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Showing 41 to 60 of 659 Records
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2006 (11) TMI 681 - DELHI HIGH COURT
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... ... ..... ount of ₹ 62,99,100/- being the provision made by the assessee on account of claim by the principal contractor due to deficiency in contract work is a contingent liability or an ascertained liability so as to entitle the assessee to claim deduction ?? Appellant is directed to file the Paper books within three months as per rules.
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2006 (11) TMI 680 - BOMBAY HIGH COURT
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... ... ..... will be governed by the Amended provision. The above demand is therefore illegal, bad and without jurisdiction. The respondents at the highest can consider and/or impose penalty in respect of changes which took place after 1-1-1985. 16. The petitioners have also sought relief by way of prayer Clause (c). The petitioners subject to their explanation, if any, need to be heard in the matter before passing any order on the basis of non-intimation of change as contemplated under Section 62 of the Maharashtra State Amendment insofar as any alteration or amendment after 1-1-1985. 17. Taking all these into account the impugned orders dated 12th October, 2004 and 25th April, 2005 passed by the respondent No. 2 are quashed and set aside. The petition is allowed in terms of prayer Clause (a). Insofar as prayer (c) is concerned it will be open to the respondents to reconsider the issue and after hearing the petitioners to pass an appropriate order according to law. No order as to costs.
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2006 (11) TMI 679 - SUPREME COURT
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... ... ..... evidence, and while we cannot say that the case of the prosecution is proved to be untrue, it is equally possible on the basis of the evidence on record to take the view that the defence case may also be true. Thus, applying the well established principle that if on the basis of the same evidence, two views are reasonably possible, the one in favour of the accused should be preferred, we allow this appeal giving the benefit of doubt to the Appellant. 15. Accordingly, this appeal is allowed. The judgment and order of the High Court is set aside and the Appellant is acquitted of the charges levelled against him. The Appellant is in custody. He shall be released forthwith unless required in any other case. 16. The appeal is allowed in terms of the signed judgment. The judgment and order of the High Court is set aside and the Appellant is acquitted of the charges levelled against him. The Appellant is in custody. He shall be released forthwith unless required in any other case.
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2006 (11) TMI 678 - SUPREME COURT
Uttar Pradesh Government started a project known as Taj Heritage Corridor Project ("the project") - Order passed on the basis of the confidential report submitted by CBI - sum of ₹ 17 crores released from the state exchequer without proper sanction of the competent authority - difference of opinion in the administrative hierarchy in CBI between the team of investigating officers and the law officers on one hand and Director of Prosecution on the other hand - Whether there exists adequate evidence for judicial scrutiny in the case of criminal misconduct concerning Taj Heritage Corridor Project involving 12 accused including former Chief Minister has resulted in the legal stalemate which warrants interpretation of Section 173(2) CrPC - HELD THAT:- In the present case, the entire investigating team as well as the said law officers are ad idem in their mind. They have recommended prosecution. It is only the Director of Prosecution and the Sr. P.P. who have opined that a closure report should be filed. It may be noted that Sr. P.P. does not find place in Clause 6.1 which refers to the administrative hierarchy of CBI. Further, the Director of Prosecution is the only officer who had dissented from the opinion of the investigating team including the S.P. It appears that this opinion is also based only on interpretation of legal evidence. Moreover, as can be seen from the Status Report dated 31.12.2004, the Director, CBI has not given his independent opinion. He has merely relied upon the opinion of the Attorney General.
We can understand the Director, CBI expressing an opinion and then referring the matter to the Attorney General. Thus, we are of the view that, there was no difference of opinion in the matter of investigation between the concerned officers of CBI and, therefore, there was no question of the Director, CBI referring the matter to the Attorney General of India.
In the circumstances, when there was no difference of opinion in the concerned team, the question of seeking opinion of the Attorney General did not arise. Lastly, even under Clause 19.15 of the CBI Manual it is expressly stated that the report of the S.P. should be prepared personally by the S.P. and that the internal differences of opinion among CBI Officers should not find place in the SP's Report. As stated above, CBI was required to follow the procedure in CrPC. The result of the investigation by the police is not legal evidence.
Keeping in mind the scheme of Sections 168, 169, 170 and 173 of the CrPC, in the facts and circumstances of this case, we direct the entire material collected by CBI along with the report of the S.P. to be placed before the concerned court/ Special Judge in terms of Section 173(2) CrPC. The decision to accept or reject the report of the S.P. shall be that of the concerned court/ Special Judge, who will decide the matter in accordance with law.
