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Case Laws
Showing 101 to 120 of 6338 Records
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2003 (12) TMI 584 - SUPREME COURT
Whether a writ petition under Article 226 of the Constitution of India is maintainable to enforce a contractual obligation of the State or its instrumentality, by an aggrieved party?
Whether the appellant should adhere only to receive consideration by barter of goods or it is also entitled to demand the consideration by cash in US $ ?
Whether non-payment of such consideration is covered by the contract of insurance or not?
Held that:- Appeal allowed. There is no allegation that the contracts in question were obtained either by fraud or by misrepresentation the facts of this case do not and should not inhibit the High Court or this Court from granting the relief sought for by the petitioner.
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2003 (12) TMI 583 - SUPREME COURT
Restrained from interfering with the possession and enjoyment of the suit schedule property by the respondent - whether the defendant had succeeded in proving his title or not?
Held that:- Appeal dismissed. Even the defendant failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff. The Trial Court therefore left the question of title open and proceeded to determine the suit on the basis of possession, protecting the established possession and restraining the attempted interference therewith. The Trial Court and the High Court have rightly decided the suit. It is still open to the defendant-appellant to file a suit based on his title against the plaintiff-respondent and evict the latter on the former establishing his better right to possess the property.
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2003 (12) TMI 582 - SUPREME COURT
Whether the Will was genuine has to be adjudicated in an appropriate proceeding?
Whether the grant was absolute or it was subject to any condition or stipulation?
Held that:- Appeal allowed. It shall be for the respondents to establish the genuiness of the Will in the manner recognized by law in the appropriate proceeding, and thereafter seek for possession including the claim for any mesne profits in such proceedings. It shall not be construed that our interference in the matter is on the basis of any expression of opinion about merits of the original dispute i.e. relating to genuiness of the Will but made only for the limited purpose of setting aside the illegal orders of the Courts below as to right to possession. As and when, an appropriate suit is filed the competent Court shall be at liberty to determine the question of title to the disputed half share of the respondents on its own merits, on the basis of materials and evidence that may be let in during trial, uninfluenced by the observations made on such claims in the orders set aside, as well as those made in this order.
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2003 (12) TMI 581 - SUPREME COURT
Whether electricity can be stored or not?
Whether Section 12(3) does in fact impose any fetter on the power of State to legislate?
Held that:- Appeal allowed. Section 3(2) of the Upkar Adhiniyam, 1981 as introduced by the Amendment Act, 2001 and amended in 2003 is declared ultra vires the Constitution as being outside the legislative competence of the State. As far the amounts collected by the respondents under Section 3(2) are concerned, the collection was in a sense protected by the decision of the High Court. The 'protection' became precarious when this Court while granting leave on the special leave petitions on Ist March, 2002 had refused interim relief stating that the question of refund with interest was an issue to be decided at the final hearing. In the circumstances, direct that the respondents will be liable to refund the cess collected after Ist March, 2002 to the appellants together with interest at 9% p.a.
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2003 (12) TMI 580 - PUNJAB AND HARYANA HIGH COURT
... ...
... ... ..... He states that before completing the assessment, the Assessing Officer shall dispose of the objections raised in Annexure A-10 by passing a speaking order thereon. 2. In view of the above, the present writ petition is disposed of in the following terms (i)Annexure P-22 dated 11th March, 2002, is quashed. (ii)The Assessing Officer shall pass a speaking order on the application of the petitioner dated 18th Feb., 2002 (Annexure P-10) within one month from the date of receipt of a certified copy of this order. While passing the order, the Assessing Officer shall also dispose of the objections, which may be raised by the petitioner qua the validity of notice under section 148. (iii)The assessment shall be completed within a period of one month thereafter. 3. It is, however, clarified that if the petitioner is not satisfied with the order passed by the assessing authority on his application dated 18th Feb., 2002. He shall be at liberty to challenge the same in accordance with law.
