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1981 (5) TMI 135
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... ... ..... ed in the Courts of Magistrates the question of granting bail to them may also be considered suo motu by the Magistrates and if they are eligible to be released on bail in accordance with the principles laid down by this Court in Hussainara Khatoon's case they may be released on bail. Action in this regard should be taken by the Magistrates at the time when such prisoners are next produced before the Magistrates. We hope and trust that the principles laid down and the directions given by us in the various judgments delivered in Hussainara Khatoon's case will be strictly and scrupulously observed by the Magistrates and Sessions Judges in the State of Bihar. We would suggest that copies of these judgments may be supplied to the Magistrates and Session Judges in the State of Bihar by the High Court with a direction that the law laid down in these judgments shall be followed by the Magistrates and Sessions Judges. 4. The writ petition will now stand adjourned to 3-8-1981.
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1981 (5) TMI 134
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... ... ..... the counter-affidavit filed on behalf of respondent No. 1, it had been stated that the State Government considered the matter again and formed the opinion that the dispute had not been fully and finally settled between the parties and, therefore, the Government decided to make a reference under Section 4-K of the Act suo motu. In these circumstances, we find it impossible to hold either that no industrial dispute did in fact exist at the time when the order of reference was made or there was failure on the part of the State Government to apply its mind to the relevant facts before passing the order dated 6th September, 1977. 27. Having given our careful considerations to the contentions raised, we dismiss this petition with costs to the opposite parties. Interim orders, if any. passed by this Court are hereby vacated. 28. Before parting with this case, we acknowledge our indebtedness to the learned Counsel who put forward their respective contentions with commendable ability.
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1981 (5) TMI 133
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... ... ..... for and whenever they visited Hanumanthu they used to hand over their cash, ornaments and jewellery to him for safe custody. His evidence also shows that Hanumanthu was a man of affluence and that he and his father had a liquor shop besides forest contracts. Hanumanthu also used to deal in money-lending business. The respondent has also placed on record documents showing that Hanumanthu was a man of substantial means. To add to the difficulty of the prosecution, Smt. Sushila, AW 11, sister-in-law of the respondent has come and deposed that all the property belonged to her father. All this evidence is sufficient to create a doubt as to whether the respondent was in possession of disproportionate assets. There is certainly a preponderance of probability that the property found in the possession of the respondent did not belong to him but belonged to his father-in-law, Hanumanthu. The result, therefore, is that the appeal must fail and is accordingly dismissed. Appeal dismissed.
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1981 (5) TMI 132
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... ... ..... hich deals with deduction at source in respect of interest payments, requires such deduction to be made even interest is credited to the account. Therefore, there is much force in the contention that the mere crediting of interest is not enough to fasten the liability to deduct tax in cases falling under section 192. 11. In view of this position, it is not necessary for us to consider the other submissions made. The penalties for the years 1973-74 to 1975-76 were correctly cancelled. 12. We now take up the assessee’s appeal for the year 1976-77. For this year also, the facts are identical. Tax had been deducted at source after the accounts for the year were audited and the amount payable to the directors and staff credited to the account. The reasoning of the earlier years would apply for this year also. So, this appeal ought to have been allowed. 13. In the result, the departmental appeals are dismissed. The assessee’s appeal and the cross-objections are allowed.
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1981 (5) TMI 131
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... ... ..... h Exception to Section 499 of the Penal Code. From what has been stated above, the publication obviously appears to be for public good. 35. The appellant submitted that he wanted an opportunity to clear himself of the imputations made against him by adducing evidence before the Magistrate to establish the falsity of the imputations made in the publication. We are not concerned with the truth or falsity of the imputations published. Even if the findings in the report be proved to be false, the respondents will be protected. Sending back the case to the Magistrate to record the respondents' plea after the perusal of the Inquiry Report will, in my opinion, be an exercise in futility and abuse of the process of the criminal court. The appellant may seek his remedy, if any, in the Civil Court. The learned High Court, therefore, in my opinion committed no error in quashing the complaint. 36. The appeal is dismissed. ORDER In view of majority judgments, the appeals are allowed.
