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Case Laws
Showing 141 to 160 of 679 Records
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2007 (2) TMI 586 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... ion cannot possibly be recorded as the petitioner is a company which is having an annual turnover of more than Rs. 50 crores and working regularly. While dealing with the similar issue regarding refund of the amount of tax paid by an assessee as a pre-condition for entertainment of an appeal, this court in Civil Writ Petition No. 19172 of 2006 (Ratti Woollen Mills v. State of Punjab) decided on February 1, 2007Reported at 2007 9 VST 105.while rejecting the plea of the State regarding withholding of the tax, has directed the respondents therein to refund the amount along with statutory interest. In view of our above discussions, the writ petition is allowed. Order dated January 17, 2007, annexure R-3, is set aside. The respondents are directed to refund the amount of Rs. 1,57,93,514 along with statutory interest within a period of three months from the date of receipt of a certified copy of this order. The writ petition is disposed of in above terms with no order as to costs.
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2007 (2) TMI 585 - SUPREME COURT
Whether presumption stood rebutted or not?
Held that:- The High Court, saying is only on the premise that said Ramchandran Pillai and Thankamony had not been examined and the appellant did not exhibit the Deeds of Sale executed in their favour by the wife of the respondent opined that the said finding was perverse. The reasonings of the learned Trial Judge had not been met by the High Court.Nothing has been stated as to why the findings of the learned Trial Judge were not probable.
Having considered the entire fact situation obtaining in the present case, we are of the opinion that the defence case cannot said to be wholly improbable one. If it was probable, the findings of the learned Trial Judge could not have been thrown out without meeting the reasonings therefor. The High Court, therefore, in our opinion was not correct in interfering with the said Judgment.It is now well settled when two views are possible, the High Court while exercising its appellate power against a judgment of acquittal, shall not ordinarily interfere therewith.
The impugned judgment cannot be sustained, which is set aside accordingly. Appeal allowed.
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2007 (2) TMI 584 - SUPREME COURT
Whether a provision enabling a court to correct any clerical or arithmetical mistake, or error in the order arising from any accidental slip or omission, empowers the Labour Court to grant a relief of back- wages, which was not granted in the original award?
When the punishment of dismissal is substituted by a lesser punishment (stoppage of increments for two years), and consequently, the employee is directed to be reinstated, whether the employee is entitled to back-wages from the date of termination to date of reinstatement?
Whether on the facts and circumstances, the Labour Court was justified in interfering with the punishment of dismissal?
If the employer was otherwise entitled to relief, whether it could be denied on the ground that it had failed to reinstate the employee, in spite of the non-stay of the direction for reinstatement?
Held that:- The Labour Court had the power to amend the award. As the Labour Court found that a charge against the employee in respect of a serious misconduct was proved. It, however, felt that the punishment of dismissal was not warranted and therefore, imposed a lesser punishment of withholding the two annual increments. In such circumstances, award of back wages was neither automatic nor consequential. In fact, back wages was not warranted at all.
The charge established against the employee was a serious one. The Labour Court did not record a finding that the punishment was harsh or disproportionately excessive. It interfered with the punishment only on the ground that the employee had worked for four years without giving room for any such complaint. It ignored the seriousness of the misconduct. That was not warranted. The consistent view of this Court is that in the absence of a finding that the punishment was shockingly disproportionate to the gravity of the charge established, the Labour Court should not interfere with the punishment. We, therefore, hold that the punishment of dismissal did not call for interference. The contention of employer is that the first respondent did not report back to service, even though it was ready to reinstate him subject to final decision. Be that as it may. The mere fact that the first respondent was not reinstated in pursuance of the award of the Labour Court cannot result in dismissal of the writ petition challenging the award. Appeal allowed and set aside the order dated 28.7.2003 of the High Court as also the award dated 08.3.1983 (as modified on 29.6.1983) of the Labour Court and uphold the punishment of dismissal imposed upon the first Respondent.
