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Case Laws
Showing 81 to 100 of 500 Records
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2001 (11) TMI 979 - MADRAS HIGH COURT
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... ... ..... ucts Ltd. v. State of Andhra Pradesh) and 1970 26 STC 248 (Dyer Meakin Breweries Ltd. v. State of Kerala). The facts of that case as set out in that judgment, show that the price fixed there was a price ex-tannery, freight and loading charges being separately charged for. The goods were transported at the risk of the purchaser. It was in that background that the court held that the freight separately charged for did not constitute a presale expense. The court found that the facts in that case were similar to the facts in the case of Hyderabad Asbestos Cement Products Ltd. 1969 24 STC 487 (SC). 16.. As the freight charge incurred here was a charge which the seller was required to incur prior to the completion of the sale it constituted a part of the pre-sale expense and was, therefore, rightly includible in the taxable turnover. 17.. We find no infirmity in the order of the Tribunal calling our interference. The writ petition is, therefore, dismissed. Writ petition dismissed.
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2001 (11) TMI 978 - SUPREME COURT
Whether, on the facts and circumstances of the case, the High Court committed an error in granting the plaintiff's prayer for interim injunction?
Whether the mark is likely to deceive or to cause confusion?
Whether there is as a result of misrepresentation a real likelihood of confusion or deception of the public and consequent damage to the plaintiff?
Held that:- Appeal dismissed. As the plaintiff has established a prima facie case and irreparable prejudice in its favour which calls for passing an order of interim injunction restraining the defendant-company from utilising the name of plaintiff for the purpose of its trade and business. Therefore, High Court cannot be faulted for confirming the order of injunction passed by the learned Single Judge.
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2001 (11) TMI 977 - ITAT AGRA
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... ... ..... this behalf were also furnished. The Revenue is in appeal before us against the findings of the Commissioner of Income-tax (Appeals). While the learned Departmental Representative supported the order of the Assessing Officer, learned counsel supported the order of the Commissioner of Income-tax (Appeals). We have considered the rival submissions. We find that the details of these batta khata was furnished before the Assessing Officer. Copy of accounts of the two parties, namely, Kumari Ram Munshi Ram and Ram Rich Pal Vijay Kumar, has also been furnished. Looking to these facts, it is established that the batta khata was short receipt of the sale consideration due to certain defects in the goods or weight, etc. The Commissioner of Income-tax (Appeals) was, therefore, justified in deleting the addition made by the Assessing Officer. While upholding his finding, we dismiss the ground of appeal raised by the Revenue. In the result, the appeal directed by the Revenue is dismissed.
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2001 (11) TMI 976 - ITAT DELHI
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... ... ..... im to conclude that penalty was not leviable and the main ground being the initiation under one section by the Assessing Officer and the levy under a different section and which was not to be treated as a procedural irregularity curable under section 292B. Further, the assessee at no stage of the proceedings was appraised of the specific charge under which he was penalised and which resulted in injustice being done since in the ultimate analysis an opportunity had been denied to explain his stand. The learned Accountant Member was also of the view that in the show cause notice issued there were two separate charges but none was tick marked and this also vitiated the penalty proceedings. In the final analysis, considering the facts of the case as also the position in law I am of the view that the learned Accountant Member acted rightly in cancelling the penalty. The matter may now be placed before the Division Bench for passing an order in conformity with the majority opinion.
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2001 (11) TMI 975 - ITAT PATNA
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... ... ..... ns of article 22, on which the learned Assessing Officer relied to tax the amount of unexplained investment under section 69 of the Income-tax Act does not apply inasmuch as the applicability of article 22 arises at a later stage after the taxability of a particular income which has been decided as per the provisions of articles 6 to 21 of the double taxation avoidance agreement with Nepal. There is no other finding of fact that the money actually belongs to the residents of India and there is no presumption that it does not belong to the Nepali residents in whose names the deposits stand. Furthermore, there was no violation of Nepali law which, if it may be in the fitness of things, be brought to the notice of the Nepali Rashtriya Bank directly or through the Nepali Embassy or Consulate. In view of these facts and circumstances, we have no hesitation in agreeing with the order of the learned Commissioner of Income-tax (Appeals) and dismiss the appeal filed by the department.