In the present case, at one stage of the matter, voluminous records were placed by CBI before this Court along with the recommendations of its officers. To vet and analyse the material, this Court essentially directed CVC to study the material, analyse the findings and give its recommendations as to the manner in which the investigations have been carried out. Since CVC has fairly stated before this Court that its advice is only in the nature of an opinion which is not a binding direction in this case, we are not required to examine the scope of the CVC Act, 2003. Secondly, in our earlier order, we have given time to CBI to complete legal scrutiny when we were told that there was difference of opinion in the administrative hierarchy of CBI.
However, after going through the recommendations of the above officers, we are of the view, as stated above, that there was no difference of opinion of the concerned officers and, therefore, there was no question of reference to the Attorney General. We reject the Status Report dated 31.12.2004 as it is a charade of the performance of duty by the CBI. Thus, a case for judicial review is made out.
We, accordingly, direct the CBI to place the evidence/ material collected by the investigating team along with the report of the S.P. as required u/s 173(2) CrPC before the concerned court/ Special Judge who will decide the matter in accordance with law. It is necessary to add that, in this case, we were concerned with ensuring proper and honest performance of duty by the CBI and our above observations and reasons are confined only to that aspect of the case and they should not be understood as our opinion on the merits of accusation being investigated. We do not wish to express any opinion on the recommendations of the S.P. It is made clear that none of the other opinions/ recommendations including that of the Attorney General of India, CVC shall be forwarded to the concerned court/ Special Judge.
In the matters after matters, we find that the efficacy and ethics of the governmental authorities are progressively coming under challenge before this Court by way of PIL for failure to perform their statutory duties. If this continues, a day might come when the rule of law will stand reduced to "a rope of sand".
The above Interlocutory applications are accordingly disposed of.
Concurring Judgment - S.B. Sinha, J. - HELD THAT:- The Central Government has made a manual. It provides for hierarchy of the officers who, having regard to the gravity or otherwise of the offence, would supervise investigation. It provides for appointment of the investigating officer and the officers supervising the investigation. CBI Manual is based on statutory provisions of the Code of Criminal Procedure. It provides for essential guidelines for the functioning of the said body.
CBI Manual, thus, is subject to the provisions of the CrPC. In case of conflict, although none has been pointed out, evidently, the CrPC shall prevail. Even under ordinary law, the investigating officer has a statutory duty to investigate into an offence upon receipt of a First Information Report as envisaged u/s 154 of the CrPC. Section 157 thereof provides for the procedure for investigation, where for the only duty cast on the investigating officer is to maintain his case diary in terms of Section 172 of the CrPC. It is beyond any doubt or dispute that investigation of an offence is the field exclusively reserved for the police. It may be subject to supervision of higher ranking officer (s) but the court's jurisdiction to have control in this behalf is beyond any controversy.
The question came up also for consideration in Hemant Dhasmana v. Central Bureau of Investigation and Anr.[2001 (8) TMI 1424 - SUPREME COURT] wherein it was held that upon conclusion of the investigation, a report has to be filed by CBI u/s 173(2) of the CrPC to Special Judge who takes the place of Magistrate when an offence falls under the Prevention of Corruption Act.
Hence, it is the Magistrate alone who has the final say in the matter. Subject to the aforementioned, I respectfully concur with the opinion expressed by the learned Brother Kapadia, J.
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2006 (11) TMI 677 - CESTAT AHMEDABAD
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... ... ..... as taken a view in the case of Prime Poly Weave Ltd. v. CCE, Surat-1 - 2005 (189) E.L.T. 208 (Tri.-Mumbai), and Amitex Silk Mills P. Ltd. v. CCE, Surat-1 - 2006 (72) RLT 11 (CESTAT-Del.) 2006 (194) E.L.T. 344 (Tri.) that the value of deemed export is also to be taken into account for determining 50 of the FOB value which will be permitted to be sold to domestic market. 3. We have perused the aforesaid decisions and record of the case. The issue remains covered in favour of the appellants by the aforesaid decisions of the Tribunal, to which both of us were parties. Following our earlier order these appeals are allowed with consequential relief, if any, to the appellants. (Dictated and pronounced in the Open Court)
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2006 (11) TMI 676 - DELHI HIGH COURT
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... ... ..... nal nor is it supported by bona fide. In fact, it appears to be a sheer afterthought and such an apology from which the petitioner resoled during the course of arguments, is a clear indication of the trend of his mind. As the petitioner is neither penitent nor sincere in tendering the apology, such a hollow apology serves no useful purpose. However, in view of the fact that the petitioner has pleaded that his wife is a heart patient and needs medical care, by erring on the side of leniency, we award the contemner punishment of simple imprisonment for a period of three days and impose a fine of ₹ 1,000/- on him. We hope that the imposition of the aforesaid punishment shall have a sobering effect on the contemner. This order shall take effect immediately. The contemner, who is present in the court, shall be taken into custody immediately and he shall be sent to the Tihar Jail to undergo the sentence. With these directions, the contempt petition stands disposed of. Dasti.
