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Case Laws
Showing 61 to 80 of 723 Records
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2009 (5) TMI 962 - SC ORDER
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... ... ..... Delay condoned. The Civil Appeal is dismissed.
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2009 (5) TMI 961 - SUPREME COURT
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... ... ..... loyee retired from service on attaining the age of superannuation, has observed that since the government employee had left the head quarters without permission of the competent authority, so the proceedings could not be completed. This finding on facts need not be disturbed by us, since the said finding cannot be said a perverse finding. 19) In view of the above discussion, the appeal is allowed and the judgment and the order passed by the High Court is set aside. The disciplinary authority is directed to complete the domestic enquiry proceedings from the stage it was interdicted by the High Court and complete the same as expeditiously as possible and at any rate within three months from the date of receipt of this court's order. The respondent herein is directed to participate in the enquiry without unnecessarily seeking adjournment in the enquiry proceedings. In the facts and circumstances of the case, parties are directed to bear their own costs. Ordered accordingly.
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2009 (5) TMI 960 - SUPREME COURT
Violation of parameters set u/s 166A CrPC - Murdered of Canadian citizen of the Indian origin - Want of Proper medical and forensic investigation - neither the application has been made by the prosecution nor any letter of request had been issued by competent court of law - approach the Government of Canada for seeking assistance from appropriate agencies of the said Government to investigate the offences in so far as they relate to DNA testing of the articles recovered from the accused - as there is no such facility available in India.
HELD THAT:- It is well settled that the accused has no right to be heard at the stage of investigation. The prosecution will however have to prove its case at the trial when the accused will have full opportunity to rebut/question the validity and authenticity of the prosecution case. In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P. [1999 (7) TMI 671 - SUPREME COURT] this Court observed, “There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the Court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard.”
The accused can certainly avail himself of an opportunity to cross examine and/or otherwise controvert the authenticity, admissibility or legal significance of material evidence gathered in course of further investigations. Further in light of the views expressed by the investigating officer in his affidavit before the High Court, it is apparent that the investigating authorities would inevitably have conducted further investigation with the aid of CFS u/s 173(8) of the Code.
We are of the view that what is the evidentiary value can be tested during trial. At this juncture it would not be proper to interfere in the matter. It appears from the statement of learned counsel for the State that the lady who was murdered in Bombay was a Canadian citizen of the Indian origin. It is stated that there was a confession by accused persons on the basis of which recoveries were made. The blood stained clothes of the accused (A1) and the deceased were seized.
It is pointed out, that the Canadian citizen was murdered and therefore the Candian police was involved. Dead body was taken to Canada and the genetic material were with the Canadian Coroner. Before the application by respondent No. 2 was filed there was a letter by the Coroner to the Police Commissioner. Whether there is actually illegal recovery, since documents are there they are to be proved. In that view of the matter we are not inclined to interfere and it is for the court to decide whether the evidence is admissible or otherwise. The appeals are accordingly dismissed.
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2009 (5) TMI 959 - SUPREME COURT
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... ... ..... rst selection scale of pay was excluded several years back on completion of 9 years of service subsequent to regularization. After long lapse of time i.e. after nearly 8 years it was not open to be canvassed that the second selection scale of pay ought to be granted after the concerned employees having put in 18 years of service from the date of ad hoc appointment. 24. Above being the position the appeals and transfer petitions deserve to be allowed which we direct. Civil Appeal /09 SLP (C) 25651 of 2005 25. It is a case of the respondent in the present case that though his case was heard alongwith other cases which are disposed of today, in the instant case the test was in the year 1981. The regularization was in 1982 and first selection grade was given in 1991 and the second was given in 2000. That being so, the respondent is entitled to the benefit which the Government has not granted. The State is directed to consider this question immediately. 26. Appeal is disposed of.
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2009 (5) TMI 958 - CESTAT CHENNAI
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... ... ..... by order dated 31.7.01 and upheld by the Commissioner (Appeals) under the impugned order dated 3.6.02 on the ground that the claim was barred by limitation as they have not filed it within the statutory period of six months from 17.11.1995. Hence this appeal. 2. We have heard both sides. Although the appellants did not lodge formal letter of protest in terms of provisions of Rule 233B of the Central Excise Rules, the appeal against the confirmation of duty is to be treated as protest, in the light of the Tribunal’s order in Nice Foto Lab Vs. CC, Chennai 2002 (141) ELT 786 (Tri), CCE, Aurangabad Vs. BCL Forgings Ltd 2005 (192) ELT 922 (Tri.Mum) and Overseas Trading Corporation Vs. CCE, New Delhi 2006 (205) ELT 180 (Tri.Del) . Following the ratio of the above case law relied upon by the counsel for the appellants, we hold that the refund claim is not hit by time bar and accordingly set aside the impugned order and allow the appeal. (Dictated and pronounced in open court)
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2009 (5) TMI 957 - CESTAT NEW DELHI
Whether the input credit taken, when the final product was dutiable need not to be reversed on final product becoming exempt from the payment of duty?
