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Showing 61 to 80 of 692 Records
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2006 (7) TMI 684
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... ... ..... up to ₹ 3500/- as basic pay. The Respondent retired on 31.1.1995. The recommendations of the Fifth Pay Commission, thus, were not applicable in his case. It is now a well-settled principle of law that financial implication is a relevant factor for accepting revision of pay. See Hec Voluntary Retd. Emps. Welfare Soc. & Anr. v. Heavy Engineering Corporation Ltd. & Ors., 2006 (2) SCALE 660 and State of Andhra Pradesh and Anr. v. A.P. Pensioners Association & Ors., JT 2005 (10) SC 115 . The matter might have been different if the revised scale of pay in terms of the recommendations of the Fifth Pay Commission would have been made applicable to the cases of the employees who had also retired prior to 1.4.1995 as was noticed by this Court in U.P. Raghavendra Acharya and Ors. v. State of Karnataka & Ors, 2006 (6) SCALE 23 . For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. The appeal is allowed. No costs.
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2006 (7) TMI 683
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... ... ..... case, the tribunal is correct in law in holding that the addition made treating the land as short term capital asset is illegal and in directing the deletion in respect of capital gains in the assessee’s case for the assessment year 1993-94? 2. Heard Sri Indra kumar, learned counsel for the appellant and Sri. A. Shankar, learned counsel for the respondent. 3. At the time of argument it is brought to our notice that the assessee has died on 11.3.2006. No legal representatives have been brought on record as on today. 4. In the circumstances, appeal stands abated as on today Ordered accordingly. No cost.
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2006 (7) TMI 682
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... ... ..... oods in question were liable to confiscation and appellants were liable to penal action. However, I find that the value of goods has already been loaded with more than 250 approx. on the Bill of Entry without assigning any reason or any ground for doing so by the adjudicating authority while charging the customs duty. Further, I find that there was no malafide intention on the appellants' part as the description of the goods was found to be duly tallied with the description mentioned in the bill of entry. Therefore, keeping in view the facts and circumstances of the case and the judgement of the Hon'ble Appellate Tribunal in the case of Kapsons Industries vs. Commissioner of Customs, Mumbai reported as 2005 (186) E.L.T. (490)(Tri-Delhi) ." 5. From the above findings it is very clear that the Commissioner (Appeal) has followed the law as laid down by the Tribunal. 6. Accordingly, I do not find any merits of the department of the revenue and the same is dismissed.
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2006 (7) TMI 681
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... ... ..... i - CESTAT) (b) CCE v. MRF Ltd. 2005 (179) ELT 472/ 1 STT 80 (Chennai - CESTAT) (c) Yokagawa Blue Star Ltd. v. CCE 2005 1 STT 107 (Bang. - CESTAT) (d) Spic SMO Ltd. v. CCE 2005 (184) ELT 151/ 2 STT 73 (Chennai - CESTAT) (e) Amet Ltd. v. CCE 2006 3 STT 304 (Bang. - CESTAT) Wherein this aspect of the matter had been dealt with and the Tribunal held that this activity could not bring into within the category of "Consulting Engineer" services. The ratio of the cited judgments clearly applied to the facts of the present case. This Bench was convinced with prima facie nature of the case and the stay application was allowed by granting full waiver of pre-deposit in the light of the Board’s Circular and the judgments cited in the stay order. The Order-in-Original passed by the Assistant Commissioner is a correct order. There is no merit in the impugned order passed by the Commissioner and the same is set aside by allowing the appeal with consequential relief, if any.
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2006 (7) TMI 680
Method of accounting - business of construction of multi-storied buildings - liability to pay the L&DO charges - HELD THAT:- In the present case initially upto and including the assessment year 1988-89 the Assessing Officer accepted the assessee’s method of computing the profits i.e., the project completion method, and completed the assessments on that basis. For the first time in the assessment year 1989-90 he switched to the percentage of completion method presumably because he found that the assessee had handed over possession in respect of 54 flats out of the total 86 flats constructed by it and had received sale consideration of ₹ 2,02,24,253. In the assessment years 1990-91 and 1991-92 the Assessing Officer accepted the project completion method as the basis of computing the profits of the business, thereby making a departure from his own stand taken in the assessment year 1989-90. We are unable to approve of this action of the Assessing Officer.
