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Case Laws
Showing 1 to 20 of 497 Records
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2005 (6) TMI 576
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... ... ..... definitely on 26.4.2005, both, because of lapse of time and because the fresh remand order under section 309) CrPC came to be passed. The remand order of 26.04.2005 was passed after cognizance had been taken and when the petitioner was in custody in the sense explained above. At present also, the petitioner is in judicial custody on the basis of a subsequent valid remand order. In these circumstances the petitioner is not entitled to be released on bail on the grounds urged by him. Accordingly, this application is dismissed. It is made clear that no arguments were advanced on 'merits' nor was this application treated a regular bail application solely under section 439 CrPC. The entire scope and discussion centered around section 309 CrPC. So, the dismissal of this application does not foreclose the petitioner from moving an application for regular bail under section 439 CrPC which, if filed, would undoubtedly be disposed of on merits. The application stands dismissed.
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2005 (6) TMI 575
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... ... ..... which is raised under Section 118 r/w Section 139 of the said Act. 30. Apart from that, in my view, there is no reason to interfere with the finding recorded by the Additional Sessions Judge as it is well settled that the High Court while exercising its jurisdiction is not expected to substitute its own view to the view taken by the lower Court. In my view, it cannot be said that the finding of the lower Court is perverse or reasonable. In any event after having perused the entire evidence on record, I am of the view that there is no infirmity to the final Order and the finding will be recorded by the Additional Sessions Judge. I do not see any reason to interfere with the said judgment and order. 31. In the result, the appeal is dismissed. I must record my appreciation of the assistance given by the learned counsel appearing on behalf of the appellant and the respondents and the research that a number of judgments are cited in this case. The appeal is accordingly dismissed.
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2005 (6) TMI 574
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... ... ..... of criminal trials, it is to be held that no criminal trial where the plea of the accused has to be recorded, the evidence has to be taken at a trial and the accused if found guilty will have to be convicted and sentenced either with imprisonment or fine, could be effectively held in the absence of the accused. In other words, the ex parte procedure as prescribed under the civil law is unknown to criminal law. In this view of the matter, our answer to Question No. 3 must necessarily be in the negative. 10. To conclude, our answers to Question Nos. 1 and 2 shall be in the affirmative whereas our answer to Question No. 3 shall be in the negative. 11. The reference is answered accordingly and the matter will have to be placed now before the learned single Judge to decide the case on merits with reference to the facts and circumstances of the case, in the light of the reference being answered by us in the manner as indicated above. The reference thus stands disposed of as above.
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2005 (6) TMI 573
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... ... ..... ubramaniam, it is not possible to come to the conclusion that there was no liability. There is a promissory note, followed by the cheque. It is highly improbable to come to the conclusion, that these two documents must have been forged or concocted for the purpose of the case. In this view, the finding of the Trial Court, that the prosecution has failed to prove the issuance of the cheque is not acceptable to me, considering the fact that the cheque belongs to M/s. Southern Biologicals, for which the accused was acting as a mandate holder. This finding will not in any way change the result of the case viz., the acquittal, in view of the fact, the case has not been filed against the proper person, in whose account, the cheque was drawn. For the foregoing reasons, the appeal deserves dismissal, though not for the reasons recorded by the Trial Court but for the reasons recorded by the supra. 14. In the result, the appeal fails and the same is dismissed, confirming the acquittal.
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2005 (6) TMI 572
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... ... ..... as, in my opinion, it would be appropriate that the applicants prefer a revision before the concerned Sessions Court against the order issuing process against them. 28. Liberty is granted to the applicants to prefer necessary revision before the concerned Sessions Court for setting aside the process issued against them by the Magistrate. The learned counsel for the applicants prayed that stay may be granted to the proceedings before the trial Court for a period of three weeks from today. Looking to the facts and circumstances of this case the prayer appears to be reasonable and hence, the proceedings before the trial Court are stayed for a period of three weeks from today. 29. On the necessary revision being preferred by the applicants before the concerned Sessions Court, the concerned Sessions Court shall dispose of the same on merits after hearing necessary parties. 30. Office to issue authenticated copy of this order to the parties. 31. Criminal Application is disposed of.