Held that: After referring to the decision of the Apex Court in Collector vs. Dai Ichi Karkaria Ltd., [1999 (8) TMI 920 - SUPREME COURT OF INDIA] the larger Bench ruled thatwhen the input credit legally taken and utilized on the dutiable final product need not to be reversed on the final product becoming exempt subsequently w.e.f. 9.7.2004. Undisputedly, the facts of the case in hand clearly attracts the said ruling and therefore do not warrant detailed discussion and analysis of the materials - appeal dismissed - decided against Revenue.
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2009 (5) TMI 956 - SUPREME COURT
Validity of Appointment of the arbitrator by the HC exercising jurisdiction u/s 11 (6) of the Arbitration and Conciliation Act, 1996 - Heading of arbitration clause is replaced by another clause - Applicability of replaced clause on an agreement, entered into between the appellant and the respondents, one of whom is a private party - Rule of Interpretation of the section heading or marginal note - There is a clause No. 14 with the caption "Settlement of Disputes/Arbitration". The aforesaid clause 14 in the Agreement, however, was scored out and the same was replaced by another clause No. 14 the caption "Arbitration with regard to the commercial disputes between the Public Sector Enterprises inter se and Public Sector Enterprises and Government Departments."
HELD THAT:- The aforesaid clause No. 14 relates to disputes of commercial nature arising between the Public Sector Enterprises inter se and between the Public Sector Enterprises and Government Departments. The text that follows also makes the said position clear which provides that after the award is given by the arbitrator in the department of public sector enterprises, reference for setting aside or revision of the award is to be made to the Law Secretary, Department of Legal Affairs, Ministry of Law & Justice, Government of India.
The said clause, therefore, concerns the commercial disputes arising between the Public Sector Enterprises inter se and between such enterprises and Government Departments. The said clause will have no application to an agreement which is entered into between the appellant and the respondents, one of whom is a private party. Since that arbitration clause is not applicable to the case in hand, therefore, the appointment of the arbitrator by the Calcutta High Court exercising jurisdiction under Section 11 (6) of the Act was improper.
Rule of Interpretation of the section heading or marginal note - It is well settled rule of interpretation that the section heading or marginal note can be relied upon to clear any doubt or ambiguity in the interpretation of any provision and to discern the legislative intent. The section heading constitutes an important part of the Act itself, and may be read not only as explaining the provisions of the section, but it also affords a better key to the constructions of the provisions of the section which follows than might be afforded by a mere preamble.
We, accordingly, set aside the said order.
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2009 (5) TMI 955 - CESTAT AHMEDABAD
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... ... ..... le to accept the arguments that Hon’ble High Court of Gujarat did not go into the merits but the rejected appeal filed by the appellant in the case of M/s. Priya Blue Industries supports the case of the appellant. In view of several decisions of the Tribunal on merit and since we also do not find any reason to differ from the precedent decisions, we hold that the appellants have no case on merit. As regards interest on differential duty arising as a result of finalization of provisional assessment, since the interest liability clause was introduced in 2006 only, the appellants are entitled to that benefit. As regards the appeal filed by M/s. Ghasiram Gokalchand Ship Breaking Yard, we remand the matter to original adjudicating authority with direction to re-assess the quantum of duty treating the quantity as 1.2 K.ltrs. if the appellants are able to produce the communication from the Supdtt. confirming the quantity as 1.2 K.Ltrs. only. (Pronounced in Court on 29-5-2009)
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2009 (5) TMI 954 - DELHI HIGH COURT
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... ... ..... 91 almost five years before the Writ Petition was filed. The claims pertain to the period January-March, 1989. Respondents in their reply have stated that they are not able to trace out the relevant file. The petitioner has not filed on record any letter/correspondence after 1991 till 1996 in respect of the said appeal. Even in the rejoinder affidavit, it is not stated that steps have been taken by him from 1991 onwards. It is not possible for this Court to examine whether the Second Appeal was decided or not. It will be open to the petitioner to approach the Office of Director General of Foreign Trade. Director General of Foreign Trade will examine the said request and the documents and if the submission of the petitioner is found to be correct then a suitable order will be passed. In case the petitioner is aggrieved by any Order passed by the respondent, he will be entitled to redress his grievance in accordance with law. Writ Petition is accordingly disposed of. No costs.