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1981 (5) TMI 130
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... ... ..... e, the provision contained in sub-section (7) of Section 3-D is mandatory in nature and unless proof is given as required therein, it cannot be said that the onus has been discharged. The view taken by the Additional Judge (Revisions) therefore was erroneous in Jaw and cannot be sustained and the entire disputed purchases of ₹ 52,585/- of foodgrains were liable to be taxed under Section 3-D (1). This being the position, there is no question of going into the rate of tax which would have been applicable to ₹ 4,765/- in respect of which the Revising Authority did not allow exemption. 22. The revision, hence succeeds and is allowed. The purchase turnover of ₹ 52,585/- in respect of foodgrains will be taxed under Section 3-D (1) and as for the sales of Mahua, the Sales Tax Tribunal will decide the question afresh keeping in view the observations made in the earlier part of this judgment. The Commissioner is entitled to costs which are assessed at ₹ 200/-.
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1981 (5) TMI 129
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... ... ..... agreement of sale was not honoured by Khushal Chand. Perhaps Narain Dass and Smt. Jassi Devi may assert that the so-called arbitration agreement is too vague and uncertain, and they being not parties to the agreement are not bound by the same. These controversies, however, are not within the purview, of the present revision as appropriate issues have already been framed, and they will receive adjudication in due course. Suffice, however to say at this stage that till Narain Dass and Smt. Jassi Devi are able to obtain a decree for specific performance and also get the sale-deed executed in their favor, no title or interest in the property can be assumed to have passed to them. They, therefore, cannot prevent Jiwan Dass Rawal from getting the sale mutated in his favor with the L & Do and take possession of the property or plot. This being the legal position of the rights of Narain Dass and Smt. Jassi Devi under the agreement of sale in their favor, the revision is allowed.
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1981 (5) TMI 128
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... ... ..... clusion. These reasons cannot by any stretch of imagination, be termed as perverse. This order has not occasioned perverse, This order has not occasioned failure of justice or caused any irreparable injury to the petitioner." 7. Both on principle and precedent we conclude that the answer to the question formulated at the outset must be rendered in the negative and hold that there is no bar against the Rent Controller trying an issue as a preliminary one. 8. In the light of the aforesaid legal position we are unable to find the least infirmity in the order of the Rent controller. He held, and in our view rightly, that if issue No. 2 were to be decided in favour of the landlord the application disposed of thereby. In this context the Order directing the trying of issue No. 2 as a preliminary one appears to us as wholly unassailable. The revision petition is without merit and is hereby dismissed. There will, however, be no order as to costs. 9. Revision petition dismissed.
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1981 (5) TMI 127
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... ... ..... decisions, illustrated when can movement of goods be said to be in pursuance of an agreement of sale or as incidental to contract. Illustration II of it squarely covers the case of assessee "A, who is a dealer in State X, agrees to sell goods to B but he books the goods from State X to State Y in his own name and his agent in State Y received the goods on behalf of A. Thereafter the goods are delivered to B in State Y and if B accepts them a sale takes place. It will be seen that in this case the movement of goods is neither in pursuance of the agreement to sell nor is the movement occasioned by the sale. The seller himself takes the goods to State Y and sells the goods there. This is, therefore, purely an internal sale which takes place in State Y and falls beyond the purview of Section 3 (a) of the Central Sales Tax Act not being an inter-State sale." 9. In the result, all the revisions fail and are dismissed with costs which is assessed at ₹ 200/- one set.
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1981 (5) TMI 126
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... ... ..... icle is component then it does not become accessory or part only because it is mentioned alongwith accessory. Then there is very little difference in part or component part. An article may be part but if it is component part then it has to be understood in that sense if the word component is used in the notification. A battery may be electrical equipment or electrical goods but as it is component part of motor vehicle and there being specific entry for it battery sold for motor vehicles cannot be held taxable under Notification 7996 of 1965. 15. In the result this revision fails and is dismissed. The question of law raised by Commissioner is decided by saying that motor vehicle batteries were taxable at 3 under Notification No. 3503 of 1956 substituted by Notification No. 3478 of 1956 in assessment year 1966-67. A copy of this order shall be sent to tribunal to proceed under Section 11 (2) of the Act. The assessee shall be entitled to cost which is assessed at ₹ 200/-.