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2001 (11) TMI 974 - SC ORDER
Delay condoned. Interest on warehouse goods - Refund ... ... ... ... ..... is condoned. Having regard to the facts and the circumstances of the case we are not inclined to interfere with the order under challenge. The Special Leave Petitions are accordingly dismissed. rdquo
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2001 (11) TMI 973 - ITAT MUMBAI
Assessment - Additions to income ... ... ... ... ..... that the less found stock represented suppressed sales. Keeping in view the decision of Pune Bench cited by the learned counsel where stock was found less on physical verification as compared to the stock as per books, the possible addition could be only in respect of gross profit arising out of suppressed sale. The Trading Account placed at page 3 of paperbook by the assessee clearly shows that the amount for which stock was found less at the time of survey has been credited in the Trading Account and the gross profit arrived at also is at 17 per cent which is not also less as compared with the earlier years rsquo gross profit rate. In this view of the situation, we find no justification in the addition made by the Assessing Officer amounting to Rs. 2,46,552. The CIT(A) was wrong in sustaining the addition made by the Assessing Officer. Accordingly, we direct the Assessing Officer to delete the addition in question. 6. In the result, appeal filed by the assessee is allowed.
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2001 (11) TMI 972 - CEGAT, KOLKATA
Stay - Power of Appellate Tribunal to grant stay during pendency of reference to High Court ... ... ... ... ..... the appellants had already deposited an amount of Rs. 20,00,000/-. The Hon lsquo ble Supreme Court in the above referred case has held that in case of reference before the Hon rsquo ble High Court, the Court merely exercised as an advisory or consultative jurisdiction and the appeals are pending before the Tribunal during the pendency of the reference application before the Hon rsquo ble High Court. As such, the Hon rsquo ble Supreme Court has held that the Tribunal has power to grant the stay in such circumstances. Thus keeping in view the fact that the appellants have already deposited an amount of Rs. 20,00,000/- and the reference application filed before the Hon rsquo ble High Court has been allowed, we extend the stay order dated 21-9-99 passed by this Tribunal and direct that the same will continue to be in force till the final disposal of the reference application by the Hon rsquo ble High Court of Kolkata. Miscellaneous Applications are disposed of in the above terms.
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2001 (11) TMI 971 - CEGAT, KOLKATA
SSI Exemption - Value of clearances ... ... ... ... ..... lied free of cost to the buyers are the same viz. TRR Bits which have been contracted to be supplied by them. For the free supplied goods to the buyers, the appellants have not charged any amount from them. Therefore, the question of adding any notional value in respect of the free supply goods to the turnover limit of the appellants would not arise. The value of the free supplied goods is included in the value of the ones supplied on payment which is included in the turnover of the appellants for the purpose of exemption under Notification No. 1/93-C.E. In other words, the whole of the amount collected by the appellants from their buyers would represent the entire quantity of the goods including that supplied free of cost and in this view of the matter, no amount representing the free supply goods is liable to be added to the turnover. We, therefore, allow the appeal by setting aside the order passed by the lower authority with consequential relief, if any to the appellants.
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2001 (11) TMI 970 - CEGAT, CHENNAI
Valuation - Misdeclaration of value ... ... ... ... ..... of the goods in question. He, therefore, submitted that the order of the ld. Commissioner is legal, proper and has to be upheld and the appeal of the department is to be rejected. 4. emsp On a careful consideration of the submission made by both the sides, we are of the considered opinion that the ends of justice would be met if the matter is referred back to the adjudicating authority only on the aspect of valuation of the goods as prayed for by the Revenue. As regards the confiscation of the goods, since the goods are not available for confiscation, no useful purpose will be served if we direct the Commissioner to adjudicate the confiscation of the goods which have already been cleared. Therefore, we refrain from giving any opinion on the question of confiscability or otherwise of the goods which have already been cleared. With the above modification, we allow the appeal filed by the Revenue by way of remand only on the aspect of valuation of the goods. Ordered accordingly.
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2001 (11) TMI 969 - CEGAT, NEW DELHI
Natural justice ... ... ... ... ..... (Appeals) has joined. The order for dismissal of the appeal of the party on account of non-deposit of the stated amount is passed by the new incumbent without either considering the stay petition of the party or affording them a personal hearing. This in my view is gross violation of the principles of natural justice on account of which, the impugned order of Commissioner (Appeals) cannot be sustained. Accordingly, I allow the appeal by setting aside the impugned order and remand the matter to the lower appellate authority for reconsideration of the stay petition of the party on affording them a reasonable opportunity of hearing. 2. emsp The stay petition and appeal of the party are thus disposed of in the above terms.
