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1985 (1) TMI 346 - ALLAHABAD HIGH COURT
... ... ... ... ..... it may be pointed out that on 16-11-1984, apparently notwithstanding this affidavit which was not filed on that date, a statement was made by the counsel for the applicant that the London address of the assessee could not be ascertained so far. He prayed for and was granted six weeks further time to serve the assessee after finding out his address and file an affidavit of service. In place of doing so, the affidavit mentioned above, sworn on 29-10-1984, has been filed today. Since this Court, by an order dated 12-7-1984, has already taken the view on the basis of a similar affidavit that service of notice was not sufficient, we find no good ground on the basis of the present affidavit to hold to the contrary. Since the assessee has gone to London and there is no possibility of his coming back in the near future, the said affixation can hardly be taken to be sufficient service of notice of this application. In these circumstances, this application for restoration is dismissed.
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1985 (1) TMI 345 - ALLAHABAD HIGH COURT
... ... ... ... ..... arned counsel has contended that the Tribunal has accepted the burning period and according to the finding of the Tribunal itself the annual turnover would be 13,50,000 bricks and not 15,00,000 bricks, which has been fixed by the Tribunal. The said contention of the counsel appears to be correct inasmuch as the Tribunal itself has recorded a finding that at the rate of 1,00,000 bricks to be produced in six days the production would be 13,50,000 bricks. Once the Tribunal recorded that finding it was not justified in fixing the turnover at 15,00,000. 4. In the result the revision succeeds and is allowed to the extent indicated above. The order of the Tribunal is set aside to that extent and it is directed to fix the annual turnover of the assessee afresh after deducting 1,50,000 bricks from 15,00,000 bricks. However, the parties shall bear their own costs. 5. Let a copy of this order be sent to the Tribunal concerned as required under Section 11 (8) of the U. P. Sales Tax Act.
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1985 (1) TMI 344 - MADRAS HIGH COURT
... ... ... ... ..... fore, they are not liable to be proceeded against. Reliance is placed on a ruling of the Supreme Court reported in Municipal Corporation of Delhi v. Purushotam Dass 1983CriLJ172 ; which says that so far as the Directors are concerned, there must the some plea or reference to any act committed by the directors from which a reasonable inference can be drawn that they could also be vicariously liable. 3. In the case on hand, there are not even allegations regarding the part played by these petitioners in the business except that they are mere directors. None of them is Managing Director and the Managing Director, if any, has not been impleaded as an accused. In these circumstances, the prosecution against the petitioners who are mere Directors is not sustainable. Consequently, the proceedings against the petitioners herein namely accused 2 to 4, are quashed without prejudice to the prosecution case so far as accused 1 and 5 are concerned. The petition is allowed in these terms.
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1985 (1) TMI 343 - GUJARAT HIGH COURT
... ... ... ... ..... d not satisfy the requirement of S. 25FFA. Closure, specifically keeping employees in service, would negative the very concept of termination of service. Even the closure in regard to one of the Mills, viz. No. 6, would not operate to terminate their services, for S. 25FFF requires notice and compensation as if in a retrenchment. 11. For the reasons stated above, the 129 persons whose cases are sponsored by the Textile Labour Association are to be found to have been members of the fund on the date of their death which would mean that they are entitled to the insurance benefit claimed. 12. The petition succeeds. Rule is made absolute. The respondent is directed to pay the insurance benefits within two months from to-day. There is no reason why they should not get interest on their own money. The amount of insurance should be paid with interest at 12 per annum for the period after three months of the date of death in the respective cases. We direct the parties to suffer costs.
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1985 (1) TMI 342 - PUNJAB AND HARYANA HIGH COURT
... ... ... ... ..... pear before the Superintending Engineer Bhakra Dam Circle, Nangal, on 20th Feb., 1985 when the contractor will file copy of claim Exhibit. All before the said officer and the Board would be given six weeks date to file its counter-claim. On the filing of the counter-claim it will be deemed that the Arbitrator has entered into reference and he would decide the matter between the parties within four months thereafter, i.e. within 4 months of filing of the counter-claim by the Board. If parties agree to extend the time of 4 months before the Arbitrator he may take the matter beyond 4 months and in case the parties do not agree for the extension of time and the Arbitrator does not decide the matter within 4 months in accordance with law, the Superintending Engineer of the Circle shall stand removed as arbitrator and the parties would be at liberty to move the Court for appointment of a new Arbitrator in accordance with law. There will be no order as to costs. 11. Appeal allowed.