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1981 (5) TMI 125
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... ... ..... n the total amount. The learned counsel has further shown to me that at the end of the day the salesman used to workout the amount of sales tax included in that one amount mentioned in tie cash memo and then used to put that sales tax amount in the cash memos themselves for the purpose of 'Yaddast'. Not only this, the worked out sales tax amount was carried over day-to-day in the aforesaid sales register. The price and the sales tax entered in the register can be very well verified from the amount shown in the cash memos. I am fully satisfied with the bona fides of the assessee". 3. These findings of fact have not been challenged. As the composite price comprised of sales tax as well which could be separated from other registers maintained by assessee the revising authority did not commit any error in excluding the amount. There is no dispute in respect of amount. 4. In the result this revision fails and is dismissed with cost which is assessed at ₹ 200/-.
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1981 (5) TMI 124
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... ... ..... rporated or not, which is wholly or substantially owned or controlled by the Government of a State, or in a local authority set up by an Act of Legislature of a State, the Government of that State; and (ii) in any other case, the Central Government. That again is for purposes of these rules. These provisions cannot be pressed into service for improving upon the language of cl. Twelfth of s. 21 of the Indian Penal Code, 1860. Before parting with the case, we would like to advert to one aspect. It is common ground that the honey in question was sold in a sealed container bearing the manufacture's warranty as to quality as required under r. 12-A of the Prevention of Adulteration Rules, 1955. That being so, the learned Magistrate shall first determine whether or not the appellant was protected under s. 19 (2) of the Prevention of Food Adulteration Act, 1954. Subject to this observation, the appeal fails and is dismissed. There shall be no order as to costs. Appeal dismissed.
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1981 (5) TMI 123
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... ... ..... of goods can be said to amount to manufacture. If the jurisdiction of Commissioner is confined to those cases where the transaction has taken pla e the object of Section 35 shall not be achieved. On the first flush the submission appeared to have merit but the use of word 'is' in each of the sub-section cuts across the argument. Then various subsections of Section 35 particularly sub section (6) 'A copy of the decision given under this section shall be sent to the appellant and to the assessing authority concerned' lend support to the argument of the learned Standing Counsel, that declaration can be obtained on existing fact, in presenti and not on assumed facts, in future. Further it is not expedient to accept the construction suggested by the learned counsel for assessee. It would result in numerous, some time, frivolous applications for adjudication on assumed facts. 8. The result is that this appeal fails and is dismissed with costs. In favour of revenue.
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1981 (5) TMI 122
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... ... ..... It is immaterial that the grantee was the Company. The specific provision is that the grant is for a purpose of cultivation and raising tea garden and that from the area covered by the grant, if timber is felled for purpose connected with the grant itself, namely, cultivation and raising tea garden in that area then alone benefit of removal of timber without payment of royalty can be availed of. It is admitted that Partabghur Tea Garden is outside the area covered by the grant, in fact in an altogether different division. In such a situation upon a true construction of Clause 2, Part IV of indenture of lease, the respondent Company was not entitled to remove timber without payment of royalty. Therefore, even on merits, the High Court was in error in granting relief. Accordingly, this appeal is allowed and the judgment of the High Court is quashed and set aside and the writ petition filed by the respondent in the High Court is dismissed with costs throughout. Appeal allowed.
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1981 (5) TMI 121
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... ... ..... r to presume that all the ‘hair beltings’ or the ‘goods’ were processed cotton beltings. 17. As regards the sample tested on 7-6-80 the Board observe that the result of the test could apply in respect of the hair beltings of the same lot from which the sample was drawn. 18. The result could not be adopted for further clearances of the hair beltings of the same type only in case there was a practice of drawing prospectively until the next sample was drawn. 19. The Board observes that there was no such practice in existence. 20. Even otherwise, the Board observes that after 7-6-80 there was no clearances of “heir beltings” of more than 15 CM width which could be deemed to be “cotton beltings” and on which duty could be demanded. 21. In the result the Board finds that the appellants are entitled to the benefit of doubt. 22. The Board accordingly allows the appeal and sets aside the order under appeal.