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2006 (11) TMI 675 - SUPREME COURT
Grant relief for Age of Superannuation - challenging the retirement of the employees of the Uttar Pradesh Jal Nigam (Nigam) on attaining the age of 58 years whereas the State Government employees were allowed to continue up to the age of 60 years - whether the employees who did not wake up to challenge their retirement and accepted the same, collected their post retirement benefits, can such persons be given the relief in the light of the subsequent decision delivered by this Court ? - HELD THAT:- In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussion on the financial management of the Nigam. Why the Court should come to the rescue of such persons when they themselves are guilty of waiver and acquiescence.
Learned counsel for the appellants has also pointed out that at this belated stage if the relief is given to the respondents who have retired and accepted the retirement, that will cause a huge burden to the Nigam to the tune of ₹ 17,80,43,108/- and there is no sufficient funds for incurring such a huge amount at this belated stage. This will completely ruin the financial condition of the Nigam if all the persons who were not vigilant and did not take up their cause before the Court, it would prove a great set back to the Nigam. In this regard, a reference was made to a decision of this Court in the case of Krishena Kumar v. Union of India & Ors. [1990 (7) TMI 366 - SUPREME COURT]. In that case the question was to grant pensionary benefit to the provident fund holders of the railways. A submission was made if the Court feels that a positive direction cannot be given to the government, it was prayed that at least an option should be given to the respondents either to withdraw the benefit of switching over to pension from everyone or to give it to the petitioners as well, so that the discrimination must go.
Therefore, in case at this belated stage if similar relief is to be given to the persons who have not approached the Court that will unnecessarily overburden the Nigam and the Nigam will completely collapse with the liability of payment to these persons in terms of two years’ salary and increased benefit of pension and other consequential benefits. Therefore, we are not inclined to grant any relief to the persons who have approached the Court after their retirement. Only those persons who have filed the writ petitions when they were in service or who have obtained interim order for their retirement, those persons should be allowed to stand to benefit and not others. We have been given a chart of those nine persons, who filed writ petitions and obtained stay & are continuing in service.
The benefits shall only be confined to above mentioned persons who have filed writ petitions before their retirement or they have obtained interim order before their retirement. The appeals filed against these persons by the Nigam shall fail and the same are dismissed. Rest of the appeals are allowed and orders passed by the High Court are set aside. There would be no order as to costs.
It is submitted that contempt petitions were filed before the High Court. In view of the order passed in this batch of appeals, the contempt petitions will not survive and the same are dismissed.
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2006 (11) TMI 674 - SUPREME COURT
Arbitration Award - invoked an arbitration Clause 23 - Application filled u/s 11 - contract for execution of canal repair work - served notice u/s 14 - seeking termination of his mandate on the ground that the earlier Arbitrator has already given his award - Jurisdiction of High Court to hear the appeal as in terms of Sub-section (2) of Section 37 - HELD THAT:- The consequences of the statutory embargo would ensue but then the question will have to be considered as and when occasion arises therefor.
Sub-section (2) of Section 37 of the 1996 Act prescribes for an appeal to a court. We do not see any reason as to why having regard to its plain language, the definition of "court" shall not be put into service. It may be true that the interpretation clause provides for "unless the context otherwise requires". If application of the interpretation clause contained in Section 2 of the 1996 Act shall lead to anomalous and absurd results, one may not stick to the definition but we do not think that such a case has been made out.
Section 42 of the 1996 Act refers to applications and not to appeals. Reliance placed by the learned counsel on M/s. Guru Nanak Foundation v. M/s. Rattan Singh and Sons [(1981) 4 SCC 634] is not apposite. Therein, the court was dealing with a provision of Sub-section (4) of Section 31 of the 1940 Act and as the appointment was made by the High Court, it was held that an application for setting aside of the award in terms of Sub-section (4) of Section 31 of the 1940 Act would lie before this Court.
