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Showing 41 to 60 of 685 Records
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2006 (2) TMI 687
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... ... ..... harge their liability towards loan obtained from respondent Nos. 3 and 4 and it cannot be said to be a transfer made in favour of the petitioner of the establishment by the original/principal employer. Therefore, we are inclined to allow the petition. 18. In the result, the writ petition is allowed. Rule is made absolute in terms of prayer Clause (1). Needless to say that if the respondents wish to proceed against the erstwhile owners of the establishment, they may do so in accordance with law as it does not prevent them from recovering the amount from the erstwhile employer. In view of the fact that the petitioner succeeds in the petition he is entitled to withdraw the sum deposited in terms of the order dated 20-11-1996. On petitioner's making application, Additional Registrar (as was earlier designated) would pay the amount deposited by the petitioner along with interest accrued thereon to the petitioner. Rule is made absolute in above terms with no order as to costs.
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2006 (2) TMI 686
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... ... ..... n the case of all the three brokers including the appellant. It is common case of the parties that the charges leveled against all the three brokers were that they had joined hands together and indulged in circular trading in the scrips of the company thereby creating artificial volumes. It is really surprising to note that in the case of Samani and Bonanza the enquiry officer and the Board both find that there were no circular trades but in the case of the appellant the finding is otherwise. All the three brokers were parties to the trades and if they were not circular while examining the cases of Samani and Bonanza, how could they become circular when the case of the appellant was considered. The findings are self contradictory and cannot be sustained. The least we can observe is that the impugned order had been passed without application of mind. 6. In the result, the appeal is allowed, impugned order dated 01/02/2006 set aside leaving the parties to bear their own costs.
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2006 (2) TMI 685
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... ... ..... annels and conveniently made the statement in the plaint that it came to know about this advertisement only in September, 2005. I am, Therefore, of the view that the plaintiff is guilty of concealment of material facts as well. 42. As an upshot, not only injunction application of the plaintiff warrants to be dismissed, even the suit is liable to be dismissed. There is another reason for adopting this course of action. Entire matter is examined treating the averments of the plaintiff as correct (except the assertion about coming to know of the advertisement only in September, 2005). Therefore, there is no need of evidence to establish the facts. However, even on the basis of averments made in the plaint, the legal right in favor of the plaintiff is not established as the impugned advertisement of the defendant is not disparaging. 43. The suit and is No. 821/2006 filed by the plaintiff are accordingly dismissed and is No. 1106/2006 filed by the defendant is allowed with costs.
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2006 (2) TMI 684
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... ... ..... es that in view of the duty demand confirmed against the appellants, they should be allowed to take credit of input duty, which was not taken by them earlier in view of the exemption on the finished goods availed by them. He also states that while quantifying the demand, the adjudicating Commissioner has not taken into account the fact that the value realized by them is to be taken as cum-duty price for computing the duty demand. We are of the view that both the pleas are reasonable and hence, we allow the appellants to avail input duty credit subject to verification. We also direct the adjudicating Commissioner to treat the sale price as cum-duty price. For this limited purpose, we remand the matter to the adjudicating Commissioner for re-quantifying the demanded amount. He shall allow a reasonable opportunity of hearing to the appellants before passing a fresh order quantifying the duty demand. 10. The appeals are partly allowed in the above terms. (Dictated in Court)
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2006 (2) TMI 683
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... ... ..... i Transport Co. Versus State of U.P. reported in 1986 UPTC 721 in which the Apex Court held that Section 28-B of the Act is a machinary provision and has been introduced to check the evasion of tax. It has been further held that Section 28-B of the Act raises a rebuttal presumption and in case, if by the evidences, it is proved that the goods had crossed State of U.P. and have not been sold within the State of U.P., the presumption stand rebutted. Thus, necessary evidences, which have been adduced by the applicant, has to be examined by the Tribunal to decide whether the goods had crossed the State of U.P. or not. Perusal of the impugned order shows that necessary evidences have not been considered. Thus, the order of the Tribunal is vitiated and is liable to be set aside. In the result, revision is allowed. Order of the Tribunal is set aside and the matter is remanded back to the Tribunal to decide the appeal afresh in the light of the observations made above expeditiously.
