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Showing 241 to 260 of 984 Records
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2009 (7) TMI 1160
Whether, on the facts and in the circumstances of the case, the Maharashtra Sales Tax Tribunal was justified in holding that the activity of manufacture and supply of "flange assembly" to Telco carried out by M/s. Auto Comp Corporation is not a transaction of "sale" as contemplated under section 2(28) of the Bombay Sales Tax Act, 1959?
Whether, on the facts and in the circumstances of the case, the Maharashtra Sales Tax Tribunal was justified in holding that the activity of manufacture and supply of "flange assembly" is a sale under section 2(l) of the Maharashtra Sales Tax on the Transfer of Property in Goods involved in the Execution of Works Contracts (Re-enacted) Act, 1989?
Held that:- Since the property in the goods (material used for production of innerflange) by the respondent in the execution of the contract of converting the steel plates into an assembly-flange is transferred to Telco, it would undoubtedly amount to a sale as held by the Tribunal.
We see no error in the view taken by the Tribunal. The question as framed would not arise. Consequently, we decline the application.
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2009 (7) TMI 1159
Whether a particular transaction is an inter-State sale or a works contract?
Held that:- The assessing officer had no evidence before him to come to a conclusion that the labels printed by the first respondent are marketable, though not actually marketed. There was also no evidence on record to show that the printing of labels is not incidental, but primary. Without any evidence, the assessing officer went on presumptions and hence the Tribunal and the learned single judge, were right in overturning the orders of the assessing officer and the Appellate Assistant Commissioner to conclude that the printed materials supplied by the assessee to their customers constituted a works contract and not outright inter-State sales.
No reason to interfere with the order of the learned judge and hence this writ appeal is dismissed
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2009 (7) TMI 1158
Whether the limitation of 12 months will apply in a case where review proceeding is initiated on the basis of sanction accorded by the Commissioner under the said Rules?
Held that:- The orders passed by the Commissioner for reviewing the assessment orders for the financial years 2002-03 and 2003-04 are barred by limitation and also mala fide and without jurisdiction. Hence, the impugned order of sanction and the notice issued for review of the assessment orders for the financial years 2002-03 and 2003-04 are quashed.
So far the assessment order for the financial year 2004-05 is concerned, it appears that sanction was accorded by the Commissioner within three years from the date of assessment order and consequently review notice was issued to the assessee, find no reason to interfere with the notices issued for review of the assessment order for the financial year 2004-05 which shall stand. Appeal allowed in part.
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2009 (7) TMI 1157
Whether the respondent-authorities have unfettered right to withhold the amount payable to the petitioner by way of refund under the provisions of section 40(2) of the Andhra Pradesh Value Added Tax Act, 2005?
Held that:- In the event of the State succeeding in the aforestated TRC, the petitioner will have to make payment of tax along with interest thereon and, therefore, in that event, the State is not to suffer at all, whereas, at present, when the petitioner has already succeeded before the STAT and if the amount payable to the petitioner is withheld, the petitioner would be adversely affected.
The amount of refund has been wrongly withheld and, therefore, the said amount along with interest thereon shall be paid to the petitioner within four weeks from the date of receipt of this order in accordance with law. If the amount is not paid within four weeks, the amount payable to the petitioner would go on mounting, and in that event, the amount of interest which might have to be paid after four weeks, should be recovered from the officer responsible for causing delay so that the State exchequer may not suffer further
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2009 (7) TMI 1156
Amendment to the definition of "manufacture" in section 2(17) of the Bombay Sales Tax Act, 1959 made by the Maharashtra Act No. 9 of 1997, be struck down to the extent of its retrospectivity with effect from July 1, 1981 seeked
Held that:- In order to protect the Revenue and the tax collected which had already been spent on welfare activities of the State, the Legislature amended the definition of "manufacture" by amending section 2(17) of the Sales Tax Act. The Legislature did not overrule or reverse the decision of the court by amending section 2(17) of the Sales Tax Act. The Legislature only removed the flaw in the definition of "manufacture", on account of which lacquering of polyester films was held to be "not manufacture" by this court.