There exists a distinction between an appeal and an application. Whereas Section 31(4) of the 1940 Act or Section 42 of the 1996 Act provides for an application, Sub-section (2) of Section 37 of the 1996 Act provides for a statutory appeal. A forum of an appellate court must be determined with reference to the definition thereof contained in the 1996 Act.
We, therefore, see no reason to differ with the High Court. The appeal is dismissed.
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2006 (11) TMI 673 - SUPREME COURT
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... ... ..... The Governing Body of the Nalanda College (1962) Supp. 2 SCR 144. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent." In view of what has been stated in Uma Devi's case (supra), we deem it proper to remit the matter to the High Court to consider the case afresh in the light of the said decision. The appeal is allowed to the aforesaid extent with no orders as to costs.
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2006 (11) TMI 672 - ITAT NEW DELHI
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... ... ..... issions of both the parties, as well as, the case law relied upon by the learned AR for the assessee, which, to our mind has not not been rightly applied to the facts and the issue income paid for acquiring loan for making the investment in shares was not allowable as per section 14A of the Act. Hence, for the reasons stated above, even on merits, we find that the assessee has no case and the CIT in a well-reasoned and well-discussed order by invoking the previsional jurisdiction under section 263 of the Act has rightly directed the Assessing Officer not to allow the deduction under section 14A of the Act in respect of interest expenditure claimed by assessee which represented expenditure attributable to dividend income because it docs not form part of the total income under section 10(33) of the Act. Accordingly, the impugned order of CIT is upheld and the grounds of appeal taken by the assessee are rejected. 32. In the result, the appeal filed by the assessee is dismissed.
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2006 (11) TMI 671 - ITAT NEW DELHI
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... ... ..... uction under section 36(1)(iii) of the Act. On the contrary this dividend income was exempted from tax under section 10(33) on which the payment of interest attributable to dividend income paid for acquiring loan for making the investment in shares was not allowable as per section 14A of the Act. Hence, for the reasons stated above, even on merits, we find that the assessee has no case and the CIT in a well-reasoned and well-discussed order by invoking the revisional jurisdiction under section 263 of the Act has rightly directed the Assessing Officer not to allow the deduction under section 14A of the Act in respect of interest expenditure claimed by assessee which represented expenditure attributable to dividend income because it does not form part of the total income under section 10(33) of the Act. Accordingly, the impugned order if CIT is upheld and the grounds of appeal taken by the assessee are rejected. 32. In the result, the appeal filed by the assessee is dismissed.
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2006 (11) TMI 670 - SUPREME COURT
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... ... ..... decision in Gulam Sarwar's case (supra). The position was finally summed up as follows "13. The position that emerges from a survey of the above decisions is that the application of the doctrine of constructive res judicata is confined to civil actions and civil proceedings. This principle of public policy is entirely inapplicable to illegal detention and does not bar a subsequent petition for a writ of habeas corpus under Article 32 of the Constitution on fresh grounds, which were not taken in the earlier petition for the same relief." Whether any new ground has been taken, has to be decided by the Court dealing with the application and no hard and fast rule can be laid down in that regard. But one thing is clear, it is the substance and not the form which is relevant. If some surgical changes are made with the context, substance and essence remaining the same, it cannot be said that challenge is on new or fresh grounds. The appeal is accordingly disposed of.
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2006 (11) TMI 669 - SUPREME COURT
Suits for declaration and specific performance - retired industrial workers - allotted service quarters - transfer the allotted houses on ownership basis to the occupants (plaintiffs) - Scope of Resolution passed by the Board of Delhi Transport Corporation (’DTC’) - land belonging to DTC for residential accommodation - declaration of entitlement to the transfer of properties - whether the plaintiffs could compel transfer of tenements in their favour on the basis of promissory estoppel - HELD THAT:- In our view the conduct of DTC cannot be faulted. Moreover, as stated, the decision to allot the tenements on ownership basis vide Resolution dated 31.8.1979 was a tentative decision. There was no contract entered into by DTC with any individual workman. DTC was a lessee. DDA was a lessor. DTC had to work out the cost-benefit ratios with DDA. That exercise was never undertaken. Not a single communication was ever sent by DTC to the plaintiffs. No formal sale-conditions were ever fixed or communicated by DTC to the plaintiffs. None of the plaintiffs was ever asked to pay to DTC the final sale consideration amount.
