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Case Laws
Showing 21 to 40 of 230 Records
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1985 (9) TMI 340 - SUPREME COURT
Whether a proprietor of a trade mark who intends to use it solely by a registered- user is entitled to registration of his trade mark, under Sec. 18 of the Trade Mark Act?
Held that:- To enable the proprietor of a trade mark who has got it registered on the ground that he intends to use the trade mark to avail himself of the fiction created by section 48(2), he must have had in mind at the date of his application for registration some person to whom he intends to allow the use of the trade mark as a registered user. This would eliminate all chances of trafficking in a trade mark. If an applicant for registration did not have at the date of his application for registration a particular registered user in view, he cannot be said to have had a bona fide intention to use the trade mark and in such an event he cannot resist ar. application made under clause (a) of section 46(1) of the 1958 Act. Turning now to the present Appeal, the facts on the record show that only when it was decided to introduce 'DRISTAN' tablets in the Indian market through the Indian Company that the Appellant made its application to register the trade mark 'DRISTAN'. There was a close connection in the course of trade between the Appellant and the Indian Company. The Appellant owned 40 per cent of the shareholding in the Indian Company. It had entered into a technical collaboration agreement with the Indian Company which provided for strict quality control and for formulae and services to be provided by the Appellant.
The manufacture, marketing and advertising of all products under the said agreement were to be under the control of the Appellant. There was no royalty payable by the Indian Company to the Appellant in respect of the use of the trade mark 'DRISTAN'. In the event of the collaboration agreement being terminated by reason of the happening of any of the events mentioned in the said agreement, amongst which events was the shareholding of the Appellant becoming less than 40 per cent, the Indian Company was to cease to be entitled to manufacture the tablets 'DRISTAN' or to use its formula or to use the trade mark 'DRISTAN'. There was here, therefore, no question of any trafficking in a trade mark. In these circumstances, the intention of the Appellant to use the trade mark 'DRISTAN' through the Indian Company which was subsequently to get itself registered as the registered user of the said trade mark cannot but be characterized as bona fide. Appeal allowed.
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1985 (9) TMI 339 - CALCUTTA HIGH COURT
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... ... ..... it be said to be of public interest when a lawyer would not be able to assist a person detained in prison on a Saturday or Sunday. In my view, the answer ought always to be in the negative. In that view of the matter I am of the opinion that the inclusion of the establishment of legal practitioners within the definition of commercial establishments is violative of the constitutional safeguards as noted above. In the premises I therefore declare that inclusion of the establishment of legal practitioners in the definition section as appears in section 2(2) of the Amendment Act of 1981 contravenes the constitutional safeguards and the case is hereby declared to be ultra vires and I restrain the respondent-authorities from enforcing the provisions of the Shops and Establishment Act, 1963, as amended by Act of 1981 in so far as the establishment of legal practitioners are concerned. The rule is thus ends absolute. There will, however, be no order as to costs. Rule made absolute.
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1985 (9) TMI 338 - MADRAS HIGH COURT
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... ... ..... y. That there was no proper exercise of discretion on the question of grant of stay is patent from the orders. I find that the interest of Revenue stands amply safeguarded by the security in the shape of immovable properties furnished as stated above. Passing of such oppressive orders has been deprecated by this Court. Yet, I find such orders are being passed by the authorities like the first respondent and it does not speak well of the department to ignore pronouncements of this Court and go on passing orders which drive parties to come to this Court seeking redressal and relief in writ powers. I feel obliged to interfere in writ jurisdiction and accordingly, these three writ petitions are allowed, the orders of the first respondent are quashed and recovery of the disputed amounts shall not be prosecuted during the pendency of the appeals before the first respondent. It is upto the first respondent to dispose of the appeals with expedition. No costs. Writ petitions allowed.
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1985 (9) TMI 337 - MADHYA PRADESH HIGH COURT
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... ... ..... , the Commissioner of Sales Tax sought a reference to this Court for decision of the aforesaid questions of law and this is how these questions arise for decision by us. 3.. There is no controversy that the view taken by the Tribunal is in consonance with the settled view of this Court. In 1984 55 STC 200 (MP) (1983) 16 VKN 311 (Commissioner of Sales Tax, M.P. v. Chhogalal and Sons) it was held that the tax-paid goods purchased under the Motor Spirit Taxation Act were not liable for payment of sales tax under the M.P. General Sales Tax Act, 1958 after repeal of the Motor Spirit Taxation Act. This decision has been followed in subsequent decisions. Following that decision, this reference has to be answered in favour of the dealer. 4.. Consequently, the reference is answered against the Commissioner of Sales Tax and in favour of the dealer by saying that the Tribunal was justified in the view it has taken in the dealer s favour. No costs. Reference answered in the affirmative.
