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Showing 101 to 120 of 863 Records
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2008 (2) TMI 876
Whether the order of the appellate authority is vitiated and liable to be set aside?
Whether there are any procedural lapses, which are not pointed out by the appellate authority?
Whether entertainment of appeal without condoning the delay is bad?
What decision have and given in this matter?
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2008 (2) TMI 875
Issues involved: Challenge to detention order u/s Conservation of Foreign Exchange and Prevention of Smuggling Activities Act.
Summary:
The writ petition was filed by the wife of the detenu challenging the detention order passed by the Detaining Authority. The order of detention was served after the detenu's arrest on 13.8.2007. The grounds of detention were based on a lengthy document comprising 1712 pages with 154 documents. The Detaining Authority had twice ordered detention before finalizing the order. The process involved multiple bureaucratic steps and the Detaining Authority approved the grounds and ordered detention on 16.12.2005. Further material was received on 22.12.2005, and the detention order was issued on 26.12.2005. The Detaining Authority claimed to have considered all documents before issuing the order.
The court observed that the Detaining Authority had limited time to scrutinize the extensive material before issuing the detention order. Citing relevant judgments, the court found that there was a lack of application of mind in the process. Comparisons were made with cases where sufficient time was available for consideration, unlike in this case where the Detaining Authority had less than 12 hours to review 1712 pages of material. Consequently, the court quashed the detention order and directed the release of the detenu.
Judges: B Nazki, S Bobde JJ.
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2008 (2) TMI 874
Hospital equipment - Exemption - Non fulfilment of conditions - Exemption - Condition - the decision in the case of NOIDA MEDICARE CENTRE LIMITED Versus COMMISSIONER OF CUS., NEW DELHI [2007 (7) TMI 489 - CESTAT, NEW DELHI] contested - Held that: - the decision in the above case upheld - appeal dismissed.
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2008 (2) TMI 873
Issues involved: Interpretation of notifications u/s 6/2006-C.E and 4/2006-C.E, Nil rate of duty for Bagasse Board, 8% rate of duty for wood free plain or pre-laminated particle or fibre-board, comparison with Maharashtra manufacturers, release of seized goods, furnishing bond for duty amount.
Interpretation of notifications u/s 6/2006-C.E and 4/2006-C.E: The judgment considered the notifications u/s 6/2006-C.E and 4/2006-C.E, specifically focusing on item No.82 providing Nil rate of duty for Bagasse Board and item No.87 referring to 100% wood free plain or pre-laminated particle or fibre-board. The entry "all goods" substituted the 8% rate of duty for the latter item, leading to a comparison with Maharashtra manufacturers.
Comparison with Maharashtra manufacturers: The petitioner highlighted the Nil rate of duty imposed on manufacturers of the same product in Maharashtra since June 2006. This comparison was crucial in the decision-making process, considering the notifications and previous court decisions.
Release of seized goods and furnishing bond: The judgment directed the respondents to release the seized goods under panchnama dated 7/8.2.2008, subject to the condition that the petitioner Company furnishes a bond for the duty amount leviable at the rate of 8%. The bond was required for the duty on stock cleared until the matter is decided based on the show cause notice dated 20.6.2007.
Clarification on interim stay: It was clarified that there was no interim stay against proceeding with the show cause notice and its adjudication. This clarification ensured that the legal process would continue without interruption despite the decision regarding the release of seized goods.
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2008 (2) TMI 872
The Supreme Court dismissed the Civil Appeals after condoning the delay. [Case: 2008 (2) TMI 872 - SC]
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2008 (2) TMI 871
The Kerala High Court upheld the Tribunal's decision regarding the import of fax machines under a valid license. The court ruled that the department can only collect duty on the import and not confiscate the machines. The reference was disposed of without issuing fresh notice to the unserved respondent.
