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Showing 61 to 80 of 536 Records
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2007 (12) TMI 502
The Gujarat High Court admitted an appeal concerning the confiscation of goods under the Customs Act, 1962. The questions raised included whether the goods were liable for confiscation and if the Tribunal was justified in setting aside the order of confiscation and penalty imposition. The Tribunal's decision on the goods' status and clearance under a specific notification was also questioned. The court issued a notice to the other party and scheduled the final hearing after 3 months.
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2007 (12) TMI 501
Issues involved: Interpretation of Sections 70, 71A, and 73 of the Finance Act, 1994 regarding liability to file return and serve Show Cause Notices.
In the present case, the Department appealed against an order by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi, based on a Show Cause Notice issued to the assessee u/s 73 of the Finance Act, 1994. The assessee contended that their case did not fall under Section 73 as they were not liable to submit returns prior to the amendment introducing Section 71A. The Tribunal's decision was influenced by the Supreme Court's ruling in L.H. Sugar Factories case, stating that cases falling under Section 71A cannot be covered by Section 73 notices. The Tribunal concluded that Show Cause Notices under Section 73 were not maintainable for such cases. The appeal of the assessee was allowed based on this interpretation.
The Union of India argued that the assessee's non-liability to file returns did not absolve them from the liability to pay service tax. They contended that the Tribunal failed to consider the ongoing liability of the assessee to pay service tax, despite the Supreme Court's judgment. However, the Court noted that the Tribunal's judgment was limited to the issue of the maintainability of Show Cause Notices under Section 73 for cases falling under Section 71A. The Court clarified that the liability to pay tax was a separate issue not addressed in the Tribunal's decision. The Court upheld the Tribunal's decision that the Show Cause Notice under Section 73 was not sustainable for cases under Section 71A, leaving the question of tax liability open for future proceedings.
Therefore, the Court dismissed the Revenue's appeal, finding no substantial legal questions involved in the matter. The judgment was based on the interpretation of relevant provisions of the Finance Act, 1994 and the applicability of the Supreme Court's ruling in similar cases.
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2007 (12) TMI 500
The Supreme Court of India dismissed the Special Leave Petition due to lack of proper averment in the show cause notice under Article 136 of the Constitution. The judgment was delivered by Justices S. H. Kapadia and B. Sudershan Reddy.
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2007 (12) TMI 499
Issues involved: Application of Notification No.65/88, Jurisdiction of Tribunal to condone delay.
The High Court of Bombay, in the case, held that the applicable notification in the instant case would be Notification No.65/88 dated 1st March, 1988. The Court emphasized that the Authority had a duty to consider the notification, regardless of whether the petitioners had applied under it. This view was supported by a judgment of the Supreme Court in Share Medical Care vs. Union of India & Ors., 2007 (4) SCC 573, which highlighted the importance of extending benefits under exemption notifications to the appellant without depriving them unfairly. The Court also noted that the Tribunal had the jurisdiction to condone the delay, citing a previous judgment in Customs Appeal No.22 of 2004. Consequently, the Court accepted the cause shown by the petitioners as sufficient and condoned the delay, setting aside the impugned order and remanding the matter to the Tribunal for fresh consideration.
In conclusion, the High Court made the rule absolute, with no order as to costs.
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2007 (12) TMI 498
Issues involved: Denial of credit on Shape and Section and M.S. Angle & Joist of Iron and Steel due to lack of disclosure on exact use or place where the products were used.
Summary:
The appellant appealed against the denial of credit on certain iron and steel products. The authorities below noted the lack of disclosure regarding the exact use or place where these items were utilized, with the appellant only stating they were used in repair and maintenance activities. The appellant cited a High Court case to support eligibility for credit on parts of capital goods used in fabrication, erection, or installation. The revenue, however, argued that these items cannot be considered components. The Tribunal referred to previous court decisions and found that the items were used as components in machinery, making them eligible for credit. The denial of credit was overturned, and the appeal was allowed with consequential relief.