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2006 (2) TMI 682
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... ... ..... ngle Judge is hereby set aside. The respondent is hereby directed to offer his explanation to the show-cause notice, if he has not yet offered his explanation to the same and in case any adverse order passed against him, liberty is granted to approach the Competent Authority. All the contentions of the parties are kept open to be urged at an appropriate stage of the enquiry. There is no expression on the merits of the case and whatever observations made herein are restricted to the present proceedings. They should not in any way influence either the Enquiry Officer or the employer in holding enquiry and passing an appropriate order in accordance with law. We however hasten to add that we are not expressing any opinion on the merits of the matter and it is open to the parties to advance their respective contentions in the course of enquiry. The writ appeal is accordingly allowed with the above observations. But, in the circumstances of the case, there is no order as to costs.
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2006 (2) TMI 681
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... ... ..... l for the parties, following the decision in C.A. No. 6621 of 1995 and in terms thereof, we set aside the impugned order in these appeals as well and remit the cases back to the Commissioner (Appeals), Meerut-I, Uttar Pradesh instead of Commissioner (Appeals), Bangalore, as had been done in the previous appeals. In those appeals although the decisions were made by the Tribunal all over the country the cases were remitted back to the Commissioner (Appeals) at Meerut-I, Uttar Pradesh to avoid passing of contradictory orders by different commissionerates with a direction to dispose them of alongwith other appeals pending before it in pursuance to the order of remand passed by this Court i n Civil Appeal No.6621/1995 dated 26th November, 2002 and other connected cases in the light of the observations made by this Court in Civil Appeal No.6621/1995 dated 26th November, 2002. The Civil Appeal Nos.7515-7517/2004 and I.A.No.2 in Civil Appeal No.2656/2004 are disposed of accordingly.
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2006 (2) TMI 680
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... ... ..... rate and when althroughout he paid such monthly instalments, he cannot be permitted now to file a complaint on the ground that rate of interest is excessive and contrary to the provisions of Bombay Money Lenders Act. The accused company was entitled to act as per the terms of contract agreed between the parties, when, with open eyes the complainant has accepted the loan by agreeing to a particular rate of interest by signing various papers. When the financial company has acted as per the terms of agreement, it cannot be said that it has committed any offence, especially when even such advancement of money cannot be said to be 'loan' as defined by Bombay Money Lenders Act. Considering all these aspects, these applications are allowed. The complaints registered as Criminal Case Nos.1381/2000, 1382/2000 and 1383/2000 pending before the Court of Chief Metropolitan Magistrate, Ahmedabad and process issued thereon are quashed and set aside. Rule made absolute accordingly.
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2006 (2) TMI 679
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... ... ..... iry Report including the report of the District Magistrate. After considering these comments, the disciplinary authority is directed to reach a fresh and final conclusion, on the question whether an order of removal from service of the respondent No. 1 can be passed. It is needless to say that it would be open to the respondent No. 1 or his authorised representative to cross-examine the witnesses, and also to raise the question of admissibility of the zerox copy of the report of the District Magistrate before the disciplinary authority. Accordingly, the judgment of the Division Bench of the High Court is set aside and the order of the learned Single Judge is restored subject to modifications made herein above. It is also directed that the respondent No. 1 during the pendency of the departmental proceeding shall be paid subsistence allowance in accordance with the rules of the Corporation. The appeal is allowed to the extent indicate above. There will be no order as to costs.
