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Showing 61 to 80 of 647 Records
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2005 (9) TMI 638 - CESTAT CHENNAI
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... ... ..... ay Service Tax on the amount paid for such service. None of the amendments brought to the Service Tax provisions of the Finance Act, 1994 authorised the Revenue to treat recipients of the above service as assessees for Service Tax for any period beyond 16-10-1998. After a close perusal of the relevant provisions of the Finance Act, 2000 and the Finance Act, 2003, I find that the submission of the ld. Counsel to this effect is factually correct. To sum up the case, the appellants qua recipients of the services of consignment agent was not liable to pay Service Tax on the amount paid by them for such services for any period beyond 16-10-1998 in view of the ruling of the Apex Court in Laghu Udyog Bharati (supra). The Tribunal’s decisions in EID Parry Confectionery (supra) is not applicable to the period of dispute in Appeal No. 12/2004. In the result, the order impugned in Appeal No. 12/2004 gets set aside and the appeal is allowed. (Dictated and pronounced in open Court)
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2005 (9) TMI 637 - GUJARAT HIGH COURT
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... ... ..... learned Advocate appearing on behalf of the appellant submits, under instructions, that the earlier statement,about decision in case of Aurobinda Pharma Ltd.2001(127) E.L.T.786, stated to have been challenged before the High Court of Andhra Pradesh is factually found to be incorrect, and in fact, the appellant revenue has accepted the said decision. Mr.Bhatt has in support of the statement made today placed on record communication dated 13/09/2005 received by the Additional Commissioner (Legal),Vadodara-I Commissionerate from the Office of the Commissioner of Customs and Central Excise, Hyderabad-I Commissionerate. 2. As can be seen from the impugned order of CESTAT, the CESTAT has allowed the appeal in this case by relying upon the order in case of Aurobinda Pharma Ltd.(supra) without any independent reasons. In the circumstances, it cannot be stated that the impugned order dated 24/03/2004 gives rise to any substantial question of law. The Appeal is accordingly dismissed.
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2005 (9) TMI 636 - ITAT MUMBAI
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... ... ..... and which was necessary to come to a conclusion on the issue before us. No judgment of the Hon'ble supreme Court or the jurisdictional High Court was brought to our notice and which would have made our task much easier." 26. The above observations clearly suggest that the Special Bench had not commented on any decision of High Court holding the issue in favour of the assessee. The earlier judgments of Bombay High Court in the case of Chase Bright steel Ltd. and in the case of Century Spinning and Mfg. Co. (supra) have neither been overruled nor adversely commented upon in any subsequent judgment. In the absence of any judgment on this point by the Apex Court, we hold that above two judgments of Bombay High Court are still applicable and binding within the territorial jurisdiction of Bombay High Court. Therefore, respectfully following the same, we uphold the deletion made by the Learned CIT(Appeals). 27. In the result, the appeals of the Revenue are partly allowed.
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2005 (9) TMI 635 - ITAT MUMBAI
Capital gain on sale of shares - Investment in purchase of residential flats - Claimed exemption u/s 54F are available to co-owner? - interpretation of "Residential House" - Whether assessee can be said to be the owner of that residential house - HELD THAT:- In our opinion, it must mean a complete residential house and would not include shared interest in a residential house. Where the property is owned by more than one person, it cannot be said that any one of them is the owner of the property. In such case, no individual person of his own can sell the entire property. No doubt, he can sell his share of interest in the property but as far as the property is considered, it would continue to be owned by co-owners. Joint ownership is different from absolute ownership. In the case of residential unit, none of the co-owners can claim that he is the owner of residential house. Ownership of a residential house, in our opinion, means ownership to the exclusion of all others. Therefore, where a house is jointly owned by two or more persons, none of them can be said to be the owner of that house.
Since, the Legislature has not amended the provisions of section 54F, it has to be held that the word "own" in section 54F would include only the case where a residential house is fully and wholly owned by assessee and consequently would not include a residential house owned by more than one person.
In the present case, admittedly the house at Sion, Mumbai, was purchased jointly by assessee and his wife. It is nobody’s case that wife is benami of assessee. Therefore, the said house was jointly owned by assessee and his spouse. In view of the discussions made above, it has to be held that assessee was not the owner of a residential house on the date of transfer of original asset. Consequently, the exemption u/s 54F could not be denied to assessee. The order of the Learned CIT (Appeals) is, therefore, upheld.
