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Case Laws
Showing 361 to 380 of 669 Records
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2008 (10) TMI 370
'tour' service - provided by the respondent to their clients under contract in vehicles covered by permits granted under Motor Vehicles Act as "contract carriage" under the definition of the 'tour operator' as given under Section 65(115) of the Finance Act, 1994 - Tribunal has rendered a categoric finding that the buses operated by the respondent were not licenced as 'tourist vehicles', therefore, they do not fall within the meaning of 'tour operator'. It has also been noted by the Tribunal that no evidence to the contrary has been produced by the Revenue and that the issue involved in the case is squarely covered by the judgment and order of the Tribunal in the case of CCE&C, Vadodara v. Gandhi Travels - Held that: - no substantial question of law arises from the order of the Tribunal so as to warrant interference - appeal is dismissed
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2008 (10) TMI 369
Deduction in relation to any block of assets - assessee is a limited company - claimed depreciation - depreciation was restricted to the extent of seventy five per cent - third proviso to clause (ii) of section 32(1) does not lay down any condition that this restrictive clause with regard to claim on depreciation would apply only if the assets had been put to non-business use - assessee them-selves filed a revised return restricting the depreciation to 75 per cent. and that this point was specifically argued before the Commissioner - counsel for the appellant submits that the appeal is restricted to the quantum of depreciation and not with regard to additional tax especially if a revised return has been filed. is clear that this is a special amendment brought about to meet a particular critical situation and was applied for only one year so that addi-tional resources could be mobilised and, therefore, the approach that has been adopted by the Tribunal with regard to depreciation claimed, other-wise, cannot apply - Held that: - Tribunal had totally misunderstood this third proviso to clause (ii) of section 32(1) for the year 1991-92. Depreciation is restricted to 75 per cent. and this restriction is applicable only to companies and also only for the assessment year 1991-92. The appellant being a com-pany and the assessment year in question being 1991-92, the question raised by the Revenue must be answered in favour of the Revenue. Accord-ingly, the tax case (appeal) is allowed. No costs
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2008 (10) TMI 368
Power to remand a case - Commissioner (Appeals) - Commissioner (Appeals) has been divested of his power to remand a matter to the lower authority - Held that: - No contrary order on this issue from any Larger Bench of the Hon'ble Supreme Court - except for these Appeals filed by the Commissioner of Central Excise, Kolkata-III, none of the other Commissioners in Kolkata or outside Kolkata in the Eastern Zone in the jurisdiction of this Bench have questioned the power of the Commissioner (Appeals) to remand cases - Appeal is rejected
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2008 (10) TMI 367
Opportunity of being heard denied - Natural justice - Appeal to Commissioner (Appeals) - Held that:- As per Section 128A(1) of the Act the Commissioner (Appeals) shall give an opportunity to the appellant to be heard if he so desires. When the statute itself provides an opportunity of being heard to the appellant the first respondent cannot deny such right and pass the impugned order.
Having regard to the facts and circumstances of the case, the order passed by the first respondent in Order-in-Appeal No. 56/2008(V-II)-CUS., dated 22-9-2008 is set aside and the matter is remitted to the first respondent with a direction to decide the matter afresh in accordance with law within a period of four weeks from today after affording an opportunity of being heard to the counsel for petitioner.
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2008 (10) TMI 365
Penalty - appellant took credit of the amount in question by making entry in PLA - According to the appellant, as a consequence of setting aside the order, it became entitled to refund of the amount which had been paid under protest - Held that: - refund cannot be allowed on any ground muchless taken suo motu by way of credit by the party - the Commissioner (Appeals) has already reduced to Rs. 5,000/- which in the facts and circumstances of the case appears to be reasonable and therefore, the quantum of penalty does not require any further modification - Appeal is dismissed
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2008 (10) TMI 364
Respondent availed Modvat credit on the basis of endorsed invoices - SCN issued for recovery of credit on the ground that such invoices were not valid duty paying documents for the purpose of credit availment - demands confirmed - set aside by the Commissioner (Appeals) - respondents filed claims for refund which were sanctioned - Revenue's appeals against setting aside of the demands were allowed by the Tribunal - Held that: - demands were upheld by the Tribunal, the assessees were required to make restitution of the amounts refunded - assessees were obliged to make restitution of the refund made pursuant to the Tribunal's order which was subsequently reversed by the Apex Court - assessees are required to return the refund amounts, set aside the impugned order and allow the appeals
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2008 (10) TMI 363
Cenvat Credit on parts, components and accessories of D.C. Sets - accessories of capital goods - Modvat credit is admissible on the components of Diesel Generating Power Plant (DGPP) installed in a factory when the DGPPs are exempted from payment of duty – Held that: - questions of law are decided against the Revenue and in favour of the Manufacturers. No order as to costs.
