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Case Laws
Showing 41 to 60 of 538 Records
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2000 (5) TMI 1062 - SUPREME COURT
Whether the order passed by the Senior Civil Judge, Kakinada was an order refusing to set aside the award?
Held that:- The High Court had the jurisdiction to reappraise the evidence and condone the delay. It has given its reasons for doing so. It cannot, in the circumstances, take a different view on the merits of the respondents case on the question of delay if the matter were to be remanded. In our opinion, this would be an appropriate case for us to exercise our powers under Article 142 of the Constitution and decide on the merits of the sufficiency cause shown.
The High Court gave three reasons for setting aside the order of the Trial Court after considering several decisions cited before it. The first, to use its own words, that there was a total negligence and it is on the part of the counsel who appeared for the State in the Trial Court. The second reason was that high-stakes were involved in the matter. The third reason was that no prejudice would be caused to the Contractor because the issue of the validity of the award was yet to be decided in its suit. It is a moot point whether the second and third reasons are relevant. Nevertheless, the first ground should have been and, in our opinion, was sufficient to excuse the delay and to remand the matter back to the Trial Court for a decision on the merits of the application under Section 30. It would be an euphemism to describe the ineptitude of the advocates advice to the respondent in connection with the proceedings before the Trial Court as negligence. As he holds the post of Govt. Pleader it could reasonably be assumed by the respondent that he possessed the required legal expertise to advise them correctly. His lack of this is borne out by the several wholly misconceived proceedings filed by the respondent before the Senior Civil Judge on his advice. That the respondents objection to the award is not the laggardly response of a frivolous litigant appears from the fact that an objection to the award was made even before the award was filed. Appeal dismissed.
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2000 (5) TMI 1061 - SUPREME COURT
Whether pumping out water from a mine comes within the meaning of manufacture, production, processing or repair of goods so as to claim exemption from duty under Notifications issued under sub-section 3 of Section 3 of the Rajasthan Electricity (Duty) Act 1962?
Held that:- The energy consumed for pumping out water from a mine out water from a mine cannot be accepted as the energy consumed by a consumer in any industry’ in the manufacture, production, processing or repair of goods so as to claim exemption or reduced rate of duty by the plaintiff by virtue of the afore mentioned two notificationss dated 2.3.1963 and 1.11.1965. Appeal is entitled to succeed.
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2000 (5) TMI 1060 - SUPREME COURT
Whether there is prima facie any deception and hence infringement and whether there is any 'passing off'?
Held that:- If, in a given case, the essential features have been copied, the intention to deceive or to cause confusion is not relevant in an infringement action. Even if, without an intention to deceive, a false representation is made, it can be sufficient. Similarly, confusion may be created unintentionally but yet the purchaser of goods may get confused for he does not have the knowledge of facts which can enable him not to get confused. In the present case, this aspect need not detain us in as much as we have already held that the relative strength of the case is in favour of the defendant. Further this aspect is connected with the type of buyer whom the law has in mind and we shall be presently dealing with this aspect also. It is not necessary for us to go into the contention of the respondent that the defendant was using the word PICNIC in other countries over a long period along with the word `Cadbury' and that a question of transborder reputation protects the defendant. For the above reasons, we hold that on the question of the relative strength, the decision must go in favour of the defendant that there is no infringement and the High Court was right in refusing temporary injunction.
For Passing off and infringement - differences - Here the point is in relation to relative strength of the parties on the question of `passing off'. As discussed under Point 5, the proof of resemblance or similarity in cases of passing off and infringement are different. In a passing off action additions, get up or trade-dress might be relevant to enable the defendant to escape. In infringement cases, such facts do not assume relevance.The fact that the defendant's wrapper contains the word `Cadbury' above the words PICNIC is therefore a factor which is to be taken into account. Buyer's ignorance and chances of being deceived.In the result, on the question of passing off, the relative strength of the case again appears to us to be more in defendant's favour.