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2001 (11) TMI 968 - CEGAT, NEW DELHI
Modvat/Cenvat - Modvat on inputs - Modvat on capital goods ... ... ... ... ..... in the case of M/s. Associated Cement Company v. CCE - 1998 (97) E.L.T. 379 (Tribunal) to hold that components of cooling Tower are eligible capital goods for Modvat credit. The department has no case that the case law relied on by ld. Commissioner (Appeals) is not applicable to the case on hand. Hence all the above goods will be held to be eligible for Modvat credit as rightly found by the Commissioner (Appeals). As regards Grinding Wheels, ld. Commissioner (Appeals) has held that the same are eligible capital goods under Rule 57Q. This decision cannot be accepted. For the material period, the item has to be treated as inputs in view of the decision of the Larger Bench of the Tribunal in case of Rathi Udyog Ltd. v. CCE, Meerut - 2000 (121) E.L.T. 524 (Tri - LB) 2000 (38) RLT 551 (Tribunal) and Modvat credit on Grinding Wheels has to be allowed to the assessee under Rule 57A. 4. emsp In view of the findings already recorded, the present appeal fails and the same is rejected.
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2001 (11) TMI 967 - CEGAT, KOLKATA
Modvat/Cenvat - Non-filing of declaration ... ... ... ... ..... ombay - 1995 (78) E.L.T. 127 (T) (c) Chamundi Steels Re-rolling Mills - 1996 (81) E.L.T. 563 (T) (d) Formica India Division v. CCE - 1995 (77) E.L.T. 511 (S.C.) (e) Apex Steels (P) Ltd. and Ors. v. CCE, Chandigarh - 1995 (8) RLT I50 (CEGAT-B) The ratio of all the above decisions is that in case of subsequent demand of duty the benefit of Modvat credit is not to be denied on the ground of non-filing of declaration. In fact the factual position in the case of Apex Steel Pvt. Ltd. is identical to the respondents rsquo case inasmuch as it was the excisability of the Tor Steel and the dutiability of the same during the identical period, which was the subject matter of decision in that case. The Tribunal held that even if the requisite procedure was not followed, on account of the Tor Steel being cleared without payment of duty the benefit of Modvat credit would still be available to the assessees. As such we do not find any merits in the Revenue rsquo s appeal and reject the same.
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2001 (11) TMI 963 - CEGAT, NEW DELHI
Confiscation and penalty ... ... ... ... ..... dged in this appeal that they had made a request for a lenient view, before the adjudicating authority. From this fact coupled with the factum of the SCN not having been contested, it appears to me that they have virtually accepted the allegations in the show cause notice. The adjudicating authority has therefore rightly found that the appellants overvalued the goods in question with intent to take undue DEPB credit. On an earlier occasion, ld. Advocate for the appellants had prayed for an opportunity to produce evidence to show that the applicants had not availed any DEPB credit at any time. I find that no such evidence has come on record. Therefore, the appellant rsquo s plea that they had not actually taken any DEPB benefit cannot be sustained. On an overall appreciation of these facts and circumstances coupled with the evidence in the case, I sustain the order of confiscation and penalty, recorded by the Commissioner against the present appellant. The appeal is dismissed.
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2001 (11) TMI 960 - HIGH COURT OF CALCUTTA
Suspension of legal proceedings ... ... ... ... ..... of sanctioning of the scheme, without the sanction of the Board. But in the instant case, the position is totally different. Here admittedly the dues of the petitioning creditor relate to a period, which is much after the sanctioning of the scheme. The said dues are not admittedly included within the scheme. 20. In that view of the matter, this court following the ratio in Corromandal Pharmaceuticals rsquo case (supra) as explained by the Division Bench in Taulis Pharma Ltd. rsquo s case (supra) is of the view that no order can be passed in favour of the company on Company Application No. 78 of 2001 and the said application is dismissed. The company petition to which affidavit has already been filed by the company may now be posted before the appropriate Bench on 3-12-2001. Company Application No. 78 of 2001 is thus dismissed. There will be no order as to costs. 21. Department is directed to issue xerox certified copy of this judgment and order expeditiously, if applied for.