It is settled principle of law that the Legislature cannot reverse or overrule a decision given by a court, but can amend the law so as to remove a flaw or lacuna in an Act which leads to a particular interpretation at the hands of the court. It is possible for the Legislature to alter the premise or the basis on which a decision is based and this is not impermissible under the Constitution. It is also a settled principle of law that such amendment can be made with retrospective effect unless it is specifically prohibited by a provision of the Constitution (like article 20 of the Constitution which prohibits a criminal law to be retrospective) or where the Legislature lacks the legislative competence. Appeal dismissed.
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2009 (7) TMI 1155
Non-furnishing of proof of prior deposit of 25 per cent of the amount - Held that:- The argument of the counsel for the assessee-respondent is meritorious. It may be true that the first appellate authority like the Deputy Excise and Taxation Commissioner was not competent to entertain the appeal without compliance with mandatory provisions of section 20(5) of the Act yet, it is equally true that the order dated June 6, 2008 granting extended period of limitation was set aside by the Tribunal on November 20, 2008 (A6). In the facts and circumstances of this case, no useful purpose would be served by requiring the assesseerespondent to first deposit 25 per cent of the additional demand raised and then get the appeal decided before the Deputy Excise and Taxation Commissioner. It would only be thereafter that the assessee-respondent would be able to file appeal. We do not feel impressed by such a logic. The appeal is wholly without substance and the same is accordingly dismissed.
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2009 (7) TMI 1154
Whether the State Government can claim priority over another person, whose debt is also a secured debt?
Held that:- Security agreement is already existing between the bank and borrower, as defined under section 2(zb) which means an agreement, instrument or any other document or arrangement under which security interest is created in favour of the secured creditor including the creation of mortgage by deposit of title deeds with the secured creditor. If the status of the State is looked into, it will be evident that it can claim priority of debt over others in regard to the arrears of tax due to the State.
This apart, the assets being secured assets with the Bank, having its secured interest over the property, the Bank being a secured creditor and its debt being a secured debt, we hold that the principle of first charge/ priority of State over the property will not be applicable in the present case.
We, accordingly, set aside the impugned judgment dated september 17, 2008 Reported as Indian Bank v. Commercial Tax Officer [2008 (9) TMI 882 - MADRAS HIGH COURT] passed by the learned single Judge made in W.P. No. 18975 of 2007 and also the gazette Notification No. 01 dated January 5, 2007 and consequential order bearing No. NK.A3.2310/2002 dated March 16, 2007 so far as it relates to the land which was the secured assets of the bank and which has already been sold. W.P. allowed.
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2009 (7) TMI 1153
Whether, on the facts and circumstances of the case, the initiation of proceedings under section 21 of the U.P. Trade Tax Act, 1948 was justified?
Held that:- The very first ingredient of the provisions of section 21 was not attracted in this case. Secondly, during the course of the first appeal, the assessee filed an affidavit, categorically stating that he had not utilized the allotment order for import and he had closed his business. This affidavit was not controverted or doubted by the Department at any stage. Also once the assessee had discharged the burden placed on him to show that he had not utilized the import allotment or the burden shifted on the Department to produce any such evidence that it may have, after due investigation, especially in view of the fact that the Department had also within its knowledge that there was an import allotment order. The record does not reflect that the Department made any effort to investigate the said matter but simply initiated the proceedings on the basis of the information received.
Thus the proceedings initiated under section 21 of the Act were wholly illegal and are liable to be set aside by this court.The revision is allowed.
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2009 (7) TMI 1152
Levy of sales tax on fabrics imported into India on which the additional duty of excise in lieu of sales tax has already been paid under the Act of 1957 challenged
Held that:- Sales tax could be imposed by the Legislature on fabrics pursuant to entry 54 of List II of the State List. The object of legislation is to generate revenue in the form of sales tax. The State has chosen to exempt payment of sales tax from what we may describe to domestic manufacturers or producers to the exclusion of foreign manufacturers or producers. The reason is found in the Finance Minister's Speech. It is true that the effect is both on the consumer and the manufacturer. The test however is a nexus with the object of the Act. The State has chosen to forego sales tax dues from manufacturers or producers in India. It is open to the State to pick and choose amongst persons as long as it is reasonable. In our opinion, the classification being reasonable and the petitioners who are left out of class which is based on the reasonable nexus with the object has been unable to discharge the burden that the classification is unreasonable and or has no nexus with the object sought to be achieved. It is not possible to hold that the notification to the extent that it denies the benefit to the petitioners is arbitrary and discriminatory. Appeal dismissed.