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2007 (2) TMI 583 - MADRAS HIGH COURT
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... ... ..... by Three Judges Bench Judgment in first two of the cases above mentioned and the Division Bench judgment of the later case, I am of the view that the writ petitions cannot be maintained, particularly, when this Court has come to the conclusion that the reliance with which the petitioner heavily made on i.e., 60 STC 213 is not a comparable decision to the facts of the present case, the writ petitions are dismissed with liberty to file appeal. However, there is no order as to costs. In order to render complete justice, as the O.Ps were entertained by the Special Tribunal in the year 2004 and on abolition they were transferred to this Court and converted as writ petitions, two weeks time is granted from the date of receipt of copy of this order to file appeal, if the petitioner is so advised. The original orders, if any, filed by the petitioner are directed to be returned on written request and on the petitioner submitting the same with xerox copies duly certified as true copy.
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2007 (2) TMI 582 - SUPREME COURT
Whether the order of cancellation dated 13.4.2005 passed by respondent No.2 was illegal and that respondent No.1 was entitled to further time to furnish the bank guarantee after the order granting exemption in terms of Section 81(3)(b) of the Kerala Land Reforms Act, 1963?
Held that:- Appeal allowed. An implied warranty, or as it has been called, a covenant in law, as distinguished from an express contract or express warranty is really founded on the presumed intention of the parties and upon reason. The implication which the law draws from what must obviously have been the intention of the parties, it draws with the object of giving efficacy to the transaction and preventing such failure of consideration as cannot have been within the contemplation of either side. In view of what we have stated above, it is not necessary to deal with the grievance raised by the State Government in its belated Special Leave Petition.
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2007 (2) TMI 581 - SUPREME COURT
Scheme of appointment of dependents of deceased employees - Held that:- Allow the appeal filed by the appellant the Bank in this case.
The High Court erred in deciding the matter in favour of the respondent applying the scheme formulated on 04.08.2005, when her application was made in 2000. A dispute arising in 2000 cannot be decided on the basis of a scheme that came into place much after the dispute arose, in the present matter in 2005. Therefore, the claim of the respondent that the income of the family of deceased is Rs.5855/- only, which is less than 40% of the salary last drawn by Late Shri. Sukhbir Inder Singh, in contradiction to the 2005 scheme does not hold water.
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2007 (2) TMI 580 - DELHI HIGH COURT
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... ... ..... r of the Commissioner (Appeals), the Revenue preferred an appeal before the Tribunal. The Tribunal held, and in our view rightly, that apart from the fact that the issue is debatable and no such order could have been passed in rectification proceedings under section 154 of the Act, even on the merits the proviso to section 113 of the Act did not have any retroactive effect. The proviso was inserted with effect from June 1, 2002, by virtue of the Finance Act, 1999, and there is nothing to indicate that it would operate from retroactively. Learned counsel for the Revenue contended that since the search in this case was conducted on July 27, 1999, the proviso would operate with effect from that date. We are of the view that this is a complete misreading of the proviso and this interpretation, which is sought to be given is intended to give a retrospective effect to the proviso which even Parliament did not intend. We are of the opinion that no substantial question of law arises.
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2007 (2) TMI 579 - ITAT AMRITSAR
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... ... ..... 0 CTR 569 (Cal), wherein it has been held that section 23 of the Act does not permit any addition to the annual value, such as notional interest on interest-free deposits by tenants that the computation of income under the head ldquo House property rdquo being on a deemed basis, there is no scope for making any addition from notional interest and that what can be said in such cases is that the rent was depressed, but section 23 does not permit the value of the benefit of interest-free deposit to be treated as a part of rent. The Department has not been able to refute the above legal position. Section 23, though it talks about the determination of annual value of property, it does not provide for any addition to such annual value. Respectfully following the decision of the hon rsquo ble Calcutta High Court in the case of Satya Co. Ltd. 1997 140 CTR 569, we uphold the order of the learned Commissioner of Income-tax (Appeals) on this score also, rejecting ground of appeal No. 2.
