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2006 (5) TMI 488
Issues Involved:
1. Legality of externment proceedings under Section 47 of the Delhi Police Act, 1978.
2. Sufficiency and specificity of the show cause notice.
3. Compliance with procedural safeguards and principles of natural justice.
4. Requirement for disclosure of witness identities in externment cases.
5. Judicial review of the satisfaction of the authority.
Detailed Analysis:
1. Legality of Externment Proceedings under Section 47 of the Delhi Police Act, 1978:
The externment proceeding against the Respondent was initiated under Section 47 of the Delhi Police Act, 1978, on the grounds that his movements and acts caused alarm, danger, and harm to persons and property. The Respondent had multiple criminal proceedings instituted against him, with convictions in some cases and acquittals in others. The show cause notice alleged that his activities rendered him hazardous to the community, and witnesses were unwilling to testify against him due to fear.
2. Sufficiency and Specificity of the Show Cause Notice:
The Respondent challenged the vagueness of the show cause notice. However, the High Court held that the notice contained the general nature of the material allegations and listed the cases involved, thus satisfying the statutory requirement. The Court cited the precedent set in Pandharinath Shridhar Rangnekar v. Dy. Commissioner of Police, which allows for general allegations in externment proceedings to protect witness identities.
3. Compliance with Procedural Safeguards and Principles of Natural Justice:
The High Court emphasized that all statutory and constitutional requirements must be fulfilled in externment proceedings. The Act mandates a reasonable opportunity for the proceedee to tender an explanation, and the satisfaction of the authority must be based on objective criteria. The Court noted that the procedural safeguards in the Act, such as providing a hearing and the right to be represented by counsel, must be scrupulously complied with.
4. Requirement for Disclosure of Witness Identities in Externment Cases:
The High Court initially found that the failure to disclose the names of witnesses who were unwilling to testify due to fear violated principles of natural justice. However, the Supreme Court disagreed, stating that such disclosure would defeat the purpose of Section 47 of the Act, which aims to protect witnesses from harm. The Court held that the requirement is to inform the proceedee of the general nature of the material allegations, not specific details that could endanger witnesses.
5. Judicial Review of the Satisfaction of the Authority:
The Supreme Court reiterated that the satisfaction of the authority in externment proceedings is primarily subjective but must be based on objective criteria. The Court will not interfere with the authority's satisfaction unless it is demonstratively perverse, based on no evidence, or results in prejudice due to lack of due opportunity. The Court emphasized that while the fundamental rights of the proceedee must be safeguarded, the secrecy of witness identities is crucial to the effectiveness of externment proceedings.
Conclusion:
The Supreme Court allowed the appeal, disagreeing with the High Court's requirement for disclosure of specific witness identities. The Court upheld the general nature of the allegations in the show cause notice, emphasizing the need to protect witnesses. The period of externment had expired, so the impugned order of the High Court was not given effect. The appeal was disposed of with no order as to costs.
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2006 (5) TMI 487
Title: Supreme Court Judgment - 2006 (5) TMI 487 - SC Order
Judges: Ruma Pal and Dalveer Bhandari
Decision: Civil appeal dismissed, no reason to interfere with the order under challenge.
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2006 (5) TMI 486
... ...
... ... ..... , the reasoning of the Tribunal, seems to us, is in order. The Appeal is dismissed.
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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
Issues involved:
1. Whether appellants can take "Suo moto" credit against reversal made by them without a show cause notice?
2. Validity of the Commissioner's order allowing the appeal.
3. Legality of the impugned order and the Revenue's appeal.
Analysis:
1. The primary issue in this case revolves around whether the appellants were entitled to take "Suo moto" credit against a reversal made by them without a show cause notice. The Commissioner noted that the credits originally taken by the appellants, which were reversed, were not eligible to be denied without a proper show cause notice issued by the Department. The Commissioner highlighted that the re-credits taken by the appellants were based on their letters and that the Department had not issued any show cause notice to deny the credits initially taken. Referring to a similar case, the Commissioner held that the suo moto credit taken after intimation to the Assistant Commissioner cannot be denied, following the Tribunal's decision in a specific case. Consequently, the Commissioner set aside the impugned order, allowing the appeal of the appellants with consequential relief.