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2007 (12) TMI 497
Demand of Dowry - Incidents of cruelty and harassment - Application for quashing the proceedings of CC u/s 482 CrPC - Cognizance of Offence u/s 498 A and 406 IPC r/w Sections 4 and 6 of the Dowry Act after expiry of three years - marriage dissolved by the Superior Court at New Jersey - HELD THAT:- The High Court should not go into the merits and demerits of the allegations simply because the petitioner alleges malus animus against the author of the FIR or the complainant. The High Court must also refrain from making imaginary journey in the realm of possible harassment which may be caused to the petitioner on account of investigation of the FIR or complaint. Such a course will result in miscarriage of justice and would encourage those accused of committing crimes to repeat the same. However, if the High Court is satisfied that the complaint does not disclose commission of any offence or prosecution is barred by limitation or that the proceedings of criminal case would result in failure of justice, then it may exercise inherent power under Section 482 Cr.P.C.
Although, the learned Single Judge of High Court dealt with various points raised by the appellants and negatived the same by recording the detailed order, his attention does not appear to have been drawn to the order dated 24.10.2006 passed by the co-ordinate bench in Criminal Petition whereby the proceedings of CC were quashed qua the parents of the appellants on the ground that the learned Magistrate could not have taken cognizance after three years.
Respondent No.2 is not shown to have challenged the order passed in Criminal Petition. Therefore, that order will be deemed to have become final. We are sure that if attention of the learned Single Judge, who decided Criminal Petition had been drawn to the order passed by another learned Single Judge in Criminal Petition, he may have, by taking note of the fact that the learned Magistrate did not pass an order for condonation of delay or extension of the period of limitation in terms of Section 473 Cr.P.C., quashed the proceedings of CC.
We are further of the view that in the peculiar facts of this case, continuation of proceedings of CC will amount to abuse of the process of the Court. It is not in dispute that after marriage, Shireesha Bhavani lived with appellant No.1 for less than one and a half months (eight days at Hyderabad and about thirty days at New Jersey). It is also not in dispute that their marriage was dissolved by the Superior Court at New Jersey vide decree dated 15.12.1999. Shireesha Bhavani is not shown to have challenged the decree of divorce. As a mater of fact, she married Sri Venkat Puskar in 2000 and has two children from the second marriage. She also received all the articles of dowry (including jewellery) by filing affidavit dated 28.12.1999 in the Superior Court at New Jersey. As on today a period of almost nine years has elapsed of the marriage of appellant No.1 and Shireesha Bhavani and seven years from her second marriage.
Therefore, at this belated stage, there does not appear to be any justification for continuation of the proceedings in CC. Rather, it would amount to sheer harassment to the appellant and Shireesha Bhavani who are settled in USA, if they are required to come to India for giving evidence in relation to an offence allegedly committed in 1998-99. It is also extremely doubtful whether the Government of India will, after lapse of such a long time, give sanction in terms of Section 188 Cr.P.C.
Therefore, the appeal is allowed, the order of the learned Single Judge of the High Court is set aside and the proceedings of CC, pending in the Court of Metropolitan Magistrate, are quashed.
