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1976 (7) TMI 173
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... ... ..... ut jurisdiction and against the provisions of Sub-section (1) of Section 319. 6. The learned Public Prosecutor Shri Kamat appearing for the State concedes that the order is premature and should not have been passed at the stage at which the learned Magistrate has done it. If after the evidence is led in Court, the learned Magistrate still comes to the same conclusion he may act under Section 319(1). However, the order as passed is premature and must be set aside. 7. We therefore quash the order dated February 2, 1976 and direct that the name of the present petitioner be deleted from the charge-sheet. We also set aside the order of the trial Magistrate of adding the name of the present petitioner to the charge-sheet. We further direct that the learned Magistrate may proceed to record the evidence and thereafter hear and dispose of the case according to law and in the light of our observations made in this order. 8. The petition thus succeeds and is allowed. Rule made absolute.
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1976 (7) TMI 172
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... ... ..... nuary, 1973 posting the petitioner a Police Inspector in the Civil Defence Organisation is illegal and invalid. Similarly the resolution Annexure "D" dated 24th May, 1974 so far as it affects the petitioner deputing and continuing his deputation to the Civil Defence Organisation is illegal and invalid and they both must be quashed and struck down. In this view of the matter, it is not necessary to decide other points raised by Mrs. Mehta. 23. Accordingly this petition is allowed by issuing a writ of mandamus quashing and setting aside order Annexure "C" dated 9th January, 1973 so far as it relates to the posting of the petitioner in the Civil Defence Organisation and Resolution Annexure "D" dated 24th May, 1974 so far as it relates to the petitioner continuing his deputation in Civil Defence Organisation and respondents are directed to repatriate the petitioner to the parent department. Rule made absolute to that extent with no order as to costs.
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1976 (7) TMI 171
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... ... ..... ransport Corporation is later in time. Even if there is some conflict in the two Supreme Court decisions, we have to follow the law as declared in the later case of Mysore State Transport Corporation. 13. In view of the above discussion, we are of the opinion that since the two schemes relating to routes Muzaffarnagar-Barela-Basere and Saharanpur-Hardwar via Chutmalpur and Gagalheri provide that the Corporation shall provide road transport services on the notified routes or portions thereof to the complete exclusion of private operators, the respondents permits could not be renewed for a portion of the notified route. We are further of the opinion that it is not necessary for the scheme to contain specific provision for cancellation or modification of existing permits of overlapping routes. 14. Accordingly, we answer the question referred to us in the negative. Let the papers of this case be laid before the Bench concerned with our answer. Hirdai Narain Seth, J. 15. I agree.
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1976 (7) TMI 170
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... ... ..... justifies the implementer of the law to be absolutely oblivious of the manner of enforcement even though the manner is an integral part of the scheme, imposing under the law, restrictions on the rights of individuals. Beneficial laws have to be simple and self-contained. To introduce provisions of another Act referentially in vital matters creates avoidable difficulties and litigation highlighted by the case in hand. 28. It is refreshing that this Court disposed of this matter within about four months of granting of special leave. 29. In the result the appeal is allowed and the judgment of the High Court is set aside and with it the appellate order of the City Civil Judge also falls. The Commissioner shall give a personal hearing to the appellants as required under Sub-section (2) of Section 5A of the Land Acquisition Act and, thereafter, dispose of the matter in accordance with law. In the circumstances of the case we will, however, make no order as to costs in this appeal.
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1976 (7) TMI 169
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... ... ..... does not appear to us to be a matter in which the further trial should be held up merely on the footing that the respondent should have an opportunity of having the preliminary issue agitated before the Supreme Court. 46. The appellant applies for costs. He points out that he is a resident of Jullundur and has incurred costs of travelling to Bombay, has incurred hotel expenses and further expenses for travelling from the hotel to the Court and back. He has also incurred expenses for obtaining the certified copy of the judgment and for preparing the appeal paperbook. He suggests that he should be awarded costs in the aggregate of ₹ 2,000. 47. Mr. Bhatt submits to the orders of the Court but says that reasonable costs only should be awarded. 48. Bearing all the circumstances in mind and the fact that this appeal has been heard for nearly four days, we direct the respondent to pay to the appellant the costs of this appeal quantified at ₹ 1,000 (Rupees one thousand).