2. The second issue pertains to the validity of the Commissioner's order that allowed the appeal filed before him. The order emphasized that no legally valid order had been passed for the denial of the Modvat credit taken by the appellants. The Commissioner's decision was based on the lack of a show cause notice from the Department to recover the credits initially taken. The order also mentioned that the Commissioner had followed a previous order of the Tribunal in a similar case, indicating that the decision was in line with established legal principles. Therefore, the Commissioner's order was deemed legally sound, and there was no illegality in the impugned order.
3. Lastly, the legality of the impugned order and the appeal filed by the Revenue were considered. The order stated that there was no merit in the Revenue's appeal, which was consequently rejected. The decision was based on the Commissioner's adherence to legal procedures and precedents set by the Tribunal. The order was dictated and pronounced in open court on a specified date, finalizing the resolution of the issues raised in the case.
In conclusion, the judgment by the Appellate Tribunal CESTAT NEW DELHI upheld the appellants' right to take "Suo moto" credit against a reversal without a show cause notice, affirmed the validity of the Commissioner's order allowing the appeal, and rejected the Revenue's appeal based on the legal soundness of the decisions made.
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2006 (5) TMI 483
Issues Involved:
1. Applicability of Standards of Weights and Measures Act, 1976, and the Enforcement Act, 1985 to sun glasses.
2. Whether sun glasses are considered a "pre-packed commodity" under the Act and Rules.
3. Legality of the seizure and compounding process undertaken by the respondents.
Issue-wise Detailed Analysis:
1. Applicability of Standards of Weights and Measures Act, 1976, and the Enforcement Act, 1985 to sun glasses:
The petitioner contended that no notification has been issued under Section 1(3)(c) of the Act or the Enforcement Act that would apply the provisions of these Acts to sun glasses. The court examined the notification dated 26th September 1977, which brought into force Sections 1, 2, 3, 39, and 83 of the Act. It was determined that once these sections are in force, there is no need for separate notifications for different classes of goods. Thus, the court rejected the petitioner's argument, stating that all pre-packaged commodities covered by the Act and the Rules would be governed by the applicable sections.
2. Whether sun glasses are considered a "pre-packed commodity" under the Act and Rules:
The court analyzed the definitions under Section 2(b) of the Act and Rule 2(1) of the Rules. A "commodity in packaged form" is defined as a commodity packaged in units suitable for sale. A "pre-packed commodity" is one where the quantity has a predetermined value that cannot be altered without opening the package. The court found that sun glasses do not meet these criteria as their value does not change whether they are inside or outside the package, and they are not sold in a sealed package. The court referenced judgments from other cases, such as *Philips India Ltd. v. Union of India* and *Eureka Forbes Limited v. Union of India*, which supported the view that the Act is intended for commodities sold by weight, measure, or number, and not for items like sun glasses that are sold individually and not necessarily in a packaged form.
3. Legality of the seizure and compounding process undertaken by the respondents:
The petitioner argued that the seizure of sun glasses and the compounding process were arbitrary, illegal, and conducted under duress. The respondents claimed that the petitioner voluntarily agreed to compound the offense and denied any coercion. The court, however, concluded that the seizure itself was without authority of law, as the Act and Rules did not apply to sun glasses. Consequently, the entire action by the respondents was deemed illegal.
Conclusion:
The court ruled that sun glasses do not fall under the definition of "pre-packed commodity" as per the Act and Rules. Therefore, the seizure and subsequent actions by the respondents were without legal authority. The petition was allowed, and the court made the rule absolute in terms of prayer clauses (a) and (b), with no order as to costs.
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2006 (5) TMI 482
Issues:
Classification of imported items under Customs Tariff Headings and benefit of Notifications.