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2005 (6) TMI 571
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... ... ..... . The appellant was also directed by the interim order not to alienate any movable property standing in the name of the company without the leave of the Tribunal and the appellant was also not to mobilize any further funds. The learned senior counsel for the appellant submitted that the appellant filed the above application praying for certain conditions to be lifted and for the reasons stated in the affidavit. It is for SEBI to consider the application sympathetically in accordance with law during the pendency of the matter before SEBI in the interest of both the investors and in public interest. SEBI may retain the amount deposited by the company till the time it passes the final orders or disburse it to any person who wants the money back during the pendency of the matter before SEBI. All contentions of the appellant are left open. The respondent may issue fresh show cause notice and dispose of the matter under remand as expeditiously as possible. 38. No order as to costs.
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2005 (6) TMI 570
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... ... ..... he Finance Act, the notification has been held to be operative for the earlier period as in the case of LH Sugar Factories Ltd. v. CCE . Further he stated that the Apex Court in the case of Gujarat Ambuja Cements Ltd. v. Union of India has clarified the ruling rendered in the case of Laghu Udyog Bharati (supra). 3. On a careful consideration of the submissions made by both the sides, we notice that the very issue has already been decided by the Apex Court in the case of Gujarat Ambuja Cements Ltd. (supra). The Larger Bench of the Tribunal has also held that duty demand cannot be confirmed from the service providers for the period in question. In view of the judgments cited above by the learned Counsel, the pre-deposit of service tax is waived including penalty and its recovery stayed till the disposal of the appeal. The stay application is allowed. The matter should be placed in its turn for final hearing before Single Member Bench. (Pronounced and dictated in the open court)
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2005 (6) TMI 569
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... ... ..... endering services of clearing and forwarding operations in any manner shall be deemed to be the gross amount of remuneration or commission (by whatever name called) paid to such agent by the client engaging such agent. In view of above the service tax confirmed on godown rent and freight charges are not sustainable in law. Therefore, I am of the opinion that the impugned order is not sustainable in law and needs to be set aside. The appellant has paid ₹ 4,26,690/- on 22-7-2002 along with interest towards service tax payment on misc. expenses, minimum guarantee charges, material handling charges etc. which is appropriated under the proper head by the adjudicating authority. The remaining part of the confirmed amount and penalties is not sustainable in law and needs to be set aside. 9. I am inclined therefore to allow the appeals and set aside the remaining part of the confirmed amount and penalties. The Order No. 261/2004 dated 31-8-2004 is modified to that extent.
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2005 (6) TMI 568
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... ... ..... of the fact that despite pendency of appeal before the Tribunal, no stay was granted in favour of the Department regarding operation of the order of Commissioner (Appeals). Applying the ratio and analogy of the said decision, the petitioner is required to be granted the relief prayed for, considering the admitted position on facts that the order of Commissioner against which appeal has been filed by the Department before the Tribunal, has not been stayed, and further the fact that the order of CESTAT rendered in assessee's appeal has also not been stayed by any higher forum in absence of any appeal having been filed as on date. 9. In the result, the petition is allowed and the respondent authorities are directed to return to the petitioners 78 bars of gold weighing 9097.920 grams seized on 16th January 1998 within a period of ten working days from today i.e. on or before 8th July 2005. Rule made absolute. Costs payable by the respondents are quantified at ₹ 1,500/-.
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2005 (6) TMI 567
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... ... ..... ree, henceforth. Even where no such specific steps are taken, an implied symbolic, delivery of possession can be culled out, if the transferee is able to prove to the satisfaction of the Court, that he is started receiving the rents of the property, subsequent to the agreement, as of right. 39. In the absence of any of the circumstances referred to above, the Court cannot infer delivery of possession in favour of a transferee. Taking of possession, being one of the most important ingredients of Section 53-A, the plaintiff cannot derive the benefit of that provision, once he failed to prove that he has taken possession of the suit schedule property. 40. Viewed from any angle, the plaintiff is not entitled to any relief. The Trial Court dismissed the suit on proper appreciation of facts and by applying the correct principles of law. This Court does not find any basis to interfere with the same. The appeal is accordingly dismissed. There shall, however, be no order as to costs.