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2007 (12) TMI 496
The Appellate Tribunal CESTAT, New Delhi rejected the appeals filed by the Revenue regarding the admissibility of credit on service tax paid on mobile phones as 'input service' based on a previous decision in favor of the assesses. The decision of the Commissioner (Appeals) was upheld. (2007 (12) TMI 496 - CESTAT, New Delhi)
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2007 (12) TMI 495
Supreme Court dismissed the civil appeal as no grounds found to interfere with the impugned order. (2007 (12) TMI 495 - SC)
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2007 (12) TMI 494
Issues Involved:1. Whether an averment made in the deed of gift regarding the handing over of possession is sufficient proof of acceptance by the donee. 2. Whether the gift deeds could be rescinded due to the appellant's failure to fulfill certain conditions. Summary:Issue 1: Proof of Acceptance of GiftThe primary issue was whether an averment in the deed of gift regarding the handing over of possession constitutes sufficient proof of acceptance by the donee. The appellant's parents executed registered deeds of gift in his favor, which included statements about the transfer of possession. The appellant filed a suit for a declaration of ownership and to set aside the cancellation of the gift deeds. The Trial Judge decreed in favor of the appellant, stating that the requirements of Sections 122 and 123 of the Transfer of Property Act were fulfilled, and the gift could not be rescinded based on a change in the donors' feelings. The First Appellate Court and the High Court reversed this decision, concluding that there was no overt act of possession by the appellant, as he had not paid taxes or mutated his name in the revenue records. The Supreme Court, however, noted that the essential elements of a gift under Section 122 of the Transfer of Property Act include the absence of consideration, the donor, the donee, the subject matter, the transfer, and the acceptance. The Court emphasized that the Transfer of Property Act does not prescribe a specific mode of acceptance and that the circumstances surrounding the transaction are relevant. The Court cited precedents indicating that the handing over of possession raises a presumption of acceptance and that even silence can indicate acceptance. The Court held that the recitals in the deeds of gift, which stated that possession had been handed over and accepted, were sufficient to presume acceptance. The burden of proof was on the donors to rebut this presumption, which they failed to do. The Court concluded that the relationship between the parties and the circumstances indicated acceptance of the gift. Issue 2: Rescission of Gift DeedsThe defendants argued that the gift was onerous and that the appellant failed to fulfill the condition of contributing Rs. 1,00,000 at the time of his sister's marriage, leading to the cancellation of the gift deeds. The Supreme Court held that gifts do not contemplate payment of any consideration or compensation and must be voluntary. The Court found that the deeds of gift were not onerous and that the donors' claim of a condition was not supported by the evidence. The Court emphasized that once a gift is complete, it cannot be rescinded for any reason, including the subsequent conduct of the donee. The Supreme Court set aside the judgments of the High Court and the First Appellate Court, restoring the Trial Court's decision in favor of the appellant. The appeal was allowed, and no costs were awarded.
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2007 (12) TMI 493
Issues involved: Interpretation of service tax liability on contracts related to Automated Teller Machines (ATMs) u/s Notification No. 19/2003-ST and applicability of service tax prior to 1-5-2006.
Summary:
The Appellate Tribunal CESTAT CHENNAI addressed the demand for service tax amounting to over Rs. 7.6 crores on the appellants for the period July 2003 to July 2005 concerning 'Commissioning or Installation Service', along with a penalty imposition by the lower authority.
Upon reviewing the records and arguments from both sides, it was observed that the appellants had engaged in contracts with various banks for services related to ATMs, including site selection, installation, certification, etc. The demand for tax was based on the gross amount received by the appellants from the customer-banks. The Commissioner determined that service tax was applicable on 33% of the gross amount under Notification No. 19/2003-ST, which granted abatement of 67% for supplying plant, machinery, or equipment and their commissioning or installation.
The appellants contended that the contracts were indivisible, and thus no service tax should be levied. The Senior Advocate cited case law supporting this argument, emphasizing that services related to ATMs became taxable only from 1-5-2006. However, the department argued that the definition of 'commissioning or installation' during the dispute period covered the services provided by the appellants to the banks for ATMs, as ATMs were considered machinery or equipment falling under this definition.
After careful consideration, the Tribunal noted the absence of judicial authority supporting the department's stance. Citing various judicial precedents, the Tribunal found merit in the appellants' argument that prior to 1-5-2006, indivisible services under turnkey contracts for ATMs were not taxable. Notably, the decision in Widia GMBH v. CCE [2006] 5 STT 414 was deemed relevant, where a similar service was held non-taxable before its inclusion as a taxable service.
Consequently, the Tribunal granted the appellants a waiver of pre-deposit and stay of recovery concerning the tax and penalty amounts. Due to the significant stakes involved, the appeals were scheduled for expedited hearing and disposal on 17-4-2007, including the department's Appeal No. S/130/06 against one of the impugned orders.