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1985 (1) TMI 341 - SUPREME COURT
... ... ... ... ..... , acting on the maxim vigilanti-bus non dormientibus subveniunt leges, will decline to interfere. The doctrine of laches is of great importance where persons have agreed to become partners, and one of them has unfairly left the other to do all the work, and then, there being a profit, comes forward and claims a share of it. In such cases as these, the plaintiff's conduct lays him open to the remark that nothing would have been heard of him had the joint adventure ended in loss instead of gain; and a court will not aid those who can be shown to have remained quiet in the hope of being able to evade responsibility in case of loss, but of being able to claim a share of gain in case of ultimate success. We entirely agree with the principle enunciated. The High Court was wrong in not applying the principle to the facts of the present case. The judgment of the High Court is set aside and that of the learned District Judge restored. The appeal is allowed with costs through out.
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1985 (1) TMI 340 - ITAT DELHI
... ... ... ... ..... here is no material on record to suggest that any definite portion of a property has been specifically allotted to any coparcener. In our opinion, the latter valuer, relied on by the assessee, is not enough for holding that a physical division of the property is not possible and the property could have been divided in the manner intimated in the aforesaid judgment but it had not been divided." The above finding of fact given by the Tribunal has been upheld by the Hon’ble Madhya Pradesh High Court in the decision in Parshotam Lal Sood & Bros.’ case (supra). According to us, there had been no proper partial partition either in the eyes of the Income-tax law or in the eyes of Hindu law as per the above finding of the Tribunal and, therefore, we do not see any justification for excluding the value of the property in question from the hands of the assessee-HUF. 8. This para is not reproduced here as it involves minor issue. 9. The appeals are allowed in part.
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1985 (1) TMI 339 - SUPREME COURT
... ... ... ... ..... rder thereon which it may pass under that provision on or before July 31,1985. We issue a direction accordingly. If the State Government approves the scheme with or without any modification, such approved scheme shall be published under section 68D (3) of the Act on or before August 31,1985. If the State Government fails to dispose of the matter according within the time specified above, the scheme published under section 68C of the Act shall stand quashed with effect from August 31, 1985. The order of the Tribunal and the order of the High Court to the extent they cancel the temporary permits issued in favour of the appellants are set aside. The appellants are permitted to operate their services under the temporary permits issued to them under section 68F (1C) of the Act oh January 10, 1980 and the operation of the said temporary permits shall come to an end in accordance with law. The appeals are accordingly disposed of There shall be no order as to costs. Appeals allowed.
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1985 (1) TMI 338 - SUPREME COURT
... ... ... ... ..... lication for bail was moved on his behalf on the 18th before the High Court and it was only thereafter that the order of detention was made. These facts have not been denied in the counter-affidavit filed by the respondents. In fact we are unable to find anything in the records produced before us, either in the police dossier submitted to the District Magistrate for action or in any other document forming part of the record that the District Magistrate was aware that the petitioner was already in custody. There is nothing to indicate that the District Magistrate applied his mind to the question whether an order of detention under the Jammu & Kashmir Safety Act was necessary despite the fact that the petitioner was already in custody in connection with the criminal case. The cases of the other six petitioners are identical and in the circumstances, we have no option, but to direct their release forthwith, unless they are wanted in connection with some other case or cases.
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1985 (1) TMI 337 - SUPREME COURT
... ... ... ... ..... ve character and is to be distinguished from an ordinary rule making power. The power to legislate is of a plenary nature within the field demarcated by the Constitution and it includes the power to legislate retrospectively. Therefore, the amendment made to the Fundamental Rules in the exercise of power conferred by Article 309, by which the proviso to rule 2 was deleted retrospectively, was a valid exercise of legislative power. The rules and amendments made under the proviso to Article 309 can be altered or repealed by the Legislature but until that is done, the exercise of the power cannot be challenged as lacking in authority. (See B.S. Vaderu v. Union of India;( 1968 3 S C.R. 575, 582 585.) Raj Kumar v. Union of India( 1975 3 S.C.R. 963, 965.). These then are the main points in controversy on which counsel made their contentions. For reasons aforesaid, we reject those contentions and dismiss these Writ Petitions. There will be no order as to costs. Petitions dismissed.