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2005 (6) TMI 566
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... ... ..... s petitions are closed. After the pronouncement of the orders, Mr. K.M.Vijayan, learned Senior Counsel appearing for some of the petitioners pointed out that as per the prospectus now issued after the issuance of the impugned Government Order, the candidates who apply for medical and allied courses will not be in a position to make their applications based on the marks scored in the Common Entrance Test as well as the Improvement Test for the academic year 2005-2006. In view of our order in so far as it related to the cancellation of the Common Entrance Test and the Improvement Test we direct the respondents herein to prescribe the necessary procedure to be followed by the concerned students to enable them to apply as per the erstwhile procedure that was hitherto in force prior to the cancellation of the Common Entrance Test and the Improvement Test. The respondents shall carry out the above direction expeditiously to enable the candidates to apply for the necessary courses.
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2005 (6) TMI 565
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... ... ..... new majority, I direct the restoration of status quo as existed before 14th August 2000 in respect of the Board of Directors as well as authorized and paid up capital of the company. These directions will take immediate effect and the records of the company shall be suitably rectified. All returns/documents filed by the company with the ROC in respect of the affairs of the company that are contradictory to the contents of the Annual Return as on 30.9.2000 are declared as null and void and under the authority of this Order, the ROC will ignore/reject all such returns/documents. 11. The learned counsel for the respondents, Shri Ganesh, urged that the 2nd respondent was willing to restore the status quo provided his position in Palanpur Unit is also restored. As rightly pointed out by the learned counsel for the petitioners, such a direction is beyond the scope of the petition and cannot be acceded to. 12. The petition is disposed of in the above terms with no order as to cost.
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2005 (6) TMI 564
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... ... ..... r disallowing the deductions in respect of the operating as well as application software has been passed prior to the above referred judgment of the apex court. The question as to whether the deductions in respect of the software can be claimed by the appellants or not, deserves to be examined by the adjudicating authority, keeping in mind the above said judgment of the apex court. 4. Similarly, the claim of the appellants for cash discount and transport charges also needs re-examination in view of the above referred decision of the tribunal in the appellants' own case and the subsequent order-in-appeal passed by the Commissioner (appeals) in the appellants own case on 13.11.2004. 5. In the light of discussion made above, the impugned order is set aside. The matter is sent back to the adjudicating authority for fresh decision on all the issues including of limitation raised by the appellants. The appeals of the appellants accordingly stand disposed of in the above terms.
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2005 (6) TMI 563
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... ... ..... ncome under Section 143(1) of the Income Tax Act, 1961. This view is in accordance with law laid down by this Court. In the circumstances, there being no infirmity in the order of the Tribunal, no substantial question of law arises for determination and the appeal is accordingly dismissed.
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2005 (6) TMI 562
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... ... ..... partment has appealed to the High Court against the above final order and hence the issue has not reached finality. 3. Ld. SDR reiterates these grounds. On the other hand, ld. Counsel for one of the respondents submits that there is no stay of operation of the Tribunal's decision in Sudharsanam Spinning Mills Ltd. (supra) and, he also relies on the decision of this Bench in Sri Shanmuga Mills Pvt. Ltd. v. Commissioner, 2005 (179) ELT 221 (Tri-Chennai) 2004 (117) ECR 555 (T), wherein the ratio of Sudharsanam Spinning Mills (supra) was followed and it was held that capital goods credit was available to "speed frames" which were used by the assessee in a preparatory stage of manufacture of cotton yarn prior to 21.10.1994. In the absence of stay of operation of the above decisions of the Tribunal, the case law requires to be followed in the appeals. Accordingly, the impugned orders are upheld and these appeals are dismissed. (Dictated and pronounced in open Court).
