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Showing 81 to 100 of 724 Records
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2007 (4) TMI 703 - ITAT MUMBAI
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... ... ..... vs. CIT (supra); Hon'ble Bombay High Court in the case of Cadell Weaving Mill Co. (P.) Ltd. (supra); and Hon'ble Supreme Court in the case of Union of India vs. Cadell Weaving Mill Co. (P.) Ltd. 2005 193 CTR (SC) 578 2005 273 ITR 1 (SC). 59. In view of the above discussion in the foregoing paras we uphold the contention of the assessee that sum of ₹ 75.76 lakhs received by the assessee in relation to land bearing old survey No. 135, Hissa No. 7 corresponding to new cadestral survey No. 1411/12 and the sum of ₹ 231.92 lakhs received by the assessee in relation to old survey No. 135, Hissa No. 10 corresponding to new cadestral survey No. 1411/11 and an adjoining unsurveyed unnumbered piece of land admeasuring approximately 889 sq. mtrs cannot be brought to assessment for want of cost of acquisition in the hands of the assessee. Accordingly we allow assessee's appeal for asst. yr. 1994-95 and dismiss the appeal filed by the Revenue for asst. yr. 1995-96.
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2007 (4) TMI 702 - CESTAT MUMBAI
Valuation - includibility - cost of advertisement/publicity expenses borne by the dealers and franchisee shops of M/s Kinetic and M/s Raymond on account of advertisement through press and other means and supply of calendar etc. - amendment to section 4 of CEA - Held that: - advertisement cost and pre-delivery inspection and after sales service charges which are sharable between the manufacturer and the dealer cannot be included in the assessable value even after 01.04.2000 as the advertisement promoted the sale of the dealers also and therefore his expenses cannot be included in the expenses of the manufacturer - appeal allowed - decided in favor of appellant.
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2007 (4) TMI 701 - SC ORDER
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... ... ..... n State of Uttaranchal vs. Rajesh Kuamr Gupta (2007) 1 SCC 355.Reference was also made of Section 80 of The Narcotic Drugs and Psychotropic Substances Act, 1985 which reads as under "80. Application of the Drugs and Cosmetics Act, 1940 not barred.- The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Drugs and Cosmetics Act, 1940 (23 of 1940) or the rules made thereunder." In our opinion, in view of the fact that the effect of Section 80 requires to be considered, we grant leave and direct the Registry to place the papers before the Hon'ble the Chief Justice for placing the matter before a 3-Judge Bench.
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2007 (4) TMI 700 - SUPREME COURT
Whether the appellant Insurance Company is not liable to indemnify the insured and is also not obliged to satisfy the award of the Tribunal/Court and then have recourse to the insured, the owner of the vehicle?
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2007 (4) TMI 699 - CESTAT MUMBAI
Penalty u/s 76 - payment of tax before issuance of SCN - Invocation of section 80 - Held that: - Ld. Commissioner (Appeals) has correctly invoked the provisions of section 80, as in this case it is on record that the respondent was not aware of the levy of service tax on services rendered by him - penalty not warranted - appeal dismissed - decided against Revenue.
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2007 (4) TMI 698 - DELHI HIGH COURT
Maintainability of application seeking leave to defend - barred by limitation - Loan advanced acknowledged in books of account, balance sheets and profit and loss accounts - Parties signed a Memorandum of Understanding - cheque issued in terms of the Memorandum, dishonoured on account of insufficiency of funds - HELD THAT:- I find that the plaintiff has placed complete details of the cheques which have been issued towards the loan advanced to the defendant. The amounts received from the defendant have also been detailed and statements of account have also been filed as Annexure 'A' to the amended suit. The amount which was advanced by the plaintiff is acknowledged in the balance sheet of the defendant. The plaintiff has asserted that it has paid an amount of ₹ 64.30 lakhs and additionally, ₹ 3.50 lakhs on 21st April, 2001.
The plaintiff has further advanced an amount of ₹ 5 lakhs on 24th April, 2001. Against this, the defendant has repaid an amount of ₹ 18.00 lakhs on 12th April, 2004 and ₹ 11.00 lakhs on 15th April, 2004 leaving a balance amount due and payable by the defendant of ₹ 43,80,000/-. The payments made by the defendant stand duly stated before this court. The cheques which were issued and dishonoured have been placed on record.
