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Case Laws
Showing 201 to 220 of 873 Records
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2010 (1) TMI 1108 - KERALA HIGH COURT
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... ... ..... e appellant 39 s contention that the item falls under the residuary category of entry 174(1)(a) of List A of the Third Schedule to the Act. The next question to be considered is whether the items falls under entry 103 of S.R.O. No. 82 of 2006 as held by the Commissioner. Entry 103 of Notification S.R.O. No. 82 of 2006 is the residuary entry which takes in goods which are not covered by any of the entries of any of the Schedules to the Act or any other entry covered by the very same notification. The Government Pleader submitted that the item may fall under entry 33(8) of Notification S.R.O. No. 82 of 2006 because parts of choke coils (chokes) are covered under HSN Code No. 8504.90.90 of the Central Excise Tariff Act. We do not think there is any need to consider this question because so long as the rate of tax is 12.5 per cent, it is immaterial whether the item falls under entry 33(8) or residuary entry 103 of the very same notification. Consequently the appeal is dismissed.
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2010 (1) TMI 1107 - MADHYA PRADESH HIGH COURT
Rule 3 of the Rules of 1996, section 132(6)(n) and 132(6)(o) of Act of 1956 questioned - Held that:- No merit in these petitions and hold that rule 3 of the Terminal Tax (Assessment and Collection) on the Goods Exported from Madhya Pradesh Municipal Limits Rules of 1996 and section 132(6)(n) and 132(6)(o) of the Municipal Corporation Act are intra vires to the Constitution.
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2010 (1) TMI 1106 - KERALA HIGH COURT
Whether the reliance placed on exhibit P11 S.R.O. by the 4th respondent for rejecting the claim for exemption in respect of the unit of the petitioner with regard to the products "chilly powder" and "coriander powder" is correct or not. ?
Held that:- The petitioner's unit, being one exclusively owned and operated by women, it very much satisfies the requirements under exhibit P10 S.R.O.This being the position, denying the benefit of exemption to the unit of the petitioner, placing reliance on exhibit P11 S. R. O (which has superseded only the S.R.O. No. 968/80, i.e., the "general notification" and not exhibit P10 "special notification" S.R.O. No. 969/80) is not correct or sustainable.
The case of the petitioner requires to be reconsidered and as a natural consequence, the coercive steps being pursued are not liable to be enforced any further. The impugned proceedings, exhibit P9 series, are set aside and the fourth respondent is directed to reconsider the matter in the light of the observations made above, as to the eligibility of the petitioner to have exemption based on exhibit P10 S.R.O.
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2010 (1) TMI 1105 - CESTAT AHMEDABAD
CENVAT credit - Waste and scrap - whether BOPP film cleared by the appellants rejected and received back on which cenvat credit was taken, if cutting and slitting is done on the same and used in the manufacture of granules cleared without payment of duty, whether full cenvat credit is required to be reversed or it would be sufficient if duty is paid on the scrap captively used on the basis of value arrived at on scrap? - Held that: - As per the provisions of Rule 16 of Cenvat Credit Rules, if the process involved on the rejected goods does not amount to manufacture and if the resultant products are cleared, the Cenvat credit taken on the resulted goods received back is required to be reversed.
In the case before us, it is seen that the appellant avails credit of the entire amount of the duty paid on rejected final products, seeks to pay the duty only on the waste and scrap, which at any stretch of imagination cannot be said to be arising out of a process of manufacture. We are of the view that the appellant cannot claim that the waste and scrap which arises from rejected goods, are due to the process of manufacture as there is no manufacture, involved in the process, as is explained by the appellant before us as well as before the lower authorities. Accordingly, we find that the impugned order, to the extent it confirms the demand is correct and legal and does not require any interference.
Appeal dismissed - decided against appellant.
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2010 (1) TMI 1104 - DELHI HIGH COURT
Whether the respondent had any "right to information" under Section 2(j) of the Act in respect of the information regarding making of declarations by the Judges of the Supreme Court pursuant to 1997 Resolution?