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2006 (2) TMI 678
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... ... ..... tial question of law. 6. Insofar as remaining two questions are concerned, it is apparent that both the Commissioner (Appeals) and the Tribunal have accepted in principle that conveyance allowance and additional conveyance are paid to the Development Officers for meeting the actual expenditure incurred by the Development Officers in discharge of their duties as per law and norms set out in the circular issued by the LIC. Thereafter, what should be the proportion of the amount which should be allowed, cannot form subject matter of a substantial question of law. 7. It is necessary to take note of the fact that even though the issue of conveyance allowance and additional conveyance allowance was not there before this Court in C.I.T. v. Kiranbhai H. Shelat (supra), the principles enunciated in the said decision would equally govern the allowance or otherwise of the said item of expenditure. 8. In the result, in absence of any substantial question of law, the appeal is dismissed.
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2006 (2) TMI 677
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... ... ..... appreciation of evidence on record, it cannot be stated that either the approach or the conclusion of the Tribunal are incorrect in any manner whatsoever. Therefore, the aforesaid issue cannot be stated to be one which would give rise to a substantial question of law. 11.In relation to proposed question No.4, the Tribunal has restored the matter back to the file of the Assessing Officer to decide the issue regarding addition of ₹ 9,94,421/- in light of the provisions of Sections 37 and 35D of the Act. It has been held by Tribunal that only if the expenses are in the nature of capital expenditure, would the question of invoking Section 35D of the Act arise and therefore, it is not possible to hold that the Tribunal has committed any error so as to give rise to a substantial question of law insofar as this issue is concerned. 12.In the result, in absence of any substantial question of law, as proposed or otherwise, on any of the aforesaid issues, the appeal is dismissed.
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2006 (2) TMI 676
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... ... ..... the conditions of the Notification. Due to certain exigencies, the appellant was forced to utilise the machine in their sister unit for job work. It is also on record that the appellant has more than fulfilled the export obligations. It is also seen that there were already some proceedings on the same issue, wherein it was held that the capital goods were duly installed. In view of the above facts, we feel that there is no serious violation of the conditions of the Notification, especially when the export obligations have been fulfilled and the machine was put to use in their job worker premises. Hence the confiscation of the machinery is not sustainable. Even there is no merit in invocation of the longer period because there is no suppression of facts or wilful mis-representation, so the demand of duty is also not sustainable. In the result, we allow the appeal with consequential relief. (Operative portion of this Order was pronounced in open Court on conclusion of hearing)
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2006 (2) TMI 675
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... ... ..... the packing for the physician samples being special, the value of such samples should be determined higher. 2. It has been contended on behalf of the appellants that all costs associated with the physician samples including the cost of catch cover and that of promotion and selling expenses have already been taken into account while costing and valuing the regular packs. Hence, it is contended by them that the pro rata value represents the correct value for the physician samples. 3. We find that a similar issue has already been decided by the Tribunal in the case of M/s. Softsule Pvt. Ltd. v. C.C.E., Mumbai-II vide Order No. A/1965/WZB/MUM/2005/C-III/EB, dated 19-8-2005 2006 (195) E.L.T. 46 (Tribunal). Following the said decision, we are of the view that the physician samples have been correctly valued on pro rata basis adopting the value of regular packs. Accordingly, we set aside the impugned order and allow the appeal with consequential benefit to the appellants.
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2006 (2) TMI 674
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... ... ..... 89 to 11-7-1989, during the rest of the period the appellant was absent unauthorisedly, and the enquiry officer and the disciplinary authority were in agreement thereupon. ( 6. ) A final, if we may say so, desperate argument was made that the appellant had sufficient leave to his credit and, therefore, the respondents should have taken a liberal view in the matter and permitted him to resume duty when he attempted to resume in the year 1992 by sanctioning the leave that was available to his credit. In our view, the argument cannot be countenanced. Acceding to such an argument by courts, particularly this Court, has led to and will continue to lead to gross indiscipline in public service. We are unable to accept such an argument. We find no reason to interfere with the order made by the Tribunal and the High Court. The appeal is dismissed accordingly without costs, but we make it clear that the appellant cannot be held guilty of unauthorised absence from 7-7-1989 to 11-7-1989
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2006 (2) TMI 673
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... ... ..... Supreme Court has held that appeal under Section 17 of the Act is like that of a suit in the Court of the first instance under the Code of Civil Procedure. No doubt in suits also it is permissible, in given facts and circumstances and under the provisions of the law to attach the property before a decree is passed or to appoint a receiver and to make a provision by way of interim measure in respect of the property in suit. But for obtaining such orders a case for the same is to be made out in accordance with the relevant provisions under the law. There is no such provision under the Act. 27. In any case since this writ petition involves several disputed question which cannot be decided by this Court while exercising power under Article 226. 28. In view of the settled propositions of law and the ratio decided by Hon'ble the Supreme Court, this writ petition does not survive and deserves to be dismissed being devoid of merit and same is dismissed with no orders as to cost.