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2009 (7) TMI 1151
Whether an arbitration clause contained in a main contract, would stand incorporated by reference, in a sub-contract, where the sub-contract provided that it “shall be carried out on the terms and conditions as applicable to the main contract?
Held that:- As there is no arbitration agreement between the parties, it is unnecessary to examine the contention of the respondent that no dispute existed between the parties in view of the full and final settlement receipt executed by the appellant. There is no error in the order of the High Court rejecting the application of the appellant on the ground that there is no arbitration agreement. Appeal dismissed.
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2009 (7) TMI 1150
Whether on the facts and in the circumstances of the case, the ITAT was right in law in holding that the assessee is entitled to claim deduction u/s 80P(2)(a)(i) of IT Act, in respect of proportionate interest income derived on investments in Government securities in excess of SLR requirement out of reserve fund?
Whether on the facts and in the circumstances of the case, the proportionate interest income derived by the assessee from the investment in SLR securities out of reserve Fund, is attributable to business of banking and the assessee is eligible to claim deduction u/s 80P(2)(a)(i) of the Act?
Held that:- In the present case, the investments have been made by the Bank in government securities, fixed deposits, etc. and the income is utilized for business. There is nothing on record to show that this case of the assessee is not acceptable in view of the law clearly stated by the Bench of this Court in C. I. T. v. Ratnagiri District Central Co-operative Bank Ltd.[2001 (9) TMI 60 - BOMBAY High Court] for which we have no reasons to disagree. We dismiss the appeal while answering the questions in favour of the assessee.
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2009 (7) TMI 1149
Remission of liability - income u/s 41(1) - Apex Court dismissed the appeal against the decision of HC [2008 (9) TMI 31 - HIGH COURT DELHI] whereas the HC has held that, remission of the principal amount of loan didn’t amount to income - remission would become income u/s 41(1) only if assessee has claimed deduction in respect of expenditure or trading liability - Decided against the revenue.
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2009 (7) TMI 1147
Issues:
1. Whether pulpwood should be treated as timber under the Sixth schedule to the Tamil Nadu General Sales Tax Act, 1959.
2. Interpretation of Section 3(3) of the Act regarding the benefit of Form XVII declaration.
3. Liability for violation of conditions of Form XVII declaration.
Analysis:
1. The primary issue in this case was whether pulpwood should be considered as timber under the Sixth schedule to the Tamil Nadu General Sales Tax Act, 1959. The Revenue challenged the order of the Sales Tax Appellate Tribunal, arguing that the Tribunal erred in not treating pulpwood as timber. The Appellate Assistant Commissioner and the Tribunal held that the selling agent can sell any goods, including consumables, packing materials, and labels, excluding plant and machinery, under Form XVII declaration. The Court, after examining Section 3(3) of the Act along with the second proviso, agreed with the lower authorities' interpretation. The Court concluded that the Appellate Assistant Commissioner and the Tribunal were justified in their decision, and pulpwood should not be treated as timber falling under the Sixth schedule.
2. The second issue revolved around the interpretation of Section 3(3) of the Act concerning the benefit of Form XVII declaration. The Appellate Assistant Commissioner emphasized that the selling dealers' right to the benefit of Form XVII is not restricted to goods mentioned in the First Schedule. The Tribunal also supported this view based on a previous court decision. The Court, after analyzing the provisions of Section 3(3) along with the second proviso, clarified that any violation by the purchasing dealer regarding the use of purchased goods for manufacturing goods not specified in the First Schedule would lead to tax liability only for the purchasing dealer, not the selling dealer.
3. The final issue addressed the liability for the violation of conditions of Form XVII declaration. The Court referred to a previous decision where it was established that tax and penalty for contravention of Form XVII conditions could only be imposed against the purchasing dealer, not the seller, as per Section 3(3) of the Act. The Court reiterated that the selling dealer cannot be held liable for violations committed by the purchasing dealer. Consequently, the Court dismissed the revision, emphasizing that the tax liability for violations of Form XVII conditions rests solely with the purchasing dealer, not the selling dealer.
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2009 (7) TMI 1146
Issues Involved:
The issue in this case revolves around the Tribunal's decision to affirm the conclusions of the first appellate authority without conducting an independent assessment of the merits, specifically regarding the deletion of actual addition of Rs.5,54,125 and equal addition of Rs.5,54,125 in the sales turnover.