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2003 (12) TMI 579 - ITAT MUMBAI
Preliminary expenses, Business expenditure ... ... ... ... ..... It was argued by the learned Authorised Representative that this issue is fully covered in favour of the assessee by the order of the Tribunal in the case of Asstt. CIT v. Marvel Equity (P.) Ltd. as per ITA No. 271/M/2000 placed on page Nos. 71 to 76 of the paper book. The learned Departmental Representative relied on the order of the learned CIT(A). 8. We have heard the rival submissions, perused the materials on record and gone through the order of the Tribunal as cited by the learned Authorised Representative. We are of the considered opinion that the facts of the case in hand being similar, the issue is fully covered in favour of the assessee and respectfully following the order of the Tribunal we delete this addition. This ground of the assessee also succeeds. 9. Ground No. 4 is regarding the deduction under section 80M. This ground was not pressed by the learned Authorised Representative, hence, dismissed as not pressed. 10. In the result, the appeal is partly allowed.
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2003 (12) TMI 578 - ITAT MUMBAI
Business expenditure ... ... ... ... ..... the Consultant. Even no bill has been raised by C.C. and L.C. on the assessee for this payment of Rs. 21,00,000. The A.R. is stressing on the fact that 60 per cent of the payment was released within a short period from the date of the appointment of the Consultant but receipt of this amount by the assessee firm from BMC also does not in itself prove that any service was rendered by the Consultant in this regard. The payment was made by BMC as per the award and the onus was on the assessee to prove that services were actually rendered by the consultant in getting the payment released from BMC. But, the assessee could not bring any material on record in this regard. Under the facts and circumstances of the case, we do not find any justification of interference in the order of the learned CIT(A) and this ground of assessee fails. 25. Ground Nos. 5 and 6 are general in nature and does not call for any adjudication. 26. In the result, the assessee rsquo s appeal is partly allowed.
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2003 (12) TMI 577 - ITAT AHMEDABAD
... ...
... ... ..... s is not a case where the lower authorities found anything against the object of introducing of section 269SS as there was neither a search nor such unaccounted money was unearthed which has been manipulated in the records. The assessee was under a bona fide belief that the declaration of those persons through assessee-company account will be the better evidence in support of the declaration under VDIS. Since the department has accepted the VDIS of those persons, the bona fide of the assessee cannot be ruled out. When the assessee is in bona fide belief which amounts to reasonable cause and in case of reasonable cause penalty under section 271D is not leviable. Under the facts and circumstances of the case we do not find any justification in the action of the Assessing Officer for levying penalty under section 271D. We therefore set aside the orders of the lower authorities and the penalty of Rs. 10,00,000 is cancelled. 8. In the result, the appeal of the assessee is allowed.
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2003 (12) TMI 576 - ITAT JODHPUR
... ...
... ... ..... ct that the agricultural activities were being carried out. He, therefore, held that the land in question was agricultural in nature and hence cannot be included in the net wealth of the assessee. 2.3 Now, the Department is in appeal before the Tribunal against the order of the CWT(A). 2.4 We have heard both the parties. During the course of appellate proceedings, learned Departmental Representative could not controvert this fact that in the income-tax assessment order dated 26th Dec., 1989 (copy of record), the income from the agriculture had been accepted at Rs. 1,76,000. Therefore, agricultural activities were done by the assessee on the land and the agricultural land is exempt from wealth-tax, so not to be included for the wealth-tax purposes. In that view of the matter, we do not see any infirmity in the order passed by the CWT(A) in this regard. Accordingly, we dismiss the appeal filed by the Department. 3. In the result, the appeal filed by the Department is dismissed.
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2003 (12) TMI 575 - CESTAT, BANGALORE
Paper - Light weight coated paper - Weight per square area ... ... ... ... ..... coated paper upon arrival in another country because GSM has changed in between, presumably by paper absorbing moisture. A strict adherence to the stipulated GSM would uphold such an anomalous and unintended situation. It is well settled that statutes should be construed in such a manner as to subserve the intention of the statute and not to defeat it. In the instant case, since tolerance in the matter of weight per square area is necessitated by the very nature of the goods, it would be irrational not to provide for this necessity. The variation found in the present case is below 10 tolerance provided in the Import and Export Policy also. Further, the consignment in question satisfy the other criteria in the entry. emsp 7.In these circumstances, we are of the view that due allowance for variation in gsm of paper should be allowed and concessional assessment granted to the consignment under import. The appeal is allowed in these terms. (Pronounced in open Court on 30-12-2003)
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2003 (12) TMI 574 - CESTAT, BANGALORE
... ...