As already noted the decision taken in the initial year to compute the profits of the assessee’s business under a particular method has to be given effect to in all the years till the project is completed. Any departure for some of the years fall in between will distort the entire picture. The assessments in such a case may not be fair to the assessee as well as the Department. It is not in dispute that the assessee has shown the entire profits from the construction in the return for the assessment year 1992-93. This is consistent with its stand. In these circumstances, we direct the Assessing Officer to compute the income of the assessee under the project completion method. The entire profits are assessable in the assessment year 1992-93. The Income-tax authorities were not justified in assessing the sale price of ₹ 2,02,24,253 in respect of the 54 flats in the assessment year 1989-90. We direct accordingly and allow the first two grounds filed by the assessee in the appeal for the assessment year 1989-90.
Liability to pay the L&DO charges - We agree with the points raised by the learned Senior DR on the basis of the agreement entered into between the assessee and the flat purchasers. We accordingly uphold the disallowance of the liability for both the years. However, we find force in the alternative contention of the assessee raised by way of additional ground, which has already been admitted by the Tribunal. The amount has merely been collected by the assessee, but it does not form part of the sale price of the flats. Therefore, we direct exclusion of the amount collected by the assessee at the rate of ₹ 90 per sq. ft. from the flat purchasers for both the years under consideration. The deduction on account of liability to L&DO charges has been claimed by the assessee only because the amount of ₹ 90 per sq. ft. has been included in the receipts. If the deduction is not allowable on the ground that the assessee is not liable to pay the L&DO charges, for the same reason the amount collected cannot also be assessed as part of the receipts of the business. We accordingly accept the additional ground for both the years directing the Assessing Officer to exclude the amount collected by the assessee from the flat owners as charges L & DO from the assessment.
In the result, both the appeals are partly allowed.
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2006 (7) TMI 679
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... ... ..... e Tribunal has also held that the findings given by the Authorities below were finding of fact and, therefore, there was no question of making any reference on the question of law. This aspect has already been covered by quite a few Division Bench judgments of this Court and to refer one of them would be necessary. We may refer to the judgment in the case of Shree Nirmal Commercial Ltd. v. Commissioner of Income Tax, reported in 193 ITR 694. There is no question of law, therefore, to be gone into in these Applications. 3. All these Applications stand disposed of accordingly.
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2006 (7) TMI 678
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... ... ..... ate for the appellant to approach the Appellate Authority and vail the alternative remedy provided to him, which is a substantive statutory right. 7. We are agreeing with the view taken by the learned Single Judge in the matter and therefore, we give liberty to the appellant to avail the alternative remedy within four weeks from today as the limitation prescribed has expired and there is no power for the Appellate Authority to condone the delay in filing time barred Appeal. The limitation for filling the appeal i.e. within 180days under Sec.20(2) of KST Act. Since the matter is being litigated by the appellant before this Court in the Write Petition proceedings and therefore, we give liberty to the appellant to file an appeal before the appellate authority under the provisions of the KST Act and the same shall be disposed of by it on merits. All the legal contentions of the parties are kept open. 8. With the above said observation and liberty, the Writ Appeal is disposed of.
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2006 (7) TMI 677
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... ... ..... Engineer and to charge Service Tax on the entire sum of royalty received. It has been held that a composite contract cannot be vivisected and service portion cannot be subjected to service tax under the category of Consulting Engineer in the case of Daelim Industrial Co. Ltd. v. CCE, Vadodara - 2006 (3) S.T.R. 124 (Tribunal) 2003 (155) E.L.T. 457 (Tri.-Del) and maintained by the Supreme Court as reported in 2004 (170) E.L.T. A181 (S.C.). Even the Commissioner (Appeals) has given a finding that the services would come within the category of Scientific and Technical Consultancy Services. Since these services came into the tax net for the first time on 16-07-2001 and in view of the fact that the period involved in this appeal is from 1993-1999, no Service Tax can be levied under the category of ‘Consulting Engineers’. Hence, we allow the appeal with consequential relief, if any. (Operative portion of this Order was pronounced in open court on conclusion of hearing)
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2006 (7) TMI 676
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... ... ..... ficient cause has not been shown to condone the delay. Consequently the Civil Appeal also dismissed on the ground of delay.