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2007 (12) TMI 492
Issues involved: Availability of modvat credit on Hexane classifiable under heading 2710.12, classification dispute, retrospective effect of Section 38A.
Availability of modvat credit on Hexane (2710.12): The dispute revolved around the availability of modvat credit on Hexane classified under heading 2710.12, which was excluded from the purview of admissibility of modvat credit as input. The impugned order confirmed a duty demand along with interest and a personal penalty. The Commissioner (Appeals) rejected the appeal, emphasizing that modvat credit on goods under this chapter heading was not available as per relevant notifications. The appellant's argument that Hexane should be classified under a different heading was dismissed, stating that classification cannot be changed at the input receiver end.
Classification dispute: The appellant contended that Hexane should be classified under heading 2912.00 instead of 2710.12, making them eligible for credit. However, it was established that the classification of the product cannot be altered at the input receiver end, and the manufacturer is responsible for correct classification with the approval of the Central Excise authority. Since no dispute existed at the manufacturer's end, the classification dispute could not be reopened at the input receiver end.
Retrospective effect of Section 38A: The appellant argued that one show cause notice issued after the substitution of modvat provisions was invalid. They relied on a Tribunal decision, while the Department cited a different case law. The issue was not raised before the lower authorities, leading to a remand for further examination. The demands from other show cause notices were confirmed, but the personal penalty was set aside due to the bonafide interpretation of the law by the appellant.
Conclusion: The appeal was disposed of with the duty demands from two show cause notices confirmed, while the matter regarding the show cause notice issued after the substitution of modvat provisions was remanded for further consideration. The personal penalty was waived considering the bonafide interpretation of the law by the appellant.
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2007 (12) TMI 491
Issues Involved:
1. Validity of the High Court's re-appreciation of evidence.
2. Adverse possession claim by the plaintiff.
3. Ownership and title of the suit property.
4. Admissibility of Exhibit A-8.
5. Identity and possession of the suit property.
Summary:
1. Validity of the High Court's re-appreciation of evidence:
The Supreme Court criticized the High Court for entering "a prohibited arena of re-appreciation of evidence" and upsetting the well-considered judgment of the appellate court without discussing its approach. The High Court's re-appreciation of evidence was deemed inappropriate as it was based on non-existent substantial questions of law.
2. Adverse possession claim by the plaintiff:
The plaintiff, Muthuswami Gounder, claimed title and possession of the suit property through adverse possession. However, the appellate court rightly found that the plea of adverse possession was not proved. The High Court's findings on adverse possession were confused and unsupported by evidence. The Supreme Court emphasized that adverse possession must be open and adverse to the owner, which was not demonstrated in this case.
3. Ownership and title of the suit property:
The plaintiff's claim of ownership was based on a Sale Deed from Doraiswamy, who allegedly had adverse possession after Karupayee Ammal. The appellate court found that the plaintiff failed to prove Doraiswamy's valid title. The High Court erred in finding an entirely new case based on unpleaded facts and non-existent rights. The appellate court's reliance on tax receipts and revenue records in favor of the Iyer family was upheld by the Supreme Court.
4. Admissibility of Exhibit A-8:
The High Court found Exhibit A-8 inadmissible as the Tehsildar who issued the certificate was not examined. The Supreme Court agreed, stating that the document was not proved and thus inadmissible.
5. Identity and possession of the suit property:
The High Court's discussion on the identity of the suit property was deemed unnecessary and uncalled for. The appellate court correctly identified the suit property as part of Item No.1 of Schedule C in Exhibit B-7. The Supreme Court upheld the appellate court's findings on the identity and possession of the suit property.
Conclusion:
The Supreme Court set aside the High Court's judgment and restored the judgment of the First Appellate Court. The appeals succeeded with costs, and the suit filed by Muthuswami Gounder was dismissed, while the suit filed by Dharamrajan was partly decreed.