Whether CJI held the "information" in his "fiduciary" capacity, within the meaning of the expression used in Section 8(1)(e) of the Act ?
Whether the information about the declaration of assets by the Judges of the Supreme Court is exempt from disclosure under the provisions of Section 8(1)(j) of the Act ?
Held that:- The respondent had right to information under Section 2(j) of the Act in respect of the information regarding making of declarations by the Judges of the Supreme Court pursuant to the 1997 Resolution.
Section 8(e) does not cover asset declarations made by Judges of the Supreme Court and held by the CJI. The CJI does not hold such declarations in a fiduciary capacity or relationship.
In the present case the particulars sought for by the respondent do not justify or warrant protection under Section 8(1)(j) inasmuch as the only information the applicant sought was whether 1997 Resolution was complied with. That kind of innocuous information does not warrant the protection granted by Section 8(1)(j). We concur with the view of the learned single Judge that the contents of asset declarations, pursuant to the 1997 Resolution, are entitled to be treated as personal information, and may be accessed in accordance with the procedure prescribed under Section 8(1)(j); that they are not otherwise subject to disclosure. Therefore, as regards contents of the declarations, information applicants would have to, whenever they approach the authorities, under the Act satisfy them under Section 8(1)(j) that such disclosure is warranted in "larger public interest".
Though the Act generally prohibits obtaining or using a report for commercial purposes, it contains an exemption for "news and communication media" involved in "dissemination to the general public". Thus APB could not be refused access to the reports. Before the forms were released to the APB [APBnews.com], however, the Committee removed some personal information submitted by judges but not required by the Act, such as home addresses and names of spouses and dependants.
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2010 (1) TMI 1103 - SUPREME COURT
Whether after the notice issued under clause (b) of Section 138 of the Negotiable Instruments Act, 1881 is received by the drawer of the cheque, the payee or holder of the cheque, who does not take any action on the basis of such notice within the period prescribed under Section 138 of the Act, is entitled to send a fresh notice in respect of the same cheque and, thereafter, proceed to file a complaint under Section 138 of the Act?
Held that:- In the instant case, it is clear that the first notices were received by the Appellant on 14th June, 2006, whereas the complaints were filed on 10th July, 2006. It must, therefore, be held that the complaints were filed beyond the period of limitation and the learned Magistrate erred in taking cognizance on the complaints filed on the basis of the second notices issued on 7th June, 2006. Similarly, the High Court was also wrong in affirming the order of the learned Magistrate. Appeal allowed.
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2010 (1) TMI 1102 - ITAT HYDERABAD
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... ... ..... a) are also eligible for deduction u/s 10A of the Income Tax Act. 5. After hearing from both the parties we are of the opinion that this issue has also covered by the order of the Tribunal dated 29.9.2008 in ITA No.1016/Hyd/2007 for the assessment year 2004-05 in the case of DCIT, Hyderabad Vs. Plant Online (P) Ltd. wherein it was held that the profit of the undertaking which has to be considered for computing deduction u/s 10B of the Act, is the profit which has been arrived in accordance with the provisions of section 30 to 43D of the Act and thus taking into account the disallowances made u/s 43B of the Act and the disallowance covered under the provisions of the above sections has to be taken into account for the purpose of computation of deduction u/s 10A of the Income Tax Act. Accordingly, we do not find any infirmity in the order of the CIT(A) and the same is confirmed. 7. In the result, the appeal of the Revenue is dismissed. Order pronounced in the Court on 8.1.2010.
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2010 (1) TMI 1101 - MADRAS HIGH COURT
Whether the Appellate Tribunal was justified in overlooking the jurisdictional point raised by the whether in the given facts and circumstances of the case, printing ink could be construed to be a consumable one or not and whether such printing ink when used for execution of works contract to printing materials would amount to transfer of property in goods in terms of Sections 2(j) and 2(u) of the TNGST Act and consequently as to whether Section 3-B is attracted?