The defendant has not urged that it has made any other payment to the plaintiff. In these circumstances, even the amount which the defendant is liable to pay to the plaintiff is clearly established on record.
I therefore, find force in the submission on behalf of the plaintiff that the suit based on the balance sheets of the defendant company would by itself be maintainable and covered under clause 2 (b) (i) of Rule 1 of Order 37 of the Code of Civil Procedure, 1908.
There can be no dispute that the reliance by the plaintiff on the Memorandum of Understanding dated 1st April, 2004 would also be covered under the same clause of Order 37 in as much as such Memorandum of Understanding would constitute a written contract. Undoubtedly, in the instant case, the defendant has failed to abide by the Memorandum of Understanding resulting in the plaintiff being entitled to submit that the same was not binding on its very terms.
In the instant case, the entries in the books of account are duly corroborated in the balance sheets as well as in the admissions of the defendant in its correspondence with the plaintiff as also the afore noticed Memorandum of Understanding dated 1st April, 2004. Therefore, such corroboration as is envisaged u/s 34 of the Indian Evidence Act is also available
It is well settled that the power to grant pendente lite and future interest vests in the court u/s 34 of the Code of Civil Procedure and certainly there can be no prohibition to the maintainability of the present suit on the ground that the plaintiff has incorporated a prayer for pendente lite and future interest.
Thus, it has to be held that the objections of the defendant are wholly without merit and the defence disclosed in support of the leave to defend do not require adjudication.
These principles clearly apply to the defence raised by the defendant which consequently deserves to be rejected.
I therefore, find no merit in the case by the defendant in this application and consequently, the present application is hereby dismissed.
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2007 (4) TMI 697 - CESTAT MUMBAI
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... ... ..... as after the clearance of the goods therefore, in view of the decision of the Tribunal, the principles of unjust enrichment are not applicable. Further the appellants is keeping this amount in their account as sale expenses are some were deducted out of their profit, therefore the refund claim cannot be denied on this ground also. The impugned order is set aside and the appeal is allowed”. The learned Commissioner (Appeals) after checking the records was satisfied with the evidences which were produced before, him as regards the non-passing of the incidence of service tax by the respondents to their customers. The Revenue in their appeal has not produced any contrary evidence to the said findings nor there is any challenge to the Chartered Accountant Certificate. 3. Accordingly, in the facts and circumstances of the case, the impugned order is correct and legal and does not require any interference. The appeal filed by the Revenue is dismissed. (Dictated in court)
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2007 (4) TMI 696 - CESTAT BANGALORE
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... ... ..... ) dated 02.06.2003, clearly held that demands cannot be raised for delay in transfer of accounts from Principal Chief Controller of Accounts to the Central Board of Excise and Customs. (2) THE learned Counsel refers to this order and prays for remand of the matter to the original authority by allowing the appeal and giving a direction to the authority to apply the ratio of this judgment. (3) THE learned JDR reiterates the departmental view. On a careful consideration, we notice that the issue involved in the appeal has been decided by the Hon'ble President by Final Order cited supra. Therefore, the dismissal of the appeal under Section 35F is not justified. The impugned order is set aside and matter remanded to the Commissioner (Appeals) for do novo consideration and to apply the ratio of the Tribunal's ruling rendered by the Final Order cited supra passed by the Hon'ble President within four months from the receipt of this order. Appeal allowed by way of remand.
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2007 (4) TMI 695 - SUPREME COURT
Whether how far and to what extent suppression of fact by way of non- disclosure would affect a person's right of access to justice?
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2007 (4) TMI 694 - MADRAS HIGH COURT
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... ... ..... .02.2007. 6. In the light of the said contention, we have verified the impugned letter, which is available at page 12 of the typed set of papers. As rightly pointed out by the learned counsel for the petitioner, though the first respondent- the Member Secretary, CMDA, has referred to the deviations mentioned in the show cause notice dated 03.01.2007, there was no reference to the information/details furnished in the reply dated 05.02.2007. Without going into the merits of the claim of both parties, we quash the letter dated 23.02.2007 of the first respondent-Member Secretary, CMDA. The first respondent is directed to consider the reply/explanation of the petitioner dated 05.02.2007 and pass fresh orders, in accordance with law, within a period of eight weeks from the date of receipt of a copy of this order, after affording opportunity of personal hearing to the petitioner. 7. The writ petition is allowed on the above terms. No costs. Consequently, M.P.No.2 of 2007 is closed.
