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Showing 1 to 20 of 84 Records
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1977 (6) TMI 109 - KARNATAKA HIGH COURT
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... ... ..... as any mistake or error apparent on the face of the record. In fact, the Court was aware of all these pleas and because the principle of res judicata applied, all such pleas were taken to be decided against the petitioner. Similar was the fate in respect of the other plea regarding proper termination of tenancy. The said plea was either given up or decided against the petitioner in C. R. P. 633/1970. That was again not a mistake or error apparent on the face of the record. 6. In this view of the matter, I do not think, that any case is made out to hold that a grave and palpable error was committed by the Court or that miscarriage of justice was the consequence. The plenary jurisdiction referred to by the learned judge in K. Anantharam Setty v. T. Mariappa 1966 1 Mys LJ 649 (supra) need not be exercised. Similarly, a case for review under O. 47, R. 1, C. P. Code is also not made out. The petition is without any merit and the same is dismissed with costs. 7. Petition dismissed.
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1977 (6) TMI 108 - KERALA HIGH COURT
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... ... ..... the instalments that had accrued due from 10-6-1971 onwards. Under the scheme of the chitty the instalments were payable on the 10th of each month. Instalments Nos. 20 to 23 (inclusive) fell due on 10-6-1971, 10-7-1971, 10-8-1971 and 0-9-1971 respectively. Since the suit has been instituted only after the expiry of three years from the aforementioned dates the plaintiff is not entitled to recover the amounts payable in respect of the aforesaid instalments. He can get a decree only for the instalments beginning from the 24th instalment which fell due on 10-10-1971. Hence, in substitution of the decree passed by the court below the plaintiff is granted a decree only for recovery of a sum of Rs. 255/- with interest at 12% from 14-2-1974 till date of plaint and future interest at 6% per annum till date of realisation. 7. The civil revision petition is allowed to the extent indicated above and dismissed in other respects. The parties will bear their respective costs in this court.
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1977 (6) TMI 107 - CALCUTTA HIGH COURT
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... ... ..... nder Section 342 Cr. P.. Code (old) he gave his age as 62 years. It was in the year 1969. Moreover, the learned Magistrate also found in his judgment that the accused is old. However, about 8 years have already passed and he is now aged about 70 years. He has been sentenced to suffer rigorous imprisonment for three years besides a fine amounting of ₹ 2000/. We find that for a few days the accused had undergone rigorous imprisonment after the conviction. Considering his age and the lapse of so long a period, we reduce the sentence of rigorous imprisonment to the period already served, but the amount of fine shall remain intact, in default, to suffer rigorous imprisonment for one year as ordered by the learned Magistrate. 9. We thus dismiss the appeal on merit but reduce the sentence as already indicated. The accused is discharged from the bail bond. The order of destruction of the articles seized as directed by the Magistrate shall stand. M.K. Mukherjee, J. 10. I agree.
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1977 (6) TMI 106 - COLLECTOR OF CENTRAL EXCISE, NEW DELHI
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... ... ..... nded the remarks which have been made by the Inspector on the R.T. 12 for March, 1975 without indicating why he agrees with the Inspector’s remarks. The appellants are advised to agitate the matter before the jurisdictional Assistant Collector who should then pass a fresh speaking and appealable order, against which the appellants will be free to come in appeal before me if they still feel aggrieved by the same.
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1977 (6) TMI 105 - CALCUTTA HIGH COURT
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... ... ..... e the maximum trade discount in my opinion, shall be allowable abatement provided the authorities concerned are satisfied that in a particular case such maximum trade discount had, in fact, been allowed as trade discount as such. There is no dispute in the case on this scope. If this is the position then, in my opinion, the petitioner would be entitled to abatement on the basis of maximum trade discount in the instant case. In not examining the case from this point of view, in my opinion, the Central Government has committed an error of law and, therefore, this order cannot be sustained. 4. The impugned order is, therefore, set aside and the respondent authorities are directed to allow the abatement and rectify the demand in accordance with the above observations. The Rule is, therefore, made absolute to the extent indicated above. It is, however, made clear that this is only applicable up to the transactions before 1st October, 1976. There will be no order as to costs.
