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Case Laws
Showing 21 to 40 of 659 Records
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2006 (11) TMI 703 - CESTAT, CHENNAI
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... ... ..... right against the customers to insist on incurring of advertisement expenditure by the customers, the advertisement cost would not be includible in the assessable value. In other words, for including advertisement cost in the assessable value, it should be shown that such cost was incurred by the manufacturer/customers compulsorily or mandatorily. We note that, in the present case, the Revenue has not satisfied these criteria. On the other hand, it is not in dispute that, where any cost of advertisement was borne by the dealer, 50% thereof would be reimbursed by the assessee and this arrangement benefited both the parties equally. On these facts, the apex court's decision in Philips India case was correctly followed by the lower appellate authority to hold that any part of the cost of advertisement was not includible in the assessable value of the goods. 3. In the result, the appeal stands dismissed. (Operative part of the order was pronounced in open court on 13.11.06)
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2006 (11) TMI 702 - SUPREME COURT
Sanction for prosecution - Offence punishable u/s 147/148/149/302/436/ 324/326 of the Indian Penal Code - Interpretation and application of the provisions of the Criminal Procedure Code, 1973 as amended by the State of Assam by the Code of Criminal Procedure (Assam Amendment) Act, 1983 and the Criminal Procedure Code (Assam Repealing) Act, 1986 - HELD THAT:- The Certificate in question, as noticed hereinbefore, was addressed to the Sub-Divisional Magistrate, Golaghat. It appears that the same was sent under registered cover with acknowledgment due. However, there is no evidence on record to show that it was actually handed over to the postal authorities. Be that as it may, it is evident from the order dated 5.12.1985 passed by the High Court in Criminal Revision Petition No. 386 of 1985 that a communication of the said order was directed to be made. We may, therefore, presume that the State of Assam did send the said communication. In any event the High Court communicated the said order to the Court of learned Magistrate where the matter was pending. The Sub-Divisional Magistrate, Golaghat was bound to act accordingly.
The complainant was aware that a certificate had been granted. She could have preferred an appeal there against within a period of 60 days from the date of communication of the said order. She did not choose to do so. Her right to appeal as against the correctness or otherwise of the order granting certificate is, thus, also lost. The High Court furthermore committed a manifest error in opining that by reason of Section 3 of the Assam Repealing Act the right of the appellant was taken away.
Furthermore, by reason of Section 3 of the Assam Repealing Act, the right of the accused accrued to him is not taken away. Section 3 deals with transfer of cases. Although, the marginal note of a statutory provision may not ordinarily be taken recourse to for interpretation thereof; in case of ambiguity, reference thereto would not be irrelevant. As Section 3 has been enacted only for the transfer of cases from the court of Executive Magistrate to a competent Court, the same, in our opinion, is a clear pointer to show that the State in enacting the Repealing Act, 1986 did not have any intention to deprive a person of his accrued or vested right.
Thus, the impugned judgment cannot be sustained, which is set aside accordingly. The appeal is allowed.
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2006 (11) TMI 701 - SC ORDER
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... ... ..... condoned. Heard. The Special Leave Petition is dismissed.
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2006 (11) TMI 700 - SUPREME COURT
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... ... ..... any policy decision adopted by the State is impermissible in law. The learned Division Bench could have dismissed the special appeal filed by the appellant on the ground of delay. It did not do so. It purported to uphold the order of the learned Single Judge even on merits. In that view of the matter only we had to enter into the merits of the matter. The judgment of the High Court, for the reasons stated hereinbefore suffer from a legal error. It is set aside accordingly. We are, however, of the opinion that the respondents should be compensated, as the appeal preferred by the State of Uttar Pradesh was barred by limitation, We quantify the same at ₹ 10,000/- (Rupees ten thousands only). We, however, may observe that it would be open to the State to recover the said amount from the officers who may be found responsible for causing the delay in preferring the appeal. With the aforementioned directions, the impugned orders are set aside. The appeal is allowed. No costs.
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2006 (11) TMI 699 - SUPREME COURT
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... ... ..... the Constitution Bench of this Court in Uma Devi (supra). It has categorically been stated before us that there was no vacant post in the department in which the respondent could be reinstated. The State had also adopted a policy decision regarding regularisation. The said policy decision has also no application in the case of the respondent. Even otherwise, it would be unconstitutional being hit by Article 16 of the Constitution of India. Keeping in view the peculiar facts and circumstances of this case, we are of the opinion that the interest of justice would be sub-served if we direct that any benefit which has already been given to the respondent shall not be recovered. He is also directed to be paid a sum of ₹ 1,50,000/- (One lakh fifty thousand) towards compensation and costs for condoning the massive delay in filing the Special Leave Petition. The impugned judgments are set aside, subject to the directions mentioned hereinbefore. This appeal is allowed. No costs.
