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Case Laws
Showing 381 to 400 of 658 Records
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2007 (9) TMI 282
Issues involved: Appeal by Revenue against dismissal order, authority to file appeal, interpretation of Section 35E(2), maintainability of appeal filed by Additional Commissioner.
Summary:
The High Court of Judicature at Bombay heard an Appeal by the Revenue against the dismissal order dated 5th April, 2005. The Appeal was based on the decision in the case of CCE, Mumbai-III v. M/s. Metro Street Rolling Mills & Ors. The Adjudicating Authority was the Additional Commissioner who directed the Additional Commissioner, Central Excise to apply to the Commissioner (Appeals). However, the Appeal was signed by the Assistant Commissioner, Central Excise, Khopoli, not the Applicant before the Commissioner of Central Excise (Appeals).
The Court noted that under Section 35E(2), directions can only be issued to the Adjudicating Authority. The Tribunal, in the impugned order, held that the Appeal filed by the Additional Commissioner before the Commissioner (Appeals) was not maintainable. The Court disagreed with this view, stating that the key issue was whether the Appeal was filed by a competent person authorized by the Commissioner, and whether any illegality or irregularity was present in the filing.
Consequently, the Court set aside the impugned order and remanded the matter back to the Tribunal for reconsideration. It was emphasized that if the Tribunal decides against the Respondent, they should be given an opportunity to be heard on the merits of the Appeal.
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2007 (9) TMI 281
Issues: Appeal against revocation of CHA license, relevance of findings from Customs proceedings, validity of tribunal's order.
Analysis:
1. Revocation of CHA License: The petitioners, holders of a CHA license, faced proceedings for revocation due to alleged misuse of the license. The appropriate authority found the charges proved and ordered revocation. The respondents appealed this decision.
2. Findings from Customs Proceedings: Meanwhile, separate proceedings by the Customs Collectorate at Tuticorin found the importer guilty under the Customs Act but exonerated the respondents from forgery or producing fraudulent documents. The tribunal, considering this, set aside the revocation order and remanded the matter for fresh adjudication.
3. Validity of Tribunal's Order: The High Court examined whether the tribunal's decision was legally sound. It noted that the tribunal solely relied on the Customs Commissioner's findings without assessing their relevance to the CHA license misuse issue. The court held that the tribunal should have determined the significance of the Tuticorin proceedings' findings for the CHA license case. As the tribunal failed to do so, the High Court set aside the order and remanded the matter for a fresh hearing, allowing all parties to present their contentions.
4. Directions: The High Court directed the tribunal to decide the appeal within four months from the judgment date, ensuring a timely resolution of the matter. The appeal was disposed of accordingly, emphasizing a fair and comprehensive reevaluation of the case based on all available legal considerations.
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2007 (9) TMI 280
Rectification of mistake - Whether the rectification order passed by the CESTAT in exercise of its power under section 35C(2) of the Act is beyond six months from the date of the final order is legal and valid?
Held that:- Having regard to the undisputed fact that the final order was passed on 29-6-2005 and the rectification order is passed on 12-1-2006, the assessees must have filed a petition before six months before the CESTAT. It is the duty of the Tribunal to have passed the rectification order within six months from the date of order by it. Therefore, the order passed beyond six months from the date of the final order in the appeal is not legal and valid and the same is passed without jurisdiction. Therefore, we accept the legal submissions made on behalf of the assessee and answer the aforesaid question which we have framed today in favour of the revenue.
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2007 (9) TMI 279
Appeal to Appellate Tribunal - Judicial discipline - Held that:- It is the duty of Tribunal while hearing appeal both on facts and law to take note of all possible issues arising out of controversy and in particular legal issues and then decide them keeping in view the relevant provisions of law and decided cases on the issue involved. In the first instance, effort must be to find out whether issue involved is decided by any decision of Supreme Court in any case. If so then by virtue of Article 141 of Constitution of India, the issue must be decided strictly in accordance with law laid down by Supreme Court - it being the last word on the subject. If, there is no decision of Supreme Court on the issue then the effort must be to decide the issue either on first principle applicable to case or by any decision of High Court of our country if holding the field. Any departure from these principles renders the decision of Tribunal bad in law.