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2008 (2) TMI 870
Levy of penalty u/s 114(iii) of the Customs Act on CHA - offence of misdeclaration of description and value of the goods by the exporter - Commissioner (appeals) deleted the penalty - HELD THAT:- In the present case, even according to the appellant, the CHA’s failure was in the matter of ensuring the correctness of the declarations made in the export documents. The appellant refers to CHA’s obligation under Regulation 13(d) of CHALR, 2004 and states that he has a duty to advise his client to comply with the provisions of the Act or, in the event of non-compliance, to bring the matter to the notice of the Customs authorities. There is no denial of these obligations of a CHA. The exporter filed Shipping Bills for export of what was declared as ‘organic dye intermediate G-salt’ with a claim for drawback on the declared value of over ₹ 64.00 lakhs. The exporter authorized the CHA to file such documents with such declarations, and the CHA did accordingly. Whether the goods presented for export was G-salt or common salt was a fact known to the exporter but not to the CHA. It is a question to be addressed by the Customs authorities through examination of the goods. The same is the position, when it comes to the value of the goods.
As rightly held in the case of Akanksha Enterprise [2006 (2) TMI 489 - CESTAT, NEW DELHI], a CHA is not required to go into the authenticity of the declarations made in the export documents. His job is confined to submission of the documents given by the exporter as also to identify the exporter to the Customs authorities. The appellant has no case that the respondents did not discharge these obligations. If they say that the CHA violated Regulation 13(d), let them proceed against the CHA under the CHALR. In the absence of evidence of the CHA having abetted misdeclaration of description or value of the goods, it cannot be held that they are liable to be penalized under Section 114(iii) of the Customs Act. The case law cited by learned counsel is to this effect.
Learned JDR referred to a Circular of the Board as also to a judgment of the apex court. Both these relate to the conduct of exporters. Neither of these pertains to the conduct of a CHA.
The impugned order is sustained and this appeal is dismissed. The Revenue's application for stay of operation of the said order also gets dismissed.
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2008 (2) TMI 869
Whether in such a case the appellate court is bound to direct the trial court to take additional evidence required?
Whether a particular provision of a statute is directory or mandatory cannot be resolved by laying down any general rule of universal application?
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2008 (2) TMI 868
Additions on unexplained investment in purchase of land - protective assessments - non making available opportunity of cross -examining sale consideration received - corroborated by independent witnesses and material on record ? - HELD THAT:- In any case, the question as to whether the consideration received, or any other higher consideration than the one, mentioned in the sale deed, did pass from the assessee to the seller or not, does nonetheless remain a question of fact, and it is not shown by the department, that any relevant material has been ignored, or misread by the learned Commissioner, or the learned Tribunal.
In that view of the matter, in our view, the questions, as framed, cannot be even said to be arising, and in any case, are required to be answered against the revenue , and in favour of the assessee.
Accordingly, the questions are answered as above, and the appeals are dismissed.
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2008 (2) TMI 867
Sale of shares - investment or stock-in-trade - Sale of units of Prudential ICICI Technology Fund - Notice issued under section 14A - erroneous and prejudicial order - CIT passed an order setting aside the assessment order and directing the Assessing Officer to make a fresh assessment - HELD THAT:- Tribunal came to the conclusion that the shares held by the assessee in BT Tech Net Ltd. were an investment and therefore, any profit earned on the sale thereof is required to be treated as capital gains. Whether the shares were held by the assessee as an investment or stock-in-trade is a matter of fact, and we do not find any perversity in the view taken by the Tribunal that the shares were held as an investment.
Sale of units of Prudential ICICI Technology Fund - HELD THAT:- Tribunal noted that there is a factual error committed by the CIT inasmuch as the units were purchased by the assessee on 3-3-2000 and not on 3-3-2001. Therefore, there was no question of manipulating the loss in the month of March, 2001 itself for the purpose of avoiding tax on capital gains.
Following the decision in Rayon Silk Mills’ case [1995 (11) TMI 39 - GUJARAT HIGH COURT] we are of the view that the Tribunal has not erred in the conclusion that it has arrived at. There was enough material available to show that the assessment was not prejudicial to the interest of the revenue.
Notice issued under section 14A - It has rightly been held by the Tribunal that this issue did not find a mention in the notice sent by the CIT under section 263 of the Act to the assessee. It has been held in CIT v. Smt. R.G. Umaranee [2002 (11) TMI 49 - MADRAS HIGH COURT] that in the absence of a notice given by the Commissioner on a particular issue, it is not open for him to re-open the proceedings on that issue which is different altogether and initiate an inquiry thereon.
We are of the opinion that since the assessee was not put to the notice in regard to any issue under section 14A of the Act, the CIT could not enlarge the scope of the proceedings on whatever issue arose during the proceedings.