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1985 (1) TMI 336 - CEGAT BOMBAY
... ... ... ... ..... was also made under Section 27(1). It may be stated here that Section 27(1) does not lay down the circumstances under which refund is permissible or the grounds on which refund could be sought, but it only prescribes the procedure for claiming refund and also provides the period within which refund should be sought. When an appellant makes an application for refund of duty already paid, that application shall have to be treated as an application under Section 27(1) even though the basis for claim is Section 23(1). Therefore, such an application should have been filed within the period prescribed in that Section. Admittedly, the appellant’s claim was beyond the period of limitation prescribed under Section 27(1). In the circumstances, the authorities below were justified in rejecting the appellant’s claim as barred by time. 17. As the order passed by the authorities below is legally correct, there is no scope to interfere and accordingly I reject this appeal.
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1985 (1) TMI 335 - CEGAT MADRAS
... ... ... ... ..... 6 above (and referred to as carbon paste in these proceedings), is not raw material used in the manufacture of ferro alloys. 11. The bricks are used to line the furnace and ladles. Their principal function is withstanding of heat of very high order that is needed and produced in the course of preparation of ferro alloys. As rightly pointed out by the SDR, their being used up in two to three days could be due to their being in contact with highly abrasive materials at high temperatures. In the write-up furnished during the course of hearing, it is clearly set out that in choosing a particular type of brick out of four varieties, caution is taken to safeguard against combination of the end-product. This would imply that whatever is contained in the brick is not intended to form part of the finished product. Hence in this case also we do. not consider that bricks form a raw material in the manufacture of ferro alloys or ferro silicon. In the result the appeal is dismissed.
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1985 (1) TMI 334 - SUPREME COURT
Termination of service - Held that:- We have considered the matter carefully and find no sufficient reason to differ from the finding of the High Court that the allegation of mala fides is not established. We think it desirable to observe that where a finding of fact has been rendered by a learned Single Judge of the High Court as a Court of first instance and thereafter affirmed in appeal by an Appellate Bench of the High Court, this Court should be reluctant to interfere with the finding unless there is very strong reason to do so. It appears from the record that the appellant’s services were terminated because on an overall appreciation of his record of service he was found unsuitable for being absorbed in the service.
We are of opinion that when the order of appointment recited that the petitioner would be on probation for a period of two years, it conformed to Rule 5 of the Recruitment Rules which prescribes such period of probation. The period of two years does not represent the maximum period of probation. The power to extend the period of probation must not be confused with the manner in which the extension may be effected. The one relates to power, the other to mere procedure. Merely because procedural rules have not been framed does not imply a negation of the power. In the absence of such rules, it is sufficient that the power is exercised fairly and reasonably, having regard to the context in which the power has been granted. Appeal dismissed.
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1985 (1) TMI 333 - CEGAT BOMBAY
... ... ... ... ..... he original licence is produced he would not even subscribe that there was no such value restriction in the licence issued to the appellants. The order of the Appellate Collector prima facie appears bad because he has to interpret the licence as it stood and he cannot place any restriction as to the value if the licence did not place any such restriction. But then as has been rightly pointed out by Shri Gidwani, no reliance can be placed on the photostat copies produced by the appellants. In the circumstances, the only course left to me is to set aside the order of the Appellate Collector and to remand the matter to the Collector (Appeals) for consideration afresh in the light of the observations contained in this order. The appellants shall produce the original licence and the list or lists attached to the licence before the Collector (Appeals) within a period of two months from this date. Thereafter the Collector (Appeals) will dispose of the appeal in accordance with law.
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1985 (1) TMI 332 - CEGAT NEW DELHI
... ... ... ... ..... ade a pre-condition for charge of duty. 9. Accordingly, we allow the appeal and consequential relief to the appellants. 10. Order per S.D. Jha, Member (J) . - Under sub-item (2) of Item 29A of the CET, air-conditioners and other air-conditioning appliances which are ordinarily sold or offered for sale as ready-assembled units are liable to Central Excise duty. It is no body’s case that the subject goods were ordinarily sold or are offered for sale as ready-assembled units. When the tariff uses the words ‘ordinarily sold or offered for sale’, definite intention must be attributed in use of these words. When this ingredient is lacking in respect of subject goods, it would not be proper or legal to assess them under this sub-item. It has not been suggested or argued that the subject goods would be liable to duty under some other item of the tariff. With these observations, I agree with the conclusion recorded by brother Anand-that the appeal should be allowed.