Accordingly and in view of the casual manner in which the Tribunal disposed of the appeal and the fact that there has been no finding at all by any of the authorities on any of the issues urged, we allow the appeal and set aside the impugned order of Tribunal. As directed above, the case is remanded to Tribunal again for deciding the appeal on merits in the light of what is observed
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2007 (9) TMI 278
Issues involved: Challenge to order of CESTAT allowing appeal by Revenue against Commissioner of Central Excise (A) order granting refund.
Details of the judgment:
1. The petitioner filed a refund claim, which was partially rejected by the adjudicating authority.
2. Commissioner of Central Excise (A) held that the petitioner is entitled to a refund, which was challenged by the Revenue in an appeal before CESTAT.
3. CESTAT allowed the appeal filed by the Revenue, leading to the filing of the present petition to challenge the Tribunal's order.
4. The main issue before the Tribunal was the justification of the refund granted by the Commissioner of Central Excise (A).
5. The Tribunal disposed of two appeals filed by the Revenue without considering the merits of the case or providing an opportunity for both parties to be heard.
6. The petitioner argued that the Tribunal's order violated the principles of natural justice as there was no allegation in the show cause notice regarding the availing of duty drawback/rebate.
7. The Court found that the petitioner was specifically called upon in the show cause notice to justify the refund claim in light of availing duty drawback/rebate, thus rejecting the argument of violation of natural justice.
8. Despite this, the Court set aside the Tribunal's order and directed a fresh consideration of both appeals, emphasizing the need for a proper hearing and review of the adjudication orders.
9. The petition was allowed, the impugned order was set aside, and the matter was remanded back to CESTAT for a decision on merits and in accordance with the law, with all contentions of both parties kept open.
10. The petition was disposed of without any order as to costs.
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2007 (9) TMI 277
Issues involved: Interpretation of the condition for registration of import contracts for poppy seeds with the Narcotics Commissioner u/s Chapter 12 of the ITC (HS) of Export and Import Items 2004/2009.
Summary:
The High Court of Judicature at Bombay, in a judgment dated 6-7-2006, addressed the issue of whether the condition for registration of import contracts for poppy seeds with the Narcotics Commissioner was complied with in a case where Bills of Lading were issued after the contract period had expired. The department alleged a violation of Licensing Note 3 and condition (c) of Chapter 12 of the ITC (HS) of Export and Import Items 2004/2009, which mandated registration of import contracts with the Narcotics Commissioner before import.
It was undisputed that the contracts were registered with the Narcotics Commissioner before import. However, the department argued that since the goods were loaded on the vessel after the contract had expired, the import was not valid. The Court examined the provisions of the foreign trade policy and handbook of procedure, noting that the date of shipment by sea is determined by the bill of lading date. The tribunal found that the bill of lading was issued before the contract expiry date, thus fulfilling the registration requirement.
Consequently, the Court held that the tribunal had not erred in its decision, and the question of law as reformulated did not arise. As a result, all three appeals were dismissed.
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2007 (9) TMI 276
Issues: Condonation of delay in filing a reference petition under Section 35H(1) of the Central Excise Act, 1944.
In this judgment, the High Court of Punjab & Haryana at Chandigarh addressed a petition filed under Section 35H(1) of the Central Excise Act, 1944, requesting a reference of a legal question arising from a final order issued by the Custom, Excise and Gold (Control) Appellate Tribunal (CEGAT), now known as the Central Excise and Service Tax Appellate Tribunal (CESTAT). The delay in filing the Reference Petition was 1494 days, with the petitioner attributing the delay to pursuing another remedy under a bona fide belief. However, the court found that there was no evidence to support this claim as the case was never listed before the High Court of Delhi, as stated in the application for condonation of delay. The court noted that the delay seemed to be a result of reckless and negligent behavior rather than reasons beyond the petitioner's control. Reference was made to previous cases where similar delays were not condoned, leading to the dismissal of the application in this instance as well.