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2009 (5) TMI 953 - DELHI HIGH COURT
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... ... ..... petitioner and the respondents to furnish full details and particulars. In these circumstances, it is left open to the petitioner to approach the office of Director General of Foreign Trade along with relevant documents in support of his claim with a representation/letter for payment and disposal of applications for CCS claimed under SPS Scheme where files or details are not available. Respondents will examine the claim of the petitioner and pass a speaking order within six months after representation is made. All pleas and contentions including question of delay and laches, failure to rectify and remove defects, etc. will be examined and are available to the respondents. It is clarified that this direction is in respect of CCS benefits under SPS Scheme, where files are not traceable. In case the petitioner is aggrieved by the Order passed by the respondents, they will be entitled to ventilate their grievance in accordance with law. Writ Petition is accordingly disposed of.
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2009 (5) TMI 952 - CESTAT BANGALORE
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... ... ..... belief that during the relevant period only a commercial concern was required to discharge the service tax liability. In as much as the respondent is a cooperative society they were of the view that there was no liability cast on them. That belief was also based on the advice given to them by M/s. ONGC. This fact has been appreciated by the learned Commissioner (Appeals) and he has used his discretion to set aside the penalty. Moreover we find that the respondent is a cooperative society consisting of ex-service men. It is a fact that they had not paid the service tax on a bonafide belief and also the said tax amount was not collected from M/s. ONGC. Once M/s. ONGC cleared this amount, they paid it. So we agree with the learned Commissioner (Appeals) that there was no willful intention on their part to evade service tax. There is no infirmity in the order of the Commissioner. Therefore, we uphold it and reject the revenue's appeal. Pronounced and dictated in open Court.
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2009 (5) TMI 951 - ITAT DELHI MUMBAI
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... ... ..... do not require independent consideration. 15. Vide ground Nos, 5 to 7, the assessee challenges ad hoc addition made by the Assessing Officer out of telephone expenses, motor-car expenses and office expenses. We have heard the learned counsel for the assessee as well as the learned Departmental Representative in this regard. Having regard to the facts and circumstances of the case, we do not find any reason to deviate from the findings of the teamed CIT(A) on these issues and accordingly reject ground Nos. 5 to 7. 16. Ground No. 8 and 9 are consequential in nature. It may be noticed that though it was claimed that interest charged is invalid and bad in law, at the time of hearing the learned counsel requested for consequential relief only. The Assessing Officer is directed to re-compute the interest chargeable under sections 234-B and 234-C of the Income-tax Act, 1961. 17. In the result, the appeal filed by the assessee is partly allowed. Order pronounced on this 07.05.2009.
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2009 (5) TMI 950 - CESTAT NEW DELHI
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... ... ..... length of delay is immaterial, while causes of delay becomes material for consideration by the Court to do justice to the parties. We also take into consideration Revenue's submission. Revenue is treated as an equal litigant like other side in the matter of condonation of delay. The case law placed by the Ld. DR is relating to the negligence of revenue for which their SLP was dismissed. We find that the appellant shall suffer if the delay is not condoned in absence of any malafide or deliberate breach of law by the appellant. Accordingly we condone the delay and admit the appeal. 4. When we go to the stay application, we find that there is a tax demand of ₹ 56,514/-. Ld. Counsel argues that tax demand has been deposited. The appellant having deposited the tax demand, we direct waiver of pre-deposit of the balance demand till disposal of the appeal. In the result both MA(COD) and stay application are allowed in the aforesaid terms. Order dictated in the open Court.
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2009 (5) TMI 949 - PUNJAB & HARYANA HIGH COURT
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... ... ..... 11) passed by the Tribunal are set aside and direction is issued to the respondents to deduct the sales made to the registered dealers while working out taxable turnover. Accordingly the same would also not be included in 'notional tax liability'. We find that the principles of law enunciated by Hon'ble the Supreme Court in the case of M/s Liberty Enterprises case (supra) and in our judgment dated 8.5.2009 passed in the case of M/s Jai Durga Cotton Mills, Hissar (supra) are fully applicable to the facts of these petitions. Accordingly, by following the same principles and precedent, these petitions succeed. Orders passed by the Tribunal, which have been impugned in these petitions, are hereby set aside and direction is issued to the respondents to deduct the sales made to the registered dealers while working out taxable turnover. Accordingly the same would also not be included in 'notional tax liability'. These petition are disposed of in the above terms.
