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Showing 81 to 100 of 781 Records
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2007 (3) TMI 754 - SC ORDER
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... ... ..... s allowed to withdraw this petition. The SLP is accordingly dismissed as withdrawn.
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2007 (3) TMI 753 - SC ORDER
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... ... ..... , JJ. ORDER Appeal dismissed.
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2007 (3) TMI 752 - CESTAT BANGALORE
Levy of Service Tax - Services of C&F agents - instructions contained in the Service Tax Trade Notice No. 20/2002 - HELD THAT:- The Explanation II to section 67 only clarifies the general principle that when no tax is separately collected from the client, the gross amount collected is inclusive of the tax. This principle is applied in the Central Excise cases also in the light of the CCE v. Maruti Udyog Ltd. [2002 (2) TMI 101 - SUPREME COURT] case decided by the Supreme Court. Even in respect of removal without payment of duty when the duty liability is computed the sale value is taken to be cum-duty value. The same principle has to be applied here also.
Therefore, we set aside the impugned order and remand the matter to the Original authority for re-computation of the duty liability taking the gross receipt as inclusive of service tax. It is seen that when the appellants came to know all the correct legal position, they voluntarily paid even before the issue of show-cause notice. Thus, the imposition of penalty on the appellant is not sustainable. The same is set aside.
Therefore I remand the matter to the Original authority to re-compute the tax liability and allow the appeal.
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2007 (3) TMI 751 - CESTAT KOLKATA
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... ... ..... implementation of law was in infancy stage and statutory provisions were not known to them for which there was failure to comply to the law. The lower Appellate Authority, considering genuine hardship of the Respondent at the initial stage of implementation of law, waived the penalties justly and fairly. 3. Heard both sides. There is no doubt that the lower Appellate Authority has considered that the Respondents were innocent and implementation of service tax law was for the first time in their life. However, they filed return and deposited Service Tax due much before issuance of show-cause notice. They had no intention to evade tax apparent from record. For such noticeable features, it would be proper to uphold the order of the lower Appellate Authority without directing the Respondents to face penal consequence. 4. In the result, the Revenue’s appeals are dismissed upholding order of the lower Appellate Authority. (Dictated and pronounced in the open Court)
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2007 (3) TMI 750 - SUPREME COURT
Murder of newly married couple - Challenged the Order Of Acquittal for the offences charged u/s 120-B, 364, 302 and 392 r/w Section 34 of the Indian Penal Code, 1860 - circumstantial evidence - recovery of the incriminating materials - benefit of doubt - sufficient time gap between the instances when the persons last seen together - HELD THAT:- It is a settled rule of criminal jurisprudence that suspicion, however grave, cannot be substituted for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of circumstantial evidence. This Court has applied the above-mentioned general principle with reference to the principle of last seen together in Bodh Raj alias Bodha & Ors. v. State of Jammu and Kashmir [2002 (9) TMI 858 - SUPREME COURT].
We have also not found any other link in the chain of circumstances to conclusively establish that A-1 murdered D-1 or A-2 played any role in assisting him to murder D-1. Even if we believe the evidence of P.W.-11 that he saw D-1 in the company of A- 1 walking towards the beach and thereafter saw A-1 returning alone after 30 to 45 minutes, there has been a time gap of about 2 < hours when A-1 and D-1 were last seen together and when the dead body of D-1 was found at around 00.30 a.m. at the Benaulim Beach. No evidence was led by the prosecution to prove the fact that there was no possibility of any other person approaching D-1 on the beach which is a public place, during the intervening period when A-1 was last seen with the deceased and when the crime was detected.
In the absence of any other supporting material on record, it will not be possible to believe the statement of P.W.-6 that he had seen A-2 sitting in the car on the night of 27.02.1999 to establish the fact that when D-2 left the hotel she accompanied A-2. Similarly, with respect to A-1, P.W.-6 who had an opportunity to see A-1 for the first time for a very short duration to recognize him to be a person who accompanied D-2 to Hotel Seema on the night of 27.2.1999, he had only a fleeting glance of male person who came with D-2 as he was busy in settling the account with her. That apart, the dead body of D-2 was found at around 7.30 a.m. on 28.02.1999 at Vagator Beach, around 60 kms. from the beach where the dead body of D-1 was recovered and quite a long distance from Hotel Seema. Hence, there has been a considerable time gap of approximately 8 = hours when D-2 was last seen alive with the accused couple. There being a considerable time gap between the persons seen together and the proximate time of crime, the circumstance of last seen together, even if proved, cannot clinchingly fasten the guilt on the accused.
