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VAT and Sales Tax - Case Laws
Showing 21 to 40 of 58 Records
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2013 (6) TMI 542
Power to decide validity of Seizure of goods - release of goods on furnishing of security bond - held that:- neither the Commissioner or the Officer Authorized not below the rank of Deputy Commissioner under Section 48(7) of the Act nor the Tribunal in appeal under Section 57(4) of the Act has the power to decide about the validity of the seizure order and consequently this court in revision also lacks jurisdiction in respect thereof.
As far as the quantum of security demanded equivalent to twice the tax imposable, no error in such an order has been shown and such a direction being dependent upon the judicial discretion of the authorities/tribunal, no question of law in connection thereto arises leaving any scope for interference in the same in exercise of revisional jurisdiction. - Decided against the assessee.
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2013 (6) TMI 504
Levy of tax on opium - according to the assessee, cultivators are handing over the opium exclusively to the assessee i.e. Narcotic Department. So, there is no question of sale or levy of the tax, but the trade tax department has levied the tax as well as charged the interest. - held that:- Hon'ble Supreme Court has observed that the opium grown by the cultivators is taxable item to trade tax. - Decided against the assessee.
The opium is taxable item under the U.P. Trade Tax Act. Therefore, the impugned orders passed by the Tribunal are hereby set aside and the orders passed by the A.O. are hereby restored in the revisions in the question. Thus, the revisions filed by the department are allowed. - Decided in favor of assessee.
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2013 (6) TMI 482
Works contract - dyes and chemicals which are used for washing of cloth - liability of tax on the goods which are consumed or used and the goods which are used and consumed - transfer of property in goods - textile processing - colouring, printing, bleaching, washing and dyeing of the gray cloth.
In the case of Arviva Industries (I) Ltd.(2007 (1) TMI 6 - SUPREME COURT OF INDIA) Hon'ble the Supreme Court has held that circulars issued by the Central Board of Excise & Customs are binding upon the department and similar view has been taken in the case of Kurian Abraham (P) Ltd. (2008 (2) TMI 289 - SUPREME COURT) wherein the Hon'ble Supreme Court had held that the circular issued by the Board of Revenue under the Kerala General Sales Tax Act is binding on the department.
It is amply clear that the State Government had decided the representation made by the Northern India Textile Processors Association and had come to the conclusion that dyes and chemical used in the bleaching, colouring and dyeing etc. on gray cloth are consumed in the process and not transferred. In our considered opinion, the said finding is binding upon the assessing authorities as the representation made by the Northern India Textile Processors Association was also decided by the said order. - Decided in favor of assessee.
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2013 (6) TMI 469
Re opening of assessment under the Trade Tax Act as well as under the Entry Tax Act - suppressed sale of raw material for manufacture of Gutkha - survey conducted upon unregistered dealers by the Central Excise Department from whom, it is said that petitioner used to purchase raw material for manufacturing Gutka and on the basis of the report so submitted by the Central Excise Department, proceedings for reopening and reassessment under Section 21 (2) of the Trade Tax Act have been initiated on the ground that certain turn over has escaped from the assessment -
Held that:- Regarding writ petition No.4287 (MB) of 2013 the assessee has not cooperated as mentioned in the report submitted by the Central Excise Department. At the time of survey, and thereafter, opportunity was given to the petitioner to submit his reply. Prima-facie, there is suppressed sale of raw material for manufacture of Gutkha though which is not taxable but its raw material is taxable, which was purchased by the petitioner from unregistered dealers. When it is so, then we are of the view that matter needs further inquiry by the A.O. The petitioner is at liberty to put its defence before the A.O. We hope that petitioner will cooperate with the A.O. at least this time. Thus no reason to interfere with the impugned order passed by the competent authority to grant the permission under section 21 (2) of the Trade Tax Act for reopening the assessment for the assessment year 2006-07. In its defence, the assessee will get another chance at the time of reassessment proceedings. So, the writ petition dismissed.
As regards writ petition No. 4300 (MB) of 2013 it may be noted that there is no dispute in the fact that the petitioner is manufacturer of Gutka. The final product in the form of Gutka has been manufactured for the first time and the same was sold within the local area. Therefore, in view of provisions of Section 2 (C), there is no liability for payment of Entry Tax by the manufacturer, who by no stretch of imagination can be said to be a dealer in terms of Section 2 (b) of the Entry Tax Act, 2007.