... ... ..... . 3. emsp It is well settled position now that the burden lies on the department to establish that there is nexus between advances and the fixation of selling price. Since this burden has not been discharged, interest on advances cannot be added in determining the assessable value. We do not find any infirmity in the impugned order and in the result the appeal is hereby dismissed.
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2003 (12) TMI 573 - ALLAHABAD HIGH COURT
Kar Vivad Samadhan ... ... ... ... ..... gainst the object of the Kar Vivad Samadhan Scheme (Removal of Difficulties) Order. It is therefore not possible to accept the submissions of Mr. Ganesh, in our view the reasoning given by the High Court of Kerala is correct and need to be upheld. rdquo 11. emsp In view of the decision of the Apex Court, order of Tribunal dated 13-8-2001 and the Order dated 17-11-1999 cannot be sustained. It is held that even in a case where show cause notice is adjudicated and the appeal was pending, the petitioners were entitled for the benefit of Kar Vivad Samadhan Scheme (Removal of Difficulties) Order and no penalty could be sustained against the petitioners being a co-noticee of the show cause notice along with the partnership firm, in which the declaration under the Scheme was accepted under Section 90(1) of the Scheme. 12. emsp In the result, writ petition is allowed. The order dated 13-8-2001 and 17-11-1999 are set aside and it is held that the petitioners are not liable for penalty.
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2003 (12) TMI 572 - CESTAT, MUMBAI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... acturer or subsequently by a dealer is an evidence of secondary nature which generates from the primary evidence of payment through TR 6 challan. When the rules accept the evidence of secondary documents, it is impossible to visualise that the primary evidence of duty payment i.e. TR 6, on the basis of which the secondary documents are created has to be discarded. It has to be understood that, the plethora of secondary documents have been recognised, only for the reason that, for the user of inputs, it may not be possible to obtain or access the primary duty paying documents. 4. emsp In the circumstances, I find no merit in Revenue rsquo s appeal and the same is rejected.
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2003 (12) TMI 571 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... tem which provides for acceptance for Customs purposes of the highest of the two alternative values. rdquo lsquo What the Commissioner (Appeals) appears to be doing is only this, but argued all the same that there is no violation of Rule 8(2)(ii) even though for a part consignment he accepts the declared value and for the rest he determines the value on depreciation basis under Rule 8. The whole basis of revenue rsquo s appeal is that the transaction value under Rule 4 is not acceptable, as the transaction is between related parties. But the Commissioner (Appeals) falls back on Rule 4 whenever it appears convenient and rejects it when it isn rsquo t. Prima facie it appears to us that this stand is not correct. The applicants made out a strong prima facie case in their favour. Pre-deposit of duty is waived. The department is restrained from adjusting the differential duty of Rs. 83,73,780/- from the revenue deposit. 8. emsp The stay application is allowed. Ordered accordingly.
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2003 (12) TMI 570 - CESTAT, MUMBAI
... ...
... ... ..... r MT was being charged as a transportation charge from their customers, the same would not be included in the assessable value of the assessee in terms of Hon rsquo ble Supreme Court decision in the case of Baroda Electric Meters Ltd. As such we set aside the demand confirmed against the appellant. As regards the second part of the demand, we find that the same has been raised for by way of issuance of show cause notice dated 2-8-2001 for a period from September, 1998 to June, 2000. As such the same is clearly barred by limitation. It is not the Revenue rsquo s case that the appellants were not placing invoices showing clearance of the product at the lower value, in which case the longer period of limitation cannot be invoked against them. Accordingly, we set aside the said demand on the point of limitation. 6. emsp Inasmuch as the demand has been set aside, the penalty is also set aside. Appeal allowed with consequential relief, if any. Stay petition also stands disposed of.