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2008 (10) TMI 361
Penalty - original authority overlooked the corrigendum issued to the SCN - assessee preferred an appeal to the Commissioner (Appeals) - matter remanded to the lower authority for re-quantification of duty - Held that: - remand order passed by the lower appellate authority without considering the assessee's case on merits is not sustainable in law - order passed by the original authority without considering the corrigendum to the SCN is also illegal - set aside both the orders and direct the original authority to pass fresh order of adjudication of the SCN as amended by the corrigendum thereto, after considering all the submissions of the party as also giving them a reasonable opportunity of being heard
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2008 (10) TMI 360
Sale of the property - power of court to order sale in interlocutory application - Whether the suits before the civil court are not maintainable by the exclusion of jurisdiction under the SARFAESI and the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 ? - rights of sub-mortgagee and lessee - Held that:- We cannot enter into such controversy because the action for sale of the property did not originate from the second defendant, but from the bank. The bank as a creditor is always competent to make its own choice of property for sale for realisation of money. But one thing is clear that the second defendant by his manoeuvre is able to keep at bay any possible threat to the property of the eighth defendant and at the same time he could gain control over the theatre premises itself as a lessor to the exclusion of the seventh defendant whose principal asset is the cinema theatre complex.
The Transfer of Property Act itself makes provision under section 65 recognising the mortgagor's power to lease. But, there is no power for the mortgagee who is not put in possession of the property to lease. The counsel for the second defendant points out to the clause in the corporate guarantee that the power is granted to the bank to grant a lease. But, if at all the power could be exercised, it could be only under the term of the mortgage deed, after taking possession from the mortgagor. The mortgage in favour of the bank was only a mortgage by deposit of title deeds and possession had not passed on to the mortgagee.
If the mortgagee himself could have taken possession by virtue of the special provision under section 13(4) and handed over possession to his assignee, such assignee may be able to lease the property and also put the lessee in possession. Without any of these acts, it will be impermissible for a private assignee such as the second defendant or the partnership firm to execute the valid lease and put the lessee in possession. Giving effect to such a lease or obtaining the lease for discharge of the loan contracted by the eighth defendant, becomes therefore a distant possibility mired in several legal obstructions.
The receiver must be continued in possession of the property until further directions and he should continue to render account in the manner in which it is being done. We have given directions for audit of the accounts from the day when the receiver has taken charge till the end of the financial year 2008-09 and for further periods also by separate order.
The contention against the bank should be seen in the context that it has given a chain of actions which according to the respective plaintiffs is a part of a larger scheme of the second defendant to reach the assets of the seventh defendant-company and gain its control. The suits as framed are maintainable and amenable to civil court's jurisdiction.
In directing the sale, we are trying to balance the equitable claims of several parties. The bank loan has to be discharged. The one-time settlement shall be affirmed. The parties who have advanced moneys to the second defendant and third defendant which have gone to discharge the bank loan shall have to be paid back their moneys. The indebtedness of the company has to be relieved. The shareholders have to be satisfied. We are reaffirming the principle laid down that "Equity does not relieve against contracts which, owing to circumstances which might have been provided against, prove unexpectedly burdensome to one of the parties. In those cases, equity follows the law, and acts on the legal effect of the contract"
Under the circumstances, we affirm the decision of the learned single judge, as far as the merits of the claim of the plaintiffs are concerned. We however direct the expunction of the observations of the learned judge regarding the first defendant-bank in paragraphs 86, 87 and 107 that doubt the integrity of the bank. In view of the decision taken by us to endorse the proposal of the company for sale of the property, we shall direct the sale of the cinema theatre building complex by inviting global tenders by e-auction
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2008 (10) TMI 359
Relief under section 9 of the Arbitration and Conciliation Act, 1996 claimed - Held that:- As it is explicitly clear that the appellants have failed to establish that there is a valid arbitration agreement duly executed by the parties so as to invoke relief under section 9 of the Act as well as relief under section 11(6) of the Act.