In the instant case, the assessment order for Entry Tax was already passed. Further, the order was also passed by the first appellate authority. Thus, the assessment order has already merged in the first appellate order, as agreed by both the parties. When it is so, then no reassessment can be made pertaining to Entry Tax and no proceedings under Section-21 can be legally initiated. Hence, set aside the impugned order pertaining to the Entry Tax Act only. The petitioner will get the relief accordingly.
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2013 (6) TMI 433
Objection under DVAT Act - Section 74(8) and 74(9) - It was the case of the petitioner that it is not a dealer and is only transporter and the goods were never sold in Delhi, but were meant for transportation to other states. - held that:- the order dated 19.11.2012 does not at all deal with the issue raised by the petitioner with regard to the applicability of Section 74(8) and 74(9) of the said Act in the backdrop of the notice issued by the petitioner on 24.08.2012. For this reason alone, we feel that the impugned order is liable to be set aside. It is ordered accordingly. - matter remanded back.
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2013 (6) TMI 410
Conditional stay - interim stay only to the extent of 80% of disputed tax - Held that:- No valid reason has been assigned by the said authorities while granting the conditional stay to the petitioner and also not valid findings has been given by the said authorities that why petitioner is not entitled for interim protection during the pendency of the first appeal before the appellate authority.
Accordingly , the Court feels that since the first appeal is to be decided on merit then there is no justification or reason whatsoever to direct the petitioner to deposit the entire tax liability as assessed by the assessing authority - present petition is disposed of with a direction to the FAA to decide the appeal filed by the assessee expeditiously within a period of two months from the date of receiving a certified copy of this order.
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2013 (6) TMI 409
Exemption from VAT on milk powder and the vitaminised infant milk foods - Public interest - Doctrine of promissory estoppel. - period between 01.04.2006 to 01.08.2006. - Since the exemption notification was withdrawn, the petitioner and other co-operatives made a concentrated effort to convince the Government to reintroduce such concession. - On 02.08.2006, the Government of Gujarat issued a fresh notification in exercise of powers in Sub-section (5) of Section 8 of the Central Sales Tax Act,1956 and reintroduced concessional rate of duty at 2% on whole milk powder or skimmed milk powder.
Held that:- If the partial exemption enjoyed by the petitioner was withdrawn mechanically and reintroduced shortly thereafter, the question of examining the petitioner’s grievance in the context of the submissions made before us would arise. In the present case, however, we notice that such withdrawal was also based on public interest.
We fail to see how the petitioner can bring in the element of promissory estoppel. It is not the case of the petitioner that on the basis of the exemption granted, it altered the position to its disadvantage. It was suggested that the petitioner had not passed on burden of the differential duty for the intervening period. Even if it was so, this can hardly bind the Government into granting the exemption for such period. In any case, the petitioner’s stand that the differential duty was not collected from the purchasers due to ignorance of withdrawal of exemption also appears to be one of doubtful proposition. We may recall, soon after the exemption was withdrawn, the Gujarat Co-operative Milk Market Federation Ltd., an apex body of the milk producing co-operatives had, on 10.06.2006, made a detailed representation before the Government to reintroduce the exemption. The stand of the petitioner that they were not aware about the withdrawal of the exemption, therefore, is not borne out from the record.
The decision in case of M/s. Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and others (1978 (12) TMI 45 - SUPREME Court) is of course well known judgement in the field of promissory estoppel. Since we have held that this is not a case where such principle can be applied, we do not find it necessary to discuss the issue any further. - Decided against the assessee.