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2006 (7) TMI 675
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... ... ..... he scraps which are worn out are not further used and are not covered within the definition as held by the Tribunal in the following rulings - (i) Commissioner of Central Excise, Jaipur-II vs. Birla Corportion Ltd. 2005 (67) RLT 51 (CESTAT-Del.) 2005 (181) ELT 263 (Tri-Del) (ii) Rajasthan Spg. and Wvg. Mills Ltd. vs. Commissioner of Central Excise, Jaipur 2006 (193) ELT 601 (Tri-Del.) (iii) Southern Agrifurane Industries Ltd. vs. Commissioner of Central Excise, Chennai 2003 (59) RLT 1017 (CESTAT-Che.) 2003 (158) ELT 323 (Tri-Chennai) (iv) Ballarpur Industries Ltd, vs. Commissioner of Central Excise, New Delhi 2003 (59) RLT 266 (CESTAT-Del) 2003 (158) ELT 618 (Tri-Del.) 2. After due hearing of both the sides, we find that the issue is covered by the cited judgments. Therefore, respectfully following ratio of the same, the impugned order is set aside and the stay application and the appeal are allowed with consequential relief if any. Dictated and pronounced in the open Court.
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2006 (7) TMI 674
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... ... ..... which is the normal retirement age. (See New India Assurance Co. Ltd. v. Charlie and Another 2005 (10) SCC 720 . Considering the principles as set out above the multiplier as adopted by the Tribunal and maintained by the High Court is clearly indefensible. Considering the age of the deceased the aforesaid multiplier would be 13. Calculated on that basis by taking monthly loss of dependency at ₹ 2.000/- (after adjusting for personal expenses and likelihood of increase in salary) the compensation to be awarded would be ₹ 3,12,000/-. To the aforesaid sum would be added ₹ 25,000/- awarded by the Tribunal for deprivation of love and affection and funeral expenses and, therefore, entitlement of the claimants is ₹ 3,37,000/-. The accident took place on 29.11.1990. Therefore, the rate of interest would be 9 from the date of filing of the claim petition. Claimants would be entitled accordingly. Appeal is allowed to the aforesaid extent. No orders as to costs.
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2006 (7) TMI 673
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... ... ..... view of two different Benches of the Appellate Tribunal taking different view with respect to this Notification. This Notification lays down that the rate of duty will be restricted to the additional duty leviable on like goods under Section 3 of the Customs Tariff Act, 1975. As against that, the Larger Bench had taken the view that the assessee was entitled to avail of Modvat credit. 3. Mr. Thacker, learned Counsel appearing for the respondents, points out that in view of the provision of Section 35G of the Central Excise Act, an Application which raises the question with respect to rate of duty or to the value of goods for the purposes of assessment, cannot lie to the High Court. In our view, the question raised is clearly concerning the rate of duty to be applied. That being the position, this Court cannot exercise its jurisdiction. Appeal is dismissed. 4. It will be open to the applicant to raise the question by filing appropriate proceedings to the Apex Court.
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2006 (7) TMI 672
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... ... ..... ppellant on the ground that EVA Chappal is not made in a Single Mould. The insertion of Single Mould in terms of the order is unacceptable to us. The entry is very clear as rightly pointed out by the learned Counsel Sri Prasad. As a matter of fact, the Government, realising the importance of Single Mould, probably thought it fit to amend the entry in terms of Karnataka Act No. 4 of 2006. The subsequent amendment including Single Mould would show that Single Mould was not available prior to amendment. In the circumstances, we deem it proper to accept the argument of Sri Prasad with regard to the entries falling under the description of Plastic Footwear from 1.4.2005 to 6.6.2005 and Moulded Plastic Footwear with effect from 7.6.2005. In the result, this Appeal is partly allowed. Applicability of rate of tax for Walkie Chappal is accepted. The rate of tax of EVA Footwear for the period from 7.6.2005 is set aside. It would be calculated only at 4 . Ordered accordingly. No costs.
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2006 (7) TMI 671
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... ... ..... s was noticed in Sunil Fulchand Shah v. Union of India and Ors. (2000 (3) SCC 409), and State of T.N. and Another v. Kethiyan Perumal (2004 (8) SCC 780), it is for the appropriate State to consider whether the impact of the acts, which led to the order of detention still survives and whether it would be desirable to send back the detenu for serving remainder period of detention. Necessary order in this regard shall be passed within two months by the appellant State. Passage of time in all cases cannot be a ground not to send the detenu to serve remainder of the period of detention. It all depends on the facts of the act and the continuance or otherwise of the effect of the objectionable acts. The State shall consider whether there still exists a proximate temporal nexus between the period of detention indicated in the order by which the detenu was required to be detained and the date when the detenu is required to be detained pursuant to the present order. Appeal is allowed.