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1985 (9) TMI 336 - KARNATAKA HIGH COURT
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... ... ..... ture of an exemption clause which provides for exemption of kernel from the tax at the sale point if tax had been paid on the purchase of cashew. This is obviously a concession extended by the legislature to keep down the price of edible kernel and not indicative of any other intention of the legislature. We are of the view that these observations also support the conclusion reached by the Tribunal and the case urged for the assessee. 9.. On this short ground, we are of the view that the order of the Tribunal granting relief to the assessee is legal and valid and does not call for our interference. On this conclusion, we decline to examine the correctness of other reasons on which the Tribunal had found in favour of the assessee which means that we should not be understood to express our concurrence with any of them. 10.. In the result, we dismiss this revision petition. But, in the circumstances of the case, we direct the parties to bear their own costs. Petition dismissed.
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1985 (9) TMI 335 - MADHYA PRADESH HIGH COURT
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... ... ..... d to maintain separate accounts regarding the consumption of raw materials purchased at concessional rate and otherwise in the finished products so as to indicate whether the finished products sold outside the State were produced from the raw materials purchased at concessional rate or from the material purchased without concessional rate. Even assuming that an assessee is required to maintain an account in a particular manner and if he has failed to do it the only consequence would be that his accounts be not accepted and be liable to a best judgment assessment but that failure to maintain the accounts would not ipso facto warrant a conclusion as contended on behalf of the respondents. 9.. In view of these decisions we see no valid ground to call upon the Tribunal to refer the questions of law as stated above to this Court for its opinion and consequently we decline to accept the prayer of the Revenue and reject these petitions with no order as to costs. Petitions rejected.
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1985 (9) TMI 334 - MADHYA PRADESH HIGH COURT
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... ... ..... that when the movement of goods from foreign country to India was in pursuance of the condition of the contract between the assessee and the Director-General of Supplies and Disposals and there was no possibility of these goods being diverted by the assessee for any other purpose, the sales must be held to have taken place in the course of import of goods, as required by section 5(2) of the Act. This test is fully satisfied in the present case, as found by the Tribunal on the basis of the material present. The view taken by the Tribunal is, therefore, justified. 5.. Accordingly, this reference is answered against the department and in favour of the assessee as under The Tribunal was justified in holding that, on the facts and in the circumstances of the case, the sale of tyres and tubes worth Rs. 18,072 to the Gun Carriage Factory, Jabalpur, was in the course of import of goods into the territory of India from a foreign country and was, therefore, exempt from tax. No costs.
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1985 (9) TMI 333 - KERALA HIGH COURT
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... ... ..... opinion that the decision could not in any way advance the case of the revenue. The importance of the decision cited lies in the fact that the Supreme Court held that additional duty mentioned in section 3(1) of the Customs Tariff Act (Act 51 of 1975), was not in the nature of countervailing duty, inasmuch as it was not the charging section. That question has no relevance to the points contested in this writ petition. 4. The result, therefore, is that the writ petition is allowed, quashing exhibit P3 order of the first respondent. There will be no order as to costs. Immediately after the judgment was pronounced, on behalf of the State an oral request was made for leave to appeal to the Supreme Court. We do not find any substantial question of law of general importance which requires to be decided by the Supreme Court is involved in this case. Hence leave declined. Issue carbon copy of this judgment to the counsel on both sides, on usual terms, if applied for in that behalf.
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1985 (9) TMI 332 - KERALA HIGH COURT
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... ... ..... erally. 17.. Therefore the weight of authorities is clearly in favour of interpretation which we have adopted now. In the light of the clear pronouncement on the subject by the Supreme Court, it admits of no doubt that this alone is the correct interpretation of section 8(2A) of the Central Act. In view of the aforesaid interpretation we find no scope for interference with the impugned orders. These revisions are accordingly dismissed. No costs. Immediately after the judgment was pronounced, the counsel for the assessee-petitioners made an oral request for leave to appeal to the Supreme Court. In view of the apparent conflict of decisions on the question as to whether exemption would be available pursuant to the notification, we think, there is justification for granting leave to appeal to the Supreme Court. Accordingly, we grant leave to appeal to the Supreme Court to the petitioners. Issue carbon copy of this judgment to counsel on both sides on usual terms. Leave granted.
