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Showing 101 to 120 of 652 Records
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2006 (8) TMI 597 - SC ORDER
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... ... ..... , JJ. ORDER Appeal dismissed.
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2006 (8) TMI 596 - CALCUTTA HIGH COURT
Maintainability of the writ application - Waiver of pre-deposit - Deemed credit - undue hardship - Challenged the Order of the CEST Appellate Tribunal - Refusal to waive the requirement of pre-deposit of the disputed duty - HELD THAT:- In the instant case, the CESTAT has neither recorded the submissions made on behalf of the petitioner nor given its findings thereon. Furthermore, the impugned order does not disclose why the petitioner was required to deposit only ₹ 1,50,000/- as against demand of over ₹ 3,00,000/-.
The Tribunal cannot exercise its power to waive pre-deposit of the duty disputed, even in part, in the absence of reasons. The power of dispensation cannot be exercised arbitrarily or whimsically or for the asking. Satisfaction that pre-deposit of the duty demanded could cause undue hardship is the condition precedent for exercise of the power to dispense with pre-deposit either fully or in part.
Section 35F of the Central Excise Act, 1944 provides that, where in any appeal under Chapter VIA of the said Act, the order appealed against relates to any duty demanded in respect of goods which are not under the control of the Central Excise authorities or any penalty levied under the said Act, the person desirous to appealing against such order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied.
An order directing the pre-deposit or an order waiving pre-deposit may not involve any question of law, far less a substantial question of law and hence may not be appealable. In any case, such an order cannot be said to be an order in the appeal but is an order incidental to the hearing of the appeal. An order directing deposit of disputed duty or penalty either in full or in part is not ordinarily appealable. It cannot, therefore, be said that the petitioner has an adequate efficacious alternative remedy.
The order impugned is, therefore, set aside. The Tribunal shall consider the question of waiver of pre-deposit afresh in accordance with law, after considering all relevant factors and in particular the submissions of the petitioners with regard to the prima facie case in appeal as also the financial capacity of the petitioner.
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2006 (8) TMI 595 - DELHI HIGH COURT
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... ... ..... the assessee, it could not be said that the assessee had attempted to conceal the particulars of his income or furnish inaccurate particulars so as to attract the penal provisions of section 271(1)(c). 6. After hearing learned counsel for the parties, we are of the view that there is no question of the assessee having attempted to conceal the particulars of his income, which is not even in the case of the revenue. So far as furnishing of inaccurate particulars are concerned, it is quite clear that the assessee had furnished all relevant particulars of his income but only claimed it to be a revenue expenditure while according to the department, the expenditure incurred was of a capital nature. This was, as rightly held by the Tribunal, a debatable issue and would not amount to furnishing of inaccurate particulars so as to attract penalty proceedings. 7. Under the circumstances, we are of the view that no substantial question of law arises for our consideration. 8. Dismissed.
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2006 (8) TMI 594 - SUPREME COURT
Whether the Bombay High Court has jurisdiction to entertain Section 9 of the Arbitration and Conciliation Act, 1996 application of the respondents herein?