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1976 (7) TMI 168
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... ... ..... e tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point." o p /o p It is also difficult to understand how the writ petition or for that matter the present appeal before us is maintainable when the recommenlation of the Selection Committee has still to be scrutinzed by the Excutive Council of the University and either accepted or rejected by t and other remedies by way of representation to. the Executive Council and an application for reference of the matter under section 68 of the Uttar Pradesh Universities (Reenactment and Amendment) Act, 1974, 0 the Chancellor are still open to the appellant and have not been. exmusted. o p /o p For the foregoing reasons, we find ourselves unable to allow the appeal. In the result, the appeal fails and is hereby dismissed but in the circumstances of the case without any order as to costs. o p /o p M.R. Appeal dismissed. o p /o p
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1976 (7) TMI 167
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... ... ..... ithdrawn as invariably groundnut oil is observed in khurasani oil. I crave leave to refer to and rely on the Journal of Maharashtra Chumher Patrika dated 21st September, 1975, when produced." Probably, had the present case survived till the government took action, it might have been withdrawn. Moreover, there are circumstances suggesting of innocent admixture although it is beyond us to pronounce definitely on this aspect and it is not for us to enquire into the matter when s. 16( 1 ) is clear and the sentence is legal. Nevertheless, it may be appropriate for government to consider whether in the circumstances of this case--and in the light of the observations made by us in this judgment--it is not a matter for exercise of commutation powers. Sentencing policy has a punitive and a correctional role and we are sure that what is the need of the appellants will be meted out to them if they deserve any activist administrative empathy at all. accordingly dismiss the appeals.
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1976 (7) TMI 166
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... ... ..... ked to import the obligation to apply the procedure prescribed by Article 311 to a case such as the one before us by invoking the aids of Articles 14 and 16. Apart from the fact that these .Articles could not be invoked against a discrimination made by Constitutional provisions, no such case was set up earlier. We cannot permit it at this stage. The only ground on which the respondent had assailed the order of termination of his service was non-compliance of 1965 Rules, which meant' that he claimed the protection of Article 311 of the Constitution. But for the reasons given above, this protection is not available to him. Therefore, this appeal must succeed. Consequently, we allow this appeal, set aside the judgment and decree of the High Court and , dismiss the plaintiff's suit. But in the circumstances of the case, the appellant will, in keeping with the undertaking given at the time of grant of special leave, bear the costs of both sides throughout. Appeal allowed.
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1976 (7) TMI 165
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... ... ..... ify for costs as recommended by a Sub-Committee of Justice is the answer, but these are matters for the consideration of the Legislature and the Executive. We mention them to show that the law in this branch cannot be rigid. We have to make a compromise between pragmatism and equity and modify the loser-pays-all doctrine by exercise of a flexi- ble discretion. The respondent in this case need not be a martyr for the cause of the certainty of law under section 87 of the Act, particularly when the appellant wins on a point of limitation. (The trial Court had even held the. appellant guilty of negligence). In these circumstances we direct that the parties do bear their costs throughout." We adopt the same course and while. allowing Civil Appeal No. 1095 of 1970, and dismissing Civil Appeal No. 1677 of 1973 the parties in both the appeals are directed to bear their respective costs throughout. C,4. 1095 of 1970 allowed. CA 1677 of 1973 dismissed. (1) 1974 4 S.C.C. 710, 738.
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1976 (7) TMI 164
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... ... ..... e seats to make them comfortable. The seats were not movable and therefore, could not be treated as furniture. Reference was particularly drawn to a judgment of the Punjab and Haryana High Court (Civil Writ No. 1469 of 1968 Messers Jiwan Singh v. The Senior Superintendent of Central Excise) in which it was decided that chairs fitted in a bus are fixtures and not furniture for the purpose of Central Excises Act. 4. The Appellate Board has pointed out that whereas seats in a bus are necessarily fixed for safety of passengers, the case was different with regard to a theatre. 5. It has been contended before the Government of India that the fixed seats in a Cinema hall are part and parcel of the hall and inseparable from the hall under the Delhi Cinematograph Rules and should not be treated as furniture. They cannot be moved outside the hall without dismantling and since they are one-legged units they cannot be utilised for any other purpose without further fabrication.