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2013 (6) TMI 386
Consignment was not accompanied with down loaded transit declaration form as prescribed by the Commissioner, Commercial Tax, U.P. vide its circular No.552 dated 30th of July, 2009 - assessee transporting a consignment of steel casting machines - seizure order with a direction to release of the goods on furnishing the security to the extent of 15% of the value of the goods in cash and 25% - U.P. Value Added Tax Act - as per assessee any such form prescribed by the the Commissioner, Commercial Tax, U.P. is illegal as the the Commissioner, Commercial Tax, U.P. is not authorized under the said Act or Rules to prescribe any such form - Held that:- Rule 58 itself empowers the Commissioner to determine the documents which a driver of a vehicle should carry with while passing through the State of U.P. carrying the taxable goods. The State Government had also prescribed similar form being form no.43 as per unamended section 52 of the Act. The power of Commissioner in the case on hand prescribing the document is referable to Rule 58 read with section 52. Therefore, unable to agree with the aforesaid submission of the petitioner.
On the merits of the case, as petitioner submitted that except the down loaded form prescribed by the Commissioner the goods were moving along with all necessary documents. The department has neither raised nor doubted the genuineness of other documents which were being carried by the driver of the vehicle at the time of interception of the goods. The goods were booked at Ballabhgarh, Faridabad (State of Haryana) to BHEL, a Government of India Enterprizes. The details of the consignor and consignee were not found to be incorrect. The goods were not meant for consumption, use or sale by the public at large. The submission is that there was no intention to evade the payment of tax in the State of U.P.
A perusal of the impugned order would show that the goods were intercepted and security for their release was demanded only on the ground that it did not accompany with the down loaded transit pass.
Except the above default everything was found in order. Even in the case of Sodhi Transport (1986 (3) TMI 303 - SUPREME COURT OF INDIA) as also in the circular issued by the Commissioner it has been laid down that a rebuttable presumption in absence of necessary documents to be drawn against a person & examined this issue in depth and laid down that the presumption is rebuttable presumption. This Court in the case of the above M/S Balaji Timbers & Paints Versus The Commissioner, Commercial Tax, U. P. Lucknow [2010 (5) TMI 707 - ALLAHABAD HIGH COURT] has gone to the extent that if the transit form is furnished subsequently, after the interception of the vehicle, the seizure order becomes bad.
The Appellate Authority fixed 15 per cent cash security and bank guarantee to be given for 25 per cent of the value of the goods as a condition for releasing the goods. This order was modified by this Court while passing an interim order by providing that if the petitioner gives the bank guarantee for remaining 15 per cent of the amount also, the goods shall be released in its favour. In absence of any finding by any of the authorities below, that there was an intention to evade the payment of tax, the irresistible conclusion is that the seizure order is bad. On merits, therefore, the seizure order cannot be allowed to stand and is hereby set aside.
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2013 (6) TMI 385
Refund claim rejected - discrepancy in the purchase invoice supplied by the petitioner containing incomplete information on the rate of tax and the actual tax payable - proposal to restrict the petitioner's claim of ITC to 4% on the purchase of capital goods that have been purchased on payment of 12.5% - Tamil Nadu Value Added Tax Act - Held that:- It is admitted that the petitioner had in fact paid the tax at 12.5% which could not be refuted by the seller. If there had been a charging of tax by the seller when effected the sale to the purchaser at the rate over and above what is payable under the TNVAT Act, all that the Revenue could do is to proceed against the seller of the goods for charging the purchaser at a rate not legally sustainable.
Do not agree with the contention of the Additional Government Pleader, who overlooks the fundamental fact of difference between the earlier Act and the present Act that when the ITC claim clearly shows that the purchaser had paid the tax at 12.5%, the question of the seller coming forward before the authority concerned as regards the collection of tax or as to the proof on the passing of liability, does not arise.
Additional Government Pleader contention that section 18(2) does not have any restrictive words to mean that the "dealer" could refer only a purchaser to grant a refund is to be rejected as this line of contention outright, as given the fact that the zero rating of tax is as per Section 18 of the TNVAT Act and the same is only at the hands of a purchasing dealer of goods and not at the hands of the seller, who sells the capital goods, the acceptance of the stand of the Department would only amount to either ignoring Section 18 or cutting down the width of Section 18, for that matter, even to overlook Section 19 - thus claim of the petitioner as regards the refund of tax without any reduction has to be accepted.
