquiry? Obviously, enquiries need not and should not be limited to examination of documents alone relying on statements recorded at the time of investigation. We trust that the respondent Board will take note of this position and allow examination as well as cross examination of witnesses during the process of enquiry, wherever necessary, whether by an enquiry officer or by a whole time member or by an adjudicating officer under Chapter VI-A of the Act. 8. To sum up, the main charge of manipulative trading in its own shares by the appellant fails in the absence of any link being established by the respondent Board between any of the traders with the appellant company. The charge of making false and misleading announcements as also that of manipulation in the annual accounts of 2004-05 in order to lure investors also does not succeed. We have, therefore, no hesitation in allowing the appeal and setting aside the impugned order. No order as to costs.
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2008 (10) TMI 627
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... ... ..... decided against the Department by a Division Bench of this Court in the case of Commissioner of Central Excise v. ITC Ltd., 2008 (224) E.L.T. 226 , to which one of us (K. Raviraja Pandian, J.) was a party, as well as in another Division bench judgment of the Rajasthan High Court at Jodhpur in the case of Union of India v. Grasim Industries Ltd., 2006 (204) E.L.T. 230 . 3. emsp As the questions of law involved in this petition have already been decided against the Department in the above said judgments, the direction sought for against the Department to the Customs, Excise and Gold (Control) Appellate Tribunal, Chennai to refer the questions of law for determination does not arise. Hence, the R.C.P. is dismissed.
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2008 (10) TMI 626
Non disclosures - whether the petitioner having not disclosed the transaction in its return and having not explained the alleged purchases of high speed diesel from Indian Oil Corporation the order of the assessment officer as well as the revisional authority need no interference?
Held that:- In view of the observations of the revisional authority the assessing officer was required to have inquired into the nexus and was required to prove the petitioner's nexus with the alleged inter-State purchases before holding the petitioner guilty of alleged inter-State purchases of high speed diesel. The impugned order without any proof of nexus of the petitioner with the alleged purchases could not have been affirmed by the revisional authority. Thus considered view while passing the impugned order the revisional authority has totally ignored its earlier remand order. The assessing officer has also not decided the matter in accordance with the directions contained in the remand order passed by the revisional authority. Appeal allowed.
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2008 (10) TMI 625
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... ... ..... ndent says that notice in respect of revision dated March 25, 2008 was sent to the assessee by ordinary post. The records submitted by the learned counsel for the respondent also confirm the said submission, that it was sent only by ordinary post and not by registered post. Even endorsement in respect of the factum of sending of the notice by ordinary post has been made by one of the clerks in the office of the respondent. Therefore, on the factual matrix that the notice of revision to the assessee was sent not by one of the modes prescribed under the Rules especially rule 52, the impugned revision has to be set aside. In view of the same, the impugned order of revision of assessment made by the respondent dated June 24, 2008 is set aside and the matter is remitted to the respondent for taking appropriate steps in accordance with the rules and pass orders. The writ petition is disposed of on the above terms. No costs. Consequently, connected miscellaneous petition is closed.
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2008 (10) TMI 624
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... ... ..... e liability is of the company but notwithstanding this well established legal position the Commercial Taxes Department chose to file a requisition only against the directors in their individual capacities. In the requisition (annexure 2), there is no mention of the company except mentioning that the petitioners are directors of the company in default. This itself is a tacit admission of the distinction between the status of the directors and the company. Thus, in my view, the requisition itself being without jurisdiction made against the directors who are not personally and individually liable. The requisitions and the proceedings instituted thereof including the certificate issued thereunder are all wholly without jurisdiction and are liable to be quashed and are quashed, as such. Thus, the certificate proceedings being S. T. 04/04-05 pending before the Certificate Officer, Patna are declared to be null and void and are quashed accordingly. The writ petition stands allowed.