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2007 (2) TMI 578 - ITAT MUMBAI
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... ... ..... f manufacturing profit under different provisions of law or to get the benefit of concessional rate of tax for the industrial company. Thus, the decisions relied upon by learned counsel for the assessee are not applicable to the case on hand. Hence this ground of appeal is rejected. As regards ground No. 2, learned counsel for the assessee submitted that though this ground of appeal has been taken as ground No. 2(b) in the memorandum of appeal before the Commissioner of Income-tax (Appeals), the Commissioner of Income-tax (Appeals) has not adjudicated the same. We find that the said contention of the assessee is correct. Therefore, we remand this issue back to the file of the Commissioner of Incometax (Appeals) to adjudicate the same on merits by a speaking order. This ground of appeal is allowed for statistical purposes. In the result, the assessee rsquo s appeal in I. T. A. No. 3436/Mum/1993 is partly allowed. Order pronounced in the open court on this day of February 2007.
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2007 (2) TMI 577 - ITAT BANGALORE
Prospecting and mining for diamonds and other minerals - Exploration over a large area carried out by geophysical methods - Company entered into an agreement for performing airborne geophysical services, process the data acquired during the survey and provide necessary reports - Consideration paid under the agreement as falling within the definition of " fees for technical services" ? - Liable to deduct TDS? - Deemed to permanent establishment in India - DTAA between India and Netherlands - HELD THAT:- There is no doubt that “Fugro” performed the services using substantial knowledge and expertise but such technical experience, skill or knowledge has not been made available to “De Beers”. As stated, as per the protocol signed between India and Netherlands, the memorandum of understanding entered into between India and USA would apply mutatis mutandis to article 12 of Indo Netherlands Double Taxation Avoidance Agreement.
Thus we concur with the findings of the first appellate authority and answer the first sub-question in favour of the assessee and against the Revenue by holding that the payment made for “fees for technical services” does not fall within the ken of article 12(5)(b) of the Double Taxation Avoidance Agreement between India and Netherlands, for the reason that “Fugro” has not made available technical knowledge, experience, skill, know-how or process to “De Beers” while providing the service. Thus, this question is answered in the negative in favour of the assessee and against the Revenue.
In the present case “Fugro” compiles the data and process them for error correction and deliver it to De Beers in a computer readable media. Using the raw input data provided by “Fugro”, the recipient assessee i.e. De Beers using further process in software technology (which are not owned or provided by “Fugro”) generates a report to determine probable targets. Thus the payments to “Fugro” cannot be considered to the payments for technical, plan and design much less, for the development and transfer of them. “Fugro” is engaged in providing services relating to collection and processing of data which always belonged to “De Beers”. The purpose of agreement is, for provision of services and not for supply or transfer of technical plan or design. The reports and maps are only an additional mode of report of data and cannot be construed as technical plan or technical design.
The payments made to “Fugro” cannot be considered as “fees for technical services” as such payments are not in consideration for the development and transfer of technical plan and technical design.
The agreement between “De Beers” and “Fugro”, the ownership of all information and data was always with “De Beers” and “Fugro” is bound by confidential clause. When the ownership of data is always with “De Beers”, there cannot be transfer of property from “Fugro” to “De Beers”. “Fugro” has not developed or transferred any technical plan or design to “De Beers” so as to attract article 12(5)(b) of the India and Netherlands Double Taxation Avoidance Agreement. Thus on this issue also we agree with the findings of the first appellate authority. Thus we answer the second question is in the negative, in favour of the assessee and against the Revenue.
In the result all the appeals of the Revenue are dismissed.
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2007 (2) TMI 576 - CESTAT, NEW DELHI
Interest on delayed payment of duty - Held that: - the amendment of Chapter 15 came on 13-5-2005 with retrospective effect. Section 11AB(1) of the Central Excise Act, 1944, provides that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person who is liable to pay duty, shall be liable to pay interest. In the present case, duty was levied with retrospective effect consequent upon amendment by Finance Bill, 2005 as enacted on 13-5-2005. So, there is no short levy or short payment of duty prior to 13-5-2005 - the respondent would not be liable to pay interest for the period 15-12-2004 to 31-1-2005 prior to amendment of Chapter Note as on 13-5-2005 - appeal dismissed - decided against Revenue.