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2003 (12) TMI 569 - CESTAT, MUMBAI
Valuation (Central Excise) - Captive consumption - Comparable goods ... ... ... ... ..... in 1991 the Commissioner (Appeals) held that for clearances from Waluj, of semi finished parts, the margin of profit was 10 of the cost furnished by the appellant. That order was not challenged by the department. Secondly, whatever duty was paid at the factory at Waluj would be available as Modvat credit at the factory of the same appellant at Akurdi. There was therefore no motive intention for it to short pay duty or evade payment of duty. It has been held that in such a situation the extended period of limitation will not apply see Kitply Industries Ltd. and Anr. v. CCE - 2003 (157) E.L.T. 110 (T) 2003 (55) RLT 726 . The demand therefore would be confined to the normal period of limitation. This being the case, the provisions of section 11AB cannot be invoked. The matter is now remanded to Assistant Commissioner to determine the duty payable and also to determine the penalty which is to be imposed. 5. emsp The appeal is accordingly allowed and the impugned order set aside.
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2003 (12) TMI 568 - CESTAT, MUMBAI
Penalty - Personal penalties ... ... ... ... ..... smuch as the same travels beyond the show cause notice. 2. emsp Shri Shukla, learned SDR appearing for the Revenue leaves the matter to the discretion of the Bench. 3. emsp We find force in the above contention of the learned Representative of the appellants. Penalties under the provisions of Section 112 are personal in nature. Before imposing the same there should have been a proposal in the show cause notice to do so which, we find, is not there in the present case. The proposal to impose penalties upon the manufacturing units cannot be construed as proposal to impose penalties upon the individuals working for the manufacturing units which are a public limited company and a partnership firm. As such, after dispensing with the condition of pre-deposit of penalties, we set aside the impugned order of the Commissioner in so far as it relates to the present two appellants. 4. emsp Both the appeals are allowed with consequential relief. The stay petitions also stand disposed of.
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2003 (12) TMI 567 - CESTAT, MUMBAI
Cenvat/Modvat - Duty paying documents - Manufacturer ... ... ... ... ..... efore 4-7-1994, when such invoices could be issued only by those dealers who had received the goods directly from the manufacturer, and since no evidence were produced to show that the invoices were issued directly from the manufacturer this credit was denied. This credit is found to be not deniable since CBE circular 76/76/94, dt. 6-11-1994 read with Rule 57GG and these invoices being inconfirmity with the requirements of Notification No. 15/94, dt. 3-3-1994. As regards the denial of credit amounting to Rs. 12,200/- on ground that that invoice was not in the name of the appellant and credit on endorsed invoice was not permissible. The said credit has been denied following the decision of this Tribunal and no contrary decision has been brought out in the grounds made in the appeal or urged before me. Therefore, the denial of this credit amount as determined by the Commissioner has to be upheld. 3. emsp This appeal is disposed off in view of the findings arrived herein- above.
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2003 (12) TMI 566 - CESTAT, MUMBAI
Confiscation and penalty - Unaccounted finished goods ... ... ... ... ..... orne in mind that, non-recording of production in the RG 1 creates a scope for clandestine removal and consequent duty evasion. Therefore, the rules require that the manufacturers record the production of fully finished goods in the required register, as soon as the goods are ready for making such an entry. In any individual case of marginal failure the authority may take a lenient view, but that does not automatically mean that violation of this nature without any explanation can be condoned and in all cases it must be held that the goods found in the factory, in excess of recorded of production can not be subjected to confiscation for the reason that there was no attempt to clandestine removal. 10. emsp On these considerations, the findings contained in the order-in-appeal are not sustainable. 11. emsp Accordingly, I allow the appeal filed by the Revenue and consequently impugned order so far as the appeal relating to the respondents herein- above is concerned is set aside.
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2003 (12) TMI 565 - CESTAT, MUMBAI
Demand and penalty - Misuse of goods ... ... ... ... ..... taken that the Commissioner (Appeals) has incorrectly accepted the contention that merely because an intermediate product was a technologically necessity should not mean that the material was not used in the fine product and that the misuse was at the L6 holders end cannot be a ground for allowing the Revenue rsquo s appeal, since both these issues are factually correct. (b) Since misuse, if any, has taken place at L6 holders end and the ground taken by Revenue is that L6 holders permission was not correct, the liability to duty on the L6 holder in issuing the product, on a valid CT-3 would not arise. Demands if any are required to be made on L6 holder. There cannot be a cause to visit the L4 holder with a penalty under Rule 73Q. (c) The demands and penalties are being found to be correctly set aside by the Commissioner (Appeals), as no valid grounds have been made out in the Revenue appeal herein to upset the same. Revenue appeal required to be rejected. Ordered accordingly.
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