We do not find any error or illegality in the order passed by the Tribunal.
No substantial question of law arises - Dismissed.
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2008 (2) TMI 866
Whether the power under section 482 Cr.P.C. should be exercised 'sparingly' or 'sparingly with circumspection and in the rarest of rare cases'?
Whether the recommendations and directions relating to anticipatory bail and enforcement of the directions relating to arrest laid down in Joginder Kumar were warranted in this case?
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2008 (2) TMI 865
CENVAT credit - corrugated printed sheets (input) - benefit of N/N. 214/86-C.E., dated 25-3-1986 as amended - Held that: - where the amount of Modvat credit wrongly availed by an assessee was exactly equivalent to the amount of Excise duty paid by the input-manufacturer without availing exemption, the consequence was revenue-neutral and hence there could be no demand for reversal of the credit - The benefit availed by the assessee is Cenvat credit of the duty paid on their input by their sister Unit. Such benefit is not liable to be denied to the assessee on the strength of N/N. 214/86-C.E. ibid - appeal allowed.
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2008 (2) TMI 864
Whether the award passed by the Labour Court and confirmed by the High Court so far as reinstatement of the respondent-workman is acceptable?
Whether the direction issued by the Labour Court to the appellant- Corporation to pay back wages to the respondent workman with interest thereon as confirmed by the High Court is acceptable?
Whether the respondent-workman will be treated in continuous service and will be entitled to consequential benefits on setting aside of dismissal order but is held not entitled to back wages for the period for which he has not worked?
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2008 (2) TMI 863
Issues:
The issues involved in this case are the termination of services u/s natural justice principles and the jurisdiction of the High Court u/s Article 226.
Termination of Services:
The respondent, who was working as an Inspector in Himachal Pradesh Transport Corporation, was charge-sheeted and an ex parte inquiry found him guilty of charges. The disciplinary authority terminated his services after considering the inquiry report. The respondent contended that the termination order violated the principle of natural justice as he was not heard. The Tribunal dismissed his application, stating that he intentionally avoided participating in the inquiry proceedings despite being aware of them. The High Court, however, allowed the writ petition solely on the ground of improper service of notice to the respondent. The Supreme Court held that the High Court exceeded its jurisdiction by reversing the Tribunal's findings, emphasizing that interference u/s Article 226 is only warranted in cases of miscarriage of justice or error of law, not to re-evaluate evidence.
Principle of Natural Justice:
The Supreme Court highlighted that the application of natural justice principles varies based on the facts of each case. In this instance, the respondent, a law graduate, was found to have knowledge of the departmental inquiry against him but chose not to participate, as evidenced by his own representations. By not engaging in the proceedings, he waived his right to claim non-compliance with natural justice principles. The Court emphasized that ignorance of the law is not an excuse, especially for a law graduate. Therefore, the High Court erred in reassessing the Tribunal's findings, and the order was set aside. The Tribunal's decision to dismiss the respondent's application was upheld, and the writ petition in the High Court was dismissed.
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2008 (2) TMI 862
Restoration of appeal - condonation of delay - levy of service tax on education being imparted in parallel colleges in Kerala alone and not in all colleges - Held that: - Looking to the importance of the above question we are of the view that the High court ought to have condoned the delay of 182 days - delay condoned - appeal allowed.
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2008 (2) TMI 861
Refund claim - unjust enrichment - SSI exemption - N/N. 8/2001-CE dated 1-3-2001 - Held that: - the doctrine of unjust enrichment would not arise in the case as the respondent had not collected anything over and above than what was mentioned as price of the goods and the additional duty has been paid by the respondent itself without passing on the burden to the ultimate buyer - appeal dismissed - decided against appellant.
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2008 (2) TMI 860
Whether the expression "the date from which the revisions shall apply, and other matters connected therewith or incidental thereto", would also include the matter relating to payment of gratuity which is otherwise covered by Regulation 77 thereof?
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2008 (2) TMI 859
Whether the definition of 'person' in the Gujarat Agricultural Lands Ceiling Act, 1960, includes a body of individuals/association of persons ?
Whether co-ownership, per se, is an 'association of persons/body of individuals' and therefore, constitutes a 'person'?