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1977 (6) TMI 104 - ANDHRA PRADESH HIGH COURT
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... ... ..... y of an appeal and revision under the Act, and since he has filed this Writ Petition without exhausting them, this Writ Petition is not maintainable. I do not agree. When the Ministry of Finance, Government of India, have given an opinion that ‘Agarbathis’ are not handicrafts and when the Collector of Central Excise, Hyderabad, has also expressed the same opinion, I do not see any point in saying that the petitioner has an alternative remedy. I do not understand what useful purpose would be served by driving the petitioner to file an appeal or a revision. That will be an appeal from caesar to caesar. On the facts of this case, I am of the opinion that the alternative remedy is rendered nugatory. 18. Consequently, I hold that ‘Agarbathis’ fall under the Item ‘handicrafts’ and, therefore, they are exempt from payment of Excise Duty. The Writ Petition is allowed, but in the circumstances of the case I direct each party to bear his costs.
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1977 (6) TMI 103 - GUJARAT HIGH COURT
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... ... ..... the Assistant Collector. It is directed that the excess amount of excise duty paid by then petitioner be refunded in this period of three months from today. In view of the aforesaid conclusion, it is not disputed on behalf of the respondents that the notice at Annexure ‘N’ is bad in law and will have to be quashed. The same is, therefore, quashed accordingly, and any amount paid pursuant to the said notice or under the interim orders of this court will be refunded to the Petitioner. As the notice Annexure ‘N’ is quashed the Respondents will be restrained by an order of injunction from enforcing the same. It is further directed that any excess amount of excise duty paid by the petitioner on the basis of the order of the Assistant Collector restored by the Central Government, though not involved in the appeals between the period 2-12-1974 and 2-7-1975 shall also be refunded to the Petitioner. Rule will be made absolute on the aforesaid terms with cost.
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1977 (6) TMI 102 - ANDHRA PRADESH HIGH COURT
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... ... ..... generally as a food in convalescence so as to provide nourishment for those who are in need of extra nourishment. It is same as other substances used and recommended for convalescence. The essence of chicken is evolved as an Item of food. It is not a medicine, because it is not used for curative purposes, nor is it so prescribed. It may be an Item of medicine in special cases. Under these circumstances, it is clear that the essence of chicken is an Item of food. It is a prepared and preserved food and therefore it would come within Item 1B. Since it is a broth, it would fall within Item 6 of schedule to the notification concerned and therefore, full excise duty is leviable and is liable to be paid on the essence of chicken. 8. Under these circumstances, the authorities, concerned were right in levying excise duty on the essence of chicken prepared by the first petitioner as lessee of the second petitioner. This writ petition therefore fails and is dismissed with costs.
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1977 (6) TMI 101 - ANDHRA PRADESH HIGH COURT
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... ... ..... to the Collector. Apart from that an appeal can be filed only against an order passed by an authority and not otherwise. When the Collector has not passed any orders and communicated them to the petitioners, I do not see how the petitioners could file an appeal against his order. Consequently, I reject this contention. 14. In the result, I allow these writ petitions and I direct the respondents not to collect duty on the centrifugals not in existence. in the factories of the petitioners in W.P. Nos. 725/76 and 834/76 from the week commencing from 14-2-1976, of the petitioners in W.P. Nos. 862/76 and 911/76 from the week commencing from 21-12-1975, of the petitioner in W.P. No. 910/76 from the week commencing from 13-1-1976, of the petitioner in W.P. No. 1061/76 from the week commencing from 1-2-76 and of the petitioner in W.P. 3439/76 from the week commencing from 22-1-1975. In the circumstances of the case, I direct each party to bear his costs in these writ petitions.
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1977 (6) TMI 100 - GOVERNMENT OF INDIA
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... ... ..... he cylinder is a component part of a water pump for which a special design and quality have been imparted. These are not necessary in the case of a pipe or tube, merely allowing free flow of a fluid. Hence, assessment under Item 26A(3) of the Central Excise Rules, 1944, is not in order. As the goods are made by casting, classification under Item 26A (ia) ibid is more appropriate. The appellate order is thus correct in law and based on the facts of the case. The review proceedings under Section 36(2) of the Central Excises and Salt Act, 1944 for review of order-in-appeal No. 1273-C.E./75, dated 10-12-1975 are hereby dropped.