In the circumstances, Resolution dated 31.8.1979 was a tentative decision and not a final and binding decision as alleged. Therefore, it cannot be said that the said Resolution created a legal right by itself. We do not find any bias, discrimination or arbitrariness in Resolution of DTC bearing dated 3.12.1979 by which DTC recalled its earlier decision. DTC used to make losses. The replacement cost had shot up to ₹ 3 crores. The number of industrial workers to be accommodated had risen drastically. Against 480 tenements DTC had industrial workforce of 5000 employees (in-service). They had to be accommodated. Even the Central Government concurred with DTC in its decision not to implement the Scheme. The Scheme was an enabling scheme. It was not mandatory. DTC was not obliged to sell the tenements under the Scheme. The Government of India had funded DTC to a very small extent. DTC was in fact required to repay the loan taken from the Government of India with interest. In the circumstances, it was open to DTC to recall its decision of allotting the two colonies by way of sale to the occupants. Under the circumstances, it cannot be said that impugned Resolution dated 2.3.1981 passed by DTC of not selling the tenements was in any way arbitrary, biased or discriminatory.
We also do not find any merit in the contention advanced on behalf of the appellants that relying on the promise of DTC they altered their position to their prejudice by not opting for purchase under some other housing schemes. That, they did not buy the flat elsewhere all these years. There is no merit in the above contention. Resolution dated 31.8.1979 approving the sale was deferred on 3.12.1979 by the Chairman pointing out the above difficulties. Moreover no communication was ever sent to appellants individually calling upon them to make payment. Hence there was no representation as alleged.
In the present case, the plaintiffs have sought a remedy which is discretionary. They have instituted the suit u/s 34 of the 1963 Act. The discretion which the Court has to exercise is a judicial discretion. That discretion has to be exercised on well-settled principles. Therefore, the Court has to consider the nature of obligation in respect of which performance is sought, circumstances under which the decision came to be made, the conduct of the parties and the effect of the of the Court granting the decree. In such cases, the Court has to look at the contract. The Court has to ascertain whether there exists an element of mutuality in the contract. If there is absence of mutuality the Court will not exercise discretion in favour of the plaintiffs. Even if, want of mutuality is regarded as discretionary and not as an absolute bar to specific performance, the Court has to consider the entire conduct of the parties in relation to the subject-matter and in case of any disqualifying circumstances the Court will not grant the relief prayed for [Snell’s Equity].
In the present case, applying the above test, we do not find an iota of mutuality. There is no contract between DTC and the plaintiffs. There is no communication at any point of time between DTC and the plaintiffs. No sale consideration was ever fixed. The plaintiffs were never called upon to make payment. The decision to allot remained tentative. In the circumstances, neither contract nor equity existed at any point of time so as to compel DTC to convey the tenements to the plaintiffs.
Whether the plaintiffs could compel transfer of tenements in their favour on the basis of promissory estoppel - We find that in the present case the doctrine of promissory estoppel had no application. On balancing of equities we are of the view that DTC which is a public sector undertaking had to act in public interest in the sense that had to keep the transport service running for which they had to accommodate in-service industrial workers which they could not have done if it had to sell the existing service quarters to the retirees. In the circumstances, the Division Bench was right in setting aside the decree passed by the learned Single Judge.
We do not find any merit in the civil appeal and the same is accordingly dismissed with no order as to costs.
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2006 (11) TMI 668 - SUPREME COURT
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... ... ..... measurement. Having regard to the decision in the case of Reshmi Constructions's (supra), it can no longer be said that such a clause in the contract would be an absolute bar to a contractor raising claims which are genuine, even after the submission of such No Claim Certificate. We are convinced from the materials on record that in the instant case the appellant also has a genuine claim which was considered in great detail by the Arbitrator who was none other than the counsel of the respondent-Railways. In such circumstances we are inclined to hold that notwithstanding Clause 43(2) of the General Conditions of Contract and the submission of a No Claim Certificate by the appellant, the appellant was entitled to claim a reference under the contract and the Division Bench of the Calcutta High Court was wrong in holding otherwise. The appeals are accordingly allowed. The impugned judgments in the two appeals are both set aside. There will, however, be no order as to costs.
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2006 (11) TMI 667 - SUPREME COURT
Claiming damages for defamation - harassment and another for loss of reputation - malicious prosecution causing harassment by way of mental pain etc - Challenged the Order passed by a Division Bench of the Calcutta High Court - HELD THAT:- The legal meaning of 'malice' is "ill will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means "something done without lawful excuse". In other words, "it is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is deliberate act in disregard of the rights of others".