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1985 (9) TMI 331 - ALLAHABAD HIGH COURT
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... ... ..... peals preferred by the assessee so far as the question of the quantum of turnover is concerned. It may be that the Tribunal may have felt that no case has been made out for interference, but that is a matter of inference. As the last court of appeal on facts and law both, it has a statutory duty to decide the appeals of the assessee by passing a speaking order after applying its mind to the controversy raised before it. It has failed to do so in the instant case. The revisions succeed and are allowed. The impugned order passed by the Tribunal dated 21st February, 1983, is set aside. It shall rehear the appeals of the assessee and dispose of the same on merits and in accordance with law and in the light of the provisions of section 11(8) of the U.P. Sales Tax Act. It shall proceed on the assumption that the controversy regarding the purchase of coal by the assessee during the two relevant years is not before it. Parties are directed to bear their own costs. Petitions allowed.
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1985 (9) TMI 330 - ALLAHABAD HIGH COURT
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... ... ..... ision on the appeal. Even in the absence of the appellant, it is expected to go into the matter itself, apply its mind and thereafter give its decision. It has to record reason in support of its decision. In this case the Tribunal has failed to perform its statutory duty. Its order therefore is liable to be set aside on this short ground. The revision succeeds and is allowed. The impugned order of the Tribunal dated 12th March, 1985, is set aside. It is directed to rehear the appeal of the assessee after giving a proper notice and dispose of the same on merits and in accordance with law and also in the light of the cognizance of section 11(8) of the U.P. Sales Tax Act. The parties are directed to bear their own costs. Petition allowed.
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1985 (9) TMI 329 - DELHI HIGH COURT
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... ... ..... alers, and that they might be falsely and maliciously deposing against the petitioner. Be that as it may, that part of the controversy will receive adjudication in the appeals which are available to the petitioner under the Delhi Sales Tax Act against the assessment order, uninfluenced by any observation made by us in this writ petition. We have referred to them in this order only for the limited purpose of determining whether in case any material is discovered by the authorities which implicate the petitioner in any deception or misrepresentation, the security can be called. 25.. We are, therefore, unable to interfere in this writ petition. In any case the order made by this Court on 27th March, 1985, as an interim measure, requiring the furnishing of surety to the extent of Rs. 2,12,000 should appear fair and reasonable. On the furnishing of that surety ST-1 forms can be issued. Subject to this, the writ petition is dismissed. No order as to costs. Writ petition dismissed.
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1985 (9) TMI 328 - ALLAHABAD HIGH COURT
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... ... ..... rded by the Tribunal or that the findings are based on inadmissible evidence or the same are contrary to evidence on record. But neither the question about the sufficiency or insufficiency of material on record in support of the finding arrived at, either rejecting or accepting the account books, nor the question about the correctness or otherwise of the inference drawn as regards genuineness, truthfulness and accuracy of the account books or as regards to veracity of any other evidence can be said to raise any question of law. The findings recorded on these matters are essentially questions of facts and the correctness of the same cannot be questioned and canvassed in revision under section 11(1) of the Act. In view of the above, I find that no case has been made out for interference by this Court in exercise of its revisional powers under section 11(1) of the Act. In the result, these revisions fail being devoid of merits and are accordingly dismissed. Petitions dismissed.
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1985 (9) TMI 327 - CALCUTTA HIGH COURT
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... ... ..... turnover on which the sales tax can be imposed. In that view of the matter, it cannot be said that these transactions were taken out of the ambit of the Act altogether. Consequently it follows that the petitioner cannot be denied the concessional rate of tax on the packing materials and the containers bought by the petitioner for the purpose of selling tobacco paste. In this connection, it is also important to bear in mind that a dealer is entitled to get himself registered under section 8 even though he may not be liable to pay tax under section 4. It has been specifically provided that a dealer may apply for registration although he exclusively deals in goods specified in the first column of Schedule I. The entire purpose of this explanation will be defeated if the construction suggested by the department is accepted. This writ petition, therefore, must succeed. There will be orders in terms of prayers (a) and (b). There will be no order as to costs. Writ petition allowed.
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1985 (9) TMI 326 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... alleged commission agent), the Assessing Authority rightly declined to summon any commission agent either as a witness of the department or as a witness of the petitioner. Before parting with the judgment, it may also be observed that if implication of the judgment of this Court rendered in Civil Writ Petition No. 4087 of 1977, annexure P. 1, is that an assessee was entitled to examine his selling dealers (commission agents) to establish that the acquisition of goods by the assessee from the said dealer was as a result of transfer under a contract of agency or that it is necessary for the Assessing Authority even to examine such a claim, if put forward by the assessee, then, with respect, the Division Bench does not lay down the correct law and to that extent is overruled. For the reasons aforementioned, we find no merit in the writ petition and dismiss the same with Rs. 1,000 by way of costs. PREM CHAND JAIN, C. J.-I agree. I.S. TIWANA, J.-I agree. Writ petition dismissed.