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2006 (11) TMI 697 - SUPREME COURT
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... ... ..... ents it has been urged that there was no bar which precluded the Tribunal from looking into the original ACRs of the respective candidates, what we are required to consider is whether it was at all prudent on the part of the Tribunal to have adopted such a procedure which would amount to questioning the subjective satisfaction of the Selection Committee in preparing the Select List. 11. From the submissions made and the materials on record, we are satisfied that the methodology which has been evolved and included in the Regulations for grading the eligible officers have been religiously followed by the Selection Committee which did not call for any interference by the Tribunal. The High Court has merely followed the decision of the Tribunal without independently applying its mind to the facts involved. We accordingly allow the appeal and set aside the judgment of the High Court impugned in this appeal as also that of the Tribunal. There will, however, be no order as to costs.
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2006 (11) TMI 696 - SUPREME COURT
Claim for fixation of pay in the higher promotional revised pay scale - Ambiguity in the matter of applicability of scale of pay - Revised Pay Rules Or Rules known as Haryana Civil Services (Assured Career Progression) Rules, 1998 ("the ACP Rules") - Appointment as veterinary surgeon in the cadre of Haryana Veterinary Service (Grade-I) - promoted to the post of Assistant Director - cum - Sub-Divisional Officer - HELD THAT:- We, as at present advised, do not intend to go into the question as to whether the Revised Pay Rules or the ACP Rules will apply in the case of Respondent.
The dispute between the parties has to be decided in accordance with law. What, however, cannot be denied or disputed that a dispute between the parties once adjudicated must reach its logical conclusion. If a specific question which was not raised and which had not been decided by the High Court the same would not debar a party to agitate the same at an appropriate stage, subject, of course, to the applicability of principles of res judicata or constructive res judicata. It is also trite that if a subsequent cause of action had arisen in the matter of implementation of a judgment a fresh writ petition may be filed, as a fresh cause of action has arisen.
A review petition filed by Appellants herein was not maintainable. There was no error apparent on the face of the record. The effect of a judgment may have to be considered afresh in a separate proceeding having regard to the subsequent cause of action which might have arisen but the same by itself may not be a ground for filing an application for review.
If the ACP Rules were applicable in the case of Respondent, it was the duty of Appellants to bring it to the notice of the High Court and ask for adjudication on the said question. But the effective order passed as against it could not have been sought to be nullified by raising a question which had not been raised in the writ petition. There might not have been an adjudication on a question which was relevant for determination of the issue directly or indirectly but in a case of this nature such a contention could not have been entertained in a review proceeding which would have the effect of taking away the benefit granted by a court upon adjudication. It may not also be open to a party to the lis to ask for a clarification contrary to or inconsistent with its stand taken by it in the writ proceedings.
Therein a review proceeding was entertained as the court accepted its own mistake in understanding the nature and purport of the undertaking given by the learned senior counsel appearing on behalf of the Board. It was in that context opined that the subsequent event may be taken into consideration by the court for the purpose of rectifying its own mistake. Subsequent event may have some relevance but the same must have a direct nexus with the judgment sought to be reviewed. It has been noticed hereinbefore that before us an endeavour has been made to urge that the review application was in effect and substance an application for clarification.
We, therefore, are of the opinion that this appeal has no merit and, thus, must be dismissed accordingly. However, the question as regards applicability of one or the other Rules if arises in future, the same has to be determined on its own merit in accordance with law and having regard to the fact situation obtaining in each case. Thus, there shall be no order as to costs.
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2006 (11) TMI 694 - SUPREME COURT
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... ... ..... p; Ors. v. Union of India & Ors. (2003) 7 SCC 589 and Balram Kumawat v. Union of India & Ors. (2003) 7 SCC 628 It is also well-settled that the entire statute must be read as a whole. The relevant provisions of the Constitution as also those in the statute must, thus, be read harmoniously. See Bombay Dyeing (supra) and Secretary, Department of Excise & Commercial Taxes and Others v. Sun Bright Marketing (P) Ltd., Chhattisgarh and Another (2004) 3 SCC 185 . So read, we are of the opinion that the Division Bench of the High Court was correct in its view. The matter might have been different if Respondent No. 1 was declared to be an encroacher after the election process was over and, thus, becoming disqualified to continue to be an office bearer of Panchayat or Zilla Parishad. For the reasons aforementioned, no fault can be found in the impugned judgment. It is, therefore, affirmed. The appeals are dismissed with costs. Counsel's fee assessed at ₹ 10,000/-
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2006 (11) TMI 693 - GUJARAT HIGH COURT
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... ... ..... ee constituted research activity in terms of Section 43(4) and therefore, the assessee was entitled to deduction of expenditure incurred, capital as well as revenue, Pune Centre under Section 35(1) ?” Issue notice to the respondent. Paper book be filed within three months. List the appeal for final hearing after three months.