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2006 (7) TMI 670
Power Of High Court u/s 482 of the CrPC - offence punishable u/s 302 - non- compliance of the mandatory provisions of Section 173 of the CrPC - Whether the High Court while exercising its appellate jurisdiction u/s 374(2) r/w Section 386 of the CrPC could direct further investigation of the case against the persons whom the High Court felt should have been included in the challan on the basis of the materials on record available before the appellate court? - HELD THAT:- The High Court while, exercising its revisional or appellate power, may exercise its inherent powers. Inherent power of the High Court can be exercised, it is trite, both in relation to substantive as also procedural matters. In respect of the incidental or supplemental power, evidently, the High Court can exercise its inherent jurisdiction irrespective of the nature of the proceedings. It is not trammeled by procedural restrictions in that;
(i) power can be exercised suo motu in the interest of justice. If such a power is not conceded, it may even lead to injustice to an accused.
(ii) Such a power can be exercised concurrently with the appellate or revisional jurisdiction and no formal application is required to be filed therefor.
(iii) It is, however, beyond any doubt that the power u/s 482 of the CrPC is not unlimited. It can inter alia be exercised where the Code is silent where the power of the court is not treated as exhaustive, or there is a specific provision in the Code; or the statute does not fall within the purview of the Code because it involves application of a special law. It acts ex debito justitiae. It can, thus, do real and substantial justice for which alone it exists.
We have noticed hereinbefore that the jurisdiction of the learned Magistrate in the matter of issuance of process or taking of cognizance depends upon existence of conditions precedent therefor. The Magistrate has jurisdiction in the event a final form is filed (i) to accept the final form; (ii) in the event a protest petition is filed to treat the same as a complaint petition and if a prima facie case is made out, to issue processes; (iii) to take cognizance of the offences against a person, although a final form has been filed by the police, in the event he comes to the opinion that sufficient materials exist in the case diary itself therefor; and (iv) to direct re- investigation into the matter.
Similarly, the power of the Sessions Judge to summon a person to stand trial with the other accused in exercise of its jurisdiction u/s 319 of the CrPC is also limited inasmuch as from the evidences of the witnesses, it must clearly be found that the proceedee had a role to play in the commission of an offence.
So far as inherent power of the High Court is concerned, indisputably the same is required to be exercised sparingly. The High Court may or may not in a given situation, particularly having regard to lapse of time, exercise its discretionary jurisdiction. For the said purpose, it was not only required to apply its mind to the materials on records but was also required to consider as to whether any purpose would be served thereby.
Hence, we are of the opinion that before issuing the impugned directions, the High Court should have given an opportunity of hearing to the Appellants herein.
Thus, the impugned judgment is set aside and the matter is remitted to the High Court for consideration of the matter afresh. The High Court shall issue notice to the Appellants herein as also the State and pass appropriate orders as it may deem fit and proper and in accordance with law. The appeals are allowed.
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2006 (7) TMI 669
Challenged the Order passed by High Court - construing the agreement dated 25.9.1983 to be a Bank Guarantee decreed the suit directing Appellant to to deposit the value of contract with interest @ 14% per annum - Contract of Pentagon terminated by the cooperative society by a notice - claim raised - Bank Guarantee thereafter invoked by the cooperative society - HELD THAT:- The document (Bank Guarantee/Indemnity), in our opinion, constitutes a document of indemnity and not a document of guarantee as is clear from the fact that by reason thereof the Appellant was to indemnify the cooperative society against all losses, claims, damages, actions and costs which may be suffered by it. The document does not contain the usual words found in a bank guarantee furnished by a Bank as, for example, "unequivocal condition", "the cooperative society would be entitled to claim the damages without any delay or demur" or the guarantee was "unconditional and absolute" as was held by the High Court.
The High Court, thus, misread and misinterpreted the document as on scrutiny thereof, it had opined that it was a contract of guarantee and not a contract of indemnity. The document was executed by the Bank in favour of the cooperative society. The said document indisputably was executed at the instance of Pentagon.