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2013 (6) TMI 362
Retrospective legislation - Withdrawal of benefit - Constitutional validity - reasonableness - amendment in Package schemes of incentive - whether validating enactment only legalizes a levy already imposed, but does not impose a fresh tax - Maharashtra Value Added Tax (Levy, Amendment and Validation) Act, 2009 - urged on behalf of the Petitioners that the Amending Act of 2009 amounts to the imposition of a new levy and that the imposition of a fresh levy with retrospective effect is violative of Article 14 & the introduction of the mandate of proportionality by the amendment to Section 93 in 2009 would be violative of Article 19(1)(g) of the Constitution
Held that:- Unable to accede to the submission of appellant as Section 41BB of the Bombay Sales Tax Act, 1959 was introduced into the statute in 2001 which was prefaced by a non-obstante provision which was to operate notwithstanding anything to the contrary contained in any Package Scheme of Incentives. Section 41BB provided that any eligible unit to whom an eligibility certificate has been granted shall be eligible to draw benefits only on that part of its turnover of sales or purchases as may be arrived at by applying the ratio as may be prescribed by the State Government to the total turnover of sales or purchases of the unit in that year. Section 41BB was not an enabling provision, but enacted a restriction to the effect that notwithstanding anything contained in any Package Scheme of Incentives, an eligible unit holding an eligibility certificate shall be eligible to draw benefits only on that part of its turnover of sales and purchases as would be arrived at by applying the ratio which was to be prescribed by the State Government. Section 41BB, however, left it to the government to prescribe the ratio on the basis of which only a part of the turnover of sales and purchases would qualify for incentives.
When the Maharashtra Value Added Tax Act, 2002 was enacted, a specific provision was incorporated in Section 93(1) described in its heading as providing for proportionate incentives to an eligible unit in certain contingencies & also made the legislative intent clear which was that an eligible unit would be eligible to draw benefits only on a proportional part of its turnover of sales or purchases as would be arrived at by applying the ratio which was to be prescribed by the State Government. Both Section 41BB of the erstwhile Bombay Sales Tax Act, 1959 and Section 93(1) as enacted in the MVAT Act, 2002 disclosed a legislative intent to allow the benefits only on a proportionate part of the turnover.
The validating legislation and the amendment lay down the manner in which proportionate incentives would be computed. Such a course of action is legitimately open and cannot be regarded as being arbitrary or as violative of Articles 14 or 19(1)(g) of the Constitution. The principle of allowing pro rata incentives subserves the object of the legislation. If the legislature has, as in the present case, determined that the purpose of the Package Schemes of Incentives should or would be achieved by allowing incentives to be computed on a proportional basis, that legislative assessment cannot be regarded as unconstitutional.
Thus there is no merit in the challenge to the constitutional validity of Maharashtra Act 22 of 2009 by which inter alia the provisions of sub-sections (1), (1A) and (1B) came to be substituted by way of an amendment to Section 93. The legislature has not transgressed the limitations on its constitutional power while enacting the validating legislation. Sub-section (2) of Section 93 has enacted that the benefit, if any, availed of by an eligible unit in contravention of sub-section (1) shall be and shall be deemed to have been withdrawn and the unit would be liable to pay tax, including penalty and interest, if any, in respect of the turnover of the sales and purchases in excess of the turnover arrived at under sub-section (1). The retrospective operation of the penalty with effect from 1 April 2005 would, be harsh. A penalty is in the nature of a penal or quasi penal exaction. A penalty cannot be imposed merely because it is lawful to do so. The imposition of a penalty for the period prior to the amendment of Section 93 with retrospective effect would be arbitrary.
No merit in the challenge to the liability to pay interest. An assessee who has retained or availed of benefits to which he is not entitled in law, can legitimately be required to pay interest by the terms of a fiscal enactment.
Thus the provisions of Section 93(2) to the extent to which they contemplate the imposition of a penalty with retrospective effect would to that extent be arbitrary. The provision in regard to the imposition of a penalty under Section 93(2) would consequently operate only prospectively. Accordingly dispose of the Petitions by upholding the constitutional validity of Maharashtra Act 22 of 2009, save and except for the imposition of a penalty under Section 93(2) which will take prospective effect.
The Petitions are accordingly disposed of. There shall be no order as to costs.