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2006 (8) TMI 593 - CESTAT MUMBAI
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... ... ..... n a few occasions. A printout from the official website of Philippine Associated Smelting and Refining Corporation (PASAR) at page 456 of Vol-III of the appeal paper book also shows that dore anode/dore metal emerging while producing copper is an alloy and a marketable commodity. 29. Since dore anode is an alloy of gold and therefore a form of gold, I hold that duty can be determined on the value of, and at the stage of emergence of “dore anode” as held by learned Member (Technical), and hence concur with his view. 30. The file is now returned to the referring Bench for passing further orders. Sd/- (Jyoti Balasundaram) Vice-President FINAL ORDER Order per Archana Wadhwa, Member (J) . - In view of the majority order, duty is required to be confirmed against the appellants on the value of, and at the stage of emergence of “dore anode’. Penalty is, however, set aside. Sd/- (S.S. Sekhon) Member (Technical) Sd/- (Archana Wadhwa) Member (Judicial)
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2006 (8) TMI 592 - CESTAT NEW DELHI
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... ... ..... ned order is one irrespective of the number of SCNs”. 2. It was also held that a single appeal filed against such an order cannot be held to be irregular only for the reason that the impugned order had dealt with more than one SCN. Recent amendment to CEGAT (Procedure) Rules by way of insertion of Rule 6A further confirms the view taken by the larger bench. In this view of the matter, there was no occasion to make a reference on the ground that there was conflict of opinion between the larger bench of five Members and a judgment of bench consisting of lesser members. In such cases, the view of the Larger Bench would obviously prevail. We, therefore, hold that since in the present case, appeal has been filed against the order, which is made in respect of two SCNs, it being a compendious order as contemplated in the decision of the Larger Bench, single appeal would be maintainable. Registry to act accordingly. (Dictated and pronounced in the open Court on 11-8-2006)
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2006 (8) TMI 591 - DELHI HIGH COURT
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... ... ..... which necessary information was filed. 9. The Tribunal took a view that the fact that the assessee was not in a position to produce the two commission agents is not its fault and the Assessing Officer could have exercised powers available to him to summon and cross-examine these two parties if, for some reason, he did not accept the statement furnished by these two parties. The Assessing Officer could also have made independent enquiries from the customers of the assessee. However, none of this was done. 10. Therefore, we are of the opinion that the Tribunal has not committed any error in the view that it has taken. The assessee produced all the material that it could possibly produce and if the Assessing Officer was not inclined to believe the material produced, he could have used the coercive powers available to him, which he failed to exercise. 11. Therefore, we are of the view that in this case, no substantial question of law arises for our consideration. 12. Dismissed.
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2006 (8) TMI 590 - SC ORDER
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... ... ..... n, JJ. ORDER Appeal dismissed.
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2006 (8) TMI 589 - SC ORDER
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... ... ..... the product in question was not a packing material. This finding is a finding of fact which does not call for any interference. The civil appeal is dismissed.
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2006 (8) TMI 588 - SC ORDER
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... ... ..... ned. Heard. The Special leave petition is dismissed
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2006 (8) TMI 587 - CEGAT BANGALORE
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... ... ..... resh grounds raised by the Revenue in the appeal cannot be accepted. He submits that this grounds were not a subject matter in the show cause notice and therefore, fresh grounds cannot be accepted in terms of the Apex Court judgment rendered in the case of Gujarat State Fertilizers Co. . 4. On a careful consideration of the matter, we notice that the Revenue has now taken up fresh grounds which cannot be accepted in terms of the Apex Court judgment cited supra by the learned Counsel. The Commissioner has considered all the fads of the present case and noted that in the similar facts and circumstances of the case, the very issue has already been decided by the Tribunal in the case of Maniar & Company v. CCE, Ahmadabad , in the assessee's favour. Following ratio of the cited judgment, we notice that the Commissioner's order is legal and proper. We do not find any merit in the Revenue's appeal and the same is rejected. (Dictated and pronounced in the open court)
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2006 (8) TMI 586 - COMPANY LAW BOARD
Oppression and mismanagement - manipulation of records and converting the company into a Shell Company - removal from directorship by appointing new directors - violation of the proper and legal procedure prescribed - gained control of the company and siphoned off funds - misappropriated the funds of the company and has damaged and delayed the project of the company - HELD THAT:- All the observations, show that the conduct of the respondents is burdensome and oppressive to the petitioners and prejudicial to the interest of the company. From the narration of the events, the only conclusion that I can come to is that the respondents have not been able to refute the charges of oppression and mismanagement in the affairs of the company, and, therefore, the petition deserves to be allowed. Relief to be granted depends on the facts of a particular case. The facts of the present case are so manifestly against respondents that two opinions are not possible on the aspect of relief. Relief has to be granted in the present case to undo the advantage gained by the respondents through their manipulations. To safeguard the interest of the financial institutions who chose to fund such a prestigious project in the interest of the country and to do substantial justice between the parties, I order as follows:
I. The resolutions of the R-1 company removing the P-1 and the P-2 from directorship and appointing R-3, R-4, R-5 and R-6 as additional directors are hereby declared as null and void and status quo ante is restored.