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2006 (11) TMI 692 - DELHI HIGH COURT
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... ... ..... oximately ₹ 10 crores. We have also been shown the satisfaction note dated 13.9.2005 of the ADIT (Investigation) Unit 1(1), the noting of the Additional DIT (1NV) Unit 1 dated 3.10.2005 and that of the Director (Investigation) dated 4.10.2005. We find no ground to exercise the extraordinary jurisdiction under Article 226 of the Constitution of India. Dismissed.
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2006 (11) TMI 691 - DELHI HIGH COURT
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... ... ..... Respondent None ORDER ITA 1521/2006 and CM 14195/2006 No substantial question of law arises. Dismissed.
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2006 (11) TMI 690 - SUPREME COURT
Murder - Application for bail rejected - 4th term Member of Parliament (Lok Sabha) - Guilty of the charges of offence u/s 302/34/120B IPC r/w Section 27 of the Arms Act - no prima facie evidence - HELD THAT:- We are of the opinion that while it is true that Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the Court has also to take into consideration other facts and circumstances, such as the interest of the society.
It has been stated that the appellant has been a Member of Parliament on four occasions. In our opinion, this is wholly irrelevant. The law is no respecter of persons, and is the same for every one.
A perusal of the FIR itself shows that it is a triple murder case, and the incident was committed in broad day light with sophisticated weapons. It is true that the appellant was not named in the FIR, but it has come in the statement before the Magistrate u/s 164 CrPC of one Ranjan Tiwari that he and other assailants had been hired by the appellant to commit this ghastly crime.
We are not inclined to comment on the veracity or otherwise of the statement of Ranjan Tiwari and other witnesses as it may influence the trial, but looking at the allegations against the appellant both in the statement of Ranjan Tiwari and other witnesses, we are of the opinion on the facts and circumstances of the case, that this is certainly not a case for grant of bail to the appellant, particularly since the prosecution witnesses have been examined and now the defence witnesses alone have to be examined. It would, in our opinion, be wholly inappropriate to grant bail when not only the investigation is over but even the trial is partly over, and the allegations against the appellant are serious.
The conduct of the appellant as noted in the decision in Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav & anr.[2005 (2) TMI 883 - SUPREME COURT], is also such that we are not inclined to exercise our discretion under Article 136 for granting bail to the appellant.
Thus, we find no merit in this appeal. The appeal is accordingly dismissed. We, however, make it clear that no further application for bail will be considered in this case by any Court, as already a large number of bail applications have been rejected earlier, both by the High Court and this Court.
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2006 (11) TMI 689 - DELHI HIGH COURT
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... ... ..... t be an unending process. In the present case itself the petitioner had deposited 42.5 crores being the 25% of the bid amount and was the highest bidder amongst 51 participants. 18 . We, Therefore, hold that non-acceptance of the bid of the petitioner and the decision taken by the respondent suffers from the vice of irrationality, arbitrariness and lack of credibility. The parameters adopted by the DDA in comparing the prices for the hotel plot of 20,000 viz.-a-viz. the price of a commercial shop/office of 66 sq. meters and 121.50 sq. mtrs. has vitiated the decision of the respondent. For the foregoing, we quash the decision of the respondent in rejecting the bid of the petitioner. 19. As we have quashed the decision of the respondent in rejecting the bid of the petitioner, the petitioner is entitled to the consequential relief and we issue a direction to the respondent to accept the bid of the petitioner, accordingly. 20. The writ petition is allowed. Rule is made absolute.
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2006 (11) TMI 688 - SC ORDER
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... ... ..... ti, in addition, is permitted. In the meanwhile, there shall be stay of operation of the impugned final orders of the Customs, Excise and Service Tax Appellate Tribunal.