Held that:- The conditions for admitting deduction under Section 3-B of the TNGST Act basically are (i) that the contractor should have purchased the goods from a registered dealer liable to pay tax under the Act and (ii) that the goods should have been used in the execution of the works in the same form in which they were purchased. In this case, though the assessee had purchased raw materials locally and from other States, those raw materials had not suffered any tax. That apart, after the printing ink is manufactured by the assessee, as it is used on printing materials it does not amount to sale and the goods are not subjected to tax. Equally the raw materials purchased by the assessee are not used as such in the execution of the works contract, but the raw materials undergo a different form, namely, printing ink which alone is used in the execution of the works. In that view, the levy of tax under Section 3-B cannot be found fault with. Accordingly, the tax revision case stands dismissed and the issue is answered in favour of the revenue, but against the assessee.
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2010 (1) TMI 1100 - ITAT BANGALORE
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... ... ..... ) cannot be invoked for ascertaining the income I the case of trust. The Hon ble Madras High Court in the case of CIT Vs Rao Bahadur Calavala Cunnan Chetty Charities(1982) 135 ITR 485 held that in the case of a trust, income will have to be calculated in the commercial manner and it is not to be computed under the IT Act. Hence, we hold that the learned CIT(A), was not justified in holding that provisions of sec.40(a)(ia) can be invoked for disallowing the expenses on which tax has not been deducted at source. We have noticed from the learned DR that the assessee has made payments without deducting tax at source to the employees and other parties. The revenue has to take necessary action under the Act in case, it is felt that the assessee is not properly deducted tax at source. However, on this ground all the expenses debited in the books cannot be disallowed by invoking provisions of sec.40(a)(ia) of the IT Act. 11. In the result, the appeal filed by the assessee is allowed.
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2010 (1) TMI 1099 - SUPREME COURT
Whether Single Judge of the Punjab and Haryana High Court correct whereby he modified the award passed by the Labour Court, Gurdaspur (for short, ‘the Labour Court’) in Reference No.43 of 1996 and directed that in lieu of reinstatement with 50% back wages, the appellant herein shall be paid Rs.87,582/- by way of compensation?
Held that:- The approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer - public or private. Appeal allowed. The impugned order of the High Court is set aside and the award passed by the Labour Court is restored.
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2010 (1) TMI 1098 - SC ORDER
Validity of order passed - Held that:- impugned order has been passed without considering the two judgements of this Court in the cases of Guljag Industries vs. Commercial Taxes Officer, reported in [2007 (8) TMI 344 - SUPREME Court] and Assistant Commercial Taxes Officer vs. Bajaj Electricals Limited, reported in [2008 (11) TMI 374 - SUPREME COURT OF INDIA]. In the circumstances, impugned order is set aside and the matter is remitted to the High Court - Decided in favour of Revenue.
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2010 (1) TMI 1097 - SUPREME COURT
Whether the appellant established sufficient ground for discharge under Section 227 of the CrPC?
Whether the Trial Judge as well as the High Court committed any error in rejecting the claim of the appellant?
Held that:- In the case on hand, though, the learned Trial Judge has not assigned detailed reasons for dismissing the discharge petition filed under Section 227, it is clear from his order that after consideration of the relevant materials charge had been framed for offence under Section 302 read with Section 34 IPC and because of the same, he dismissed the discharge petition. After evaluating the materials produced by the prosecution and after considering the probability of the case, the Judge being satisfied by the existence of sufficient grounds against the appellant and another accused framed a charge. Whether the materials at the hands of the prosecution are sufficient or not are matters for trial. At this stage, it cannot be claimed that there is no sufficient ground for proceeding against the appellant and discharge is the only remedy. Further, whether the trial will end in conviction or acquittal is also immaterial. All these relevant aspects have been carefully considered by the High Court and it rightly affirmed the order passed by the Trial Judge dismissing the discharge petition filed by A3-appellant herein. We fully agree with the said conclusion.Appeal dismissed.