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2013 (6) TMI 343
Entry tax imposed under Section 9(4) of the Entry of Goods Act, 2000 - addition made under Rule 41(8) (State) - assessee has sold the molasses against the Form-3B - Held that:- Undoubtedly, the dealer is having the turnover of more than Rs.25 crores, so the Form-3B used for more than Rs.5.00 lakhs is applicable in the present case. This aspect was not examined by the lower authorities. Similarly, from the balance-sheet, it appears that the assessee has purchased the goods from unregistered dealer for meager amount except a few.
The Department has not examined the genuineness of the transaction. By adopting short cut method, additions were made merely by looking the balance-sheet. No other verification was sought by the lower authorities before making the addition. No opportunity was given to the assessee to justify the genuineness of the transactions by the lower authorities - matter is remanded back to the Tribunal to examine the same denovo.
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2013 (6) TMI 342
Disallowance of exemption on sales return and exempted sales - details regarding the same were not given in the prescribed format - assessee contested against it as when there is no format prescribed under the TNVAT Act for the same - petitioner submitted that the impugned notices of revision of assessment are contrary to the established law and not sustainable, because the Enforcement Wing Officer cannot frame the assessment and the D-3 proposals cannot be simply adopted by the respondent without application of mind - Held that:- The impugned proposal of the respondent for revision of assessment, is subject to the consideration of the objections to be filed by the petitioner, and only after receipt of the objections, the respondent could form any opinion in accordance with law. The claim of the petitioner that the Enforcement Wing Officers' report cannot form the basis for the impugned revision of assessment and he has no role to act as Assessing Officer and the respondent cannot simply adopt the D-3 proposal, are all matters for concern before the respondent on filing the objections by the petitioner.
At this stage, the petitioner stated that the petitioner has already filed objections dated 26.2.2013 before the respondent with regard to the impugned notices these Writ Petitions are disposed of, with a direction to the respondent to consider the said objections, dated 26.2.2013 filed by the petitioner, afford an opportunity of hearing to the petitioner to take a decision uninfluenced by the report of the Enforcement Wing Officers and pass appropriate orders, on merits within a period of four weeks from the date of receipt of a copy of this order.
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2013 (6) TMI 319
Concession rate of tax - denial of claim on the ground that there was no contract for the supply of steel structure between the U.P. Power Corporation Ltd. and the assessee - Held that:- As on the face of the agreement and the amendment carried out therein which is not in dispute the assessee was authorized to supply the fabricated and galvanized steel structures to the U.P. Power Corporation Ltd. Accordingly, supplies were made and Forms III-D were issued by the U.P. Power Corporation Ltd. covering the supply so made by the assessee.
In view of the above provision, the turnover of sale to any Corporation including the U.P. Power Corporation Ltd. is taxable at a concessional rate specified by the State Government provided the transaction is covered by the prescribed form/declaration which under Rule 12-C of the Rules framed under the Act is Form III-D.
Both the conditions for availing the benefit of concessional rate of tax on the sale made to the Corporation, namely, the sale is made to the Government, Corporation, Undertaking or Company and secondly dealer furnishes a certificate or declaration as may be prescribed from such Government, Corporation, Undertaking or the Company compiled. In favour of assessee.
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2013 (6) TMI 295
Levy of higher rate of VAT - declared goods - violation of Section 8(2) of CST Act - industrial valves - non-ferrous metals and alloys - for the turnover not covered by Form 'C', revenue levied tax at 12.5% on the ground that the petitioner-dealer itself reported and paid tax @ 12.5%. - held that:- In the present case, the petitioner has not availed of the statutory remedy of appeal against the impugned order. The grievance of the petitioner in respect of levying higher rate of tax at 12.5% instead of 4%, is a matter which has to be adjudicated before the appellate authority. The approach of the petitioner in rushing to this Court by filing this Writ Petition, challenging the order of the original authority, without even availing of the statutory remedy of appeal before the appellate authority, cannot be sustained. - matter to be placed before the appellant authority - writ petition dismissed.