Assessment of First Sales Turnover:
The Assessing Authority considered deficit stock of yarn and sales suppression of yarn while assessing the first sales turnover. The deficit stock of yarn was valued at Rs.54,885 and the sales suppression of yarn was estimated at Rs.5,54,125. An equal addition was made based on probable omission, resulting in a taxable turnover of Rs.15,00,214.
Appellate Assistant Commissioner's Findings:
The Appellate Assistant Commissioner noted that the respondent admitted the deficit stock variation of polyester yarn during inspection. It was observed that the yarn account and converted cloth account matched for the entire financial year 1995-96. Consequently, the Appellate Assistant Commissioner decided to delete the equal addition but confirmed the addition of actual deficit stock. Regarding the sales suppression of yarn, it was found that all necessary entries were made in the stock register, purchase register, and conversion account. The Appellate Assistant Commissioner concluded that there was no suppression of yarn purchase beyond what was recorded in the stock register. The Tribunal upheld these findings based on the evidence presented.
Conclusion:
The High Court found no substantial question of law to entertain the revision petition. The decision of the Tribunal to affirm the Appellate Assistant Commissioner's findings was deemed appropriate, as no new factors were presented to challenge the conclusions reached based on acceptable material evidence. Consequently, the revision petition was dismissed with no costs.
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2009 (7) TMI 1145
Whether the High Court, in a case such as this where termination of appellant was in contravention of Section 25F, was justified in upsetting the award of the Labour Court whereby the first respondent was directed to reinstate the appellant with continuity of service and full back wages?
Held that:- The view of the High Court that the Labour Court erred in granting reinstatement and back wages in the facts and circumstances of the present case cannot be said to suffer from any legal flaw. However, in our view, the High Court erred in not awarding compensation to the appellant while upsetting the award of reinstatement and back wages. As a matter of fact, in all the judgments of this Court referred to and relied upon by the High Court while upsetting the award of reinstatement and back wages, this Court has awarded compensation.
In a case such as this where the total length of service rendered by the appellant was short and intermittent from September 1, 1995 to July 18, 1996 and that he was engaged as a daily wager, in our considered view, a compensation of Rs. 50,000/- to the Appellant by Respondent No. 1 shall meet the ends of justice. Appeal pertly allowed.
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2009 (7) TMI 1144
Whether compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “NDPS Act”) is mandatory and failure to take down the information in writing and forthwith send a report to his immediate official superior would cause prejudice to the accused?
Held that:- The compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. Let the appeals be now placed for disposal before the appropriate Bench.
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2009 (7) TMI 1143
Whether or not the cheque was issued by the appellant is pre-mature as the same would be determined only after the evidence has been led by the parties/
Whether or not in the light of the afore-mentioned factual position, as projected in the complaint itself, it was a fit case where the High Court should have exercised its jurisdiction under Section 482 of the Code?
Held that:- Appeal allowed. There is little doubt that the very first ingredient of Section 138 of the Act, enumerated above, is not satisfied and consequently the case against the appellant for having committed an offence under Section 138 of the Act cannot be proved. Bearing in mind the legal position it was a fit case where the High Court, in exercise of its jurisdiction under Section 482 of the Code, should have quashed the complaint under Section 138 of the Act.
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2009 (7) TMI 1142
Whether the principles of natural justice have been violated?
Whether the dismissal is vitiated by the same and is thus bad and unjustified?
Whether the tribunal was justified in reversing its own decision subsequently when there had been no further evidence adduced?
Whether the High Court was right in their appreciation of evidence and exercising power in the matter of interfering with the order of dismissal?
Held that:- Appeal allowed. The impugned judgment and order of the Division Bench of the High Court as well as of the learned Single Judge are liable to be set aside and the order of dismissal passed against the respondent herein must be restored. The learned Single Judge also misused the power vested in him by remanding back the matter to the industrial tribunal for reconsideration when the charges were found to be proved. The tribunal also erred in reversing its own decision on the same evidence for which we fail to see as to how the same forum can appreciate the same evidence differently. The argument that the work assigned to the respondent was not a part of his job even, if accepted does not entitle him to abuse his superiors and create an unhealthy atmosphere where the remaining might just take a clue from the unruly behaviour and subsequently use it to the detriment of the company. Further the letter by which he accepted all the charges sets up a strong proof against the respondent beyond which nothing remains to be analyzed.