In the result, the appeal of the revenue stands dismissed.
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2005 (9) TMI 634 - SUPREME COURT
Whether the respondent No. 1 shall be re-instated to service but without any back wages and other service benefits and his re-instatement shall be solely for the purpose of completing the departmental proceedings?
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2005 (9) TMI 633 - SUPREME COURT
Whether section 10(3) of the Uttar Pradesh Motor Vehicles Taxation Act, 1997 (for short "the 1997 Act") is ultra vires articles 14 and 19(1)(g) of the Constitution?
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2005 (9) TMI 632 - SUPREME COURT
Whether the judgment of the Division Bench of the High Court of Gujarat upholding the conviction of the appellant under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 correct?
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2005 (9) TMI 630 - SUPREME COURT
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... ... ..... nal order on that ground and the appellate authority would have passed appropriate orders. The mere fact that the respondent had not been given an opportunity to cross-examine the deponent did not enable the respondent to by-pass the provision for appeal and approach the High Court directly by a writ petition under Articles 226 and 227 of the Constitution of India, challenging the decree/final order on the ground that the order earlier passed, refusing to permit the cross-examination of the deponent, was erroneous. In the facts and circumstances of this case, we hold that the respondent ought to have availed the remedy provided under Section 20 of the Act and preferred an appeal before the Appellate Tribunal wherein he could have urged all his grievances and challenged the decree/final order passed by the DRT. The order passed by the High Court in exercise of writ jurisdiction is wholly unjustified and it is accordingly set aside. The appeal is allowed. No order as to costs.
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2005 (9) TMI 629 - CESTAT MUMBAI
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... ... ..... as been fixed at ₹ 80,000/- (Rupees Eighty thousand only) and keeping the facts and circumstances of this case, we would consider that a token penalty of ₹ 5,000/- (Rupees Five thousand only) would be sufficient on the importing firm and we find no case or cause for upholding separate penalty of ₹ 2.00 lakhs imposed under Section 112(a) of the Customs Act, 1962 on the partner. That penalty on the partner of the importing firm is required to be set aside. We order so. 3. In view of our findings, the appeal C/461/04 of the importing firm is allowed partly by permitting the appellants to re-export the goods after payment of fine of ₹ 80,000/- (Rupees Eighty thousand only) for redemption of the goods for re-export is paid and a penalty of ₹ 5,000/- (Rupees Five thousand only), as arrived at by us, is discharged. The above option will be exercised within two months from the receipt of this order, appeal C/498/04 is allowed. (Pronounced in Court)
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2005 (9) TMI 628 - CESTAT MUMBAI
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... ... ..... ribunal, the subject goods are classifiable under Central Excise Tariff Act, Heading 59.05 (now 59.06). Impugned orders set aside, and matter remanded to jurisdictional CCE for re-determination of the duty demand, if any, applying such classification, CETA, Heading 59.05 (now 59.06).” 2. The Revenue’s grievance in the memorandum of appeal is that the said order of the Tribunal in the case of MRF Ltd. relied upon by the appellate authority has not been accepted by them and they have filed an appeal thereagainst before the Hon’ble Supreme Court. Shri R.B. Pardeshi, learned DR appearing for the Revenue, fairly agrees that the appeal filed by them before the Supreme Court stands rejected, as reported in CCE, Goa & Chennai v. MRF Ltd. - 2005 (180) E.L.T. 145 (S.C.). As such no interference is called for in the order of the Commissioner (Appeals). The Revenue’s appeal is rejected. The cross objection filed by the respondent also stands disposed of.
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2005 (9) TMI 627 - DELHI HIGH COURT
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... ... ..... n 18.3.2002, the accused moved an application for calling the panch witnesses. The learned trial court dismissed the application, inter alia, observing as under Defence Counsel argued that these Panch Witnesses/Shri M.L. Grover are the witnesses of the complainant and not that of accused but the complainant has not produced them in the witness box. Hence, now it is duty of this court to summon these witnsses in the witness box to reach at the just conclusion. It is well-settled proposition of Law that court is not supposed to collect evidence on behalf of the parties. It is correct that complainant has not produced these Panch witnesses/Shri M.L. Grovr in the witness box. In these circumstances, the complainant will bear all the legal consequences for non-production of the panch witnesses......... In the facts and circumstances of the case, I find no illegality or impropriety in the impugned order dated 16.3.2005, warranting interference under Section 482, Cr.P.C. Dismissed.
