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Showing 61 to 80 of 576 Records
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2005 (10) TMI 554 - CESTAT CHENNAI
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... ... ..... lified engineers apart from other professionals. In order to install their software in a particular industry/company, they have to provide lot of advise related to software engineering. It should be borne in mind that the scope of consulting engineers is not limited only to the traditional branches of engineering such as mechanical, electrical and civil. Engineering techniques are applied even in management. In this sense, software engineers would also come within the ambit of Consulting Engineers as per the Finance Act, 1994. Apart from this, from the very fact that the Government of India chose to issue an exemption Notification on 28-2-1999 services rendered by Consulting Engineers in relation to Software clearly indicates that the Government of India has recognized the Software Engineers also as Consulting Engineers." We have no reason to disagree with the above view, which is well-considered. Accordingly, the impugned order is affirmed and this appeal is dismissed.
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2005 (10) TMI 553 - SUPREME COURT
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... ... ..... ncement of this Act, no tenant shall, without the previous consent in writing of the landlord,-- (a) xxxx xxxx xxxx (b) transfer or assign his rights in the tenancy or in any part thereof. (2) xxxx xxxx xxxx" o p /o p A bare perusal of this provision makes it clear that the tenancy rights could be transferred only with the previous consent given in writing by the landlord. Since it has not been shown to us that the appellant landlord had at any point given his consent in writing to S. N. Das to transfer the tenancy rights, the plea that S. N. Das had transferred the tenancy rights in favour of his son i.e. Respondent 4 herein cannot be accepted. The High Court was right in holding that S. N. Das, the original tenant, had not transferred the tenancy rights in favour of Respondent 4 as alleged by the appellant in the written statement. o p /o p 9. For the reasons stated above, we do not find any merit in this appeal and dismiss the same with no order as to costs. o p /o p
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2005 (10) TMI 552 - ITAT DELHI
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... ... ..... he survived, may be taken against the legal representation as has been provided in section 159(2)(b) . The department has tried to make out a case that since section 159(1) uses the phrase ‘any sum’ and not the phrase ‘any tax’ the legal heir, in such a circumstance, is liable for initiation of penalty proceedings for the act committed by the deceased assessee. This is a palpable misconception of law. It has been time and over again judiciously noticed that the Legislature chooses its words with utmost care and caution. In section 159, there is no mention of penalty proceedings. It is amply clear that proceedings under section159(2)(b) do not include penalty proceedings. The department has not been able to effectively controvert this settled position. Therefore, the grievance of the department is ill founded. It is hereby rejected. As a result, the order of Learned CIT, being well reasoned, is maintained. 5. Consequently, the appeal stands dismissed.
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2005 (10) TMI 551 - CESTAT BANGALORE
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... ... ..... diploma of engineering from a recognized university. In the present case, the appellant is not even a graduate but only a certificate holder from an Industrial Training Institute. The certificate has been issued by Ministry of Labour and Rehabilitation for having given trade training of draftsmen (civil) to the respondent. The training has been given in Calicut Orphanage Industrial Training Institute, Kolathara. The respondent is not a professionally qualified engineer, as the certificate is obtained after his schooling. He cannot be called an engineer at all, more so a consulting engineer. The Industrial Training Centre is imparting training in trades of fitter, turner, welder, electricians, plumber, A/C mechanic, radio mechanic in addition to draughtsman (civil). By the same reasoning, all these tradesmen should also be considered as consulting engineers, this proposition of Revenue is ridiculous to say the least. There is no merit in this appeal and the same is rejected.
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2005 (10) TMI 550 - SC ORDER
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... ... ..... ason to interfere. The Civil Appeal is dismissed.