Here, the trial Court gave importance to phonetic similarity and did not refer to the differences in essential features. It did not also have the wary customer in mind. On the other hand, the High Court's approach in this behalf was right as it noticed the dissimilarities in the essential features and concluded that viewed as a whole, there was neither similarity nor scope for deception nor confusion. (No doubt both Courts went into the validity of the plaintiff's registered mark and into the question of `distinctiveness' of the word PIKNIK under section 9(1)(e). But in our view that was not necessary). Thus, when wrong principles were applied by the trial Court while refusing temporary injunction, the High Court could certainly interfere. Point 7 is decided accordingly. In the result, the appeal is dismissed.
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2000 (5) TMI 1059 - PATNA HIGH COURT
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... ... ..... the purpose of levy of sales tax could only be fixed after including the excise duty payable on the liquor sold. In support of his submission he relied upon a decision of the Supreme Court in what is commonly called as the second McDowell case 1985 59 STC 277 AIR 1986 SC 649. He also relied upon another Supreme Court decision in Mohan Breweries and Distilleries Limited v. Commercial Taxes Officer 1997 107 STC 212 AIR 1997 SC 3497. Mr. Sinha also relied upon a full bench decision of the Kerala High Court in Hindustan Petroleum Corporation Limited v. State of Kerala 1993 89 STC 106. 19.. It is only with a sense of fairness to the counsel for the parties that we have taken note of the submissions sought to be advanced before us. But we are of the considered opinion that it would not be permissible to go on changing and enlarging the scope of the writ petitions and to allow the petitioners to raise this question in these writ petitions. We are of the view that Mr. K.N. Jain who
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2000 (5) TMI 1058 - SC ORDER
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... ... ..... ve petition shall not come in the way of any proceedings that the petitioner may have taken in regard to the Kar Vivad Samadhan Scheme.
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2000 (5) TMI 1057 - RAJASTHAN HIGH COURT
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... ... ..... lity under the Act with effect from March 6, 1991 which was enhanced to 50 per cent with effect from June 15, 1994. Thus, looking from any view, I am unable to sustain the contention of the learned counsel for the respondents for invoking the interpreting exercise of liberal/ strict construction for the present controversy. I am further of the opinion that no ambiguity in the use of the same form under second provisos to clause 2(j) and clause 4 is there and upon reading of these provisions, the only one conclusion is reasonably possible as discussed above. 53.. Accordingly, this revision succeeds. The impugned order dated May 21, 1998 passed by the Rajasthan Tax Board is set aside and it is held that respondent-assessee is entitled to the benefit of tax exemption/ deferment to the extent of 50 per cent of the tax liability, of course subject to other conditions mentioned in annexure C. The parties are left to bear their own costs of this revision petition. Petition allowed.
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2000 (5) TMI 1056 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... natural justice and also in contravention of the statutory provisions. We have, therefore, no hesitation in quashing the impugned order passed by the Deputy Director. The view we have taken finds support from the Division Bench judgment of this Court in Aero Club v. State of Punjab 1997 104 STC 349. The case is remanded to the Assistant Excise and Taxation Commissioner, Fatehgarh Sahib for further proceedings in accordance with law. The officer is directed to afford an opportunity of hearing to the petitioner. In case it is found that the petitioner was not liable to pay any penalty, the Assistant Excise and Taxation Commissioner will direct the department to refund the godown charges recovered from the petitioner. We order accordingly. The needful shall be done within two months from the date of receipt of a copy of order. Petitioner through its counsel is directed to appear before the competent authority on June 12, 2000. There is no order as to costs. Ordered accordingly.
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2000 (5) TMI 1055 - RAJASTHAN HIGH COURT
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... ... ..... date of publication of notification on January 6, 2000, then, the inference which is in favour of subject, is to be preferred. As a result of the aforementioned discussion, the constitutional validity of Act No. 13 of 1999, is hereby upheld. The notification dated October 15, 1999, annexure 2 to the writ petition and clarificatory notification dated December 30, 1999, annexure R/1, to the reply filed by respondents published in Official Gazette on January 6, 2000 in the Rajasthan Rajpatra, are hereby declared legal and valid and the circular dated October 23, 1999, annexure 3 to the writ petition, is declared per se illegal and is hereby quashed, with a direction to the respondents, making entry tax on cigarettes qua petitioners recoverable, with effect from January 7, 2000. The writ petition is finally disposed of on merits, accordingly. In the peculiar facts and circumstances of the case both the parties are left to bear their own costs. Petitions disposed of accordingly.