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2007 (2) TMI 575 - ALLAHABAD HIGH COURT
Registration procedure - Whether registration under section 12AA does not necessarily entitle assessee to get income excluded from income of previous year for purpose of determination of tax liability, but it only entitles assessee to claim such exemption, which otherwise could not be claimed in absence of registration - Held that:- If trust or institution is not registered under section 12AA, it would not be able to claim any exemption or exclusion of its income from total income of previous year, even if such income is otherwise liable to be excluded under any of clauses of section 11 or section 12.
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2007 (2) TMI 574 - CESTAT, AHMEDABAD
Exemption - Demand - Limitation - Suppression of facts ... ... ... ... ..... has held that the department being fully aware of the necessity to decide the availability of exemption and being aware of the fact of financing by Japan Bank, the appellants cannot be held guilty of any suppression or misstatement. Longer period of limitation cannot be invoked in such a situation. Similarly in the case of Jyoti Structures Ltd. - 2004 (167) E.L.T. 226 (Tri.-Mum.), the Tribunal while deciding the identical dispute observed that the assessee having acted bona fide on the basis of certificates issued by project implementing authority and Revenue not examining the status of Japan Bank of International Cooperation, the assessee cannot be blamed for any suppression or mis shy statement so as to justifiably invoke the longer period of limitation. In view of the above decision, we hold that the demand is barred by limitation. The impugned order is accordingly set aside and the appeal is allowed with consequential relief. (Operative part pronounced in the Open Court)
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2007 (2) TMI 573 - CESTAT, AHMEDABAD
Oil - Rootz oil whether a hair oil or ayurvedic medicine ... ... ... ... ..... rger Bench decision in the above case we also take note of the Hon rsquo ble Supreme Court rsquo s decision in the case of Sharma Chemicals reported in 2003 (154) E.L.T. 328 (S.C.) laying down that the product should be manufactured in accordance with the various ingredients specified in the authoritative ayurvedic books and under a licence from the Drug Control authority have to be classified as Ayurvedic medicine. We find that apart from the various facts enumerated above the assessee has also produced affidavit/certificate/clinical trial report showing that the product is formulated to cure various hair diseases like Alopecia, Graying of hair, Dandruff, Itching of skull and to improve blood circulation to hair follicles. Hence, the product has to be held as having therapeutic and prophylactic value. As such we do not find any infirmity in the view taken by the Commissioner. Accordingly, appeal filed by the Revenue is rejected. (Operative part pronounced in the Open Court.)
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2007 (2) TMI 572 - CESTAT, AHMEDABAD
Appeal to Appellate Tribunal - Restoration of appeal ... ... ... ... ..... ation the entire facts, considered the merits of the case and arrived at a finding that there was no ground to interfere with the order of the authorities below. The said order was passed on merits. The appellants had not made any efforts to sent any representative before the Bench at the time of hearing of the appeal or to seek adjournment or pass over. We, further, note that the said order of the Tribunal is an appealable order and the appellants are within their right to challenge the same before the higher appellate forum. In these circumstances we find no justification to recall the final order. Accordingly, application under consideration is rejected. (Dictated and pronounced in the Open Court.)
