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2006 (5) TMI 485
Nature of expenditure - capital expenditure or revenue expenditure? - Disallowance of expenditure incurred by the assessee for providing wooden partition, painting, glass work and other petty repairs in the leased premises - HELD THAT:- The amount spent on providing wooden partition, painting of leased premises, carrying out repairs so as to make the premises workable, to replace glasses etc. has to be considered as revenue expenditure. It is for the businessman to see as to in what manner the leased premises is to be maintained and what are the necessary repairs which are required to be done - all such expenditures which were incurred on painting, polishing of the floor providing wooden panelling etc. is revenue expenditure and the nature of repairs is not of an enduring character so as to characterise as capital expenditure.
Appeal dismissed.
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2006 (5) TMI 484
... ... ... ... ..... to credit taken after intimation to the Assistant Commissioner, cannot be denied based on the decision of Tribunal in the case of Indo American Electricals Ltd. vs.' CCE, Bolpur reported in 1999 (108) ELT 797 (Tribunal). Following the ratio of the above Tribunal, order and my previous order (Order-in-Appeal 609/2003 dated 12.11.2003 in Mahle Migma Ltd. case), I have no hesitation in holding that the impugned order is not sustainable in law and hence 1 set aside the same, 7. The appeal of the appellants is allowed with consequential relief to them." 3. It is clear from the order that no legally valid order had been passed for denial of the Modvat credit taken. The Commissioner was, therefore, right in allowing the appeal filed before him. There is no illegality in the impugned order. The Commissioner has followed an order of the Tribunal. There is no merit in the appeal of the Revenue. It fails and is rejected. Order dictated and pronounced in open Court on 4.4.2006.
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2006 (5) TMI 483
... ... ... ... ..... opened for the purpose of testing as in the case of electronic bulbs. The sunglasses are tested by the buyer for his suitability. We are, therefore, of the considered opinion that sun glasses whether it be a frame or glass is not a pre-packed commodity within the definition of the expression "pre-packed" under Rule 2(1) of the Rules. The action of the respondents, therefore, in issuing the notice was without the authority of law. There is a dispute raised by the petitioner as the voluntariness of the letter which was written regarding the seizure and the desire the compound. Even if that may raise a disputed question of fact in terms of the record, in our opinion, the entire action in seizure was without the authority of law as the Act, the Enforcement Act and the Rules were not applicable. Once that be the case the petition will have to be allowed. In the light of that Rule made absolute in terms of prayer clauses (a) and (b). There shall be no order as to costs.
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2006 (5) TMI 482
... ... ... ... ..... es the department's view and leaves the matter to the discretion of the bench. 4. On a careful consideration, we notice that the Mumbai Bench in the case of Bhagyanagar (supra) decided this very issue and upheld the assessee's contention for classifying the item as "cellular phone" under the same heading and also to grant the benefit of the Notification. The Apex Court has also considered the issue in the case of Tata Teleservices (supra) and has noted that the Board's Circular No. 57/2003 dated June 2003 reported in 2003 (57) RLT M4 has no effect and the finding rendered by the Hon'ble High Court of Andhra Pradesh quashing the Circular is required to be upheld. The fact of the both these judgments is that the item has to be classified only as "cellular phone" under the Heading 8525 2017 of CTH along with the benefit of the Notification. The stay application and appeal are allowed with consequential relief, in light of the cited judgments.
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2006 (5) TMI 481
Cenvat Credit ... ... ... ... ..... s for generation of electricity. It was helps that all the three uses were in the factory and what happened to the electricity manufactured from the steam was not relevant. Department had filed a reference application against the above order of the Tribunal in Commissioner of Central Excise & Customs Vs. Gujarat Narmadha Fertilizres Co. Lt. 2006( 193) ELT 136 (Guj.), the Hon’ble High Court upheld the above finding of the Tribunal as correct. This judgment was followed by the Division Bench of the Tribunal at Bangalore in M/s. sudalagunta sugars Ltd. Vs. Commissioner of Central Excise, Triupathi. 3. I have carefully considered the submission of both sides. In view of the judgment of Gujarat High Court to the effect credit has to be allowed on all the inputs if the steam generated with them is used within the factory for any purpose, the appeal of MALCO has to be allowed. Accordingly, I allow the appeal with consequently relief. Dictated and pronounced in open Court.