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2013 (6) TMI 294
Refund of taxes paid on the activity of the provision of "passive infrastructure services" - alternative to direct the said respondent to deposit the taxes paid for appropriation towards the tax liability arising out of the impugned order - Whether the provision of Passive Infrastructure Services by the Applicant to Sharing Operator's would tantamount to 'Transfer of right to use goods' as per Section 2(1)(zc)(vi) of the DVAT Act, 2004 and therefore become liable to tax under the DVAT Act - how should the sale price as per section 9(1)(zd) of the DVAT act be determined for the purpose of discharging the liability under DVAT Act? - contention of petitioner that there was no transfer of the right in any goods by the petitioner to the sharing telecom operators and therefore the levy of VAT on the assumption to the contrary was wholly erroneous and untenable -
Held that:- The right to use the goods - in this case, i.e. passive infrastructure can be said to have been transferred by Indus to the sharing telecom operators only if the possession of the said infrastructure had been transferred to them. They would have the right to use the passive infrastructure if they were in lawful possession of it. There has to be, in that case, an act demonstrating the intention to part with the possession of the passive infrastructure. There is none in the present case.
The passive infrastructure is shared by several telecom operators and that is why they are referred to as sharing telecom operators in the Master service agreement, MSA which merely permits access to the sharing telecom operators to the passive infrastructure to the extent it is necessary for the proper functioning of the active infrastructure.
With several restrictions and curtailment of the access made available to the sharing telecom operators to the passive infrastructure and with severe penalties prescribed for failure on the part of the Indus to ensure uninterrupted and high quality service provided by the passive infrastructure, it is difficult to imagine how Indus could have intended to part with the possession of part of the infrastructure. That would have been a major impediment in the discharge of its responsibilities assumed under the MSA. The limited access made available to the sharing telecom operators is inconsistent with the notion of a "right to use" the passive infrastructure in the fullest sense of the expression. At best it can only be termed as a permissive use of the passive infrastructure for very limited purposes with very limited and strictly regulated access. It is therefore difficult to see how the arrangement could be understood as a transfer of the right to use the passive infrastructure.
When Indus has not transferred the possession of the passive infrastructure to the sharing telecom operators in the manner understood in law, the limited access provided to them can only be regarded as a permissive use or a limited licence to use the same. The possession of the passive infrastructure always remained with Indus. The sharing telecom operators did not therefore, have any right to use the passive infrastructure.
Thus it is declared that under the contract entered into between the parties there is no sale of goods and at any rate there is no deemed sale so as to attract levy of tax under the Karnataka Value Added Tax Act, 2003.
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2013 (6) TMI 261
Work Contract Tax - whether petitioner derived double benefit in the form of the escalation of seigniorage fee and Work Contract Tax (WTC) and the amount paid in excess was directed to be recovered through memo, dated 28.03.2009? - Held that:- The agreement between the petitioner and the respondents provides for the revision of the bills or the amounts, in case there is revision of the tax regime. The petitioner made claims for enhancement of the bills on account of seigniorage fee and WCT. The scrutiny however has revealed that the benefit was availed at two stages; the first is in the form of cost of material and the second is under Clause 70.8. So was the case with the WCT.
On coming to know that serious irregularities in this regard were taking place, the Government issued memo, dated 28.03.2009, directing that wherever the benefit of escalation of seigniorage fee or WCT was extended more than once, recoveries must be effected. It is in this context that the respondents withheld the amount. The petitioner does not dispute that the benefit of escalation in the seigniorage fee and WCT was extended to it in a different form and at the same time, the benefit was claimed under clause 70.8. In case, the petitioner disputes the correctness of the memo, dated 28.03.2009 or it is of the view that it did not avail the double benefit, it can certainly institute proceedings vis-a-vis the same. Withholding of the amount under that count by the respondents cannot be said to be without any basis. The petitioner, which is a Central Government agency, ought not to have driven the respondents to such a prolonged and unnecessary litigation. Therefore, the writ petition is dismissed, with costs of Rs.5,000/-.
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2013 (6) TMI 260
Reassessment - sanction granted to reopen the assessments by the Additional Commissioner - held that:- Apex Court has clearly laid down in the case of TVL K.A.K. Anwar and Company (1997 (11) TMI 489 - SUPREME COURT OF INDIA) that the decision rendered by it in the case of Telangana Steel Industries (1994 (3) TMI 108 - SUPREME COURT OF INDIA) cannot be treated as a binding precedent for the simple reason that the said decision was delivered without taking into account the earlier binding precedent of larger bench in the case of Hajee Abdul Shakoor (1964 (5) TMI 40 - SUPREME COURT OF INDIA). In TVL K.A.K. Anwar and Company (1997 (11) TMI 489 - SUPREME COURT OF INDIA) the Apex Court has laid down clearly that 'raw hides and skins' and 'dressed hides and skins' both are different commodities.