The court emphasized that the delay of 1494 days in filing the petition could not be considered for sufficient cause beyond the control of the applicant, as there was no evidence of pursuing another remedy in the High Court of Delhi. The court highlighted that the delay appeared to be a result of reckless and negligent conduct rather than a valid reason. Citing precedents where similar delays were not condoned, the court dismissed the application for condonation of delay, leading to the dismissal of the main petition on the grounds of delay itself. The judgment serves as a reminder of the importance of diligence and proper legal procedures in pursuing remedies within the specified timelines in legal matters.
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2007 (9) TMI 275
EXIM - Import - Whether shoe uppers, outer soles, insoles and sock liners imported by M/s. Phoenix Industries Ltd. (PIND) in the same container could be clubbed so that it could be considered as import of the shoe itself in semi-knocked down (SKD) condition? Whether the importer was guilty of mis-declaration when the importer declared SKD goods as components?
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2007 (9) TMI 274
Stay/Dispensation of pre-deposit - The Tribunal failed to take into consideration the limitation of its jurisdiction under Section 129E which emanates from the custody of the goods and as a part of the goods is in the custody of the Revenue and furthermore in view of the fact that the High Court instead of considering the question as to whether direction to deposit the amount would cause undue hardship or not has gone into the merit of the matter, the interest of justice would be subserved if the impugned judgments are set aside and the matter is remitted to the Tribunal for consideration of the matter afresh.
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2007 (9) TMI 273
Block Assessment – undisclosed assessment – additions based on NOTE – interpretation of paper note as a dying declaration - Section 17 to 23 of the 1872 - held that - It is well settled that admissions constitute best piece of evidence because admissions are self-harming statement made by the maker believing it to be based on truth. It is well known that no one will tell a lie especially harming ones’ own interest unless such a statement is true - in the present case the assessee has made a selfharming statement in a note just before his entry to an Operation Theatre for a surgery, titled as ‘Just in case’. The note has clearly stated that somebody called Tyagi has a cash entry of Rs. 4,11,000/-, who was to be told to withdraw that money from PFL and the family was to get the cash – addition made on the basis of such declaration upheld – however such declaration can not be held as dying declaration - even if the statement made by the assessee cannot be regarded as ‘dying declaration’, it has to be regarded as admission within meaning of Sections 17 and 18 of the 1872
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2007 (9) TMI 272
Appeal to High Court – CBDT Circular – Monetary limit for filing an appeal – held that - the circular issued by the Central Board of Direct Taxes as referred to above carves out only one exception with regard to the permissibility of filing of appeals, etc., notwithstanding the embargo contained in the Circular of the monetary limit. It is only in cases involving substantial question of law of importance as well as cases where the same question of law will repeatedly arise either in the case concerned or in similar cases that the Department will not be hindered by the monetary limits - , it is expected that while filing appeal in non-adherence of the Circular, the Department would place material before the appellate forum that the case falls within the excepted category and, therefore, is not covered by the restraint contained in the Circular
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2007 (9) TMI 271
Prima facie adjustment – consideration of notes filed alongwith the return – CBDT circular dated 24-8-1994 - held that - it is clear that the assessee had returned Rs.12,000/- as income from the property at Arulambal Street; yet, the details filed along with the return clearly showed that the assessee was in self-occupation of the property owned by him situate at Arulambal Street. Hence, there was nil income. If at all any income is received from the property, it is only from the one taken on lease at Mount Road. Hence, in the background of the circular of the Central Board of Direct Taxes and the provisions of Section 143(1)(a) itself providing for taking note of the documents/statements, the statement accompanying the return thus disclosing the facts fully, the income shown could only relate to the one from the property taken on lease, the documents accompanying the return ought to have been adverted to by the Income Tax Officer before passing any order under Section 143(1)(a) to make prima facie adjustment.
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2007 (9) TMI 270
Expenses on food and beverages - Explanation 2 to section 37(2A) of the Income-tax Act - The facts which are essential to be stated are that the assessee is a partnership firm and derived income from manufacture and sale of bidis for the assessment year 1984-85. The assessee claimed expenditure of Rs.1,60,239 towards messing. The Assessing Officer disallowed the claim of Rs.10,000, vide order dated July 8, 1986, and allowed the messing expenses to Rs.1,50,239. – CIT revised the order u/s 263 to restrict the deduction to Rs. 5000 only – held that - the expenditure incurred by the assessees in providing ordinary meals to outstation customers according to the established business practice, was a permissible deduction in spite of sub-section (2A) of section 37, to which the assessees were entitled in the computation of their income for the purpose of payment of tax under the Income-tax Act, 1961, during the relevant period prior to April 1, 1976 – decided in favor of assessee.