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2006 (5) TMI 480
... ... ... ... ..... oncerned officers, the compliance, on other grounds, on which the benefit of the refunds were denied. In this view of the matter, we would consider that the order to be set aside and the issue remitted back by holding the eligibility to the notification and directing the original authority to consider the refund applications afresh and thereafter determine the quantum of refund due and pay the same after hearing the appellants. 5. Since the matter is pending for a long time, we would place the original authority to certain time bound decision in this connection and would consider that a period of 30 days would be sufficient to conclude the claim of refunds. This period of 30 days would apply from the date of receipt of this order in the Custom House. The appellants should be heard before a decision is taken. The appellants should co-operate and not seek an adjournment on the dates fixed for hearing. 6. Appeal disposed as remand in above terms. (Pronounced in Court)
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2006 (5) TMI 479
... ... ... ... ..... tatement that the trial court had no jurisdiction to entertain and decide the present suit. No issue was framed in this regard. The parties led evidence completely conceding to the fact that the court had territorial and pecuniary jurisdiction to entertain and decide the suit in question. Even if there could be such an objection, it would stand waived and even before this court it is nowhere stated or clear from the memorandum of appeal as to on what ground the jurisdiction of the court is questioned. The plaintiff had claimed interest on the amounts wrongfully retained by the defendants which they were obliged to refund. In fact, the claim itself was based for the negligent and irresponsible act of the officers of the defendants in not refunding the amount to the plaintiff. Thus even this contention has no merit and needs to be rejected. 12. For the reasons afore-stated, we find no merit in this appeal. The same is dismissed while leaving the parties to bear own costs.
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2006 (5) TMI 478
Whether the courts below are right in giving a finding regarding extinguishment of ease mentary right without any pleading or evidence regarding the same? Whether the courts below are justified in presuming extinguishment when there is no pleading or evidence to what effect?
Whether the courts below are right in stating that to prove easement by prescription, it is necessary to show the existence of easement by necessity is a condition precedent to plead and prove easement by prescription?
Whether the courts below are erred in stating that the dominant tenement owner's right over servient tenement will get extinguished when the servient tenement's ownership transferred to another person by way of sale by servient owner?
Whether the courts below are correct in stating that the easement created got extinguished when there is no change in physical features of the property covered render that easement right as useless or unnecessary?
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2006 (5) TMI 477
... ... ... ... ..... r. The user of machines for trial production, before giving full throttle is as much use of machines for the purpose of business. 10. The conclusion reached by the Tribunal that the assessee had used the machines in question during the previous year relevant to assessment year for his business is finding of fact. In view of the, aforesaid conclusion, we are not inclined to carry on further enquiry about the issue when installation of machinery during the previous year for the purpose of business of assessee itself amounts to user of the machine within the meaning of Section 32 or 32A. 11. Since all the questions depend on the answer of question whether the machinery acquired and installed during the previous assessment year was used for assessee's business, no question is required to be referred to this Court. The Tribunal was not in error in refusing to make reference of the aforesaid questions to this Court for its opinion. Accordingly, this reference case is rejected.
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2006 (5) TMI 476
Whether the acceptance of the two cheques by the appellant and their encashment by it did not amount to acceptance of the offer contained in the two letters of April 7, 1993?
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2006 (5) TMI 475
... ... ... ... ..... Cr. P.C., but such powers can be exercised to prevent abuse of the process of any Court ‘Process’ is a general word, meaning in effect, anything done by the Court. In the present case no process has been issued by any Court, but in pursuance of the inquiry pending against the applicants, the summons have been issued under Section 14 of the Central Excise Act, 1944/Section 108 of the Customs Act, 1962, though, such enquiry deemed to be a ‘judicial proceedings’ within the meaning of Sections 193 and 228 I.P.C. as provided by sub-section (3) of the Section 14 of the Central Excise Act, 1944, but the inherent powers under Section 482 Cr. P.C. cannot be exercised to interfere in any investigation or inquiry pending; therefore, this application is not maintainable. It is open to the applicants to file a writ petition under Article 226 or 227 of the Constitution of India or to avail any other legal remedy. 3. Accordingly, this application is dismissed.
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2006 (5) TMI 474
Whether in terminating the services, the State committed gross violation of the provisions of Article 14, 21 and 311 of the Constitution of India?
Whether Principles of natural justice were completely given a go-by by the Stae in passing the impugned orders of termination?
Whether some of the Appellants having successfully completed three years of probation, they would be deemed to have been confirmed in terms of Rule 23 of the 1976 Rules and, thus, their services could not have been terminated without holding regular inquiry in terms of Punjab Civil Services (Punishment and Appeal) Rules, 1970?
Whether in any event, Rule 23 of the 1970 Rules could not have been invoked for dispensing with the services of such of the Appellants as it had not been shown that their work, conduct and performance were unsatisfactory during the period of probation?
Whether no proper material by way of admissible evidence having been made available, on the basis whereof the State could form a bona fide opinion that the entire selection processes were tainted, the impugned orders of termination must be held to be bad in law?
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2006 (5) TMI 473
Whether whether the circulars dated 5/10,1990 and 25.03.1998 on the basis whereof the Respondent has been held to have abandoned his services are valid in law and whether the post-decisional hearing given to the Respondent pursuant to the direction of the Court can be said to be fair and reasonable?
Whether in the facts and circumstances of this case, the notification issued by the Executive Council could be invoked against the Respondent?
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2006 (5) TMI 472
Whether HCL could not effectively present its case before the ICC arbitrator and therefore enforcement of the ICC award should be refused in view of section 48 (1)(b) of the Arbitration and Conciliation Act, 1996?