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1977 (6) TMI 99 - SUPREME COURT
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... ... ..... lative Assembly should be prorogued or should be dissolved and it is op en to the President to take any of these twoactions and if he prefers one to the other, this matter is beyond judicial review. For these reasons, therefore, I am clearly of the opinion that Art. 356 does not contain any express or implied limitations on the nature or functions of the Governor which are to be exercised by the President under Art. 356(1) (a).. I generally agree with my Lord the Chief Justice on the other points lucidly discussed by him, except with regard to his observations regarding the theory of the basic structure of the Constitution on which I would refrain from expressing any opinion, because the question does not actually arise for decision in this Case. These are my reasons in-support of the unanimous order passed by this Court on April 29, 1977 dismissing the suits and writ petitions and rejecting the prayers for injunctions and interim reliefs. There will be no order as to costs.
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1977 (6) TMI 98 - ANDHRA PRADESH HIGH COURT
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... ... ..... der article 226 of the Constitution to issue any specific direction to the sales tax authorities because the required machinery for assessment would be competent and adequate to deal with these questions regarding the satisfaction of the requirements of section 5(3) of the Central Sales Tax Act, which are essentially questions of fact. In the light of what we have observed above, each of these writ petitions must fail and is dismissed. The challenge on the ground of constitutional validity cannot be upheld and as regards the directions which the petitioners seek from us as against the sales tax authorities, it is not open to us to give such directions on questions of fact which have to be determined separately in the case of each particular assessee. The result, therefore, is that each of these writ petitions fails and is dismissed. There will be no order as to costs in each of these writ petitions. Advocate s fee Rs. 150 in each of these writ petitions. Petitions dismissed.
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1977 (6) TMI 97 - ANDHRA PRADESH HIGH COURT
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... ... ..... In any event, the Board of Trustees cannot be said to be a dealer nor can any of these activities be said to amount to carrying on business in any sense of the term defined under section 2 of the Act. Under these circumstances, the contention urged on behalf of the Government that the Board of Trustees is a dealer and is carrying on business in one or the other of the particular commodities in respect of which sales tax is sought to be levied, is rejected. We, therefore, allow each of these writ petitions and hold that it is not open to the sales tax authorities to proceed against the Board of Trustees in respect of any of the transactions sought to be brought within the purview of the sales tax. The relief prayed for in each of these writ petitions is therefore granted. The respondent will pay the costs of the petitioner in each of these writ petitions. Rule nisi is made absolute accordingly in each of these writ petitions. Advocate s fee Rs. 150 in each. Petitions allowed.
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1977 (6) TMI 96 - MADRAS HIGH COURT
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... ... ..... ority if it has to leave the matter without considering the unjust consequences flowing from its own order. The erroneous assumption made by the Tribunal as regards the decision of the Supreme Court cannot preclude the assessee from taking all points which the assessee would have argued, had not this wrong assumption been made by the Tribunal. We are thus fully satisfied that the assessee is well within his rights in asking for an opportunity to show that the turnover was exempt under the G.O. We are not making any observation on the question as to whether the assessee is eligible for the exemption based on the G.O. This is a question which has to be considered by the Tribunal. The revision is accordingly allowed with reference to the canteen sales and the appeal is restored to the file of the Tribunal with a direction to dispose of the appeal afresh in accordance with law. The revision petition is allowed in part. There will be no order as to costs. Petition partly allowed.
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1977 (6) TMI 95 - MADRAS HIGH COURT
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... ... ..... der of the Sales Tax Appellate Tribunal. As regards the question as to whether the assessee is liable to be taxed on the scrap sales, the Tribunal itself has decided by applying the case in State of Tamil Nadu v. Burmah Shell Oil Storage and Distributing Co. of India Ltd. 1973 31 S.T.C. 426 (S.C.). that the transactions are liable to be taxed. It is only in order to find out the nature and the details of the turnover, the matter has been remanded to the Appellate Assistant Commissioner. He has also to find out as to how far the law laid down by the Supreme Court would be applicable to the facts of this case. If the Supreme Court decision does not apply, the matter will have to be decided in the light of other provisions of the Act. In these circumstances, we do not consider that there is anything wrong in the order which requires interference at our hands. The revision petition is accordingly dismissed with costs of Rs. 250 (rupees two hundred and fifty). Petition dismissed.