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2005 (9) TMI 626 - DELHI HIGH COURT
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... ... ..... was issued. This, however, cannot have the effect of disentitling the Petitioner from availing of the benefits of the DEPB credit at the rate of 21 in terms of Public Notice No. 14, dated 4-6-1998. Quite rightly, the loop-hole that had manifested itself has been diligently plugged, but with applicability to transactions after 1-4-1999. The Petitioner’s case does not fall in this category. 8. Mr. Sakdhar has relied on the sundry provisions of the Foreign Trade (Development and Regulation) Act, 1992. In the analysis articulated above none of the provisions of this Statute would be of any avail to the Respondents in the factual matrix of this case. 9. This writ petition is allowed by quashing the impugned Order No. 1/82/45/24/AM99/DES.II/2791. A writ of mandamus is issued to Respondents to immediately release DEPB credit to the Petitioner in respect of claims which are the subject matter of these proceedings. Parties shall, however, bear their respective costs.
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2005 (9) TMI 625 - CESTAT MUMBAI
Acquired and/or purchased transferable Value Based Advance Licences (“VBAL”) - Valid for import of Poly Propylene - fulfilment of conditions of DEEC Notification - Whether the benefit of legal maxim LEX NON COGIT AD IMPOSSIBILIA would be available to a valid recognized transferee to avail the benefit of the DEEC exemption Notification? - HELD THAT:- As seen from the material on record, the Duty Exemption Scheme, which is part of the EXIM Policy 1992-97, is administrated by the Directorate General of Foreign Trade. Notification No. 203/92-Cus. has been issued to effectuate the exemption scheme laid down in Chapter 7 of the EXIM Policy. For this reason, issuing VBAL or QBAL, DEEC, execution of bond, legal undertaking, monitoring of import and export item, fulfilment of export obligation, realization of export proceeds, discharge of bond and legal undertaking have all been vested with the licensing authority. Certain special powers have been given to the DGFT/or the licensing authority to exercise the same in public interest. The Customs officers, while implementing the Notification 203/92-Cus., cannot question or appear to question the decisions and actions of the competent authority in the said Directorate unless it is strictly permitted by the terms of the Notification.
The plain reading of condition (vii) makes it abundantly clear that benefit of Notification is to be extended to a person other than a person to whom the licence has been issued, if there is an endorsement of transfer by the licensing authority both on the VBAL and the DEEC. Benefit of Notification, cannot, therefore, be denied to the transferee on the ground of breach of condition (va). The Customs Authorities cannot question the powers of the licensing authorities unless it is mentioned in the Notification.
We are of the considered opinion that the principles evolved in the case of Goodluck Industries and upheld by Apex Court in GOODLUCK INDUSTRIES [1999 (12) TMI 858 - SC ORDER] and followed subsequently in other cases, is to be made applicable to the case on hand, since it is based on sound principle of law. Consequently, we uphold the contentions raised by the appellants while negating the contentions raised by the Department. Therefore the legal maxim LEX NON COGIT AD IMPOSSIBILIA can be invoked and benefit of the same be given to the transferee of the licence for claiming exemption under the Notification. The transferee cannot be called upon to fulfil the condition (v)(a) of the Notification No. 203/92-Cus. It is the original licencee, who has to satisfy the above referred condition, but not the transferee of the licence.
In the result, the reference is answered accordingly.
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2005 (9) TMI 624 - SUPREME COURT
Whether the objections raised by the Appellant objecting to the acquisition of land on various grounds have been considered by the Government?
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2005 (9) TMI 623 - SC ORDER
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... ... ..... aveendran, JJ. ORDER Appeal dismissed.