In the light of the factors that evidence regarding the recovery of the incriminating materials from the accused persons has been discarded; that there has been sufficient time gap between the instances when the accused persons were last seen together with the deceased persons; and in the absence of any other corroborative piece of evidence to complete the chain of circumstances to fasten the guilt on the accused couple, we are of the opinion that the accused have been rightly given the benefit of doubt by the courts below. We have found that the finding of the High Court that the chain of circumstances is not complete to conclusively establish that either A-1 or A-2 alone or with the common intention of each other have committed the dreadful crime of murder of newly married couple, is correct and merely suspicion, however grave, cannot replace the weight attached to the evidence. Accordingly, we order for dismissal of the appeals.
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2007 (3) TMI 749 - CENTRAL INFORMATION COMMISSION
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... ... ..... in the Defence Ministry causing harassment to the citizens. The Respondent said that the Ministry had since made adequate arrangements to receive such applications without any difficulty to the public. We would expect that the Ministry would be more sensitive to the needs of the citizens and improve its infrastructure so that the citizens would find it easy to give their applications and application fees for securing information from the Ministry. 6. In this case, we also noted that the first Appellate Authority did not pass the order himself on the appeal filed before him but asked the CPIO to convey the order on its behalf. This is not permissible. The first Appellate Authority has to hear the appeal himself and give an opportunity of hearing to the Appellant and pass the order. It is not correct to delegate this function to someone else. 7. With the above directions and observations, the appeal is disposed off. 8. Copies of this order be given free of cost to the parties.
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2007 (3) TMI 748 - DELHI HIGH COURT
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... ... ..... our judgment dated 12-1-2007 in CIT v. Shri Ram Honda Power Equipment 2007 289 ITR 4751 (Delhi), we had in paragraphs 21 and 22, stated that where the Assessing Officer has held that the interest income is business income and "this has not been reopened or questioned thereafter by the Department or where this Court has not formulated such a question while admitting the appeal", such question of law will not be permitted to be reopened. In the instant case, the Assessing Officer has held income to be business income. The only question thereafter that was urged by the appellant before the Income-tax Appellate Tribunal (ITAT) pertained to the netting of interest. In the impugned order dated 30-6-2004, the ITAT has, in paragraph 5, recorded that the "finding of nexus has not been assailed by the Departmental Representative." 4. In that view of the matter no interference is called for with the impugned order of the ITAT and the appeal is accordingly dismissed.
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2007 (3) TMI 747 - ITAT DELHI
Validity Of Block assessment made u/s 158-BC - non-issuance of notice u/s 143(2) - HELD THAT:- In view of the above facts, it is clear that the department has not been able to establish that any notice u/s 143(2) was issued and served upon the assessee during the course of assessment proceedings u/s 158BC. As held in the case of Smt. Bandana Gogoi vs. CIT and Another [2007 (1) TMI 110 - GAUHATI HIGH COURT], if the block assessment is not made on the basis of return filed then requirement of issuance of notice is mandatory and in absence of issuance and service of such notice, the assessment order cannot be held to be valid.
Since in the instant case it is virtually admitted by the Revenue that no notice u/s 143(2) has been issued and served upon the assessee, the block assessment made u/s 158-BC cannot be upheld and the same is to be declared null and void. We order accordingly.
Thus, we are not required to dispose of the other grounds taken by the assessee in its appeal - In the result, assessee's appeal stands allowed.
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2007 (3) TMI 746 - MADHYA PRADESH HIGH COURT
Claim for 100% depreciation - Automatic coal system, treating it to be a part and parcel of the boiler? - Depreciation on boiler and furnaces in clause (d) relating to the high efficiency boilers (thermal efficiency higher than 75 per cent in case of coal fired and 80 per cent in case of oil/gas fired boilers) - HELD THAT:- It has not been shown by the revenue that coal container, coal conveyer and bucket elevator, dust collecting system can individually be utilised for any other purpose. Apart from the fact that there was no other purpose for the use of this machinery in the assessee’s Company, the further fact that these were integral components of the boiler, strengthens the view that they also become eligible to 100 per cent depreciation as was allowed in the case of Cochin Refineries Ltd.[1987 (1) TMI 9 - KERALA HIGH COURT].