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2010 (1) TMI 1096 - ITAT AHMEDABAD
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... ... ..... ary act and is not a forced purchase like in underwriting. A purchase of unsubscribed shares is as a result of contractual agreement along with the receipt of underwriting commission from the same party i.e. a company whose shares are underwritten and whose unsubscribed shares are necessarily purchased by the assessee. Thus, the receipt of underwriting commission is from the same person to whom purchase price for unsubscribed shares is paid. But, in the present case commission is received from the brokers which is through a separate agreement whereas, investment is made with UTI through a separate set of agreement. The two events are not linked or have a direct nexus and hence, there is no case for reduction of commission received from investment. As a result this ground of the assessee is rejected. 25. As a result, appeal filed by the assessee is partly allowed and partly allowed for the statistical purpose. This order is pronounced in open Court on Dated 29th January, 2010.
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2010 (1) TMI 1095 - SUPREME COURT
Whether L. P. Nathani could hold the august Office of the Advocate General of Uttarakhand in view of Article 165 read with Article 217 of the Constitution?
Held that:- In the present case a practicing lawyer has deliberately abused the process of the court. In that process, he has made a serious attempt to demean an important constitutional office. The petitioner ought to have known that the controversy which he has been raising in the petition stands concluded half a century ago and by a Division Bench judgment of Nagpur High Court in the case of Karkare (supra) the said case was approved by a Constitution Bench of this court. The controversy involved in this case is no longer res integra. It is unfortunate that even after such a clear enunciation of the legal position, a large number of similar petitions have been filed from time to time in various High Courts. The petitioner ought to have refrained from filing such a frivolous petition.
Allow the appeals filed by the State and quash the proceedings of the Civil Miscellaneous Writ Petition No. 689 (M/B) of 2001 filed in the Uttaranchal High Court.
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2010 (1) TMI 1094 - ITAT HYDERABAD
Scope of Section 10(23C) – Monitoring Mechanism – Alternate Availability of Section 10(23C)(vi) and Section 11 - Approval of the Prescribed Authority - Held that:- The assessee was not entitled for exemption either u/s 11 or u/s 10(23C) in case it collected any money by whatever name it was called i.e., donation, building fund, auditorium fund etc. etc., over and above the prescribed fee for admission of students - The order was set aside the orders of the lower authorities and remit back the matter to the file of assessing officer with a direction to assessing officer that he shall reconsider the entire issue - The matter required to be examined by the assessing officer whether the assessee was collecting the capitation fees from students or not and it was necessary for bringing the actual facts on record for deciding the issue effectively.
T.M.A. Pai Foundations and others Vs. State of Karnataka & Others [2002 (10) TMI 739 - SUPREME COURT ] - the institution which were collecting capitation fees for admission of students over and above the fees prescribed cannot be construed as charitable/education institution - the fees collected over and above the prescribed fee for admission of the student had to be constructed as capitation fee - the concerned university and regulated body had to take action for withdrawal of the recognition in case it was found that the educational institution received any money over and above the fees prescribed for the courses - Decided in favour of Revenue.
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2010 (1) TMI 1093 - COMMISSIONER OF CENTRAL EXCISE (APPEALS), PUNE-II
Rebate claim - rejection on the ground that the appellant had exported the goods without preparing ARE-1s and had not submitted the copies of ARE-1s along with rebate claims - whether the rebate claims can be allowed in the absence of ARE-1's? - Held that: - the appellant had exported the goods and therefore, the appellant is entitled for rebate claims in the instant case.
Non-production of ARE-1s should not come in the way of granting rebate, which is a substantial benefit accruing to the appellant on account of export of goods - due to procedural lapse, substantial benefit cannot be denied to the appellant.
Appeal allowed - decided in favor of appellant.