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2006 (2) TMI 672
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... ... ..... N LTD. v. COMMISSIONER OF INCOME-TAX (238 ITR 892). 5. This Court, in COMMISSIONER OF INCOME TAX v. MADRAS REFINERIES LTD. (266 ITR 170), held that the expenses incurred to earn goodwill of local community is deductible as business expenditure. 6. In CHERAN ENGINEERING CORPORATION LTD. v. COMMISSIONER OF INCOME-TAX (238 ITR 892) also, this Court has held that the amounts transferred to labour welfare fund and paid to workers for rendering strike free services are labour welfare expenditure and the said expenses are incurred for the purpose of business and therefore, they are deductible as business expenditure. 7. In view of the ratio laid down in the decisions cited supra, we hold that the social and welfare community expenses are deductible as business expenditure. We are, therefore, of the view that there is no error or illegality in the order of the Tribunal and therefore, no interference is warranted. Finding no merit to entertain the above appeal, the same is dismissed.
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2006 (2) TMI 671
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... ... ..... trength of extra copy of invoice at the actual receipt of the duty paid goods in Depot is verifiable. 5. The contention of the Revenue is that as per the Central Excise Rules, the duplicate copy of invoice is valid duty paying documents for the purpose of taking credit. In case, the duplicate copy of invoice lost during the transit, assessee can take credit on the strength of original copy of invoice. Therefore, the credit was rightly denied. 6. We find that in this case original copy of invoice as well as duplicate copy of invoice were lost during the transit. We find that from the extra copy of invoice which is in the name of the appellant and Revenue is not disputed that goods which were duty paid and also cleared by the appellant's own refinery. Therefore, in view of the decisions of the Tribunal where credit was allowed on the strength of extra copy of invoice in case original and duplicate copies were lost. The impugned order is set aside and the appeal is allowed.
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2006 (2) TMI 670
Letters Patent - Jurisdiction - institution of the suit, in view of the amended provisions of the Code - primacy of the Original Side Rules framed under the Letters Patent over the provisions of the Code - whether a person presenting such plaint after 1st July 2002, would also be required to comply with the amended provisions of Order VI Rule 15 of the Code - HELD THAT:- We are of the view that the reference to the provisions of the Code in Rule 1 of Chapter VII of the Original Side Rules cannot be interpreted to limit the scope of such reference to only the provisions of the Code as were existing on the date of such incorporation. It was clearly the intention of the High Court when it framed the Original Side Rules that the plaint should be in conformity of the provisions of Order VI and Order VII of the Code. By necessary implication reference will also have to be made to Section 26 and Order IV of the Code which, along with Order VI and Order VII, concerns the institution of suits. We are ad idem with Mr. Pradip Ghosh on this score. The provisions of Sub-rule (3) of Rule 1 of Order IV of the Code, upon which the Division Bench of the Calcutta High Court had placed strong reliance, will also have to be read and understood in that context. The expression "duly" used in Sub-rule (3) of Rule 1 of Order IV of the Code implies that the plaint must be filed in accordance with law.