Analysis:
The case involves the classification of imported items under Customs Tariff Headings and the eligibility for benefits under specific Notifications. The appellant, a PSU, imported two items and filed 20 bills of entry. The first item, described as a "Model LSP 340 E Fixed Wireless Telephone (NIU Hardware)," was initially classified by the appellant under different headings to avail benefits under specific Notifications. The Department disagreed with the classification and denied the benefits claimed. The issue primarily revolved around the classification of this item as a "cellular phone" under Customs Tariff Heading 8525 20 17 to avail concessional rates under relevant Notifications.
The appellant contended that the item should be classified as a "cellular phone" based on previous judgments, including one by the Mumbai Bench in a similar case and upheld by the Apex Court. The Tribunal considered these precedents and agreed with the appellant's classification, noting that the item should indeed be classified as a "cellular phone" under Heading 8525 20 17 of the Customs Tariff, thereby entitling the appellant to the benefits under the relevant Notification. The Tribunal also highlighted that a Circular by the Board had no effect, as confirmed by the High Court of Andhra Pradesh, further supporting the classification of the item as a "cellular phone."
In conclusion, the Tribunal allowed the stay application and appeal in favor of the appellant, granting them consequential relief based on the cited judgments. The decision emphasized the correct classification of the item as a "cellular phone" under the specific Customs Tariff Heading and the entitlement to benefits under the relevant Notification.
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2006 (5) TMI 481
Issues: Interpretation of Rule 2(g) of the Cenvat Credit Rules, 2002 regarding the eligibility of credit for electricity supplied outside the factory from steam generated within the factory.
In this judgment by the Appellate Tribunal CESTAT CHENNAI, the subject appeal was filed by M/s. The Madras Aluminium Co. Ltd. (MALCO) against an Order-in-Appeal requiring them to pay a certain amount under the Central Excise Act for inadmissible credit taken on inputs used in the generation of steam converted into electricity supplied outside the factory. The Commissioner held that inputs related to electricity supplied outside the factory would not be considered as inputs used in the manufacture of final products within the factory. The dispute revolves around the interpretation of Rule 2(g) of the Cenvat Credit Rules, 2002, which defines "inputs" as goods used in or in relation to the manufacture of final products, including for generation of electricity or steam used for manufacturing final products within the factory. The Tribunal's decision in Gujarat Narmada Fertilizers Co. Ltd. case supported the eligibility of credit for inputs used for multiple purposes within the factory, including electricity generation. The Tribunal's ruling was upheld by the Gujarat High Court in a subsequent case. Following these precedents, the Tribunal allowed MALCO's appeal, stating that credit must be allowed on all inputs if the steam generated with them is used within the factory for any purpose.
This judgment clarifies the eligibility of credit under the Cenvat Credit Rules, emphasizing that if inputs are used within the factory for any purpose, including the generation of electricity or steam, credit must be allowed. The decision highlights the importance of the location and purpose of input usage in determining credit eligibility. The Tribunal's reliance on previous rulings and the interpretation of Rule 2(g) provides a framework for assessing credit claims related to electricity generation from steam within the factory.
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2006 (5) TMI 480
Issues: Refund of duties paid under protest for the period November 1999 to November 2000
In this judgment by the Appellate Tribunal CESTAT MUMBAI, the issue involved is the refund of duties paid under protest for a specific period, which was denied by lower authorities for various reasons. The first reason cited was that BOPP film was not considered a plain film. Secondly, non-compliance with the procedures of 1996 Rules for end-use verification was mentioned. Thirdly, it was noted that on certain Bills of Entry, no appeal against the assessment order was filed by importers, invoking the bar of refund as per the Priya Blue decision. Lastly, the issue of unjust enrichment was highlighted as needing consideration.