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2005 (9) TMI 622 - SECURITIES APPELLATE TRIBUNAL
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... ... ..... leged violation. 128. In view of the facts and circumstances of the case we do not find any reason to uphold the orders issued under Section 11B and Section 11(4) of the SEBI Act, 1992. We also do not find there is violation of Regulation 15A, 20 and 20A and Clauses 1, 2, 5 and 7 of Code of Conduct under Regulation 7A of the SEBI (Foreign Institutional Investor) Regulations, 1995 while we have expressed our view about the order issued under Section 11(B) read with Section 11(4) we set aside the impugned order and uphold the appeal on the basis of the facts and circumstances of the case as analyzed earlier. It was not necessary to refer to all the cases cited at the bar since we have decided the matter purely on the question of fact on the basis of the material before us. However, SEBI is free to take any action, if it so desires, and if there is a prima facie case under any of the provisions of the SEBI Act, 1992 and the FII Regulations thereunder. 129. No order as to costs.
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2005 (9) TMI 621 - HIGH COURT DELHI
Oppression and mismanagement - determination of the fair value of shares - additional share capital by the Managing Director in his own favor - Whether direction can be issued u/s 402 of the Act for change of the name of the company - challenged the directions given by the CLB qua the nature of relief - Power of Tribunal on application under sections 397 and 398 - HELD THAT:- We have already expressed our view that the rights shares were issued in the instant case in order to comply with the legal requirements, which, apart from being obligatory as the only viable course open to the Directors, was for the benefit of the company since, otherwise, its developmental activities would have stood frozen as of December 31 1973. The shares were not issued as a part of a takeover war between the rival groups of shareholders.
The willingness of the Indian shareholders to pay a premium on the excess holding or the rights shares is a factor which, to some extent, has gone in their favor on the question of oppression. Having had the benefit other stance, they must now make it good. Besides, it is only meet and just that the Indian shareholders, who took the rights shares at par when the value of those shares was much above par, should be asked to pay the difference in order to nullify the unjust and unjustifiable enrichment at the cost of the Holding Company. We must make it clear that we are not asking the Indian shareholders to pay the premium as a price of oppression. We have rejected the plea of oppression and the course which we ae now adopting is intended primarily to set right the course of justice, in so far as we may." Even when it was found that there was a justification in issuing rights share, the Court, in order to do substantial justice, restored the earlier balance in given fact situation.
In the facts of this case even one such act would be sufficient to constitute oppression and mismanagement as it disturbs the equity stakes decisively by bringing down the equity share of petitioners from 32% to 18% (which would have relevance in taking many managerial decisions where majority of 75% or more is required). However, it may be noted that in the present case this was not the solitary instance alleged in the petition filed by the petitioner and many acts of oppression and mismanagement were alleged.
Thus, in so far as the respondents' Co.A. is concerned, I do not find any merit therein and dismiss the same.
Whether it is legally permissible and such directions can be given under Section 402 of the Companies Act? - It is a matter of record that till the disputes started between the parties, the Indian company had published only those titles copyright whereof was with the petitioner and permission was given by the petitioner to the company to publish and sell those titles. Therefore, the CLB is not right in observing that it is not clear as to whether the consent to use the words "Prentice Hall" was because of the shareholders' holding in the company and association with the management or because the company was to publish the titles of the petitioner. It has already been observed that as far as the shareholding is concerned, its pattern changed from time to time to comply with the Government regulations. Moreover, even the agreement to publish the titles of the petitioner has since been terminated.
Jurisdiction of the CLB (and ultimately of this Court in appeal) under Sections 397/398 and 402 is much wider and direction can be given even contraryo the provisions of the Articles of Association. It has even right to terminate, set aside or modify the contractual arrangement between the company and any person [see Section 402(d) and (e)]. Section 397 specifically provides that once the oppressiois established, the Court may, with a view to bringing to an end the matters complained of, make an order as it thinks fit. Thus, the Court has ample power to pass such orders as it thinks fit to render justice and such an order has to be reasonable. It is also an accepted principle that "just and equitable" provision in Section 402(g) is an equitable supplement to the common law of the company to be found in its Memorandum and Articles of Association.