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2005 (10) TMI 549 - SUPREME COURT
Offence under NDPS Act - Seizure of vehicle - illegally transporting dark brown substance which smelled like opium - violation of Section 42 of the NDPS - HELD THAT:- In the present case, the officer who conducted the search was examined as PW-2. What he stated in the evidence was that the D.I.G. had instructed him that intoxicant materials were being transported illegally from the States of Rajasthan and Uttar Pradesh and the vehicles had been passing through Banaskantha district. This was only a general information given by the D.I.G. to PW-2 and such information is not bound to be recorded as a source of information as contemplated u/s 42 of the NDPS Act. Here, PW-2 and the members of the patrol team were doing the usual patrol duty and they incidentally came across the tanker lorry in question and on search recovered the contraband substance from the vehicle. We do not think that there is any violation of Section 42 of the NDPS Act. We do not find any merit in the appeal and the same is liable to be dismissed.
It is proved satisfactorily that the appellant who was the owner of the tanker lorry in question was found in possession of the narcotic substance weighing more than 5 kilograms. It is proved that the appellant was using this vehicle for illegally transporting the narcotic substance. He has rightly been found guilty by the sessions court and his conviction was rightly upheld by the High Court. We do not find any merit in the appeal and the same is liable to be dismissed.
The appellant was released on bail by this court by order dated 15th September, 1997 and there was also an interim stay of realization of the fine in terms of order dated 25th September, 1997. The appeal is dismissed and the appellant is directed to surrender before the authorities within four weeks to undergo the remaining period of the sentence of imprisonment. He is also liable to pay the fine imposed on him, if not already paid.
The connected Criminal Appeal would also stand dismissed accordingly.
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2005 (10) TMI 548 - AUTHORITY FOR ADVANCE RULINGS, NEW DELHI
Application seeking advance ruling u/s 28H - Non-resident company - Whether the import of car parts, listed at Annexure III, would be considered as import of completely knocked down (‘CKD”) unit, eligible to the concessional rate of customs duty of 15% being covered by Entry 344 of CTH No. 8703 (1) of Notification No. 21/2002-Cus. as amended by Notification No. 11/2005-Cus.? - Majority decision of the Members of the Authority - HELD THAT:- It may be noted from the clarification report that (1) there are no specific guidelines prescribed for defining CKD and SKD kits; (2) there are some parts in the Annexure which could be taken as component form while there are other parts which could be termed as SKD form. (3) on the basis of the analysis carried out by ARAI and the discussions held with BMW, it was learnt that seats would be manufactured locally and then installed in the vehicle; (4) inasmuch as without seats the vehicle could not be treated as complete, the words “by and large” have been used.
From the perusal of these reports, the position that emerges is that parts listed in Annexure-III to the application represent the CKD Unit and with the assembly of seats, which will be procured locally, the parts would constitute a complete car. There are some parts, which could be taken as component form while there are other parts which could be termed as SKD form. It is true that there are no definitions of the terms “CKD” and “SKD” in the Customs Act or Rules framed thereunder. But from the material furnished by the applicant for comparison of CKD and SKD, it appears that the components for the CKD vehicle are procured from the suppliers who supply to main BMW production facility at the CKD location and approximately 1400 single parts and body parts are transported to the CKD country.
In the case of SKD, the vehicles are completely built up in a main BMW production facility in Germany and subsequently certain components are disassembled; the partially disassembled vehicles are mounted on transport skids and shifted to the respective countries where the disassembled components are fitted. The reports of the expert, as may be seen, refer to Annexure–III as CKD unit. The notification does not use the term “SKD”. The Notification for purposes of concessional duty refers to two categories : (i) imported as completely knocked down (CKD) unit dutiable 15%; and (ii) imported in any other form 60%. The reports of the expert do not mention that the car is not imported in completely knocked down (CKD) unit. What they say is that some parts of the car are in SKD form, thereby meaning, they can be further knocked down into components.
This, in our view, may not be a relevant factor because it is clear from the report that Annexure–III represents completely knocked down unit of motor cars. If that be so, the contention of the Commissioner that Sl. No. 344 (2) prescribing 60% duty would apply, cannot be accepted; the applicable rate of duty would be 15%. We hasten to make it clear that the motor cars if imported in any form other than completely knocked down (CKD) unit, the rate of duty applicable would be 60%.