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1976 (7) TMI 163
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... ... ..... ts this contention. The Board is of the view that the exemption did not become inapplicable by the fact that the licence was not renewed during a certain period. The Board accordingly orders that the benefit of the exemption granted under Notification No. 158/71-C.E., dated 26-7-1971 should be allowed in respect of the clearances during the material time subject to fulfilment of other requirements of the notification in question. 7. As regards the penalty and the confiscation as ordered by the Collector, the Board observes that since the question of evasion of duty not be involved in view of the position in pare 6 above, the offence gets reduced to a technical one mainly of non-renewal of the licence in time and consequentially of manufacture without a licence. In such cases normally a lenient view would be taken. Accordingly, the Board reduce the penalty to ₹ 1000/- (Rs. One thousand only) and orders that the confiscated goods should be released without any fine.
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1976 (7) TMI 162
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... ... ..... re akin to washing soaps. We are unable to accept this argument as the notification in question is very widely worded. Reliance on the Hindi version of the notification in which the words are kapda dhoney ka sabun thadha dhoney ka anya saman also does not help the department as the words dhoney ka anya saman will take within its embrace any other material which is used for washing purposes. We accordingly answer the first question by saying that Vim falls within the category of the notification other materials used for washing purposes . The answer to the second question is incidental to the first, as once Vim falls within the category of other washing materials and as it was purchased from the manufacturers in U.P. it was subject to a single point tax and not to multiple point as imposed by the Sales Tax Officer. We, therefore, answer the second question in the negative. The assessee-dealer is entitled to its costs which we assess at Rs. 100. Reference answered accordingly.
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1976 (7) TMI 161
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... ... ..... appellant to comply with the provisions of the amended section 30 of the Act before dealing with the appeals. We may point out that 4th April, 1950, mentioned in the judgment appears to be a typographical error as considering the sequence of the dates mentioned it is clear that the notices were issued on 4th April, 1958. It is thus clear that the proceedings were initiated in the case after the amendment came into force. Applying the principles of Hoosein Kasam Dada s case , proceedings were initiated after the Act was amended and the right of appeal was governed by the law as it stood after amendment. We, therefore, do not find any conflict in the two decisions. The case does not support the argument advanced on behalf of the department. In view of what we have stated above we answer the reference in the negative against the Commissioner and in favour of the assessee. The assessee shall be entitled to its costs which we assess at Rs. 100. Reference answered in the negative.
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1976 (7) TMI 160
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... ... ..... d by the notification which levies tax at the rate of 3 per cent on wares made of any metal or alloy other than brass or aluminium or gold or silver. This very notification came up for consideration before a Bench of this Court and after reading this notification along with the Hindi notification it was held that the word ware used in English has been used in the sense of such wares as were used as utensils (bartan). It was further held that articles which could not be called utensils will not be covered by this notification. We agree with the ratio of this decision and are of the opinion that the drums and tins sold by the assessee was not covered by the aforesaid notification. See Indian Hume Pipe Company Ltd. v. State of Uttar Pradesh 1974 34 S.T.C. 230. In view of what we have stated above we answer the question referred to us in the negative and against the department and in favour of the assessee. There shall be no order as to costs. Reference answered in the negative.
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1976 (7) TMI 159
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... ... ..... ot to admit his liability in the memorandum of appeal, whatever his stand might have been before the assessing authority. Ordinarily no interpretation should be placed on a provision which would have the effect of making the provision either otiose or a dead letter. In view of this observation, it is clear that if the assessee is permitted to deny its liability on cane-crusher despite the controversy having been settled by this court it would amount to rendering the provision otiose. In the circumstances, we answer the question referred to us in the negative in favour of the department and against the assessee by saying that the additional revising authority was not right in holding that the appeal filed by the dealer should have been entertained when the dealer had not paid tax on cane-crusher which had already been held to be taxable by the High Court. As nobody has appeared on behalf of the assessee, there shall be no order as to costs. Reference answered in the negative.