We are, therefore, of the view that the questions formulated in this case should be answered in favour of the assessee and against the revenue. We accordingly hold that the Tribunal did not err in extending benefit to the assessee towards depreciation at the rate of 100 per cent on the automatic coal system, treating it to be a part and parcel of the boiler, and that on these items the assessee was not required to restrict its claim to 25 per cent.
In the result both these appeals are dismissed, but with no order as to costs.
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2007 (3) TMI 745 - ITAT DELHI
Depreciation on the intangible asset, namely Patents and technical know-how - Payment for acquisition of marketing rights - HELD THAT:- It is admitted fact that the transaction is not a sham transaction but is acted upon. Similar finding has been given also in the appeal of revenue cited (supra). We accordingly hold that the amount of ₹ 2 crores representing distribution franchise fee paid to Ambalal Sarabhai Enterprise is in respect of commercial rights referred in Section 32(1)(ii) of the Act. Accordingly, though Ground No.1 is to be dismissed, as contended in alternate Ground No.2, the claim of assessee in respect of depreciation is allowable.
Since the amount was borrowed for acquisition of capital asset and such capital asset were not put to use prior to payment of the front end fees paid to ICICI bank, in view of the decision of Hon'ble Supreme Court in the case of Chellapalli Sugar Mills Ltd.[1974 (10) TMI 3 - SUPREME COURT], such interest has to be added to the cost of capital asset. Since the Tribunal has held that the assessee is entitled to depreciation in respect of various intangible assets and since the front end fees is to be added to the cost of such capital assets, the alternate claim made by the assessee in Ground No.4 regarding depreciation u/s 32(1) has to be allowed. Thus, though Ground No.3 is to be dismissed, Ground No.4 is allowed.
In the result, the appeal is partly allowed.
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2007 (3) TMI 744 - SUPREME COURT
Whether all the respondents had deliberately and with mala fide motive committed contempt of our order dated 15.10.2004?
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2007 (3) TMI 743 - ITAT DELHI
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... ... ..... considered, one gets the impression that it has not been serously dented. In such circumstances, we are unable to say that the assessee either concealed his income or furnished inaccurate particulars therefore. We cannot also help oberdriving that there is no definite finding of concealment in the penalty order except the conclusion that the assessee wilfully filed inaccurate particulars and concealed the income. It is will settled that the findings contained in the assessment order may constitute good evidence but not decision evidence for the purpose of leyving penalty. At best, it can only be stated that the assessee could not succeed in proving, in the manner required by the Income-tax authorities that the amount received by him represented sale proceeds of shares but it can not be asserted positively, having regard to the evidence on record, that the assessee’s claim stood disproved. We, therefore, cancel the penalty and allow the appeal with no order as to costs.
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2007 (3) TMI 742 - CESTAT, BANGALORE
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... ... ..... v. CCE (supra). The latest circular as well as the cited judgments has been distinguished. She submits that the ratio of the present judgment in M/s. Shilpa Color and Others (supra) will apply and therefore, the stay application and appeal are required to be allowed. 3. The learned JDR reiterates the departmental view. 4. On a careful consideration, we notice that this very issue was subject matter of consideration by this Bench in the case of M/s. Shilpa Color Lab and Others (supra). The latest Board's circular as well as the Apex Court judgment has been considered and detailed finding recorded with regard to the non-applicability to the facts in issue. In view of the issue being settled in assessee's favour in terms of the cited judgment, we do not find any necessity to keep the matter pending. Respectfully, following the ratio of cited judgments, the stay application and appeal are allowed with consequential relief, if any. (Pronounced and dictated in open Court)
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2007 (3) TMI 741 - CESTAT KOLKATA
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... ... ..... soon as respondent came to understand that it has to discharge his liability, it has done so, but belatedly. Having been guided by public relation announcements to the effect that if service tax with interest was paid within 30-11-2004, no penalty was leviable guided the respondent. Usually promise by the department, act as promissory estoppel and levy of penalty would be deterrent. 5. It should be appreciated that section 80 of the Finance Act, 1994, exonerates penalty, if there is reasonable cause. The Larger Bench’s decision cited by the revenue, supports such proposition in terms of para 8 of the reported order. The reason cited by the lower appellate authority appears to be appealable reason and does not call for imposition of penalty. 6. The lower appellate authority appears to have passed a reasoned and speaking order to waive the penalty. Accordingly, upholding order of adjudication would frustrate justice. 7. In the result, revenue’s appeal is dismissed.