In view thereof, under these circumstances, there is no error or illegality in the order dated 27 August, 2007, passed by the learned Single Judge and the appeal is totally devoid of merits. Hence, the same stands dismissed with costs. Since, the appellants have totally failed to establish that there is an arbitration agreement dated 8 November, 2004, entered into between the parties, there is no question of invoking jurisdiction under section 11(6) of the Act for the purpose of appointment of an arbitrator. Hence, the said application also stands dismissed with costs.
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2008 (10) TMI 358
Winding up - availability of inherent powers to this Court in the matter of allowing payment to be made to the legal heirs by the Official Liquidator without insisting on production of a succession certificate - Held that:- Mere inclusion of the names of the legal representatives of the deceased worker by the Official Liquidator in his report or the permission granted to these legal representatives to represent the interest of the deceased worker during verification of claim before the Official Liquidator or then by the Division Bench in the company appeal does not have the effect of dispensing with the requirement of rule 280.
After closure of the company consequent to winding-up or even before that, most of the workers must have gone elsewhere or shifted even to various other towns/places in search of livelihood. In some applications it is mentioned that the widows had shifted to some interior places and hence, there was some delay in presenting the claim or challenging its rejection. The situation and plight of such dependents of the deceased worker is not hard to realise. Rule 280 has been enacted only to safeguard the interest of such dependents. But then in this jurisdiction identity of the genuine legal heirs is required to be established elsewhere and brought on record of Official Liquidator. In the circumstances, I do not find that this Court can deviate from the procedure prescribed and in any case, there is no material before this Court or even before the Official Liquidator to record a finding about the applicants being legal heirs of the respective deceased workers.All Applications are, therefore, rejected.
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2008 (10) TMI 357
Winding up - Custody of Company’s property - auction sale - Held that:- The appellant had knowledge at least since 2000 when he filed objection with regard to sale of land on 1-11-2000. The appellant’s objection, though rejected, and upheld by Division Bench vide order dated 26-2-2002, in O. S. A. No. 401 of 2001, wherein the appellant R. Vijayakumar himself was the appellant, but he did not choose to move against the said order before the Superior Court. The order of the court dated 9-4-2003, to auction sell the property by publication of notice in eight national newspapers was never challenged by the appellant though he had knowledge of the case since 1-11-2000. Though the execution of sale deed was made pursuant to the court’s order dated 12-11-2003, but the auction sale was not challenged.
The question whether the transfer made by the appellant in favour of the company was legal or not was not to be determined in the present company petition. We find the appellant also suppressed material fact that out of the total lands he sold some of the Government lands and for that charge sheet has been served against him. It is also not in dispute that though total land was more than 5 acres, but his claim is only with regard to 1.20 acres and not for the rest of the area, though sold in the same manner. In view of the admitted facts as mentioned above, we find no ground made out to interfere with the order passed by learned Judge.
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2008 (10) TMI 356
Winding up - Held that:- The recommendations of the BIFR forwarded to the Court under section 20(1) of the Act dated 26-3-2003 is accepted. The M/s. Kanan Steel Ltd.-company is wound up under section 433 of the Companies Act, 1956 and the Official Liquidator is appointed as Liquidator of the company.
The PICUP will file a detailed affidavit with regard to the inventories and the assets of the company and the charge, which the PICUP may be having over the company. The Official Liquidator will issue notice to the Union Bank of India to put in appearance and give details of the charges. The notices shall be issued to the ex-directors to submit statement of affairs. If no statement of affairs is found within 21 days on the receipt of the notice, the Official Liquidator will move an application for prosecution of the ex-directors under section 454(5) of the Act.