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2007 (12) TMI 490
Suit for permanent and mandatory injunction - Disputed tittle of ownership - Jurisdiction under Section 151 of the Code of Civil Procedure - encroached portion of the suit property by erection of structure - decree of permanent injunction - Respondents contended that they are owners of a portion of Survey No. 1008/1 - appellants who are the owners of the abutting land bearing CTS No. 4823/A-1 had encroached upon a portion - Plaintiffs purchased the said plots by a deed of sale dated 7.11.1984, whereas the date of purchase made by the defendants dated 17.8.1992
HELD THAT:- The High Court opined that the Trial Court could exercise discretion in this behalf. It is again one thing to say that the courts could pass an interlocutory order in the nature of mandatory injunction in exercise of its jurisdiction under Section 151 of the Code of Civil Procedure on the premise that a party against whom an order of injunction was passed, acted in breach thereof; so as to relegate the parties to the same position as if the order of injunction has not been violated, but, it is another thing to say that the courts shall exercise the same power while granting a decree permanent injunction in mandatory form without deciding the question of title and/or leaving the same open. How, in the event the structures are demolished, it would be possible for the appellants to work out their remedies in accordance with law in regard to the title of the property has not been spelt out by the High Court.
We, therefore, are of the opinion that the interest of justice would be subserved if the impugned judgments are set aside and the matter is remitted to the learned Trial Judge for consideration of the matter afresh. The plaintiffs may, if they so desire, file an application for amendment of plaint praying inter alia for declaration of his title as also for damages as against the respondents for illegal occupation of the land. It would also be open to the parties to adduce additional evidence(s). The learned Trial Judge may also appoint a Commissioner for the purpose of measurement of the suit land whether an Advocate - Commissioner or an officer of the Revenue Department.
Before us, additional documents have been filed by the appellants showing some subsequent events. It would be open to the defendants to file an application for adduction of additional evidence before the Trial Judge which may be considered on its own merits.
Appeal is allowed.
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2007 (12) TMI 489
CENVAT credit - inputs/capital goods - Welding Electrodes used by the appellants for maintenance - Held that: - the issue has been covered in favor of the assessee in the case of Commissioner vs. Modi Rubber Ltd [2000 (5) TMI 64 - CEGAT, NEW DELHI] in coming to the conclusion that welding electrodes used for repairs are eligible inputs entitled to credit - credit is admissible on welding electrodes - appeal allowed - decided in favor of appellant.
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2007 (12) TMI 488
Constitutional validity of section 35 of the Chhattisgarh Vanijyik Kar Adhiniyam, 1994 - Held that:- Appeal dismissed. High Court was right in holding that section 35 of the Act was constitutionally invalid. The direction for refund of the amount collected from the respondent under the provisions of the said section had been rightly directed to be refunded.
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2007 (12) TMI 487
Issues involved:
The judgment involves the issue of proper service of legal notice and the authority responsible for deciding the claim made by the petitioner.
Proper Service of Legal Notice:
The legal notice dated 9.1.2007 was sent to specific authorities, with only a copy sent to the Excise and Taxation Officer. Consequently, no direction could be issued to the Excise and Taxation Officer on 10.5.2007. The Managing Directors of relevant corporations rejected the claim, stating that the matter falls under the jurisdiction of the Excise and Taxation Officer. The court directed the Excise and Taxation Officer to decide on the claim after a personal hearing, allowing the petitioner to appeal under the Haryana Value Added Tax Act, 2003. The observations made by the Managing Directors and Director in their respective orders were not to be considered by the Excise and Taxation Officer.
Authority Responsible for Deciding the Claim:
The judgment directed respondent No.5, the Excise and Taxation Officer, to decide on the claim made by the petitioner after a personal hearing. The petitioner was granted the right to challenge the decision in appeal as per the provisions of the Haryana Value Added Tax Act, 2003. The court clarified that the observations made by other authorities in their orders should not influence the decision of the Excise and Taxation Officer.