Thus, we rule on the question set forth in the application that import of car parts as listed in Annexure-III to the application would be considered as import of motor car as a completely knocked down unit (CKD), eligible to the concessional rate of customs duty of 15% [applicable to motor cars if imported as completely knocked down (CKD), unit] being covered by Entry 344 of CTH No. 8703 of Notification No. 21/2002-Cus., dated 1-3-2002 as amended by Notification No. 11/2005-Cus., dated 1-3-2005.
RULING OF THE AUTHORITY - In view of the opinion of the majority of the Members of the Authority on the question set forth in the application, it is ruled that import of car parts as listed in Annexure-III to the application would be considered as import of motor car as a completely knocked down unit (CKD), eligible to the concessional rate of customs duty of 15% [applicable to motor cars if imported as completely knocked down (CKD) unit] being covered by Entry 344 of CTH No. 8703 of Notification No. 21/2002-Cus. as amended by Notification No. 11/2005-Cus.
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2005 (10) TMI 547 - SC ORDER
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... ... ..... JJ. ORDER Appeal dismissed.
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2005 (10) TMI 546 - ALLAHABAD HIGH COURT
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... ... ..... ee’s own case for the assessment year 1982-83. The Tribunal placed reliance on the Bombay High Court’s decision in the case of the CIT v. I.B.N. World Trade Corpn. 1981 130 ITR 739 . 4. We have heard Sri R.K. Upadhaya, learned standing counsel for the revenue. No body has appeared on behalf of the respondent assessee. 5. We find that this Court in Income-tax Reference No. 17 of 1991 connected with Income-tax Reference No. 251 of 1992, decided on 30-9-2005, which is inter parties and related to the assessment years 1982-83 and 1983-84 has answered similar question in favour of the assessee and against the revenue by following its order in Income-tax Reference No. 68 of 1987 connected with Income-tax Reference No. 275 of 1991, CIT v. B.D. Mills, decided on 30-9-2005. 6. Respectfully following the aforesaid decision, we answer the question referred to us in the affirmative, i.e., in favour of the assessee and against the revenue. There shall be no order as to costs.
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2005 (10) TMI 545 - CESTAT CHENNAI
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... ... ..... ntifying the appellant’s agents as “Commission Agents” and, if that be so, the Board’s Circular can easily be relied on to hold that the services availed by the appellants during the period of dispute were the services of Commission Agents and the same were different from the services of Clearing and Forwarding Agents (including Consignment Agents). In the result, it requires to be held that the services availed by the appellants during the period of dispute, were services of Commission Agents, coming within the definition of Business Auxiliary Services inserted in the Finance Act, 1994 for the first time with effect from 14-5-2003. In the circumstances, I think it is not necessary to examine the merits and demerits of other arguments addressed. 5. In the result, the demand of service tax on the appellants is set aside. Consequently, the penalties imposed on them will stand vacated. The appeals are allowed. (Dictated and pronounced in open Court)
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2005 (10) TMI 544 - SUPREME COURT
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... ... ..... r the possession to the respondent within eight weeks. Similarly, appellants are directed to handover the possession of other properties as well. The officers who are in occupation of the buildings for their residences or for their offices are also directed to immediately vacate and handover the buildings or the properties to the Custodian to enable him to handover the possession to the respondent in terms of the directions given. Failure to comply with the directions to handover the possession within 8 weeks will constitute disobedience of this order and the appellants would be in contempt of this order. Respondent would be at liberty to move an application in this Court if the above directions are not complied with for taking appropriate action against the appellants or their agents. Since the appellants have retained the possession of the properties illegally and in a high handed manner for 32 years, the appeal is dismissed with costs which are assessed at ₹ 5 Lacs.
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2005 (10) TMI 543 - SUPREME COURT
Whether the appellant directed to pay the amount of compensation which was determined by the Land Acquisition Officer along with enhanced compensation which may have been granted by the High Court in any of the reference filed either by the 1st respondent or any other land owner inclusive of statutory benefits with interest @ 9% per annum with effect from the date on which it became due till its payment?
Whether 1st respondent would be entitled to re-claim the amount of compensation along with interest?