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2007 (9) TMI 269
Revision of order – section 84 – power of commissioner – held that - When the Hon’ble Apex Court held that circular should be followed by the Departmental Authorities for the uniform approach of the law, such a basic principle cannot be brushed aside. Therefore, the Revisional Authority should hear the appellant affording a reasonable opportunity to him and bringing home the charges that he should face for reply. While doing so, the authority below should also bring out clearly the reason why such authority proposes to exercise power under section 84. This shall only meet the end of justice. Accordingly, the appeal is allowed by way of remand to the learned Revisional Authority.
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2007 (9) TMI 268
Penalty u/s 271(1)(c) - In view of the unambiguous declaration of the law by the Supreme Court, it is beyond doubt that no penalty can be levied under section 27 of the Act on the assessee for the assessment year in question that is 1996-97 since there is no positive assessed income on which any tax is payable - Given the definition of “total income” and the requirement that it is the assessed income, computed in the manner indicated in the Act, which is to be considered for the purposes of penalty, the penalty in the instant case cannot be sustained for the simple reason that the assessed income is nil. It matters little that the assessed income was nil because of adjustment of brought forward losses or for any other reason
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2007 (9) TMI 267
We have considered each of the issues asked for reference; however, taking note of the fact that all the issues are based on facts and essentially, require re-appreciation which is not permissible for reference to this court. It is not a case where either material available on record was ignored or the Tribunal recorded its finding without considering the material, rather perusal of the order reveals that each and every material was properly considered to arrive at the finding - In view of the facts discussed above, we are not in agreement with the Revenue to accept this reference application, so as to call for reference for its answer under the provisions of section 256(2) of the Income-tax Act. Hence, this reference application preferred by the Revenue is not accepted; the same is hereby dismissed.
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2007 (9) TMI 266
Technical Testing & Analysis - Commissioner (Appeals) has only picked up alternate submission and disallowed their appeal without giving any findings on the main submissions made by the appellant, on non-taxability of the services under category of ‘Technical Testing & Analysis’ – Held that - Commissioner (Appeals) has not considered the merits of the case but has considered the plea of the appellant as regard the liability of payment of service tax. To our mind this order, is a non-speaking order, on merits of the case. As such, the impugned order is set aside and the matter is remanded back to the Commissioner (Appeals) to reconsider the issue afresh on merits and other pleas as raised by the appellant in their appeal memorandum
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2007 (9) TMI 265
Application under Rules 40 and 41 of the CESTAT Rules seeking for direction to be issued to the Asst. Commissioner to implement the order of the Tribunal - Whatever evidences available with them should have been submitted before the Original Authority within 30 days - applicant has not fulfilled the obligations cast on them in terms of the order of Tribunal - applicant has also not produced any evidence of efforts/action taken on their part to get the disposal of SCA pending before the HC - Asst. Commissioner not deliberately disobey the order of the Tribunal - merits in the application and the same is rejected
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2007 (9) TMI 264
Tribunal accepted the contention of assessee that a reference to a Departmental Valuation Officer could be made only for the purpose of section 55A and section 269 and, therefore, the reference was invalid - Revenue has drawn our attention to section 142A which came on the statute with retrospective effect only after the order was passed by the Tribunal- held that incorporation of section 142A is an issue that ought to be considered by the Tribunal – matter remitted – however, income disclosed by assessee in return for assessment years, should not be included in block assessment
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2007 (9) TMI 263
Cessation of liability - Explanation inserted in section 41(1) w.e.f. April 1, 1997 - Inspecting Assistant Commissioner added back the amount to the income of the assessee which were written back in assessee’s accounts as unclaimed balances - held that these amounts, are not statutory liabilities but contractual liabilities – these amounts were unilaterally written off by the assessee - Contention of assessee that prior to April 1, 1997, a unilateral writing off of a liability could not be treated as an income of the assessee, not acceptable – held that unclaimed liability written off by assessee was taxable as income
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