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1985 (9) TMI 325 - MADHYA PRADESH HIGH COURT
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... ... ..... with the expression all types of crockery and glassware occurring before and after the above expression. Thus interpreted, according to the learned counsel, the term glass sheet could not be considered as goods made of glass. However, in view of the specific wordings of entry No. 26 referred to above, we are not persuaded to agree with this submission especially when the word glassware has been separately mentioned in entry No. 26. It is not the case of the assessee that he has been selling glass sheets for a manufacturing purpose or that he deals in broken glass sheets which cannot be used independently as glass sheets except for a manufacturing purpose, as a glass. It was also not disputed that glass sheets are made out of glass. 12.. In the result we are of opinion that the question referred to us has to be answered in favour of the department and against the assessee. Both the references are answered accordingly with no order as to costs. Reference answered accordingly.
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1985 (9) TMI 324 - MADHYA PRADESH HIGH COURT
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... ... ..... -General, in terms have no application to the facts of the present case, since the goods are not of the description specified therein. The result is that there is no ground on which the aforesaid earlier Division Bench decisions of this Court can be distinguished. 7.. As a result of the aforesaid discussion, it must be held, following the aforesaid earlier Division Bench decisions of this Court, that the petitioner was not liable to pay entry tax on the purchase of iron and steel during the calendar years 1977 and 1978, prior to the commencement of its business of manufacturing cement and, therefore, the impugned orders of assessment (annexures C and D) are liable to be quashed. It is obvious that no penalty could also be imposed for the same reason. 8. The petition is accordingly allowed. The impugned orders of assessment (annexures C and D) dated 28th December, 1981 are quashed. There will be no order as to costs. The security amount, if any, be refunded to the petitioner.
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1985 (9) TMI 323 - KERALA HIGH COURT
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... ... ..... penalty could not be levied. That is not the position under section 28(8) of the Act to fix the penalty in terms of this provision at certain percentage of the value of the goods not accounted for by the assessee, determination of the tax is not only not a condition precedent, but also is not even a relevant factor. 6.. In this view, we reject the contention of the counsel for the petitioner in spite of his persuasive arguments, that the provisions of section 28(8) of the Sales Tax Act were beyond the legislative powers of the State Legislature. 7.. It was then contended by the counsel for the petitioner that the levy was made in an arbitrary manner and therefore some reduction in the penalty was warranted. We do not think that in these proceedings we could go into a plea of this nature, considering the limited scope of jurisdiction under article 226 of the Constitution. 8.. The result, therefore, is that we dismiss the writ petition, however, without any order as to costs.
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1985 (9) TMI 322 - KARNATAKA HIGH COURT
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... ... ..... ate. 39.. But we are of the view that the petitioners should be permitted to challenge the respective orders made against them in an appeal before the concerned appellate authority under the Act. We, therefore, refrain to examine their validity. We have no doubt that the appellate authority will properly examine them. 40.. In the light of the foregoing discussion and for the reasons stated above, we make the following orders (i) We dismiss these writ petitions in so far as they challenge the validity of the provisions of section 28A of the KST Act. (ii) We permit the petitioners in each of the writ petitions to file an appeal against the order levying penalty to the appropriate appellate authority within one month from this day, and when so filed within that time, such appellate authority shall dispose of such appeal only on merits. All the writ petitions are disposed of in the above terms. But in the circumstances of the cases, we direct the parties to bear their own costs.
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1985 (9) TMI 321 - SUPREME COURT
Whether a provision directing the trader to "cough up" collections wrongly made by him from the purchasers otherwise than in accordance with the provisions of the Act and to make over the same to the Government as also the further provisions obliging the State to refund the amounts so collected to the person or persons from whom these had been collected would fall within the incidental and ancillary powers of the State Legislature while enacting a taxing statute under entry 54 of List II of the Seventh Schedule?
Held that:- Appeal allowed. In the instant case, before us, there is not merely a provision for making over such collections by the trader to the State but also a provision for refunding it by the State to the persons from whom such collections have been made. The impugned provisions will have, therefore, to be upheld as falling within the doctrine of ancillary or incidental legislative powers.
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