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2005 (10) TMI 542 - SUPREME COURT
Whether as the First Respondent was sent on deputation pending selection of the regular incumbent by the UPSC; till such regular selection is made, he had a right to hold the said post?
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2005 (10) TMI 541 - SUPREME COURT
Whether the appellant was not qualified to contest from a constituency reserved for the scheduled tribes?
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2005 (10) TMI 540 - SUPREME COURT
Whether Section 2 of the Bombay Animal Preservation (Gujarat Amendment) Act, 1994 (Gujarat Act No. 4 of 1994) which introduced certain amendments in Section 5 of the Bombay Animal Preservation Act, 1954 (as applicable to the State of Gujarat) to be struck down as ultra vires ?
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2005 (10) TMI 539 - CESTAT MUMBAI
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... ... ..... the same show cause notices cannot be upheld. g. The benefit of clearance at the rates applicable under Notification 8/97 in this case as claimed by the appellants cannot be denied as there is no finding or an allegation of use of any duty free imported raw material having been utilized in the manufacture of Silicon Manganese by the appellants. In view of the findings, the duty demands as arrived cannot be upheld, they are set aside. Since no duty demands can be made, the question of interest and penalty will not arise and are required to be set aside. h. There is no reason in view of the findings herein above to arrive any confiscation liabilities of the goods already cleared and/or detained. Orders to this effect are, therefore, set aside and appeals to be allowed. i. Since no duty demands and confiscation liability is being upheld, the penalty on the Chairman cannot be upheld. 3. In view of the findings, these appeals are allowed. (Pronounced in Court on 21-10-2005)
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2005 (10) TMI 538 - SUPREME COURT
Whether the qualification laid down under para 13 and 14 of UGC Career Advancement Scheme is mandatory or not for placing the appellant in senior scale and selection grade and if there is no finding about the qualification, the appellant did not qualify for the said scheme?
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2005 (10) TMI 537 - CESTAT MUMBAI
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... ... ..... 9 to August, 99 and September, 99 to December, 99, equivalent to 50 of the duties not paid. The Commissioner dropped the demand for the period upto 15-9-99 on the grounds that though Section 3(1) was amended by Finance Act, 2000 with retrospective effect from 1982, Notification No. 2/95-C.E. prescribing effective rate of duty leviable under Section 12 of the Customs Act was not so amended. Hence retrospective amendment to proviso to Section 3(1) will not have any impact up to 15-9-99 as Notification No. 38/99-C.E., dated 16-9-1999 amended Notification 2/95-C.E. prospectively, i.e., only from 16-9-1999 up to 15-9-1999 an EOU is to discharge only 50 . 2. In view of the Larger Bench decision in the case Fabworth (I) Ltd. - 2002 (143) E.L.T. 663 (Tri.-LB) holding that amendment vide Notification 38/99-C.E., dated 16-9-1999 cannot be retrospective. No merits are found in the Revenues appeal same is required to be dismissed. 3. Ordered accordingly. (Pronounced in Court.)
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2005 (10) TMI 536 - SUPREME COURT
Whether the removal of the delinquent officer from service was in violation of the provisions contained in Section 10 of the Border Security Force Act, 1968 (in short 'the Act') read with Rule 20 of the Border Security Force Rules, 1969 (in short 'the Rules)?
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2005 (10) TMI 535 - CESTAT MUMBAI
Finalization of assessment - Absolute Confiscation - Import of goods under Advance Licence scheme claiming duty free clearance under Notification 117/78 as amended - demand of duty when the goods are absolutely confiscated - Section 129A of the Customs Act - majority order.
As per Moheb Ali M., Member (T)
HELD THAT:- It is hotly contested that the Collector erred in ordering absolute confiscation and demanding duty on the same quantity under Section 28 and Section 143A (the latter section has no legal standing). In a recent decision in the case of Union of India v. Shri Harkishandas Narottam Hospital (W.P. No. 388 of 2005), dated 13-4-2005 [..........................................], the DB of Hon’ble High Court of judicature at Bombay ruled thus “If the appellant were not interested in redeeming the goods, then, the Customs Act does not create liability to pay the Customs duty”. If that were to be the legal position in regard to goods not redeemed it is equally so in respect of goods absolutely confiscated.