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2000 (5) TMI 1054 - TAMIL NADU TAXATION SPECIAL TRIBUNAL
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... ... ..... to them to file appeals against the orders of the Appellate Assistant Commissioner. But, in these cases, the assessees have been keeping quiet nearly about 2 frac12 years and resorted to these original petitions. In the original petitions, this Tribunal cannot go into the question whether the reasoning given by the assessee for keeping himself away from the headquarters on his business tour, is true or not. Therefore, I find that these original petitions are not sustainable before this Tribunal for appreciating or otherwise, the order of the Appellate Assistant Commissioner dismissing the delay condonation petition. 5.. The original petitions are, therefore, dismissed. Consequently, the miscellaneous petitions therein are also dismissed. And this Tribunal doth further order that this order on being produced be punctually observed and carried into execution by all concerned. Issued under my hand and the seal of this Tribunal on the 16th day of May, 2000. Petitions dismissed.
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2000 (5) TMI 1053 - DELHI HIGH COURT
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... ... ..... nsonant with the principles of natural justice to conclude that no opportunity of being heard can be said to be reasonable unless the authority discloses to the person aggrieved the materials upon which he proposes to decide (See R. v. Westminster Asst. CIT (1940) 5 All ER 132 R. v. Bodmin Justices 1947 1 All ER 109). 7.. Under the circumstances, we feel that the petitioner was denied due and proper opportunity to place materials in support of its claim. There was no legal impediment on the part of the assessing officer in issuing summons to the purchasing dealers, as requested. In the circumstances, we deem it necessary to remand the matter to the assessing officer to make a fresh assessment after issuing summons to those persons whom the petitioner wants to summon. Whether the assessing officer would accept the claim after that is a matter for him to decide. We have not expressed any opinion on that aspect. The petition is allowed to the extent indicated. Petition allowed.
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2000 (5) TMI 1051 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... rt to the statutory remedy because the petition remained pending in the court for more than three years after admission. Obviously, the Bench did not think it proper to relegate the petitioner to the statutory remedy which by then had become barred by time. Moreover, mala fides against the Chief Minister had been alleged in that case. We have also gone through the other judgments cited by the learned counsel for the petitioner and find that they are equally inapplicable and do not support the plea raised by the petitioner before us. Since the petitioner has alternative remedies available to it under the Act which, in our view, are efficacious, we refrain from entertaining the petition and dismiss the same. It will be open to the petitioner to pursue the remedy of appeal and further remedies available under the Act. If an appeal is filed within two weeks from today, the same shall be deemed to have been filed within the prescribed period of limitation. Writ petition dismissed.
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2000 (5) TMI 1050 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... ed. 4.. Before concluding, we may notice the contention of the learned Assistant Advocate-General appearing on behalf of the respondents. His argument is that in view of the provisions of section 39 of the Act, the Sales Tax Tribunal has no power to condone the delay. In support of this contention the learned State counsel placed reliance on a judgment of the Supreme Court in Commissioner of Sales Tax v. Parson Tools and Plants 1975 35 STC 413. We are unable to accept this contention. The Full Bench of this Court in Bharat Rubber and Allied Industries case 1980 46 STC 367, had after noticing this judgment of the Supreme Court held that section 5 of the Limitation Act was applicable to the proceedings under the Sales Tax Act. 5.. In the result, the writ petition is allowed, the impugned order of the Tribunal dated September 3, 1998 is set aside and the case remanded. The appeal is restored to the file of the Tribunal for decision in accordance with law. Writ petition allowed.