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2007 (12) TMI 486
Validity of SCN - time limitation - Held that: - the demand confirmed is based on the two amendments made one in 2003 and another in October 2004. In such a situation, the question of fraud, collusion cannot arise - the show-cause notice has been issued after one year from the relevant dale and therefore, the demand is time-barred - appeal dismissed - decided against Revenue.
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2007 (12) TMI 485
Writ Petition Seeking investigation by the Central Bureau of Investigation (CBI) - Powers of Magistrate u/s 156(3) CrPC - Remedies against Grievance that the police station is not registering his FIR u/s 154 CrPC - Alternative remedy to a writ petition - Son of the appellant was a Major in the Indian Army - His dead body was found at Mathura Railway Station - G.R.P, Mathura investigated the matter and gave a detailed report, stating that the death was due to an accident or suicide - Army officials also held two Courts of Inquiry and both times submitted the report that the deceased had committed suicide.
HELD THAT:- It has been held by this Court in CBI & another vs. Rajesh Gandhi and another[1996 (10) TMI 503 - SUPREME COURT] that no one can insist that an offence be investigated by a particular agency. We fully agree with the view in the aforesaid decision. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice.
Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.
In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.
If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C.
It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere.
No doubt the Magistrate cannot order investigation by the CBI vide CBI vs. State of Rajasthan and another, but this Court or the High Court has power under Article 136 or Article 226 to order investigation by the CBI. That, however should be done only in some rare and exceptional case, otherwise, the CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them.
In the present case, we are of the opinion that the material on record does not disclose a prima facie case calling for an investigation by the CBI. The mere allegation of the appellant that his son was murdered because he had discovered some corruption cannot, in our opinion, justify a CBI inquiry, particularly when inquiries were held by the Army authorities as well as by the G.R.P. at Mathura, which revealed that it was a case of suicide.
It has been stated in the impugned order of the High Court that the G.R.P. at Mathura had investigated the matter and gave a detailed report. It is not clear whether this report was accepted by the Magistrate or not. If the report has been accepted by the Magistrate and no appeal/revision was filed against the order of the learned Magistrate accepting the police report, then that is the end of the matter. However, if the Magistrate has not yet passed any order on the police report, he may do so in accordance with law and in the light of the observations made above.
Thus, appeal stands dismissed.
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2007 (12) TMI 484
Issues involved: Challenge to the judgment of the learned Single Judge of the Karnataka High Court dismissing the appeal filed by the appellant regarding the order of the Employees' State Insurance Court (ESI Court) in ESI application No.123/89 under Section 82(2) of the Employees' State Insurance Act, 1948.
Background: A show-cause notice was issued to the appellant to contribute premium for a specific period, which was challenged under Section 75 of the Act. The ESI Court upheld the order, determining the contribution payable, stating that the service charges collected by the hotel management and distributed among employees constituted "additional reimbursement."
Appellant's Argument: The appellant contended that the service charges collected did not amount to "wages" under Section 2(22) of the Act, as they were distributed equally among employees periodically. Reference was made to a previous court decision, but the High Court distinguished it, focusing on whether the charges were covered by the term "reimbursement."
ESI Court's Decision: The ESI Court held that the service charges, collected as part of the bills paid by customers without an option, were under the control of the appellant and were not considered as "tips." The High Court upheld this view, emphasizing that the charges were not directly paid by customers to employees.
Legal Interpretation: The definition of "wages" under Section 2(22) includes remuneration paid to employees, but excludes certain payments like contributions to pension funds. A circular clarified that service charges collected by the hotel management did not constitute wages, as they were not given to employees under the terms of the employment contract.
Conclusion: Considering the office memorandum and a different view taken by the Madras High Court, the orders of the ESI Court and the High Court were set aside. The appeal was allowed without costs.
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2007 (12) TMI 483
The Supreme Court dismissed the special leave petition after condoning the delay. (2007 (12) TMI 483 - SC)
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