The ratio laid down by the Hon’ble High Court is applied to the facts of the present case. What the Hon’ble High Court has laid down is that he who possess the goods shall bear the liability to duty. In other words, if the goods are absolutely confiscated it is the Central Government who would possess the goods. Liability to pay duty on absolutely confiscated goods does not shift to the person who either imported the goods or to the person from whose possession the goods were seized. The demand for duty on 4536 bales weighing 1169.575 needs to be set aside. Their confiscation under Sections 111(m) and (o) has to be upheld as the goods in question were misdeclared and the conditions under which the goods were imported were violated.
Another significant feature in regard to clearances under Bills of Entry 22 and 23 is that in DEEC Part ‘D’ the importers have not indicated the notification applicable to VSF even though they mentioned the duty applicable to VSF. The modus operandi was the same. In case the appellant failed to fulfil the export obligation they would pay duty applicable to VSF even when they imported PSF. The declaration made in the Bill of Entry read with the ones in the DEEC book would constitute misdeclaration with intent to evade duty. The goods are therefore liable to confiscation.
Out of 4536 bales confiscated a quantity of 452 bales pertained to goods cleared under Bill of Entry No. 63. The balance therefore should be attributed to PSF cleared under Bill of Entry Nos. 22 and 23. Both these clearances took place under the same Advance Licence. It is not possible to attribute the quantity seized and confiscated to the Bills of Entry 22 and 23 individually unlike in the case of Bill of Entry No. 63. It is possible of course to relate the balance quantity that is 4536 – 452 = 4084 to the clearance made under Advance Licence used for clearing the goods under Bills of Entry Nos. 22 and 23.
The Commissioner also confiscated absolutely 171 bags of yarn weighing 85.50 kgs seized from P.G. Textiles under Sections 111(m) and (o) read with Section 120 of the Customs Act on the ground that the yarn is made out of PSF liable to confiscation. We are not aware how much of PSF has gone into the production of this quantity of yarn. Duty is however not demandable on the quantity of PSF that had gone into the production of 171 bags of yarn. From the total demand duty attributable to this quantity of PSF will have to be deducted. To sum up, the position emerges like this.
Confiscation of 4476 bales of PSF under Sections 111(m) and (o) is upheld in so far as L.D. Textiles is concerned. On the question whether they should be absolutely confiscated or not we observe that this action on the part of the Commissioner is seemed to have been prompted by the modus operandi adopted by the appellants. Goods which have been imported under certain conditions laid down by the Licensing Authority, when not complied with do become prohibited goods - Since it is held that the goods in question have rendered themselves liable to confiscation it is perhaps academic at this distant date in the present case whether the adjudicating authority should have given an option to redeem them on payment of duty. We are not inclined to modify the order into one of the confiscation with an option to redeem as it serves no purpose. It is not also possible to set aside the order of confiscation adjudicated by the lower authority.
It is now well settled that mens rea on the part of the person from whose possession offending goods are seized and confiscated is not necessary to render them liable to confiscation though such a state of mind is necessary for penalty under Section 112 of the Customs Act. The Department is able to adduce enough evidence in the form of statements of transporters, owners and other documentary evidence as brought out in the show cause notice that the goods seized from the appellants - These goods were cleared duty free under certain conditions which were later found to have been not observed. The very fact that they have been removed from the premises of the importer without permission from the appropriate authorities rendered the goods liable to confiscation. There are no infirmity in the order in so far as confiscation of the goods in the hands of these appellants is concerned. These appeals are accordingly rejected.
As per S.S. Sekhon, Member (T)
The setting aside of the impugned order is ordered and the appeal is allowed as regards finalization of the assessment and duty demands thereafter, if any, in case of all these 3 Bills of Entry to be redetermined by the proper officer in charge of Veraval Custom House.
MAJORITY ORDER:-
In view of the majority opinion, the appeals are disposed off in terms of the order prepared by the learned Member (Technical), Shri Moheb Ali M.
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