We have hereinbefore noticed the surrounding circumstances as pointed out by Mr. Naphade as contained in Clauses 15.2.4 and 15.2.5 of the contract vis-‘-vis the letters exchanged between the parties dated 6.4.1985, 11.4.1985, 16.4.1985 leading to execution of the document dated 07.09.1985 by the First Appellant in favour of the cooperative society.
We are, however, unable to accept the submissions of the learned Senior Counsel that the bank guarantee must be construed in the light of other purported contemporaneous documents. A contract indisputably may be contained in more than one document. Such a document, however, must be a subject matter of contract by and between the parties. The correspondences referred to hereinbefore were between the cooperative society and Pentagon. The said correspondences were not exchanged between the parties hereto as a part of the same transaction. The Appellant understood that it would stand as a surety and not as a guarantor.
The High Court proceeded on the basis that Section 92 of the Evidence Act would be attracted in the instant case but despite the same it referred to the oral evidence so as to find out the purported circumstances surrounding the transaction, which in our view, was not correct.
However, in this case, we have no doubt in our mind that the document in question constitutes a contract of indemnity and not an absolute or unconditional bank guarantee. The High Court, therefore, erred in construing the same to be an unconditional and absolute bank guarantee.
Thus, the impugned judgment cannot be sustained which is set aside accordingly. The decree of the trial court is restored. The appeal is allowed with costs.
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2006 (7) TMI 668
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... ... ..... r asst. yr. 1999-2000 under s. 37 of the IT Act, 1961 ?" 2. The Hon'ble President, Tribunal, as Third Member, vide order dt. 13th July, 2006, has agreed with the view of the JM on both the points. Therefore, in accordance with the majority opinion, the issues arising out of the R above points are decided in favour of the assessee by holding that'(i) commission would accrue to the assessee either on the date of receipt of commission, i.e., when the commission is collected by the assessee or on the date of payment by the clients directly to the Principal as the case may be; and (ii) assessee would be entitled to deduction in respect of advertisement expenses. 3. In the result, the appeal of the assessee for asst. yr. 1997-98 is allowed while the appeals of the assessee for the asst. yrs. 1998-99 and 1999-2000 are partly allowed. On the other hand, the appeal of the Revenue for the asst. yr. 1999-2000 is dismissed and appeal for asst. yr. 1998-99 is partly allowed.
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2006 (7) TMI 667
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... ... ..... Service tax on the service provided by them. We find that this issue is already decided by the Tribunal in the case of Laxmi Color (Pvt.) Ltd. in Appeal No. ST/73/2005, dated 6-6-2006 2006 (3) S.T.R. 363 (Tribunal) in favour of revenue. In view of the above decision of the Tribunal, we find no merit in the appeal, the same is dismissed. (Order dictated in the open Court)
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2006 (7) TMI 666
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... ... ..... nt of sale of goods; it is a contract purely for service. Thus, the assessee’s claim for excluding the value of materials while valuing the cost of the service, has no legal basis. The duty demand is required to be on the full value. 4. The learned counsel for the assessee has a submission that Central Board of Excise & Customs issued a Circular F. No. 233/2/2003 CX.4 dated 7th April, 2004 stating that the deduction of cost of consumable goods is permissible while valuing photographic service. It is his contention that in such a case, penalty is not justified. There is merit in this contention. Accordingly, the penalty of ₹ 15,000 imposed is set aside and the appeal of the assessee is allowed to this extent. 5. Appeal No. ST/91/06 of the revenue seeks enhancement of penalty. Since we have already ordered that penalty is not warranted, there is no merit in the revenue’s appeal. It fails and is rejected. 6. Both the appeals are ordered in the above terms.
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2006 (7) TMI 665
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... ... ..... he fact that the appellant had loaded a very high margin in the price of such non-dutiable “accessories”. The Collector had, therefore, correctly concluded that by cleverly issuing two parallel bills simultaneously, the appellant had kept the Department in the dark of the true value of their products-both excisable and exempted. The learned Collector’s conclusion that the items in question did not reflect their actual value is, therefore, acceptable in toto. Considering the facts and circumstances, the penalty imposed by the Collector on the appellant appears to us flawless as the same is commensurate to the nature of offence as established. 42. We are aware that to go beyond can be as wrong as to fall short. As we find no reason to interfere with the impugned order, this appeal fails. 43. In the result, the Appeal No. E/1890/1990 is accordingly allowed, as the Appeal No. E/2749/1987 is hereby dismissed. (Dictated and pronounced in the open Court)
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