The PICUP has not taken any step for sale of the assets and has thus, lost the right given to it by the Board. The Court does not find that the PICUP should be allowed to sell the assets. The PICUP however will continue to deploy security over the assets and keep accounts and claim expenses. The Official Liquidator will take over the possession of the assets. He shall get them valued and submit a report to the Court within two months.
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2008 (10) TMI 355
Winding up - Statement of affairs to be made to Official Liquidator - crime of violation of section 454 of the Act as alleged by the official liquidator - Held that:- Finding here show that the official liquidator failed to show that the second accused did not file the statement of affairs for reasonable cause as no documents were entrusted to him. No evidence was adduced to show that default was committed without reasonable cause. In fact, second accused adduced evidence to show that immediately on receipt of notice, he went to the office of the official liquidator and appraised him that he was not having any documents and was unable to file the statement of affairs. He has also informed the official liquidator in writing. In any event, the official liquidator gave evidence to the effect that ex-directors did not hand over any of the documents to the second accused in his enthusiasm to rope in the ex-officers. Hence, it is not proved by the official liquidator that the second accused has committed default without reasonable cause. Hence, second accused is also entitled to be acquitted and his conviction and sentence is also liable to be set aside.
Thus we set aside the conviction and sentence and allow all the company appeals.
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2008 (10) TMI 354
Amalgamation - Held that:- Having gone through the petitions and being satisfied that the amalgam- ation would be in the interest of the companies and their members and creditors, prayers in terms of paragraph 15(a) of the respective petitions are hereby granted. It is, however, made clear that right, if any, available to the objector Mr. Ajay Bhatia in the pending proceedings either before the Company Law Board or before the civil court challenging his removal as director from M/s. Vikram Silk Mills or challenging the transfer and/or alienation of the property by M/s. Vikram Silk Mills in favour of Shree Kapil Yarn Ltd., shall not be frustrated by virtue of the present scheme of amalgamation.
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2008 (10) TMI 353
Whether any such deficiency in service could be said to amount an unfair trade practice as envisaged under the provisions of the aforesaid MRTP Act?
Held that:- Appeal allowed. Element of unfair trade practice definitely stands at a higher and onerous platform than the deficient service. For making out a case of unfair trade practice an element is involved to the extent of making false and misleading statement and representation and in order to make a case of unfair trade practice such ingredients, which are part and parcel of the concept of unfair trade practice has to be alleged and must be proved and established. In the present case there is neither such allegation of any such false and misleading representation nor is there any proof provided by way of evidence, which also we have perused. Therefore there could be no finding by the MRTP Commission that the appellant is guilty of unfair trade practice. That being so, the order of the Commission cannot be upheld and the same is set aside.
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2008 (10) TMI 352
Whether the order passed by the Commissioner of Trade Tax, U.P. under section 10B of the U.P. Sales Tax Act, 1948 was within the period of limitation ?
Held that:- If the revisional authority was of the view that the order dated May 29, 2003 was not legal, then that order would have been varied if it was found that order lacked legality or propriety. The expression "with respect thereof" makes the position clear that for testing the legality or propriety of the order (in the instant case the order dated May 29, 2003) if any order was to be passed that had to be passed with respect thereof. Such an order does not empower the revisional authority to make an order of assessment. As noted above, what the revisional authority has done is to substitute the original orders of assessment in the garb of testing the legality and/or propriety of the order cancelling the notices. Such a course is not countenanced and has no legal basis. Therefore, the High Court was not justified in interfering with the order of the Tribunal. The impugned orders of the High Court are set aside and the appeals are allowed but without any order as to costs.
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2008 (10) TMI 348
Printers - Weights and measures - whether the petitioners have committed offences under Section 39 of the Standards of Weights and Measures Act, 1976 and Rule 23(1) of the Standards of Weights and Measures (Packaged Commodity) Rules, 1977 punishable under Section 67 and Rule 39(1) of Package Rules?