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2007 (4) TMI 693 - BOMBAY HIGH COURT
Foreign exchange - Search and seizure - Prosecution and penalty - seeking to quash the order passed by the learned Judge - Violation of Section 9 of the Foreign Exchange Regulation Act, 1973, (FERA) - appellant submits that the standard of proof required to bring home the charge in a criminal case is much higher than in the adjudication proceedings and once the appellant has been exonerated in the adjudication proceedings, his prosecution is an abuse of the process of court - HELD THAT:- It may be noted that relying on different authorities by the Supreme Court and other High Courts, in several cases, this High Court has also taken a view that when in the departmental proceedings the accused was exonerated by the adjudicating authority, the criminal proceedings should not be continued. In Raichand C. Jain v. Surendra Prasad [2006 (2) TMI 668 - BOMBAY HIGH COURT], in a proceeding u/s 56(1)(I) read with 9(1)(d) etc., FERA, this Court had held that when the applicant-accused was exonerated by the adjudicating authority, on the same set of facts, criminal proceeding could not be continued and therefore in the inherent power u/s 482 Cr.P.C., the criminal proceeding should be quashed.
It may be noted that in the present case the applicant was exonerated by the Dy. Director of Enforcement, who was adjudicating authority, in the adjudication proceedings. Admittedly that order was not challenged in appeal by the respondent and thus that order has become final. I have already noted the facts and findings of the adjudicating authority in detail. The adjudicating authority had clearly come to the conclusion that there was no material to hold the present applicant guilty for contravention of the provisions of FERA and he was completely exonerated. When in the departmental proceedings before the adjudicating authority, the department could not establish the charges, it is difficult to imagine how the department could prove the same charges before the criminal Court when the standard of proof may be much higher and stringent than the standard of proof required in departmental proceedings.
Before concluding, it would be necessary to find out whether the retracted statement of M.M. Vaidya could be sufficient to proceed with the criminal proceeding against the present applicant. The statement of M.M. Vaidya, Bhadkamkar and Harshe were recorded by the Officers of Enforcement Directorate u/s 39 or 40 of Foreign Exchange Regulation Act and not Section 108 of the Customs Act. In view of the provisions of Section 138(b) Customs Act, it is settled that the Officers of the Customs Department are not the Police Officers and the statement recorded by the Customs Officers under Section 108 are admissible in evidence.
Statements of Mr. Bhadkamkar and Mr. Haresh, the two Officers from A.T.C., is only hearsay evidence and Mr. Bhadkamkar is no more alive. According to them, Mr. Vaidya had received ₹ 30 Lacs or ₹ 27 Lacs from A.T.C. and from Mr. Vaidya they had come to know that the amount was paid to the present applicant. Therefore, no importance could be given to the statements of those two persons. Mr. Vaidya made a statement implicating himself as well as the present applicant, but later on he retracted from that statement and admittedly there is no documentary or other evidence to provide any corroboration to the said statement of Mr. Vaidya. As such there is no material on the basis of which the prosecution would have any chance of success in criminal case.
As pointed out, in view of the same circumstances, the adjudicating authority under FERA has completely exonerated the present applicant and it is impossible that with the same set of evidence, as pointed out above, the applicant can be convicted in the criminal proceedings. Therefore, in my opinion, it is a fit case to invoke inherent restrictions to avoid abuse of process under Section 482 of Cr.P.C.
In the result, the application is allowed. The criminal proceedings in case No. 3 of 1986 before learned Chief Judicial Magistrate, Pune are hereby quashed.