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2006 (11) TMI 687 - MADRAS HIGH COURT
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... ... ..... d not more than the period of limitation. As it has been proved that the undated cheque was handed over one year and six months prior to the date of the cheque, I am of the considered view that the dishonour of the same would not create any criminal liability on the revision petitioner/accused. The courts below without considering the legal aspect under the Negotiable Instruments Act and also the factual circumstances, have given the concurrent finding which has to be construed as a manifest error of law and to meet the ends of justice, it warrants the interference of this Court. Accordingly, I find it reasonable to allow this criminal revision petition. 19. In the result, without prejudice to the civil right, if any available to the respondent, the criminal revision petition is allowed and accordingly the conviction and sentence imposed by the Courts below are set aside and the amount of ₹ 25,000/- deposited by the revision petitioner is ordered to be refunded to him.
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2006 (11) TMI 686 - CESTAT NEW DELHI
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... ... ..... amount without going into the merits of the demand or the question of limitation. Thus, an excess payment of ₹ 32,717/- took place. Part of the period of demand goes beyond the extended period of five years also. Penalty under Section 11AC and interest under Section 11AB are attracted only if duty evasion has resulted from intentional suppression of facts. In the facts of the present case, it is difficult to hold that the appellant had any intent to evade duty. The amount involved was insignificant and assorted scrap was being disposed of for what they fetched. Part of the scrap was wooden scrap which was not excisable at all. In this factual situation, the only conclusion possible is that non-payment of duty is the result of an unintentional lapse and not the result of intentional suppression of facts. 9. In view of what is stated above, we set aside the penalty and the demand for interest. The appeal is allowed to this extent. (Order dictated in the open Court)
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2006 (11) TMI 685 - COMPANY LAW BOARD, NEW DELHI
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... ... ..... the parties to the proceeding on the ground of fraud, mistake, influence or other similar grounds. In the present case, the consent order is sought to be recalled on the ground that the petitioner was in a depressed state of mind at the time of her agreeing to the consent order. Such a plea cannot be taken cognizance of in view of the fact that she did consult her counsel and a well wisher before recording of the said order. Therefore, in view of the opposition of the respondent to either for modification or recall of the consent order, the application is dismissed. 7. However, since the implementation of the consent terms in accordance with the time schedule specified in that order was kept pending due to this application, the time schedule requires extension. As per the consent order, the vacant possession of the portion allotted to the petitioner was to have been handed over to her along with a sum of ₹ 7.5 lakhs by 30.1.0.2006. Now I extend the time upto 28.2.2007.
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2006 (11) TMI 684 - COMPANY LAW BOARD CHENNAI
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... ... ..... day affairs of the Company as per the memorandum and articles of association of the Company; (b) take necessary steps for due and proper sale of the landed property belonging to the Company under supervision of the Chairman appointed by this Bench for the best possible price and distribute the sale proceeds among all the shareholders according to their holding in the Company; (c) deliver share certificates to the members in respect of their holding in the Company. v) The sale of 570 sq.yards of the landed property already effected and registered by the Company in favour of third party purchasers is confirmed. vi) The remuneration of the Chairman and the Practicing Company Secretary fixed in consultation with the Company shall be borne by the latter. With the above directions, the company petition and the connected applications stand disposed of. All interim orders are vacated. Liberty to apply, in case of any difficulty in implementation of this order. No order as to costs.
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2006 (11) TMI 683 - SUPREME COURT
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... ... ..... d that the learned Counsel for the State assured us that the same shall not be objected to. We hope and trust that in the event the State is of the opinion that the prosecution should be conducted by a public prosecutor of repute and having sufficient experience, it would not hesitate to appoint one. We would also direct the learned Trial Judge if any occasion arises therefore, to exercise his power under Section 311 of the Code of Criminal Procedure upon considering the facts and circumstances of this case. 19. We may reiterate that although it is not beyond the jurisdiction of this Court to direct further investigation by the CBI as contradistinguished from reinvestigation at this stage, but we decline to do so keeping in view the fact that 47 witnesses including the appellant himself have already been examined and recourse thereto can be taken if during trial a case therefore is found to be have been made out. This appeal is disposed of with the aforementioned directions.
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2006 (11) TMI 682 - CALCUTTA HIGH COURT
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... ... ..... onvenience and/or inconvenience or irreparable loss or prejudice stands on a very weak foundation. In the present case, on facts also I do not think the petitioner has made out an outstanding case. 53. Considering all these factors, I dismiss the present interlocutory motion. The interim order passed in this matter accordingly stands vacated. 54. The application of the respondent for vacation of the interim order, being G.A. No. 2062 of 2006 also stands disposed of in the above terms. 55. There shall, however, be no order as to costs. Later 56. Learned Counsel for the petitioner prays for stay of operation of the judgment. Such prayer is opposed by Mr. Sen, learned Counsel appearing for the respondent No. 1. Since the interim order is operating from June 14, 2006 there will be stay of operation of the judgment till November 30, 2006. 57. Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
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