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1976 (7) TMI 158
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... ... ..... und in section 2(2) in the statute book. Since, in the instant case, the goods purchased tax-free were used for the execution of contract as defined under the Act, the proviso to section 15(1)(b) is not available. In the circumstances, we hold that on the facts and in the circumstances of the case, the Board of Revenue was not correct in law in holding that the price of the goods specified in the dealer s certificate of registration as being intended for use in execution of contract and purchased by the dealer tax-free was liable to be included in the net turnovers of the dealer for the periods ending 30th September, 1963, and 31st March, 1964, under the proviso to section 15(1)(b)(i)(b) of the Assam Sales Tax Act, 1947, as in force on the relevant dates. In the result, the question of law referred is answered in the negative and against the department. The reference is answered accordingly. We make no order as to costs. D. PATHAK, J.-I agree. Reference answered accordingly.
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1976 (7) TMI 157
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... ... ..... ee had not been examined from any other angle, he considered it desirable to remand the case to the assessing authority. Against the order of remand, the assessee moved an application under section 11(1), which was rejected but the question was called by this court by its order dated 20th October, 1972. It has been held in Radhey Krishna Ramji Prasad Oil Mills, District Varanasi v. Commissioner of Sales Tax, U.P. Page 224 supra 1975 U.P.T.C. 242., that an order of remand for consideration of the case by the assessing authority is within the ambit of section 10. Similar view has been taken in Bhagwati Oil Mills v. Commissioner of Sales Tax 1977 39 S.T.C. 222., (S.T.R. No. 120 of 1973 decided on 8th January, 1975). We agree with the principles laid down in the above-mentioned decisions. In the circumstances we answer the reference in the affirmative against the assessee and in favour of the department. There shall be no order as to costs. Reference answered in the affirmative.
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1976 (7) TMI 156
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... ... ..... the learned counsel for the respondent that section 55 of the Act should be treated as a proviso to section 12 as it were and, therefore, even in a case where the application for rectification is dismissed, an appeal must be deemed to be available. Under these circumstances, we are clearly of the opinion that the Tribunal was in error in holding that an appeal was maintainable to the Appellate Assistant Commissioner of Commercial Taxes against the order of the assessing authority rejecting the application of the assessee for rectification of the alleged error. Consequently, we allow this revision petition and set aside the order of the Sales Tax Appellate Tribunal. In the view we have taken on the maintainability of the appeal itself to the Appellate Assistant Commissioner, we are not stating anything on the merits as to whether there was any error or not in the original order of the assessing authority. There will be no order as to costs in this petition. Petition allowed.
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1976 (7) TMI 155
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... ... ..... cotton waste after pressing and only in other cases the assessee-respondents supplied the hessian cloth and hoop iron while packing the pressed cotton. There is no evidence to show that the charges collected by the respondents from their customers in respect of these two types of cases differed so that from that difference an inference could be drawn that the difference should be accounted for in terms of value of the hessian cloth and hoop iron supplied by the respondentassessees. Under these circumstances, we are clearly of the opinion that there is no sale of hessian cloth and hoop iron in the present case and therefore the Tribunal was right in holding that the two amounts referred to above could not be subject to tax under the provisions of the Tamil Nadu General Sales Tax Act, 1959. Accordingly, these revision cases fail and they are dismissed with costs of the respondent-assessees-one set. Counsel s fee Rs. 250 (Rupees two hundred and fifty only). Petitions dismissed.
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1976 (7) TMI 154
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... ... ..... far as no particular or specified method of proof has been prescribed, the assessees would be free to prove the same in any manner. I am of the view that this submission is well-founded. 5.. Though it was argued that the impugned legislation is not saved by article 304 of the Constitution, it is not contended, and it has not been established that article 301 of the Constitution is attracted in any manner. In fact there was no case before me that the movement part of the trade in tapioca is in any way hindered, obstructed or restricted by the imposition of the impugned tax so as to attract article 301. So no question of saving the tax under article 304 arises for consideration. 6.. The argument based on section 58 needs only to be mentioned to be rejected in so far as imposition of tax on tapioca was by the legislature and not by the Government. 7.. The original petitions are dismissed. In the circumstances of the case, there will be no order as to costs. Petitions dismissed.
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