In the facts of this case, as already observed by me, equity is in favor of the petitioner. Such a situation should not be allowed where the petitioner/Prentice Hall is not associated with the company but the company carries on with its name. It is an exceptional kind of a case where the petitioner who is responsible for the incorporation of the Indian company is driven out of the company but the company continues to adopt its name and wants to continue to ride on its goodwill without being assocated with it. Such unprecedented situation would call for unprecedented solution and in my opinion the second alternative suggested by the petitioner that in case the petitioner has to go out from the company it is willing to do so provided the words Prentice Hall are also dropped from its name, is not something which is unreasonable. In such a situation, the argument of the learned counsel for the respondent that the company is a separate entity and the appellant's attempt is to identify it selfith the company, may also be of no relevance.
No doubt, the company has separate legal entity. But we are here concerned with the proceedings under Section 397/398 of the Act and in the process the issue being discussed is as to whether direction can be issued u/s 402 of the Act for change of the name of the company. Such a direction would be permissible in the facts of this case where the petitioner brought this corporate vehicle to India and gave its name is now asked to pull apart and breaoff and would be no longer associated with it. Width and amplitude of CLB's powers u/s 402 is already delineated above. That apart, if the entity of the company has to be maintained as it is, the 2nd respondent should accept the first alterntive by selling his stakes in the company to the petitioner. He cannot be allowed to create a situation of "having a cake and eat it too".
Once the power to issue such a direction is found in Section 402, pendency of other suit shall not deter the Court to pass appropriate direction in these proceedings. More so, when the issue of copyright is to be examined on different parameters and the suit was filed when the petitioner was a shareholder in the company. Here, we are discussing the modalities of parting the ways.
Whether giving of such a direction would be against the interest of the company, as found by the CLB - To my mind, even de hors the agreement, dated 6th June 1963 between the petitioner and the company the very conceptualization of the company was because of the permission of the petitioner to the company to use its name and to use it so long as the foundation and the basic understanding of the arrangement remains, namely, the petitioner allows the company to publish and sell the books in which company has the copyright. Therefore, it is either the petitioner who should be allowed to continue to control the company and as a result the respondent No. 2 should sell its shareholding to the petitioner o, in the alternative , if the petitioner is to be forced out of the company, it has right to take away its name with it, which it lent to the petitioner.
Thus, the respondent cannot raise the plea that such a course would not be in the interest of the company. I do not agree with the contention of the respondents that present petition is filed for collateral purpose and oblique motives and, therefore, the same was not maintainable and should have been dismissed by the CLB.
Thus, the nature of relief, as granted by the CLB, is hereby set aside. The appeal filed by the petitioner is allowed in the following terms:- A) An opportunity is granted to the second respondent and his group to exercise his option to accept one of the two alternatives suggested by the petitioner, namely, either to come out of the company and sell the shareholding to the petitioner or to by the shares held by the petitioner in the company;(B) In case first option is exercised, the petitioner shall pay a sum of ₹ 20 crores to the second respondent and his group. If according to the second respondent, the shares held by him have higher value, in that eventuality he may approach the CLB for appointment of an expert for the valuation of the shares;(C) In case second alternative is accepted by the petitioner, the petitioner shall transfer all its shares in favor of the second respondent without any consideration (as per its own offer) and the second respondent in that eventuality take steps for change of the name in the Indian company by dropping the words "Prentice Hall". (D) 2nd respondent is given 30 days time to exercise his option. If the option is not exercised within 30 days, it would be open to the petitioner to exercise its option either to accept the first alternative or the second alternative.
There shall be no orders as to costs
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2005 (9) TMI 620 - SUPREME COURT
Whether Section 22-A of the Registration Act (The Act) as amended by the State of Rajasthan as also the notifications issued by it in terms thereof constitutionally valid?
Whether Section 22-A of the Act confers arbitrary powers on the State Government to determine as regard declaring a particular document being opposed to public policy?
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2005 (9) TMI 619 - SUPREME COURT
Whether Clause (vi) of Standing Order 20 of the Certified Standing Orders of the respondent-Corporation valid, constitutional and intra vires Article 14 of the Constitution?
Whether the action taken by the General Manager of the respondent Corporation dismissing the appellant petitioner from service as legal and lawful?
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2005 (9) TMI 618 - SUPREME COURT
Whether the petitioners are the Bhumidars of the land in dispute ?
To what enhancement in the amount of compensation, if any, are the petitioners entitled ?
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