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2009 (7) TMI 1141
Issues Involved:
1. Applicability of the principle of unjust enrichment.
2. Legitimacy of the refund claim based on CESTAT's order.
3. Procedural fairness and adherence to principles of natural justice.
4. Consideration of evidence and prior case laws.
Detailed Analysis:
1. Applicability of the Principle of Unjust Enrichment:
The primary issue in this case revolves around whether the refund claim is hit by the principle of unjust enrichment. The Assistant Commissioner rejected the refund claim citing the Apex Court decision in Sahakari Khand Udyog Mandal Ltd. v. CCE, which mandates that the principle of unjust enrichment must be considered in all refund cases. However, the appellant argued that since the goods were exported, the principle of unjust enrichment does not apply as per Section 11B. The appellate authority agreed with the appellant, stating that the principle of unjust enrichment is of universal application but must be examined in the context of each case's facts. Here, since the goods were exported, the principle does not apply.
2. Legitimacy of the Refund Claim Based on CESTAT's Order:
The appellant's refund claim was based on a favorable order from the CESTAT, which set aside the Commissioner's order alleging clandestine removal of goods. The CESTAT found no evidence supporting the charge of clandestine removal and held that the goods were manufactured and exported by the EOU unit. The appellate authority noted that the refund arose because the appellant was made to deposit the amount during the investigation, and since the goods were exported, the refund should not be hit by unjust enrichment.
3. Procedural Fairness and Adherence to Principles of Natural Justice:
The appellant contended that the Assistant Commissioner was predetermined to reject the refund claim, evidenced by the unusually short seven-day period given to respond to the Show Cause Notice (SCN), contrary to the standard 30 days. The appellate authority found this to be against the principles of natural justice, reinforcing the appellant's argument that the proceedings were not conducted fairly.
4. Consideration of Evidence and Prior Case Laws:
The appellant presented several case laws to support their claim that the principle of unjust enrichment does not apply when goods are exported. These included decisions from Mahavir Aluminium Ltd., Gujarat State Fertilizers & Chemicals Ltd., Pricol Ltd., Mitesh Brothers, and Andor Powertron Ltd. The appellate authority reviewed these precedents and found them supportive of the appellant's position. Additionally, the Range Officer's report confirmed that the appellant had debited the duty amount to their own expenditure account, not to any customer's account, further negating the applicability of unjust enrichment.
Conclusion:
The appellate authority allowed the appeal, setting aside the Assistant Commissioner's order and granting the refund with consequential relief. The decision was based on the findings that the principle of unjust enrichment was not applicable since the goods were exported, the procedural fairness was compromised, and the evidence and case laws supported the appellant's claim.
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2009 (7) TMI 1140
Issues involved: Determination of penalty u/s Rule 25 of the Central Excise Rules, 2002 for short payment of duty and education cess due to non-inclusion of value of exempted products in aggregate value of clearances.
Summary:
Issue 1: Short payment of duty and education cess
The appellants, engaged in manufacturing excisable goods, availed benefit under an exemption Notification. A Show Cause Notice was issued for short payment of duty and education cess due to non-inclusion of value of exempted products in the aggregate value of clearances. The Adjudicating Authority confirmed the demand and imposed a penalty under Rule 25 of the Central Excise Rules, 2002. The appellant appealed, and the Commissioner (Appeals) upheld the penalty but reduced it due to prior discharge of duty liability and interest. The appellant challenged the penalty before the Tribunal.
Issue 2: Imposition of penalty
The appellant contended that the non-inclusion of exempted products' value was a bona fide error without intent to evade duty payment. The Range Superintendent's intervention led to the discharge of duty liability and interest. The appellant sought setting aside of the penalty. The SDR supported the penalty imposition, citing the violation of provisions by the appellant.
Judgment:
After considering submissions and records, the Tribunal deliberated on whether the appellant should be penalized u/s Rule 25 of the Central Excise Rules, 2002. The Tribunal noted the appellant's status as a Small Scale Industry and the genuine error in excluding exempted goods' value from clearances. Referring to a relevant case precedent, the Tribunal found in favor of the appellant. The Tribunal set aside the penalty upheld by the Commissioner (Appeals) and allowed the appeal.
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