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2007 (4) TMI 692 - CESTAT AHMEDABAD
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... ... ..... te submits that even if it is held that amortized value of such dies and moulds is added in the value of the parts, and such total value stands recovered from their customer, the same would not establish unjust enrichment on the part of the appellant in as much as refund in question relates to the original duty payment of dies and moulds, which were never cleared from their factory and the cost of which was never recovered from their customer. In as much as there was no sale of dies and moulds to M/s Ashok Leyland Ltd., the question of recovering any duty paid thereon does not arise. 4. All the above submissions made by the appellant though convincing, relates to the factual position, which needs verification by the original adjudicating authority. Accordingly, I set aside the impugned order and remand the matter to Astt. Commissioner for fresh adjudication in the light of the appellant s submission. 5. Appeal is allowed by way of remand. (Dictated & Pronounced in Court)
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2007 (4) TMI 691 - CESTAT BANGALORE
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... ... ..... submitted that three other show cause notice had been issued earlier for the same period and for the same reason, therefore, question of imposing interest and penalty does not arise and the Commissioner (A) has rightly relied on the Apex Court judgment. 4. I have heard learned JDR and considered the assessee’s submission. It is seen that the present show cause notice has been issued after the new Section 73 has been introduced and its being applied to all cases. There were earlier three show cause notices issued, therefore, the Apex Court judgment rendered in the case of Nizam Sugar Factory (Supra) have clearly held that demands are not recoverable if earlier show cause notice have been issued as subsequent show cause notice is required to be treated as time barred. The Commissioner (A) has rightly held the applicability of L.H. Sugar Ltd. (supra) in present matter. There is no merit in this appeal and the same is rejected. (Pronounced and dictated in open Court)
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2007 (4) TMI 690 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... Assistant Collector of Customs, Bulsar, Gujarat (supra). Thus, it has to be held that the impugned order is based on no evidence, whatsoever, and, therefore, cannot be sustained in view of the fact that the appeal is being accepted on merit. I am not going into the quantum of penalty to be imposed which prima facie is in violation of Section 50 of the FERA. 19. The contention of the learned Counsel for the respondent that the present appeal is not competent as no question of law arises for consideration is also devoid of any merit as the questions of law arising in this case have been duly framed and answered. 20. In view of what has been stated above, the present appeals are allowed, order passed by the Enforcement Director as well as the Appellate Tribunal for Foreign Exchange are hereby set aside. 21. In view of the facts and circumstances of the appeal, respondent No. 2 is directed to refund the amount deposited in the fixed deposit to Smt. Gurmit Kaur Dhillon-appellant.
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2007 (4) TMI 689 - SUPREME COURT
Whether a Diploma holder Junior Engineer, who obtains degree while in service becomes eligible for promotion as Assistant Engineer on rendering three years' service would include therein the period of service rendered by him prior to the obtaining of the Degree or he has to render three years' service after obtaining the Degree to become eligible for promotion to the post of Assistant Engineer?
Whether three years service as Junior Engineer has to be after obtaining degree or the earlier service of the Junior Engineer while holding diploma only can also be considered?
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2007 (4) TMI 688 - GUJARAT HIGH COURT
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... ... ..... ny consideration." On the facts and in the circumstances of the case and more particularly, what is stated by the opponents in Paragraph-5 of their affidavit-in-reply, this Court is of the opinion that interest of justice would be served if the opponents are restrained from alienating the movable and immovable properties belonging to them, without permission of this Court or the Commissioner, Central Excise and Customs-III, Custom House, Navrangpura, Ahmedabad, during the pendency of the petition. For the foregoing reasons, the application partly succeeds. The opponents are restrained from transferring, alienating or disposing of the movable or immovable properties belonging to them, without the permission of either this Court or the Commissioner, Central Excise & Customs-III, Custom House, Navrangpura, Ahmedabad, during the pendency and final disposal of the petition. Rule is made absolute to the extent indicated here in above. There shall be no orders as to costs.
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2007 (4) TMI 687 - SUPREME COURT
Whether in the peculiar facts and circumstances of this case, the appellant cannot be said to have committed any misconduct?
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2007 (4) TMI 686 - SC ORDER
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... ... ..... dingly dismissed. However, it is made clear that the assessee would be entitled to refund, if any, in accordance with law.
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2007 (4) TMI 685 - SUPREME COURT
Whether the sale-deed is legal and the same has been executed by the Petitioners or the same is false and fabricated, cannot be decided in this proceedings initiated by the Petitioners under Article 226 of the Constitution of India?
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2007 (4) TMI 684 - SUPREME COURT
Whether The Jammu and Kashmir Distillery Rules 1946 does not have the statutory backing?
Whether Rule is in excess of the rule making power in Section 25 of the Act and suffers from excessive delegation?
Whether Rule seeks to get breweries to pay for the salaries and costs of the government officials involved in revenue collection and it is manifestly unjust and arbitrary?
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