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2000 (5) TMI 1049 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... for the full period of five years from the date of first sale of manufactured product, the appropriate respondents shall issue such EC for the full period of five years within four weeks of this date. The use of brand name, trade mark or logo of any other company shall be no ground to deny the benefit of tax holiday to them. The notice issued by the Commissioner of Commercial Taxes on August 31, 1999 to give effect to clause (v) of Explanation I with effect from September 1, 1999 shall be of no effect in respect of the newly set up SSI units of the present applicants. We direct that way bills shall not be refused by the respondents to the applicants particularly to the applicants in RN-420 and 425 of 1999, on the ground of non-compliance of clause (v) of the Explanation I to rule 98. All the six applications are thus finally disposed of. No order for cost. J. GUPTA (Judicial Member).-I agree. D. BHATTACHARYYA (Technical Member).-I agree. Applications disposed of accordingly.
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2000 (5) TMI 1048 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... ulating the period of limitation to move the appropriate forum against the seizure or against the order in the penalty proceeding the period during which the applicants have pursued the application on the issue relating to the constitutional vires of section 69(b) shall not be taken into account. 10.. The applications are, therefore, dismissed. However, the applicants, if so advised, may approach the appropriate forum in regard to the factual issues according to law. The securities, if furnished in terms of the Tribunal s order dated May 19, 1999 shall abide by the ultimate decision in regard to the penalty matter. The bank guarantee, if furnished shall be renewed from time to time till such decision. The authorities below shall also give a reasoned finding on the factual dispute as regards the extent of claim of the applicants on the seized goods. We make no order as to cost. L.N. RAY (Chairman).-I agree. D. BHATTACHARYYA (Technical Member).-I agree. Applications dismissed.
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2000 (5) TMI 1047 - GAUHATI HIGH COURT
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... ... ..... Revenue in case S.T.A. Nos. 62-66 of 1992 is hereby quashed and set aside with a direction to restore the appeal petition to its file and heard the parties afresh. The Board of Revenue is further directed to address themselves on the aforesaid issues and give its findings on each issue by giving reasons. It is made clear that the petitioner is also at liberty to address the Board of Revenue on any question of law that may be required for just and proper adjudication of the dispute. Since the matter has been pending for quite long, the Assam Board of Revenue is directed to dispose of the appeal within a period of 2 (two) months from the date of receipt of this order. Registry is directed to transmit the case record forthwith along with a copy of this order. Till the appeal is disposed as directed, the interim order dated February 21, 1995 passed by this Court shall continue. With the aforesaid direction this petition is disposed of. No costs. Petition disposed of accordingly.
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2000 (5) TMI 1046 - DELHI HIGH COURT
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... ... ..... factual stands of the petitioner to the extent desirable while dealing with an application for stay. It suffers from no inherent fallibility to warrant interference. Additionally, financial hardship was not one of the grounds urged earlier. Stand regarding financial hardship has not only to be specifically pleaded but also materials to substantiate it must be placed on record which has not been done. 10.. On a consideration of the materials on record we do not consider this to be a fit case where any modification of the order passed by the Commissioner is called for. Accordingly, the amounts directed to be paid by him needs no modification. However, time fixed by the Commissioner has elapsed. In case the petitioner deposits the amounts directed to be paid by the Commissioner, by the end of July, 2000, the appeal shall be entertained for disposal on merits if they are otherwise free from defect. Writ petition is accordingly disposed of. Writ petition disposed of accordingly.
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2000 (5) TMI 1045 - SUPREME COURT
Whether the marriage entered into by him after conversion would be void?
Held that:- In the present case, we are not concerned with the status of the second wife or the children born out of that wedlock as in the instant case we are considering the effect of the second marriage qua the first subsisting marriage in spite of the husband having converted to 'Islam'. I also agree with Brother Sethi, J. that any direction for the enforcement of Article 44 of the Constitution could not have been issued.