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2007 (2) TMI 571 - CESTAT, KOLKATA
SSI exemption ... ... ... ... ..... nd to pay duty for the part of the goods. Shri Saha also submits that even if the clearances from the units are clubbed, the clearances do not exceed the exemption limit and, therefore, the clearances from Kolkata unit are eligible for small scale exemption in any case. 3. emsp After hearing both sides and perusal of case records, we find that the Notification 1/93 has allowed small scale manufacturers to pay duty at their option. This provision has also been interpreted by the Larger Bench rsquo s decision in the case of M/s. Kinjal Electricals Pvt. Ltd. v. CCE, Meerut cited (supra) to allow exemption for part of the clearances. Moreover, since the clearance from both the units after clubbing do not exceed the exemption, the appellants are eligible for small scale exemption for the impugned clearances through Kolkata Unit. Accordingly, we set aside the impugned order and allow the appeal with consequential relief to the appellants. (Dictated and pronounced in the open Court)
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2007 (2) TMI 570 - CESTAT, AHMEDABAD
Proforma credit - Availability period ... ... ... ... ..... arned Advocate have drawn our attention to the Tribunal rsquo s decision in the case of Larsen and Toubro v. CCE - 1993 (64) E.L.T. 302 (Tri.) and has argued that Special Excise duty was also held as entitled to the benefit of Proforma credit. However, we find that the above decision specifically refers to notification No. 131/85, dated 24-5-85 making it clear that wherever input exemption is provided for in respect of Basic duty, similar benefit is also available for Special Excise duty. Notification is not for the period relevant in the present appeal. The learned Advocate has not been able to show us the relevant notification. As such we remand the matter to the original adjudicating authority for afresh decision in respect of credit of Special Excise duty, in the light of the above judgment of the Tribunal read with the relevant notification. 5. emsp As a result appeal is partly rejected and partly allowed as indicated above. (Operative part pronounced in the Open Court )
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2007 (2) TMI 569 - CESTAT, AHMEDABAD
Demand, confiscation and penalty ... ... ... ... ..... duty free receipt of the material by the ship at Kandla Port though permitted by Mumbai Customs authorities. As regards demand of duty on 15 HT of Diesel Oil and 1200 litres of Lubricant oil. Which was in ship at the time of arrival he submitted that the demand is also time barred. 6. emsp We have carefully considered the rival submissions. The receiving of the materials in April, 1999 to get the vessel repaired and prepared for its onward voyage in November, 1999 appears to be reasonable. There is no finding that the materials were consumed while the vessel was in Kandla Port. Considering that the vessel has finally gone out of the country and considering that the transshipment permission was validly given by the Mumbai Customs authorities, the demand of duty and penal action taken by the Kandla Customs authorities are not sustainable. 7. emsp The appeals are accordingly allowed. (Operative part of the order was pronounced in the open Court at the end of hearing on 5-2-2007)
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2007 (2) TMI 568 - CESTAT, AHMEDABAD
Appeal to Appellate Tribunal - Recalling of Order - Cenvat/Modvat - Deemed credit ... ... ... ... ..... ification No. 58/97-C.E. (N.T.), which allow the deemed credit in respect of the inputs obtained from the manufacturer, the price of which stand paid by cheque or by bankers rsquo cheque. Admittedly, the amount of Rs. 68,782/- on which deemed credit stand disallowed by the authorities to the extent of Rs. 8,254/- was not paid by the appellants either by cheque or by demand draft or by bankers rsquo cheque. The same was adjusted against payment which the appellant was to take from the input manufacturer. Whatever the case may be, substantive condition of the notification, which allows availing of deemed Modvat credit only on payment having been made by cheque or demand draft, stand contravened. As such the lower authorities have rightly held that the appellant is not entitled to deemed Modvat credit. We, accordingly, find no merit in the appeal and the same is rejected. Application for restoration of appeal is also stand disposed of. (Dictated and pronounced in the Open Court)
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2007 (2) TMI 567 - CESTAT, AHMEDABAD
Valuation - Penalty and redemption fine - Quantum of ... ... ... ... ..... ies from piece to piece and in the absence of peculiar specification etc., can never be identical. As such we are of the view that the value enhanced is not justified. The same is accordingly, set aside. 5. emsp As regards the violation of EXIM Policy, learned advocate has submitted that the goods imported by them were not prohibited but licence was required. He has, however, admitted that the machine was more than 10 years old and in the absence of licence there is contravention of the provisions of law. His prayer is for reduction of redemption fine and penalty. We find that the total value of machine is to the extent of Rs. 28 lakhs approx. As such while upholding the confiscation of the same, we reduce the redemption fine from Rs. 43 lakhs to Rs. 3.5 lakhs and penalty from Rs. 26 lakhs to Rs. 3 lakhs. Penalty of Rs. 8 lakhs imposed on the Managing Director is however set aside. Both the appeals are disposed of in above manner. (Operative part pronounced in the Open Court)
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