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2008 (10) TMI 623
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... ... ..... sitating the petitioner to approach this court for the relief. The learned counsel for the respondent-Department also submits that as per the provisions of the Tamil Nadu Sales Tax Appellate Tribunal Regulations, 1959, the Tribunal has to pass suitable orders transferring the case to another Bench. Admittedly, the same has not been done in this case. Therefore, I allow the writ petition by quashing the order passed by the first respondent in N. Dis. No. 9458/2008/A2 dated September 11, 2008 and direct the first respondent to consider and transfer the application dated August 25, 2008 filed by the petitioner to Additional Bench immediately to enable him to have a hearing before the said Bench. Till the petition is transferred and heard on merits by the Additional Bench, the Department shall not proceed with the penalty proceedings against the petitioner. With the above direction, the writ petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
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2008 (10) TMI 622
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... ... ..... ires the turnover relating to the tax assessed on the basis of the accounts of the assessee, to be disregarded, while determining the turnover on which the penalty is to be levied under section 12(3). 8.. The assessments for the assessment years 1993-94 and 1994-95 which were assessments made on the basis of the accounts, and not based on any other material and were not estimates, have therefore, to be regarded as assessments made under section 12(1) to which the penal provisions of section 12(3) are not attracted. The levy of penalty for those two assessment years is set aside. As rightly submitted by the learned counsel for the petitioner, once the books of account have been produced and the assessment is made thereon, then the assessment could not be regarded as best judgment assessment. Following Appollo Saline case 2002 125 STC 505, this tax case is allowed only in regard to levy of penalty under section 12(3)(b). In the result, the tax case is partly allowed. No costs.
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2008 (10) TMI 621
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... ... ..... assessing authorities have not applied their mind as to whether in respect of those assessments to which section 12(4) and 12(5) which has since been deleted, would apply, the assessee had failed to disclose any bona fides for not having paid the tax earlier. It is the case of the assessee that the law regarding the taxability of the turnover relating to the bottles was uncertain till this court resolved the matter finally in W.P. No. 120 of 2000 on September 14, 2001 (Appollo Saline Pharmaceuticals (P) Limited v. Deputy Commercial Tax Officer 2002 125 STC 500 (Mad)). The earlier judgments of this court had taken the view that the bottles being a distinct commodity and not having been consumed in the manufacture of I.V. fluids, there was a separate sale of the bottles and therefore, section 7A providing for levy of purchase tax was not attracted. In view of the above judgment, the question is answered against the Revenue. The tax case is allowed and the penalty is set aside.
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2008 (10) TMI 620
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... ... ..... nd therefore this aspect needs to be examined, as it has not been done. The writ petition is examined on the touchstone of article 14 of the Constitution of India. Arbitrariness, if at all, is a part of article 14 and is not to be examined independently. A writ petition involving the validity of the legislation is always examined on the touchstone of the constitutional provisions. The use of words or terminology are not material but testing the legislation with reference to article 14 which indicates discrimination is material. Arbitrariness is one part of discrimination and as understood by the courts and even by the Supreme Court, reference to arbitrariness is made part of article 14 of the Constitution. Questions raised in the petitions have been examined and this aspect has been kept in mind while disposing of the writ petition. It is open to the petitioners to avail of such other remedies available to them, if they are still aggrieved. This review petition is dismissed.
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2008 (10) TMI 619
Whether the Deputy Commissioner of Sales Tax has jurisdiction under section 35(2A) of the Kerala General Sales Tax Act, hereinafter called the "KGST Act", to order reopening and revision of a best judgment assessment based on the subsequent information that pursuant to raid by Income-tax Department the assessee conceded unaccounted sales and business income based on which revised income-tax assessment was concluded by orders of the Settlement Commission?
Held that:- In order to bar jurisdiction of the Deputy Commissioner under section 35(2)(b) read with section 35(2A), the basis for revision adopted by him should be exactly the same decided in appeal and not anything in relation to it. In other words, if the point raised by him was not the issue decided in appeal, the Deputy Commissioner is free to invoke jurisdiction.
Once accounts are rejected, the assessing officer is free to assume that the business is viable and profitable. Thereafter he should estimate the income which can keep the business going with reasonable profit and then project turnover based on it. We feel if this principle is followed, subsequent revision of assessment and controversy of this nature could be avoided. We therefore dismiss STRV No. 133 of 2006 filed by the assessee upholding the order of the Tribunal and restoring that of the Deputy Commissioner and allow STRV No. 480 of 2004 by quashing the order of the Tribunal and restoring that of the Deputy Commissioner issued under section 35(1) of the KGST Act.
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2008 (10) TMI 618
Assessment of tax in respect of the transaction under the KST Act - Held that:- The revisional order makes cryptic reference to the documents produced and concludes that the head office has executed the contract works and there is no inter-State sale. The appellant has supplied DG sets to the head office which executed the contract works. The revisional authority should have referred to all the documentary material produced by the parties to give finding on the fact whether contract works were executed by the branch office or the head office. The revisional authority has failed to refer to the documentary material produced by the parties.