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2001 (11) TMI 959 - HIGH COURT OF ANDHRA PRADESH
Directors - Vacation of office by ... ... ... ... ..... re, of the opinion that Company Court has the requisite jurisdiction to entertain the application. As at presently advised, we need not go into the question as to whether the jurisdiction of the Civil Court is ousted or not. 6.17 The doctrine of Ubi Jus Ibi Remedium which has been noticed in several of the decisions referred to herein before would fill up the gap and thus in our considered view, an application shall be maintainable to the aforementioned extent and the Company Court will have jurisdiction to entertain such application. 6.18 It appears that the third respondent has filed an application under section 8 of the Arbitration and Conciliation Act, 1996. The matter may now be remitted to the appropriate Bench for consideration of the matters as also the application filed under the Arbitration and Conciliation Act for a decision on merit. 6.19 The question referred to the Bench is answered accordingly. Costs of this reference shall be the costs in the main application.
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2001 (11) TMI 958 - HIGH COURT OF CALCUTTA
Winding up - Circumstances in which a company may be wound up ... ... ... ... ..... t case, the entire cause of action in filing the present winding up petition arose out of contractual transaction between the parties. 30. Apart from that in order to maintain a winding up petition, it has to be filed by any creditor or creditors including any contingent or prospective creditor or creditors. But a non-registered partnership firm which is a non-entity in the eyes of law cannot be a good petitioning creditor. A petitioning creditor must be a person who has to present the petition. Since a non-registered partnership firm is not either natural or juridical person, it cannot present the petition for winding up and at its instance the debt is not recoverable. 31. For the reasons given above this Court is of the view that the winding up petition solely at the instance of an unregistered firm is not maintainable in view of the provisions of section 69(3). The preliminary objection succeeds. The winding up petition is dismissed. 32. There will be no order as to costs.
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2001 (11) TMI 957 - HIGH COURT OF KARNATAKA
Winding up - Power of Court to assess damages against delinquent directors ... ... ... ... ..... 90 till 8-9-1995. The respondent was co-opted as a director on 17-9-1990 and ceased to be a director on 8-9-1995 on the company being wound up by this Court. 20. As submitted by the counsel for the Official Liquidator, there is absolutely no materials to show that any transactions took place between 20-8-1990 and 8-9-1995. On the contrary it is common ground that no transaction took place during that period when the respondent was the director of the company. There is no record produced by the applicant to establish even vaguely that some transactions took place during that period. All transactions related to the period before 20-8-1990. 21. The other allegations mentioned in the application against the respondent are not canvassed before this Court, since it is the admitted case that all these allegations related to a period much before 20-8-1990. 22. In these circumstances, there is no merit in the company application. The company application stands disposed of accordingly.
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2001 (11) TMI 956 - HIGH COURT OF ALLAHABAD
Winding up - Overriding preferential payment ... ... ... ... ..... The judgment in Textile Labour Association (supra) took account of subsequent observation of the Supreme Court and decided the question of priority in time, and as to whether the payment was required to be made as a preferential payment in view of the urgency. The subsequent judgment namely Mohan Kamalkar Sindgikar rsquo s case (supra) deals with the provisions of section 33C(1) and (2) of the Industrial Disputes Act, 1947, and the case of Modi Industries Ltd. (supra), E. Sefton and Co. (P.) Ltd. rsquo s case (supra) deal with the provisions of the U.P. Industrial Peace (Timely Payment of Wages) Act, 1978, and sections 6H(1) and 16 of the U.P. Industrial Disputes Act, 1947. 9. In my opinion, the aforesaid case-law cannot be brought in aid in deciding the preferential payment to be made in the case of winding up proceedings under the Companies Act. 10. In the circumstances, I do not find any reason to reconsider my earlier order disposing of and rejecting the application A-56.
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2001 (11) TMI 955 - HIGH COURT OF MADRAS
Officer who is in default – Meaning of, Powers of court to grant relief in certain cases ... ... ... ... ..... ministrative Service. Taking into consideration the totality of the circumstances, there being no negligence, there being no want of bona fides, there being no deliberate inaction, there being no wilful omission or commission on the part of the petitioner, who is a full time Government servant in the cadre of Secretary to the Government, this court is of the considered view, on the facts that he is entitled to a direction as prayed for. Mere technicalities alone shall not be allowed to prevail and it is the totality of the circumstances and the bona fide conduct which has to be taken into consideration in all such matter. In the circumstances, the company petition is allowed and consequently the petitioner is relieved from the threatened proceedings by the respondents under section 633(2) of the Companies Act in respect of the two show-cause notices issued by the respondent/Registrar of Companies. The company petition is allowed. The parties shall bear their respective costs.
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