Whether the ten purchasers, who became co-owners of the land, together constitute a 'body of individuals/association of persons' and therefore a 'person' within the meaning of that expression in the Ceiling Act?
Whether the partition dated 30.12.1971 among the co-owners is 'deemed to have been made in anticipation to defeat the object of Gujarat Agricultural Lands Ceiling (Amendment) Act, 1972' under section 8(1) of the Ceiling Act; and if so what is the effect of failure to make an application under sub-section (2) of section 8 of the Ceiling Act?
What would be the position if some of the co-owners were non- agriculturists at the time of purchase of the lands? Whether the Mamlatdar can examine this issue when considering the question of surplus land under the Ceiling Act?
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2008 (2) TMI 858
Issues Involved: Winding-up petition u/s inability to pay debt.
Judgment Summary:
Issue 1: Winding-up petition due to inability to pay debt
The petitions were pending during B.I.F.R. proceedings which were dismissed, leading the matters to proceed before the High Court. The reliefs claimed in the petitions were for winding-up of the respondent company due to its inability to pay debts. The claims were substantiated by the petitioners with uncontroverted evidence, showing the respondent's failure to pay outstanding dues. The Court found that the respondent company had neglected to pay debts and was unable to do so. Consequently, the respondent company was ordered to be wound-up immediately, with the Official Liquidator taking over its assets and properties as per the Companies Act.
Issue 2: Unpaid debts for goods sold and credit facility
The petitions involved outstanding amounts for goods sold and credit facilities provided to the respondent company. Despite statutory notices, the respondent failed to pay the outstanding dues, leading to the conclusion that the respondent was unable to pay its debts. The Court granted the reliefs claimed in the petitions, ordering the winding-up of the respondent company and the takeover of its assets by the Official Liquidator.
Issue 3: Lack of defense and conclusion
The respondent company did not raise any defense in the first two petitions, further supporting the finding that it had failed to pay outstanding dues and was unable to pay its debts. Based on this, the Court concluded that the reliefs claimed in the petitions should be granted. Consequently, all four petitions were disposed of with the order for the winding-up of the respondent company and the necessary actions to be taken by the Official Liquidator as per the Companies Act.
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2008 (2) TMI 857
Original Jurisdiction of High Court - under Clause 12 of the Letters Patent - Permanent injunction - infringement of trade mark or copyright covered by Section 134(2) of the Trade Marks Act or Section 62(2) of the Copyright Act - cause of action or no part of the cause of action arose within the jurisdiction of this Court - head office is at Bangalore and Branch Office is located in Chennai alone - HELD THAT:- The jurisdiction based on the cause of action and the jurisdiction based on the person of the defendant are two independent categories and they have no relation with each other. A plain reading of Clause-12 of the Letters Patent would show that it is only in cases where a part of the cause of action has arisen within the jurisdiction of this Court that Clause-12 requires a leave to be obtained. The present case is not covered by Clause-12 of the Letters Patent, but a case covered by Section 62(2) of the Copyright Act and Section 134(2) of the Trade Marks Act. Therefore, the suit is maintainable in this Court.
In the present case, when an objection to jurisdiction was raised by way of demurrer and not at the trial, the objection must proceed on the basis that the facts as pleaded by the initiator of the impugned proceedings are true. The submission in order to succeed must show that granted those facts the Court does not have jurisdiction as a matter of law. In rejecting a plaint on the ground of jurisdiction, the learned single Judge ought to have taken allegations contained in the plaint to be correct. However, the learned single Judge examined the counter affidavit filed by the defendants in which it was claimed that the first plaintiff did not carry on business within the jurisdiction of the Madras High Court.
In our opinion, the learned single Judge is clearly in error in going beyond the statements contained in the plaint. It has been repeatedly held by the Supreme Court in Exphar SA vs. Eupharma Laboratories Ltd. [2004 (2) TMI 652 - SUPREME COURT] that for the purpose of deciding an application under clauses (a) and (b) of Order VII Rule 11 of the C.P.C, the averments made in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.
Therefore, the appeals are allowed. The suits are restored to file. Ad interim injunction granted stands revived. The matter is remitted back to the learned single Judge to consider the applications for interim injunction on merits. Consequently, respective appeals are closed.
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