II. Since nothing has been placed on record to show the need of the company for further investment and hence need for allotment of additional shares, I hold the action of increase in the share capital and allotment of additional shares to be totally malafide, only motive being to gain control of company, hence increase in the share capital and allotment of additional shares is hereby set aside.
III. To safeguard the interest of financial institutions namely, the Technology Development Board, Department of Science and Technology, Ministry of Science and Technology, Technology Bhawan; Ministry of Food Processing Industries, Panchsheel Bhawan, August Kranti Marg, and the Bank of India, New Delhi Corporate Bhawan Banking Branch, 37, Shaheed Bhagat Singh Marg, (Near Shivaji Stadium) - these organizations are hereby directed to nominate one director each on the Board of the R-1 company with immediate effect. Such nominee directors would continue to be on the Board of the R-1 company till the funds advanced by these organizations are recovered/repaid. The minimum quorum for Board Meetings would comprise two directors one out of which must be from one of these financial institutions.
IV. The Board of Directors constituted in compliance of this order at III above, in its first meeting to be held within one month of this order shall appoint auditors and order special audit to audit the accounts of the R-1 company from its inception till date within a period of three months from the date of this order. Such audited accounts must be made available to the Ministry of Company Affairs, New Delhi, to the Registrar of Companies, New Delhi; to the Regional Director, Kanpur and to the financial institutions forthwith. The R-l company shall pay audit fees @ ₹ 50,000/- for each accounting year.
With the above directions, I dispose of this petition.
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2006 (8) TMI 585 - DELHI HIGH COURT
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... ... ..... e detenu and further that verification of particulars of passengers mentioned in CDFs revealed that the supportive documents to the CDFs were also fabricated and all these documents relied upon had already been supplied to the detenu. The petitioner has not been able to show any prejudice caused to the detenu because of non furnishing to him of any document and it is not the case of the petitioner that any document relied upon by the detaining authority while arriving at the subjective satisfaction for passing the detention order was not supplied to the detenu. 30. Having, thus, rejected the challenge to the validity of detention order on the grounds of delay in its issuance and its execution, non-submission of some documents before the detaining authority and non-application of mind by the detaining authority and which were the only grounds of challenge urged on behalf of the petitioner this writ petition is liable to be dismissed. We accordingly dismiss this writ petition.
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2006 (8) TMI 584 - ALLAHABAD HIGH COURT
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... ... ..... pex Court held that the specific entry would override the general entry. 13. In the case of H.P.L. Chemicals Ltd. v. Commissioner of Central Excise, Chandigarh reported in (2006) 5 Supreme Court Cases 208 2006 (197) E.L.T. 324 (S.C.), the Apex Court held that the specific entry is to be preferred over the residuary entry. 14. In the case of Collector of Central Excise, Shillong v. Wood Craft Products Ltd. reported in 1995 (3) SCC page 454 1995 (77) E.L.T. 23 (S.C.). Apex Court held that the residuary can be resorted to only when even a liberal construction of the specific headings is not capable of covering the goods in question. 15. For the reasons stated above, in my view, item in dispute namely Shivling Kandhari, Paandeep, Amar Daan, Agar Daan and Kalyani Lota, etc. being Utensils made of Brass used in the worship, is liable to tax as Utensils made of Brass and not as a Art Brass-wares. 16. In the result, revision fails, and is, accordingly, dismissed.
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2006 (8) TMI 583 - SUPREME COURT
Whether the amendments brought about in the Representation of People the Act, 1951 through the Representation of the People (Amendment) Act, 2003 (Act No.40 of 2003) constitutionally valid?
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2006 (8) TMI 582 - ALLAHABAD HIGH COURT
Cash Credits - addition u/s 68 - HELD THAT:- The Tribunal has recorded a categorical finding of fact based on appreciation of materials and evidence on record that the Assessing Officer had accepted the purchases, sales as also the trading result disclosed by the respondent-assessee. It had recorded a finding that the aforesaid two amounts represented the purchases made by the assessee on credit and, therefore, the provisions of section 68 of the Act could not be attracted in the present case.