It has also been laid down that merely because in an Entry the separate items are mentioned, they cannot be treated as one. Reliance was placed upon its earlier judgment in the case of State of Tamil Nadu Vs. Pyare Lal Malhrotra [1976 (1) TMI 151 - SUPREME COURT OF INDIA] that sales tax law is intended to tax sales of different commercial commodities and not to tax the production or the manufacture of particular substances out of which these commodities may have been made. As soon as separate commercial commodities emerge or come into existence, they become separately taxable goods or entities for purposes of sales tax.
With regard to the second point, the learned standing counsel submits that, as a matter of fact, the assessing authority while framing the assessment order failed to examine the relevant issue and preferred to follow the judgment of the Apex Court in the case of Telangana Steel Industries (1994 (3) TMI 108 - SUPREME COURT OF INDIA). The said approach of the assessing authority is clearly erroneous in view of two authoritative pronouncements of the Apex Court of the larger bench referred to above. - We are leaving this question open to be considered if so raised by the authority concerned in the reassessment proceedings. - Decided against the assessee.
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2013 (6) TMI 231
Tendu leaves versus minor forest produce - Levy of purchase tax @25% versus 4% (5%) - held that:- There is no taxable entry separately for minor forest produce. The exemption notifications provide for granting exemption to minor forest produce partly so as to reduce the rate of tax to 5%. This tax exemption is available to all the minor forest produce.
The issue asto whether exemption would be available to such goods, which are not exigible to tax came up for consideration before the Supreme Court in the matter of Reliance Trading Company v. State of Kerala [2006 (3) TMI 320 - SUPREME COURT OF INDIA], it was observed that “there could be nothing like exemption of goods from tax unless goods are exigible to tax.”
There is no dispute that minor forest produce as such, is not exigible to tax. Forest produce like Bamboo, Tendu leaves etc. are exigible to tax under different entries. Thus, the exemption is applicable to all the forest produce which are eixigible to tax. The exemption will certainly be applicable to only those minor forest produce, which are exigible to tax.
Since these petitions involve mixed question of facts and law, liberty is reserved to the respective petitioners to prefer an application before the Commissioner, VAT Act, if so advised, for exemption under the above stated notification. - Decided in favor of assessee.
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2013 (6) TMI 230
Inter state sale or local sale - The assessing authority inferred that the goods have been sold inside the State of U.P. He valued the goods and levied penalty to the extent of 40% of the value of the goods in both the cases. - held that:- the applicant failed to rebut the presumption under Section 28-B of the Act that the goods have not been sold inside the State of U.P. and have gone outside the State of U.P. Section 28-B of the Act is a machinery Section. It has been introduced in the Statute to check the evasion of the tax.
If the goods are coming from the outside of the State of U.P. and are intended to be transported outside the State of U.P., the person concerned has to obtain transit pass at entry check post and has to surrender the same at the exit check post so that it may be established that the goods are not being sold inside the State of U.P. and has gone outside the State of U.P.
In case of failure to surrender the transit pass at the exit check post, Section 28-B contemplates presumption of sale of goods inside the State of U.P. Undoubtedly, the presumption is a rebutable presumption which can be rebutted by adducing evidence. In the present cases, as stated above, the applicant failed to rebut the presumption. - Decided against the assessee.
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2013 (6) TMI 210
Writ petition - Challenging the notice issued by the department for filling objection claim – As per petitioner that the said reply/objections, and the invoices enclosed therein have not been looked into by the respondents, and therefore, the impugned notice is legally infirmed - Held that:- The course adopted by the petitioner is unwarranted at this stage as the remedy of filing Writ Petition is available to a person only when there is violation of fundamental rights, if principles of natural justice have not been followed and if any action/order/notice is ultra-vires the relevant Act/Rules. Hence, the Writ Petition challenging the notice is not maintainable.
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