Held that:- An electronic printer which is packed (may be for the purpose of insulation and protection from damage) in the absence of customer, after it is removed it undergoes perceptible modification, and therefore, it falls within the category of pre-packed commodity. Secondly, as admitted in the affidavit filed by second petitioner, first petitioner imports electronic printers, electronic parts and markets the printers and printer parts after assembling them in the facility of Tamil Nadu. It is certainly marketed in different parts of the country in course of inter-State trade or commerce and therefore, all provisions of the Act and Package Rules would apply. Merely because only one unit is packed in one package, the same does not take electronic printers out of the purview of the Act and the Rules.
A glance at this provision and more particularly to Explanation I would suggest that the Refrigerator is covered under the term “pre-packed commodity”. Even if the package of the Refrigerator is required to be opened for testing, even then the Refrigerator would continue to be a “pre-packed commodity”. There are various types of packages defined under the Rules and ultimately Rule 3 specifically suggests that the provisions of Chapter II would apply to the packages intended for “retail sale” and the expression “package” would be construed accordingly. It is not disputed before us that the sale of the Refrigerator is covered under the “retail sale”. Once that position is clear Rule 6 would specifically include the Refrigerator and would carry along with it the requirements that Rule of printing certain information including the sale price on the package. Thus it is clear that by being sold by the manufacturer in a packaged form, the Refrigerator would be covered by the provisions of the Act and SWM (PC) Rules and it would be imperative that the MRP has to be printed in terms of Rule 6 which has been referred to above.
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2008 (10) TMI 344
Issues:
1. Appeal under section 130 of the Customs Act, 1962 against the order of the Customs Excise and Service Tax Appellate Tribunal regarding duty demand on imported goods against DEPB Scrips obtained through forged documents.
Analysis:
The appeal was filed against the order confirming the demand of duty on imported goods obtained against DEPB Scrips procured through forged bank certificates. The DEPB Scrips were canceled by the competent authority, leading to the confirmation of duty demand. The Tribunal upheld the Commissioner of Customs' decision that concessions based on forged DEPB Scrips cannot be retained.
In a previous order, the court considered similar issues and referred to various judgments, including those of the Supreme Court and High Courts, emphasizing that benefits obtained through forged documents cannot be allowed. The principle that a purchaser does not acquire a better title than the seller was highlighted, along with the duty charge under Section 12 of the Act, irrespective of any person's intention.
The Tribunal found that since the documents were forged and the firm involved in the transaction was untraceable, the appellant could not benefit from any exemptions. The appellant had acknowledged the forgery, and the Tribunal's decision to deny further opportunities was deemed appropriate. References were made to judgments by the Supreme Court and the High Court to support this decision.
Ultimately, the court dismissed the appeal, stating that there were no grounds to interfere with the order upholding the duty demand on goods obtained through DEPB Scrips acquired through forged documents. It was concluded that no substantial question of law arose in this matter, leading to the dismissal of the appeal.
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2008 (10) TMI 342
Exemption - The assessee was a warehousing corporation and claimed exemption under section 10(29) of the Act in respect of income received from procurement of wheat and paddy as agent of the Food Corporation of India. The claim was allowed on the ground that exemption under section 10(29) was confined to income derived from letting of gowdowns from warehousing or storage etc. The Tribunal held based on an appeal filed by assessee for the assessment year 2000-01that the rent received by the assessee on account of providing storage facilities was part of its business income and had to be computed under the hed "Profits and gains of business" and not under "Income from house property". Held that - (i) the income derived from procurement of wheat and paddy as agent of Food Corporation of India was not exempt u/s 10(290 of the Act. (ii) that it was the case of the assessee itself that providing storage facility to Food Corporation of India was its main business and not merely incidental business. Thus, the income derived from storage facility would not be covered by the head "Income from house property". There was nothing to show that assessee had challenged the treatment of the income as "Income from business" in the previous year as noted by the Tribunal. The income of the assessee directly fell under the head "Business" and not under the head "Income from house property".
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