The intention of the legislature in bringing about the various amendments in the Code with effect from 1st July, 2002 were aimed at eliminating the procedural delays in the disposal of civil matters. The amendments effected to Section 26, Order IV and Order VI Rule 15, are also geared to achieve such object, but being procedural in nature, they are directory in nature and non-compliance thereof would not automatically render the plaint non-est, as has been held by the Division Bench of the Calcutta High Court.
It is nobody's case that the plaint had not been otherwise verified in keeping with the unamended provisions of the Code and Rule 1 of Chapter VII of the Original Side Rules. In fact, as has been submitted at the Bar, the plaint was accepted, after due scrutiny and duly registered and only during the hearing of the appeal was such an objection raised.
Thus, even though the amended provisions of Order VI are attracted in the matter of filing of plaints in the Original Side of the Calcutta High Court on account of the reference made to Order VI and Rule 1 of Chapter VII of the Original Side Rules, non-compliance thereof at the initial stage did not render the suit non-est. On account of such finding of the Division Bench of the Calcutta High Court, not only have the proceedings before the learned Single Judge been wiped out, but such a decision has the effect of rendering the proceedings taken in the appeal also non-est.
We have, therefore, no hesitation in holding that the Division Bench of the Calcutta High Court took a view which is neither supported by the provisions of the Original Side Rules or the Code nor by the various decisions of this Court on the subject. The views expressed by the Calcutta High Court, being contrary to the established legal position, must give way and is hereby set aside.
The appeal is accordingly allowed and the impugned order under challenge is set aside. Consequent upon the views expressed by us, the plaint as filed on behalf of the appellants herein must be deemed to have been presented on 26th July, 2002 and not on 28th April, 2004 and the interim order passed by the learned Single Judge on 2nd April, 2004, stands revived. The Division Bench of the Calcutta High Court is directed to re-consider and hear the appeal filed by the respondents herein on merits as expeditiously as possible.
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2006 (2) TMI 669
Suit for a declaration - res judicata - Whether in view of the admission made by respondent No.2 in Ext.2 to the effect that the parties understood the document to be a deed of Baibulbafa, learned court committed error of law in construing Ext. A without taking into consideration the admissions made by the parties - HELD THAT:- We have noticed hereinbefore that by reason of the said deed of sale, the right, title and interest of the respondents herein was conveyed absolutely in favour of the appellant. The sale deed does not recite any other transaction of advance of any sum by the appellant to the respondents was entered into by and between the parties. In fact, the recitals made in the sale deed categorically show that the respondents expressed their intention to convey the property to the appellant herein as they had incurred debts by taking loans from various other creditors.
We are not oblivious of the fact that the term 'Bai-bil-wafa' or 'Bye- bil-wuffa/wafa' is an Arabic term which may mean a mortgage or a condition sale but the said term is not synonymous to 'Bai-ul-wafa'.
In the instant case, as noticed hereinbefore, the transfer is complete and not partial, no stipulation has been made that the appellant cannot transfer the property. Not only that the appellant was put in possession of the land, his name was also mutated.
The question of determination of being a pure question of law, the principles of res judicata shall have no application. Therefore, the High Court, in our opinion committed a manifest error in interfering with the judgment and decree passed by the trial court as also the appellate court in exercise of its jurisdiction u/s 100 of the Civil Procedure Code.
Thus, the impugned judgment of the High Court cannot be sustained. It is set aside accordingly. The appeal is allowed with cost. Counsel's fee quantified at ₹ 5,000/.
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2006 (2) TMI 668
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... ... ..... a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. 25. In the facts and circumstances of present case, no useful purpose will be served by allowing the criminal prosecution to continue on the same set of charges. Moreso, when the Department has accepted the finding of the Special Director. It is clear that the Courts below have noticed the findings of the Adjudicating Authority. They could not have ignored them by holding that the Adjudicating Authority could not have straight away discarded the retracted statements. The prosecution having accepted the findings of the Special Director, all this discussion is wholly irrelevant. Thus, this is a fit case where this Court should exercise it's inherent powers and quash the criminal proceedings. Rule is made absolute in each of these petitions in terms of prayer clause (a).
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