I have already reproduced the order of this Court passed in Sarla Mudgal's case [1995 (5) TMI 260 - SUPREME COURT] in which it was clearly set out that the learned Counsel appearing in that case had, after taking instructions, stated that the prayers were limited to a single relief, namely, a declaration that where a non-Muslim male gets converted to the Muslim faith without any real change of belief and merely with a view to avoid any earlier marriage or to enter into a second marriage, any marriage entered into by him after conversion would be void.
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2000 (5) TMI 1044 - KERALA HIGH COURT
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... ... ..... 5865 of 1999 and 4764 of 2000 are filed raising the demands in view of the denial of exemption. All the demands pursuance to exhibits P7 and P9 shall be kept in abeyance till new orders are passed as directed, by the General Manager. In O.P. No. 4764 of 2000 it is also contended that in view of the circular the car was seized. The above car also may be released to the petitioner on execution of a bond that he will pay the demand if any after passing the order by the General Manager on the question of exemption and also undertaking that he will not alienate the vehicle and he will produce the same as and when needed depending upon the order passed by the General Manager. The General Manager should pass fresh order within three months from the date of production of a copy of this judgment with notice to the petitioner. All the original petitions are disposed of accordingly. Order on C.M.P. No. 7964 of 2000 in O.P. No. 4764 of 2000P dismissed. Petitions disposed of accordingly.
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2000 (5) TMI 1043 - KERALA HIGH COURT
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... ... ..... to act as assessing authorities, as could be seen from G.O. (Ms) No. 130/89/TD dated June 30, 1989. The Intelligence Officer of Commercial Taxes who is in the same rank of Sales Tax Officer enjoys all powers concurrently. In view of the Government order, I am not accepting the contention of the petitioner. Therefore, I am of the view that Intelligence Officer, Commercial Taxes, has got power in view of S.R.O. No. 1210/94 to pass orders like exhibit P9. With regard to the quantum of merit and quantum of penalty petitioner ought to have filed an appeal as provided under section 13 of the Act. Since petitioner had filed the writ petition and the writ petition was admitted, the petitioner is allowed to file an appeal as provided under section 13 within one month from today. Appellate authority shall consider the appeal on merits, if appeal is filed within one month from today as if the appeal is filed in time. The original petition is disposed of as above. Petition disposed of.
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2000 (5) TMI 1042 - SUPREME COURT
Whether the suit of the appellant was rightly decreed by the First Appellate Court or not?
Held that:- Having perused the order of the High Court dated 20th April, 1994 and the record of the case we find no infirmity in the view expressed by the High Court. We are unable to accept the contention of the learned counsel for the appellant that the High Court has re- appreciated the evidence as if it was deciding the first appeal. Though the High Court has observed that findings arrived at by the First Appellate Court are not based on proper appreciation of the evidence on record and the same are set aside but for all intents and purposes and in substance the conclusion of the High Court is that the decision of the First Appellate Court is based on no evidence and is perverse. We are in complete agreement with the conclusions of the High Court. The High Court has rightly drawn adverse inference on account of nonexamination of respondent no.4 as a witness by the appellant. On the facts and circumstances of the case that was vital and was rather the heart of the entire matter going to the root of the whole case. There was no explanation for non-examination of respondent no.4. Clearly, the decree of the First Appellate Court is based on no evidence and is perverse.
The appellant had admittedly knowledge of the eviction petition filed by respondent no.1 against his brother respondent no.1. On the facts of the case, it was over simplification for the First Appellate Court to observe that what transpired between the appellant and his brother was of no consequence in so far as the appellant is concerned. It is evident that the appellant was set-up by his brother after having lost in the eviction petition upto High Court and the suit was filed in the year 1976 during the pendency of the execution proceedings of the eviction order. We fail to understand what appellant was doing from 1968 upto 1976. The net result of all this has been that despite lapse of nearly 30 years since filing of the eviction petition, respondent no.1 was unable to recover the possession and that is despite the respondent no.1 having succeeded up to High Court in the eviction case nearly a quarter century ago. For the aforesaid reasons we dismiss the appeal with costs.
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