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2009 (5) TMI 948 - ITAT MUMBAI
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... ... ..... inion that the penalty levied in both the cases on hand, has no leg to stand for the reason that the revised return which is the basis for levy of penalty is not existing in law. We cancel the penalty orders. 7. Even otherwise on merits, we find sufficient force in the argument of the learned counsel for the assessee that there is no concealment whatsoever nor has the assessee committed an act of furnishing of inaccurate particulars of income, in these cases. The entire claim has been explained by way of a letter while filing the revised returns of income and it was based on certain judicial decisions delivered in the case of assessees sister concern. The issues are debatable and the explanation furnished by the assessee is not held to be false by the assessing officer. The explanation is bona fide and under such circumstances, levy of penalty is bad in law. 8. In view of the above discussion, we allow both the appeals of the assessee. 9. Order pronounced on this 07.05.2009.
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2009 (5) TMI 947 - ITAT BANGALORE
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... ... ..... t and this order is in the case of M/s. i2 Technologies India Pvt. Ltd., v. ACIT in ITA.No.137/Bang/2007 for the asst. year 2003-04, dt.9.5.2008. A copy of the said order has been filed by the department before us. In paragraph 5.26 of the said order it has been held by the Tribunal that the computations u/s.10A and 80HHE are independent ad quarantined and there would be no interplay between them. It was thus held that "Once the deduction u/s.10A is computed, the same would oust other incentive deductions like section 80HHE from being available". Since the identical controversy projected by ground nos.4 to 6 before us has been decided in favour of the department by the aforesaid order of the Tribunal, respectfully following the same, we reverse the decision of the Commissioner of Income-tax (Appeals) on this point and allow the grounds of the department. 4. In the result, the appeal is partly allowed. order pronounced in the open court on this 1st day of May, 2009.
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2009 (5) TMI 946 - ITAT CHENNAI
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... ... ..... Builders (P) Ltd. (supra) and Raka Food Products (supra) are also totally on different facts and in both these cases what has been decided is that even though the depreciable assets are required to be taxed, as short-term capital gain as per s. 50 of the Act which means that s. 50 will override the provision provided in ss. 48 and 49 of the Act. However, if assets were held for more than 12 months and sale proceeds were invested in specified assets then exemption under s. 54E of the Act was still available. This view was taken on the basis that deeming provision s. 50 has been made to override ss. 48 and 49 and, therefore, it cannot be interpreted that it overrides the exemption provision also, which is independent. Therefore, these two cases are also not relevant for deciding the case before us. In these circumstances, we find nothing wrong with the order of the CIT(A) and accordingly, the same is confirmed. 11. In the result, the appeal filed by the assessee is dismissed.
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2009 (5) TMI 945 - CALCUTTA HIGH COURT
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... ... ..... hat the Tribunal has erred in passing that order. In these circumstances, he submitted that the matter should be remanded back and to be decided by the Tribunal afresh. Learned Counsel appearing on behalf of the department also submitted that the matter may be remanded back before the Tribunal so that the Tribunal can hear out the matter afresh after considering all the materials which have been placed in this paper book and in particular with regard to the points on questions of law which have been raised before us. Accordingly, we set aside the order of the Tribunal and direct that the matter should be heard out by the Tribunal on the above those two points afresh. For the reasons stated hereinabove the appeal is disposed of. All parties concerned are to act on a xerox signed copy of the minutes of this order on the usual undertakings. Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
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2009 (5) TMI 944 - KARNATAKA HIGH COURT
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... ... ..... d perused the application. 2. For the reasons stated in the application, it is now ordered that Mr. Pradeep Totla, company secretary of the Company or in his absence Mr. Shasikant G. Mandhana, Executive Director of the Company is appointed as the Chairman of the meetings to be held on 30.05.2009 instead of Mr. Nitin Mandhana by modifying to that extent, the order dated 6.4.2009. Accordingly, the C.A, No. 224/2009 is allowed. 3. The applicant is permitted to take out newspaper publication with regard to change in the name of the person to chair the meeting to be held on 30.5.2009.
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2009 (5) TMI 943 - CESTAT AHMEDABAD
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... ... ..... issued by the Board vide 14/2001 Cus. dated 2.3.2001 communicated the decision that demurrage charges are includible in the assessable value, whether demurrage charges can be excluded from assessable value for imports subsequent to 2.3.2001 even where assessments were made provisional on the ground that final decision was taken by the Board only on 26.9.2006 when Tribunal has taken a view that legally such demurrage charges are includible". Pronounced in Court on dated 29.4.2009 Archana Wadhwa, Judicial Member - Though I do not subscribe to the view adopted by my learned brother that the earlier decisions of the Tribunal in case of M/s Shine Petroleum Pvt. Ltd. and M/s MGM International Exports Ltd. were not correctly decided, I am not recording a difference of opinion and would like the matter to be decided by Larger Bench, in view of some doubts expressed by learned Member (Technical) about the correctness of the precedent decisions. Pronounced in court on 21.05.2009
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