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2006 (5) TMI 471
Dishonour of cheque - discharge of legal liability to the tune of the amount covered by the cheque - acquittal of accused - HELD THAT:- True, Ext.D3 and Ext.P8 indicate that accused owes some amount to the complainant, which has to be settled between the parties, as offered by the accused in the said letters. But what was the amount so due on settlement was not proved by the complainant. Whether it is in excess of the amount covered by Ext.P1 or whether it is less than the amount covered by Ext.P1 is a material aspect as regards the alleged liability on that count. In order to deem that one had committed offence under Section 138, the amount covered by the cheque shall be either in discharge of the liability incurred by the drawer, either in full or in part. It cannot in any way in excess of the liability incurred. Unless the complainant proves that the liability to be settled is to the tune of the amount covered by Ext.P1, he could not have made use of that cheque for such liability.
Therefore, Ext.P1 cheque cannot be stated to be one issued in discharge of the liability to the tune of the amount covered by it, which was really issued, as is revealed by Ext.D1, as the price amount for 28 numbers of mixies, which the complainant had not supplied. Therefore the acquittal of the accused cannot be stated to be unjustified to invite interference in the appeal.
Appeal upheld.
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2006 (5) TMI 470
... ... ... ... ..... ssessee to the effect that trade in footwear was to be excluded irrespective of the manufacture in view of the exemption certificate, has also not been examined by the Tribunal under the impugned order. The Tribunal should have taken into consideration the language of the notification relied upon and should have categorically recorded as to whether trading in the commodities mentioned in the certificate is also exempted in view of the notification and circular relied upon by the assessee or not. The court is satisfied that the order passed by the Tribunal dated February 19, 2004 cannot be legally sustained and is hereby quashed. The second appeal is restored to its original number and the Tribunal is directed to decide the matter in light of the observations made above, by means of a reasoned speaking order at the earliest possible. All the issues are open for consideration before the Tribunal. The present trade tax revision is allowed subject to the observations made above.
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2006 (5) TMI 469
... ... ... ... ..... a High Court in the case of Saturday Club Ltd. v. Assistant Commissioner, Service Tax Cell reported in 2005 1 VST 210 2005 180 ELT 437 whereby it is held that the services of the club to its members is not covered under the scope of service tax liable as Mandap Keeper. The honourable Calcutta High Court in another case of Dalhousie Institute v. Assistant Commissioner, Service Tax Cell reported in 2006 3 VST 139 2005 180 ELT 18 has also taken the same view. In view of the above decision of the honourable High Court, prima facie, the applicant had a strong case in their favour, therefore, the pre-deposit of whole of the service tax and penalties are waived for hearing of the appeal. The stay petition is allowed.
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2006 (5) TMI 468
... ... ... ... ..... y requisite amount, in the present case 20 per cent by way of deposit before the appellate authority when there is no liability because the amounts have been paid. This is an ingenious submission. Whether liability arose or not or whether the impugned order of the assessing authorities is justified or permissible or not including the question whether there was an ex parte or by parte order can better be gone into on appreciation of facts by the appellate authority as statutorily provided under section 45 of the Act. It is the settled proposition of law that the writ court, by invocation of the powers under article 226 of the Constitution of India, will be at loath when efficacious, alternative, statutory redressal is available to the assessee. It is in these context, without going into the merit of any issue, we are of the opinion that this court should not interfere when efficacious, statutory alternative remedy is available. This petition, therefore, shall stand dismissed.
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2006 (5) TMI 467
... ... ... ... ..... appellants have taken out service tax registration as well as taken steps to obtain a clarification regarding taxability of service and the tax amount has only subsequently been reimbursed to the appellants by their clients which are in the public sector. The appellants have contended that there is a clerical error in computing the tax liability which should be Rs. 1,43,43,111 (rupees one crore fortythree lakhs forty-three thousand one hundred and eleven) in place of the demanded amount of Rs. 1,54,71,961 (rupees one crore fifty-four lakhs seventy-one thousand nine hundred and sixty-one). Learned S.D.R. has no objection to the matter being sent to the original authority for rectifying the calculation of mistake, if any, as well as for calculation of the interest amount. Accordingly, we remand the matter for this limited purpose to the original authority. The appeal is partly allowed by setting aside the penalty amount while confirming the demand of tax and interest thereon.
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2006 (5) TMI 466
... ... ... ... ..... o the Tax Board, till the date of appearance before the Board, the effect of interim order passed by this court should be permitted to continue. As a result of the aforesaid, the writ petitions are allowed to the extent that the impugned orders dated April 10, 2006 (annexure 6) passed by the Rajasthan Tax Board, Ajmer, are set aside so far relating to rejection of the stay application submitted by the petitioner. The stay matter stands remitted to the Rajasthan Tax Board, Ajmer, to be considered and decided on merits in accordance with law. The parties are directed to appear before the Tax Board on June 14, 2006. The interim order passed by this court on April 21, 2006 staying coercive recovery proceedings against the petitioner shall continue to remain in currency till June 14, 2006, the date fixed for appearance before the Tax Board and on that date it shall be permissible for the parties to make submissions in relation to the interim relief before the Tax Board. No costs.
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