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2007 (3) TMI 740 - BOMBAY HIGH COURT
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... ... ..... transferor and the transferee, consents have been obtained of the equity shareholders. A statement to that effect has been made before the Court. Notices have been issued to all the creditors. There is no objection to the scheme. Counsel appearing for the Regional Director has stated that all the requisitions of the Regional Director have been met and there is no objection to the scheme being sanctioned. In view of the fact that the necessary statutory compliances have been duly fulfilled, there is no reason why the scheme as proposed should not be sanctioned. Company Petitions 68, 69 and 70 are made absolute in terms of prayer clauses (a) to (c), save and except for the bracketed portion in prayer clause (a). The Petitioner to pay costs of ₹ 2,500/each to the Regional Director and the Official Liquidator. Filing and issuance of drawn up order is dispensed with. All authorities concerned to act on an authenticated copy of this order issued by the office of this Court.
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2007 (3) TMI 739 - SC ORDER
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... ... ..... ax and the Tribunal without giving any reasons. On that ground alone, we set aside the impugned order of the High Court and remit the matter to the High Court. We express no opinion on the merits of the case. High Court is requested to dispose of the matter as expeditiously as possible. 3. Appeal is disposed of accordingly. No costs.
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2007 (3) TMI 738 - CESTAT AHMEDABAD
Waiver of Pre-deposit - CENVAT credit - Input services - Services as provided by Customs House Agent/Shipping Agent/Port Service - Commissioner held that services utilized for clearance of final products at the Jetty would not qualify as ‘input services’ - HELD THAT:- The definition of input service fixes the meaning of that expression and such services used by the manufacturer, are required to have a nexus with the manufacture of the final product and clearance of the final product from the place of removal. Place of removal is well defined in Section 4(3)(c) and admits no extension of its meaning to the place of shipping port. The services which are enumerated in the inclusive clause, which applies both, in the context of the provider of output services as well as the manufacture, cannot be read de hors the meaning of input service under Rule 2(l).
Therefore, all the activities relating to business, which are input services used by the manufacturer in relation to the manufacture of final product and clearance of the final product from the place of removal alone would be eligible. After the final products are cleared from the place of removal, there will be no scope for subsequent use of service to be treated as input. Prima facie, therefore, services beyond the stage of manufacturing and clearance of the goods from the factory could not be input services. The Commissioner, therefore, does not appear to have committed any error in disallowing the Cenvat credit on this ground. Other items are not pressed at this stage.
Thus, we direct that there will be interim stay of the impugned order on the appellant’s depositing a further sum of ₹ 25 lakhs (Rupees Twenty-Five lakhs) within six weeks from today, failing which the appeal will stand dismissed. This application is disposed off accordingly.
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2007 (3) TMI 737 - CESTAT AHMEDABAD
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... ... ..... less the reduction is on account of facts that the goods are not the ones which have been contracted for or that there has been serious beach of the terms of the contract which makes the contract void/voidable. In the latter case the new/reduced price under the new/revised contract will be admissible, provided it is in conformity with the value as defined under Section 14 of the Customs Act read with the Valuation Rules. 6. As already mentioned there is no justifiable reason for lower price adopted by the addendum entered into at a date latter than the date of import of the vessels. Therefore, the decision of the Commissioner (Appeals) in accepting the lower prices is not justifiable. Therefore, the order of Commissioner (Appeals) in so far as they relate to acceptance of lower value for the vessels is set aside and the order-in-original is restored. Both the appeals are, therefore, allowed on the aspect of valuation of vessels. (Dictated & pronounced in the Open Court.)
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2007 (3) TMI 736 - DELHI HIGH COURT
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... ... ..... of the Union of India and for this purpose six weeks time was granted. Today Mr P.P. Malhotra, the learned Additional Solicitor General appears before this court and states that a meeting was held between the two Ministries and it has been decided by the Union of India that the impugned letter dated 01.08.2006 issued by the Joint Director DGFT would be withdrawn. In view of this statement made by the learned Additional Solicitor General, the learned counsel appearing on behalf of the petitioner submits that he wishes to withdraw the writ petition, though, reserving his right to raise the other issues referred to in prayers to the petition at an appropriate stage. It is also made clear that the withdrawal of the said letter as well as the withdrawal of the writ petition will not operate to the prejudice of respondent Nos 5, 6 and 7 as also the applicants in CM No.12766/2006 and M.No.14017/2006. This writ petition stands dismissed as withdrawn with the aforesaid observations.
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2007 (3) TMI 735 - SUPREME COURT
Whether serious allegations of fraud said to have been committed by the land-owners in collusion with officers of the respondent-Port Trust and Government?
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