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2010 (1) TMI 1092 - COMMISSIONER OF CENTRAL EXCISE (APPEALS), PUNE-II
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... ... ..... Section 3(5) from the formula contained in Rule 3(7)(a) of the Cenvat Rules. Another lacuna is that the impugned OIO does not discuss the plea put forth by the appellant while replying to the SCN to his satisfaction. As contended by the appellant, the annexure to the SCN which contains excess credit payable by the appellant, does not disclose the method/formula by which the appellant is liable to pay excess credit. Accordingly, I hold that the appellant is not liable to pay any excess credit. Once it is held that the appellant is not liable to pay any excess credit, the question of paying interest also does not arise. Consequently, the appellant is also not liable to pay any penalty. Even otherwise, when the issue involves the interpretation of law, the question of imposing any penalty does not arise. 5. In view of the above facts and circumstances, I allow the appeal by setting aside the impugned OIO passed by the Assistant Commissioner, Central Excise, Ratnagiri Division.
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2010 (1) TMI 1091 - COMMISSIONER OF CENTRAL EXCISE (APPEALS), PUNE-II
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... ... ..... funds were not hit by unjust enrichment. 4.4 In addition to the above, following decisions, which were relied upon by the appellants in their additional submissions submitted after PH are also supporting the appellants entitlement for getting refunds since unjust enrichment was not attracted. (a) nbsp nbsp CCE, Surat v. Priyanka Processors Pvt. Ltd. - 2009 (243) E.L.T. 278 (Tri.- Ahmd.) (b) nbsp nbsp CCE, Vapi v. T and D Galiakot Pvt. Ltd. - 2009 (241) E.L.T. 255 (Tri.- Ahmd.), (c) nbsp nbsp CCE, Bangalore-III v. Multiplex Fertilizers Pvt. Ltd. - 2009 (241) E.L.T. 78, (d) nbsp Jayketan Marketing and Clothing v. CCE, Belapur - 2009 (240) E.L.T. 263 (Tri.- Mum.), (e) nbsp nbsp Commr of Customs (Appeals), Bangalore v. PSI Data Systems - 2009 (239) E.L.T. 304 (Tri.- Bang.). 5. In view of the above facts and circumstances, I allow both the appeals with consequential relief by setting aside the impugned OIOs passed by the Assistant Commissioner, Central Excise, Kolhapur-I Division.
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2010 (1) TMI 1090 - COMMISSIONER OF CENTRAL EXCISE (APPEALS), PUNE-II
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... ... ..... question etc. should not come in the way of giving substantial benefit i.e. refund claim. In this regard, the reliance placed by the appellant on the decisions mentioned at para 2 (viii) also supports the contentions of the appellant. Therefore, I hold that the appellant is entitled for refund, since there is no dispute with regard to payments of SAD and VAT and also there is no dispute with regard to endorsement on the invoice that no credit will be available to the buyer on account of payment of SAD. 6. The appellant further claims that the are also eligible to get interest for delayed payment of refund on the basis of equity, justice and conscious. Though the appellant has not claimed interest initially, the payment of interest under Sec. 27A of the Customs Act, 1962 is automatic. 7. In view of the above facts and circumstances, I allow the appeal with consequential benefit by setting aside the impugned OIO passed by the Assistant Commissioner, Central Excise, Ratnagiri.
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2010 (1) TMI 1089 - CESTAT MUMBAI
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... ... ..... ndition for penalty under Section 11AC was established, a penalty on the assessee was mandatory and such penal liability was not affected by considerations like payment of duty before or after the show-cause notice was issued. The decision of the lower appellate authority, on this aspect, cannot be sustained. That authority has relied on the Tribunal rsquo s decision in Rashtriya Ispat Nigam Ltd. (supra) but that decision stands impliedly overruled by the Apex Court in Rajasthan Spinning and Weaving Mills Ltd rsquo s case (supra). The learned Consultant has referred to certain decisions of this Tribunal. These decisions also do not hold good after the apex court rsquo s decision in Rajasthan Spinning and Weaving Mills (supra) insofar as penal liability under Section 11AC is concerned. 5. In the result, this appeal of the department succeeds and the same is allowed. Consequently, the penalty imposed on the respondent by the original authority gets restored. (Dictated in Court)
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