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1977 (6) TMI 94 - MADRAS HIGH COURT
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... ... ..... d have preceded the import. The Supreme Court, however, pointed out at page 488 of the Reports, after discussing the earlier decisions Accordingly we hold that the High Court was wrong in holding that before a sale could be said to have occasioned import it is necessary that the sale should have preceded the import. The above passage clearly establishes that the High Court had taken a different view with reference to similar transactions and that the Supreme Court reversed that view. Therefore, so long as the view of the High Court prevailed, the assessee could not have successfully appealed against the decision. In those circumstances, we do not consider that the present case stands on the same footing as that in the decisions of the Supreme Court in Bombay Ammonia case 1976 37 S.T.C. 517 (S.C.). We do not find any merit in the contentions taken at the instance of the State before us. This revision petition is dismissed with costs. Counsel s fee Rs. 250. Petition dismissed.
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1977 (6) TMI 93 - MADRAS HIGH COURT
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... ... ..... e final assessment was made, the assessee filed a supplementary return including the turnover disclosed in the pocket note-book. On the question whether penalty could be levied on the assessee under section 12(3) of the Act, it was held therein that the filing of the supplementary return would not be a ground for condoning the assessee s wilful default and that the assessing authority would be competent to levy a penalty on him. We do not think that this case has any relevance to the point at issue before us. This is not a case where the assessee after suppressing certain transactions and after detection filed a supplementary return and relied on it as a shield against the levy of penalty. We do not, therefore, think it necessary to go further into the decision. We consider that the Sales Tax Appellate Tribunal was right in deleting the penalty also. The tax revision petition is dismissed. The assessee will be entitled to its costs. Counsel s fee Rs. 250. Petition dismissed.
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1977 (6) TMI 92 - MADRAS HIGH COURT
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... ... ..... er of Rs. 28,846.47 (underlining ours). The significant use of the word suppression has been considered by this court in State of Tamil Nadu v. Sri Swamy and Company 1977 39 S.T.C. 85. and it has been held that the use of the word suppression as contrasted with the use of the word omission would go to show that the use of the word suppression involves a finding that there was a wilful non-disclosure. We, therefore, hold that the deletion of the penalty by the Tribunal on the footing that there was no finding of wilful non-disclosure is not correct. The Tribunal has not examined the question as to whether the levy of a penalty of Rs. 909 was called for in this case, with reference to the very first year of assessment. We, therefore, direct the Tribunal to go into the question of quantum of penalty and consider whether the levy of Rs. 909 was reasonable on the facts here. The tax revision case is accordingly allowed. No costs. Petition allowed and case remanded. Here italised.
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1977 (6) TMI 91 - MADRAS HIGH COURT
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... ... ..... before the assessing authority and it wanted the whole claim to be examined. Neither the order of the Tribunal nor that of the Appellate Assistant Commissioner would have resulted in a merely futile examination of the claim, if the claim had not been considered to be entertainable. In other words, the Tribunal passed the order only on the basis that the assessee would be entitled to agitate the claim for a larger amount and it is only on that basis directed on the facts, the claim for the examination thereof not only on its own, but also by consent. It is for this purpose that the matter was restored to the file of the Appellate Assistant Commissioner. We, therefore, consider that the Board had no jurisdiction to exercise its powers of revision virtually against the order of the Sales Tax Appellate Tribunal and we, therefore, set aside the order of the Board. The appeal is accordingly allowed. The assessee will be entitled to his costs. Counsel s fee Rs. 250. Appeal allowed.
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1977 (6) TMI 90 - CALCUTTA HIGH COURT
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... ... ..... e claim of respondent No. 1 for refund cannot be thrown out on the ground of unreasonable delay or on the ground that it should have made an application for refund within the period fixed under section 12 of the Bengal Finance (Sales Tax) Act, 1941, as contended on behalf of the appellants. The decision of the Supreme Court in Swadeshi Cotton Mills Co. Ltd. v. Government of U.P. 1973 32 S.T.C. 627 (S.C.). does not also help the appellants, as the facts of that case are different from those of the instant case before us. After having considered the facts and circumstances of the case and the legal principles as laid down by the Supreme Court in the cases mentioned above, we hold that the learned Judge was justified in quashing the orders of assessment and directing refund of the amount of sales tax paid by respondent No. 1 by mistake to the appellants. The appeal, therefore, fails and it is dismissed, but there will be no order for costs. SHARMA, J.-I agree. Appeal dismissed.
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