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2005 (6) TMI 561
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... ... ..... the Chennai Bench has accepted the party’s plea for classification under Heading 5207 and overruled the department’s classification under Heading 59.06. He submits that the issue being covered, the appeal can be disposed of. Learned DR seeks time to respond to the Tribunal’s ruling. 3. On a careful consideration, we notice that the issue is covered fully in favour of the assessee by the ruling rendered by the Chennai Bench. Therefore, with the consent of both sides, we take up the appeal for final disposal. In the cited judgment, the Chennai Bench has considered exhaustively with regard to the classification of tarpaulin cloth and has clearly held that the same is classifiable only under 5207 of CETA, 1985 and not under Heading 5906. As the issue has been settled in favour of the appellants, the appeal is required to be allowed. The impugned order is set aside and appeal allowed with consequential relief if any. (Pronounced and dictated in open Court)
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2005 (6) TMI 560
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... ... ..... statutory provision as it is. Whether the result of such interpretation is equitable or not is beyond the domain of the court. It is for the Policy Makers or Legislature to consider and to make necessary changes, wherever so thought necessary. 66. Hence, both these issues are decided in favour of the department and against the assessee, in respectful consonance with the decision of the Hon’ble Supreme Court in the case of IPCA (supra) and the decision of the Hon’ble Bombay High Court in the case of Rohan Dyes & Intermediates Ltd. (supra). 67. So far as regards the other issues, the parties agree that they be decided by the regular Division Bench. 68. The file shall go back to the regular Division Bench for passing orders on these issues in accordance with our above findings. 69. The other issues raised in the respective appeals will also be duly considered and decided by the regular Division Benches. 70. In the above manner, the reference stands disposed of.
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2005 (6) TMI 559
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... ... ..... record, which indicate that gold in question is smuggled, even in the initial statement of Imtiyaz Iqbal Pothiawala submitted that gold was purchased locally. Nowhere he admitted that gold were smuggled into India. In these circumstances, as appellant produced the evidence regarding the sale of gold by Bank to various dealers from him M/s. Paras Bullion and M/s. Pawan Jewellers purchased the same which was purchased by the appellant. The confiscation of gold is not sustainable, hence set aside. 15. The Indian currency of ₹ 21 lakhs was seized on the ground that it is in respect of the sale proceed of smuggled gold as we are setting aside the confiscation of the gold on the ground that it is lawfully purchased by Imtiaz Iqbal Pothiawala and the sale is out of that legally procured gold. Therefore, confiscation of currency is also set aside. Consequently, the confiscation of jeep from which the gold is recovered and penalties are also set aside. Appeals are allowed.
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2005 (6) TMI 558
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... ... ..... acts and in the circumstances of the case, the Tribunal was not justified in rejecting the evidence in the form of certificates and statements filed during the course of assessment proceedings; it was also not justified in holding that purchases of tin plates for manufacture of tins were not made on the basis of weight but on the basis of number of component sets; the consequential finding that there was suppression of production of 28,284 tins by the assessee and the value thereof was to be added in the income of the assessee also cannot be justified on the facts of the case. 32. Accordingly, question Nos. 1 to 5 raised at the instance of the assessee are answered in the negative i.e., in favour of assessee and against Revenue. Similarly, for the reasons stated hereinbefore, question No. 6 at the instance of the assessee is answered in the affirmative i.e., in favour of the assessee and against Revenue. The reference stands disposed of accordingly with no order as to costs.
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2005 (6) TMI 557
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... ... ..... was filed. Under the circumstances, the scope of suomotu revision u/s.67(1) at the hands of the Assistant Commissioner was very narrow and limited. When finality is attached to the matter between the parties then final decision arrived at in favour of the assessee u/s.62 of the Act cannot be reviewed on the ground that there was subsequent order of the Tribunal in which Tribunal had taken different view of the matter. 11.In view of the above, we are of the considered opinion that the learned Tribunal rightly held that there was no valid ground available to the learned Assistant Commissioner for taking up the matter in revision in his suomotu powers and to take different view in the matter than the view taken by the Deputy Commissioner of Sales tax on 9.11.1981. 12.In view of the above discussion Question No.1 is answered in affirmative. As the question No.1 is decided in affirmative, therefore, question No.2 is not required to be answered. 13.Reference answered accordingly.
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