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1985 (1) TMI 331 - CEGAT NEW DELHI
... ... ... ... ..... o printing of colour. We have seen from the authority relied upon by the Respondents that PVC printing by the rotogravure method is a recognised form of printing. We fail to see, therefore, how the present converted paper which is printed with colour by the rotogravure process by mean of P.V.C. compound cannot come within the scope of entry (ii) of Serial No. 3A of the notification. During the hearing, Shri Sunder Rajan had produced a sample of what he called plastic coated paper which, if one side of it had been printed with colour, would have qualified for exemption. However, it was noticed that the sample produced was not a plastic coated paper but a plastic laminated paper in which the plastic film was capable of being easily detached from the paper with very little force. The Department has not placed before us any other material to controvert the contention of the Respondents. 11. Such being the state of the evidence, we uphold the impugned order and reject the appeal.
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1985 (1) TMI 330 - CEGAT NEW DELHI
... ... ... ... ..... rdquo; within the meaning of Central Excise Notification, and in the context of the Deputy Chief Chemist’s opinion, we consider it proper that the benefit should go to the respondents and that the exemption from additional (countervailing) duty of Customs should be extended to the concerned respondents. 15. Summing up- (i) Order-in-Appeal No. S/49-443/79R, dated 11-12-79 relating to M/s. Kapadia Trading Co., is set aside, the appeal is allowed and the Assistant Collector’s order restored. (ii) Order-in-Appeal No. S/49-1608/80 R, dated 8-8-1980, relating to M/s. Godrej Soaps Ltd., Order-in-Appeal No. S/49-1453/79R, dated 11-12-1979 relating to Gujarat Trading Co., and Order-in-Appeal No. S/49-1572/79R, dated 11-12-1979 relating to M/s. Sangam Oil Mills are upheld and the appeals rejected. 16. No orders arc required to be passed in respect of Order-in-Appeal No. S/49-533/80R, dated 9-5-1980 relating to M/s. Godhwani Brothers for the reasons we have already set out.
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1985 (1) TMI 329 - CEGAT NEW DELHI
... ... ... ... ..... g paper. 7. In all the aforesaid circumstances, a fresh determination of the dispute is, in our view, essential in the interest of justice. 8. We, however, do not accept the appellants’ contention that the limitation in Rule 11 has no application to the present case. This argument is no longer available, now that the Supreme Court by its judgment of 6-4-1984 in Civil Appeal No. 1633 of 1984 - Miles India Ltd. v. Assistant Collector of Customs - upheld the findings of this Tribunal that the Customs authorities are bound by the limitation in Section 27 of the Customs Act in dealing with claims for refund of customs duty. Central Excise Rule 11 is in pari materia with Section 27 of the Customs Act, 1962. 9. We set aside the Collector’s order and direct him to redetermine the relief in the light of our order given above. This order will not, however, have the effect of negating the relief already granted by the Collector. 10. Appeal allowed with the above directions.
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1985 (1) TMI 328 - CEGAT NEW DELHI
... ... ... ... ..... tain a statutory definition of “Synthetic rubber”. The tariff item covered synthetic rubber without any explanation of the expression. Since Hypalon is a synthetic rubber (though not conforming to the requirements of Note 4 to Chapter 40 of the Customs Tariff Act, 1975), it is a synthetic rubber falling under Item No. 16AA-CET during the material period. The appellants are entitled to the refund of the excess additional duty collected. 29. Summing up, the appellants’ claim that the products are classifiable under Heading No. 40.01/04 of the Customs Tariff Act, 1975 fails. The products are classifiable under Heading No. 39.01/06. However, the appellants’ claim that the products are classifiable under Item No. 16AA of the Central Excise Tariff as synthetic rubber succeeds and the excess additional duty collected shall be refunded. The appeals are disposed of with the above directions. 30. A copy of this order shall be placed in each of the appeal files.
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1985 (1) TMI 327 - CEGAT MADRAS
... ... ... ... ..... appellants and referred to supra would also highlight the legal position that strict construction of processual part or machinery part of the statute is not warranted, taxing statute notwithstanding. The Supreme Court has clearly held that it is a well-settled principle of law that fiscal statute should be construed strictly is applicable only to taxing provisions, such as charging provision or a provision imposing penalty and not to those parts of the statute which contain machinery provisions. Indeed the appellate authority has also observed that it would be a different matter if the appellants were to return such goods on the ground that they have become surplus to their needs. Therefore, on a consideration of all the relevant rules, I am of the view that a liberal interpretation of the rules as envisaged by the later trade notices, referred to supra would be just and proper. In this view of the matter, I set aside the impugned order appealed against and allow the appeal.
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