It is, therefore, just and necessary that the revisional authority shall consider all documentary material produced by the parties, if need be allow the additional documents to be produced by the parties and then decide the question whether the transaction is liable for tax under the KST Act. Accordingly, the order of the revisional authority is set aside. The matter is remanded
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2008 (10) TMI 617
Levy of purchase tax and the related component of interest - benefit of notification - Held that:- For whatever reason the tax was not charged or collected, the operation of the said notification dated March 7, 1994 is plain and clear; and in view thereof, there would arise no question of the Revenue suggesting levy of purchase tax in the present cases. The said notification dated March 7, 1994 appears to be taking in its sweep the transactions of the present nature too and existing such notification, demand of purchase tax does not appear to be justified. There appears no illegality in the order passed by the Tax Board.
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2008 (10) TMI 616
Whether, on the facts and circumstances of the case, the Tribunal was justified in law in declaring that the conditions in paragraph (i) and (m) of the certificate of entitlement dated January 25, 2000 be deleted ab initio?
Whether, on the facts and circumstances of the case, the Tribunal was justified in law in going a step further in declaring that proportionate benefits theory is not applicable to expansion units covered under 1993 Package Scheme of Incentives, when it was not asked for by the applicant (appellant sic) and their prayer was simply to delete the conditions from the certificate of entitlement?
Held that:- In the absence of any provision under the 1993 scheme and alternatively, in the absence of any ratio prescribed by the State Government by framing Rules, it was not open to the Deputy Commissioner of Sales Tax to direct the assessee to avail of the incentives under the 1993 scheme in proportion to the production attributable to the newly acquired fixed assets. The decision of the Tribunal in holding that the impugned conditions are contrary to the 1993 Scheme and accordingly directing the sales tax authorities to delete condition Nos. (i) and (m) incorporated in the entitlement certificate issued to the assessee cannot be faulted. The second question raised by the Revenue is also without any merit, because, the conditions (i) and (m) imposed in the entitlement certificate could be directed to be deleted only after recording a finding that the 1993 scheme did not empower the Deputy Commissioner of Sales Tax to impose such conditions.
In the result, both the questions are answered in the affirmative, i.e., in favour of the assessee and against the Revenue.
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2008 (10) TMI 615
Provisions of section 76(5)(a) provisions of of the Rajasthan Value Added Tax Act, 2003 - Held that:- In this case, obviously the petitioner is challenging the notices issued to him although the petitioner has brought to the notice of this court certain facts with regard to his innocence as also the fact that respondent No. 3 while issuing the notice has asserted that forgery has been committed by the petitioner, meaning thereby, respondent No. 3 has presumed the illegality without deciding the matter finally. It is true that the authorities should not take decision with a pre-occupied mind. They are required to act in accordance with law. Therefore, in my opinion, as held by the apex court in case of Assistant Commissioner, Anti-Evasion, Commercial Taxes, Bharatpur v. Amtek India Limited reported in [2007 (2) TMI 9 - SUPREME COURT OF INDIA] officers should not act in a manner as if they are bloodhound and not watchdogs of revenue.
Writ petition is hereby disposed of with a direction to the respondent-Department to decide the matter within a period of one week positively from today and, at the time of deciding the matter, the concerned authority shall not traverse beyond the ambit and scope of section 76(5)(a) of the Act and shall ignore the allegations levelled in the notices impugned with regard to alleged forgery allegedly committed by the petitioner and shall decide the matter independently after providing opportunity of hearing to the petitioner, by a speaking order.
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2008 (10) TMI 614
Whether the appellant is entitled to issue form 18 declaration for the purchase of kerosene oil used in the manufacture of titanium dioxide?
Held that:- In the instant case superior kerosene oil is not used as an input in the use of production of finished product and it is not identifiable in the final product and it is just used as a fuel in the calciners as an aid in the production of finished product and therefore, would not answer the description of the expression "raw material".
Thus the Commissioner of Commercial Taxes is right while clarifying that the appellant cannot use form 18 declarations for purchase of kerosene oil used as a fuel in the manufacture of titanium dioxide. Therefore, the appeal requires to be rejected and accordingly, it is rejected.
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