A bare perusal of the averments made in the plaint show that they are extremely vague, lacking in details and after the learned trial judge held that the Board alone was responsible because it was not established that any individual officer was responsible for it and dispute only have been revealed by the high-power enquiry which the court was incompetent to direct, the award for damages is clearly indefensible. The High Court's judgment suffers from various infirmities. Firstly, it has taken a confused view of the matter. It failed to notice that the trial court itself had held "it was highly probable" that the plaintiff was suspended for extraneous reasons. This conclusion is based on surmises and conjectures. This had not been established.
As noted, the High Court noted that the Trial Court itself held that the plaintiff was not entitled to damages for defamation. But while affirming the judgment and decree, it held that the damages granted for harassment must be read as damages for malicious prosecution causing harassment. To say the least, all the conclusions are confusing, contradictory and do not convey any sense. Looked at from any angle the impugned judgment of the High Court is indefensible and is set aside.
The appeal is allowed but without any order as to costs.
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2006 (11) TMI 666 - COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE (APPEALS), KANPUR
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... ... ..... commission basis is not covered under the clearing and forwarding operation and the order in the case of Prabhat Zarda Factory 2006 (2) S.T.R. 584 (T) 2002 (145) E.L.T. 222 (T) has been overruled to this extent.. The appellant has placed further reliance on Order-in-Original No. 27/Com/MP/2006 dated 18-10-06 in which after taking cognizance of Larsen & Toubro Case supra it has been held that the activity of procuring orders on commission basis is not covered under C&F services. 14. I take cognizance of the same and hold that mere procuring of orders by an agent on commission basis would not amount to providing services of C&F Agent, within the meaning of Section 65(25) of the Finance Act, 1994.. 15. On the issue of penalty and interest, I am of the opinion that when demand of duty is not sustainable, interest is not recoverable and penalties are not imposable. 16. Accordingly, the Order-in-Original is set-aside and party’s appeal is allowed.
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2006 (11) TMI 665 - MADRAS HIGH COURT
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... ... ..... he Bombay High Court in the case of Abdulgafar A. Nadiawala vs. ACIT & Others reported in 267 ITR 488. No doubt, the learned counsel for the appellant submitted that the decision of the Bombay High Court is under challenge before the Supreme Court and the Special Leave Petition is pending. 3. It is not in dispute that as on date the decision of the Bombay High Courte cited supra holds the field. Even otherwise, in view of the categorical conclusion held by the Appellate Tribunal that, whether the goods or merchandise were crossed the frontiers as to the effect the completion of export out of India is not clear from the records, it is desirable and in the interest of both parties to consider the said aspect afresh by the Assessing Officer, we are in agreement with the said conclusion. Hence, we find no substantial question of law to entertain the above appeal and the same is accordingly dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.
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2006 (11) TMI 664 - CESTAT NEW DELHI
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... ... ..... n as well as the appeal. 2. The Revenue submitted that for subsequent period on the same order was reviewed. In view of this situation, the present impugned order was also reviewed and appeal has been filed and the delay has been condoned due to this fact. 3. We find that in the application for condonation of delay filed by the Revenue, it is admitted that on 12.6,06 the impugned order was accepted by the Commissioner. In this situation, we find that Tribunal in the case of CCE vs. ITC Ltd. (supra) held that Commissioner of Central Excise has no power to review the order after acceptance. The Tribunal held that once the order-in-appeal is accepted by the Commissioner after such acceptance, Commissioner become functus officio and was disabled to file appeal against order-in-appeal. In these circumstances, we find there is no reason to condone the delay in filing the appeal. The COD application as well as appeal is dismissed. Dictated and pronounced in open Court on 1.11.2006.
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2006 (11) TMI 663 - CESTAT AHMEDABAD
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... ... ..... t is well stated law that it is not only the fact of mis-statement simplication which can be made the basis for invocation of longer period of limitation but the mis-statement must be with intention to evade payment of duty. If there would have been any intention on part of the assessee to suppress the use of brand name on their products, they would not have reflected the same in the invoices filed with the department. As such, the element of mala fide intention is definitely missing. Apart from above, all the statutory records including the classification list were scrutinized and audited, as found by the appellate authority. Learned Advocate for the respondents have relied upon no. of decisions of the Tribunal laying down that in such circumstances, longer period is not applicable. 6. In view of the foregoing discussion, we find no infirmity in the order of Commissioner (Appeals) and, accordingly, reject the appeal filed by Revenue. (Pronounced in Court on 10-11-2006)
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2006 (11) TMI 662 - SC ORDER
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... ... ..... ir, JJ. ORDER Appeal admitted.
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