We fully agree with the view taken by the Tribunal on this issue, inasmuch as, on the basis of the findings recorded by it that these two amounts represented purchases made by the respondent-assessee on credit and the purchases and sales having been accepted by the department, the question of addition of the aforesaid two amounts u/s 68 of the Act did not arise inasmuch as the provisions of section 68 of the Act would not be attracted on the purchases made on credit.
We, accordingly, answer the question referred to us in affirmative, i.e., in favour of the assessee and against the revenue. There will be no order as to costs.
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2006 (8) TMI 581 - GUJARAT HIGH COURT
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... ... ..... m these provisions that repayment of the loan in cash is not prohibited. Consequently, no penalty is leviable under Section 271E where repayment of loan is made in cash. On the other hand, penalty is leviable under Section 271E, if deposit is repaid in cash exceeding the prescribed limit. Thus, it is apparent from these provisions that even the legislature has recognizes the distinction between the loan and deposit.” Following the above decision, we find merit in this ground and we allow it. We direct the Assessing Officer to exclude the interest earned by assessee on the deposits made with the Financial Institutions while computing the total chargeable income of the assessee.” The Tribunal has considered all the issues in light of the definition given in Clause (7) of Section 2 of the Interests Act. Considering the definition of interest given in the Interest Act, we see no infirmity in the order of the Tribunal. These appeals stand dismissed at admission stage.
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2006 (8) TMI 580 - ALLAHABAD HIGH COURT
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... ... ..... igh Court in the case of Commissioner, Sales Tax, U.P. v. Arora Material Store reported in 1982 51 STC 235 1982 UPTC 50 under the entry cotton fabrics of all varieties of the Notification No. ST-II-7038/X-7 (23)/83-U.P. Act-XV/48-Order-85, dated January 31, 1985. Heard learned Standing Counsel. I do not find any error in the order of the Tribunal. Learned Standing Counsel is not able to show that the dealer has sold any other item other than CCF, which was cotton fabrics. If the dealer has purchased the CCF and sold the CCF merely because it was imported against declaration form, the tax cannot be levied. In the case of Commissioner, Sales Tax, U.P. v. Arora Material Store reported in 1982 51 STC 235 1982 UPTC 50, this court held that the cotton-coated fabrics is exempted from tax under the notification issued under section 4 of the Act being covered under the entry cotton fabrics of all varieties . In the result, all the three revisions fail and are, accordingly, dismissed.
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2006 (8) TMI 579 - KERALA HIGH COURT
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... ... ..... r under the Act, there is an undertaking to pay differential tax if the item purchased is not used for the purposes declared. We are of the view that it is not only failure of use of the item for the declared purpose, but even a misdeclaration with regard to eligibility for concessional rate entitles the Department to proceed against the purchaser to collect differential tax and interest thereon and in cases of deliberate violation, even to levy penalty. Department has no case that Cochin Refineries Limited has issued any misdeclaration or failed to use the goods purchased for the declared purpose because Department has not taken any proceedings against them. In view of the above findings, the sales tax revision case is allowed vacating the order of the Tribunal and confirming the first appellate order directing the officer to revise the assessment and grant concessional rate to the petitioner, for, the turnover covered by the declaration issued by Cochin Refineries Limited.
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2006 (8) TMI 578 - ALLAHABAD HIGH COURT
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... ... ..... c) is justified. The loose purchase slips which were seized at the time of survey dated August 21, 1992 reveal entries relating to production of deshi ghee and milk powder which were not found entered in the books of account. Therefore, a specific concealment was found in the present case. The only question that remains is the quantum of penalty. Admittedly, this is the first year of business. The specific concealment was found for 17 days and on the basis of concealment of 17 days, concealment for 75 days had been estimated. The Tribunal found that levy of penalty at 200 per cent was not justified, but has not given any basis for levy of 100 per cent penalty. On the facts and circumstances of the case, in my view, the minimum penalty at 50 per cent of the concealed turnover which comes to Rs. 2,20,012.50 is reasonable and is sustained. In the result, revision filed by the applicant is allowed in part and the revision filed by the Commissioner, Trade Tax, U.P., is dismissed.
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