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1981 (5) TMI 120
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... ... ..... anufacture and removal of 4500 kg. of acrylic yarn and its disposal without payment of duty. 32. In the circumstances the Board is constrained to hold that legally the allegation of clandestine manufacture and removal of acrylic yarn by the appellants has not been established beyond doubt. 33. In view of the above, the appellants could at the most be charged for maintenance of an incorrect raw material account in Form IV, for which they could at best have been penalised under Rule 226 of Central Excise Rules, 1944 (as also observed by the Government of India in their Order No.1317 of 1978 dated 28-11-1978 in the case of Gupta Woollen Mills). 34. The Board would, therefore, have contented itself in this case by imposing a penalty of ₹ 2,000/- (Rupees two thousand only) under Rule 226, except for the fact that this rule has not been invoked by the Collector in his show cause notice. 35. In the result the appeal has to be allowed in full and it is accordingly so ordered.
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1981 (5) TMI 119
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... ... ..... tely, the appellants cannot be held as having acted in a wilful manner to evade excise duty of a petty value of roughly ₹ 2 Lakhs in so far as the company is concerned (when the total revenue paid by them annually to the Government on the manufacture of cigarettes runs into a few hundred crores of rupees). 29. The Board considers that the Department has not been able to let in a little of evidence to establish that in this case, it might have been far better for the Department to have made out a case against the appellants for infraction of the rules and instructions that the destruction had taken place without proper intimation instead of alleging evasion of duty etc. 30. In the totality of the circumstances as set out above in this order the Board holds that no case has been made out for the imposition of a penalty of such a massive magnitude as ₹ 6 Lakhs under Rule 173K or 173Q (as the case may be) on the appellants. 31. In the result, the appeal is allowed.
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1981 (5) TMI 118
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... ... ..... 5, 1972 is itself struck down, the subsequent orders do not survive. We are of the view that the three impugned orders of the Assistant Collector, the Appellate Collector and the Central Government are also liable to be quashed. 21. In view of our findings above, we make the Rule absolute quashing the demand contained in the communication dated December 5, 1972 and the aforesaid three orders of the Assistant Collector, Appellate Collector and the Central Government. We further hold that the payment of ₹ 3,74,144.18 having been made under protest and, in the circumstances, recovered illegally, the said amount cannot be retained by the respondents. We, therefore, direct that the said amount be adjusted against subsequent claims of customs duty payable by the petitioners. If there be any amount which cannot be adjusted, we direct the refund of the same by the respondents to the petitioners. The petitioners will be entitled to their costs. Counsel fee ₹ 350/-
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1981 (5) TMI 117
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... ... ..... ay be mentioned that no effort was made by the Customs House to verify the identity of the goods prior to shipment according to the course stated earlier. The samples in 2 (Two) cases were drawn for drawback purpose but nothing was done by the Export Department to verify whether the goods were actually Jute specialities or ordinary Hessian products. Had the sample been drawn and shown to the Technical Experts in the office of the Jute Commissioners in presence of the Exporter, there would have been no Appeal in this case and finally it is felt that International price as obtained by the Exporter in this case should be the cardinal factor in the instant case the basis of valuation as neither Section 14(1) (a) nor (b) appear to be applicable. 12. Since there is no evidence on record to prove that the declared F.A.S. value was fraudulent or incorrect the benefit goes in favour of the appellants. The appeal is, therefore, allowed with consequential relief to the appellants.
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1981 (5) TMI 116
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... ... ..... earlier to the introduction of Central Excise Tariff Item 68. 21. It is not believable that the Department was not aware of the fact that the appellants were also producing utensils out of brass circles particularly when as per certificate of S.D.O. of Electricity Board produced by the appellants, electricity to both their rolling and utensil making Sections was being fed from a single electric connection. It is also obvious that the rolling Section and utensil making Sections of the appellants were registered as one unit with the Industries Department. 22. In view of the above facts, the Board agrees with the contention of the appellants that they had acted in a bona fide manner and as such the imposition of penalties amounting to ₹ 10,000 and ₹ 25,000 by invoking Rule 173Q of Central Excise Rules, 1944 was unwarranted. 23. The Board, accordingly sets aside the Collector’s order to that extent. Both the appeals are disposed of accordingly.
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