The appellants argued that an explanation added to Notification No. 25/99 on 1-3-2001 included BOPP films as eligible for the benefit of the notification under the term "plain plastic film." The Tribunal accepted this argument, stating that the amendment clarified the scope of the exemption retrospectively. It was noted that the subject films were always entitled to the notification's benefit, especially after the clarification by the Board was overruled by the legislative intent shown in the amendment of Notification No. 20/01-Cus., dated 1-3-2001. The Tribunal decided to set aside the order, remit the issue back to the original authority, and directed them to reconsider the refund applications, determine the refund amount, and pay it after hearing the appellants.
To expedite the resolution of the matter, the Tribunal imposed a time-bound decision on the original authority, giving them 30 days from the receipt of the order in the Custom House to conclude the refund claims. It was emphasized that the appellants must be heard before a decision is made, and they should cooperate without seeking adjournments during the hearing dates. The appeal was disposed of as remand in the terms mentioned above, providing a clear direction for the further proceedings in the case.
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2006 (5) TMI 479
Issues Involved:
1. Entitlement of the plaintiff to the claimed amount.
2. Condonation of delay in filing and refiling the appeal by the defendants.
3. Jurisdiction of the trial court to entertain and decide the suit.
Issue-wise Detailed Analysis:
1. Entitlement of the plaintiff to the claimed amount:
The plaintiff, a private limited company, filed a suit for recovery of Rs. 3,35,000/- against the defendants, including the Secretary, Ministry of Finance (Revenue), and the Commissioner of Customs. The plaintiff was engaged in import and export and had been granted a Duty-Free Licence with import entitlement for acrylic fibre without payment of duty, contingent upon exporting acrylic yarn. The plaintiff fulfilled these obligations, but the officials of the defendants allegedly harassed the plaintiff and made false reports. A notice was issued under Section 124 of the Customs Act, 1962, leading to the confiscation of goods and imposition of a penalty, which was later quashed by the court. The plaintiff sought interest on the refunded amount of Rs. 5 lakhs, which was deposited during the appeal. The trial court decreed the suit, awarding interest at 12% per annum from the date of deposit until the refund date, citing the erroneous order of the defendants. The plaintiff was also entitled to interest on the decretal amount pending litigation until realization.
2. Condonation of delay in filing and refiling the appeal by the defendants:
The defendants filed an appeal against the trial court's judgment, along with applications for condonation of delay in filing and refiling the appeal. The delay was attributed to unreadable photocopies of documents and the need for multiple approvals within the Union of India (UOI). The appeal was initially filed 203 days late and refiled after more than a year. The court found the reasons for the delay insufficient and lacking basic details. It emphasized that while the UOI might not need to explain each day's delay, a reasonable explanation for the overall delay was necessary. The court referenced several judgments, including those of the Supreme Court, emphasizing that the right accrued to the decree-holder by lapse of time should not be disturbed lightly and that sufficient cause must be shown to condone the delay. The court found no merit in the applications for condonation of delay and dismissed them.
3. Jurisdiction of the trial court to entertain and decide the suit:
The defendants contended that the trial court lacked jurisdiction to entertain the suit. However, this objection was not raised in the written statement, no issue was framed, and the parties led evidence conceding the court's jurisdiction. The court noted that even if such an objection existed, it would stand waived, and the memorandum of appeal did not clarify the grounds for questioning the court's jurisdiction. The plaintiff's claim was based on the wrongful retention of amounts by the defendants, and the court found no merit in the jurisdictional contention.
Conclusion:
The High Court dismissed the appeal, finding no merit in the defendants' applications for condonation of delay and rejecting the jurisdictional challenge. The trial court's judgment awarding interest to the plaintiff was upheld, and the parties were directed to bear their 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
Issues:
1. Refusal to state the case and refer questions to the High Court under Section 256(2) of the IT Act, 1961.
2. Legality of allowing depreciation, investment allowance, wages, and interest when commencement of production was not proven.
3. Justification of Tribunal's finding on the commencement of commercial production during the relevant year.
Analysis:
1. The case involved an application under Section 256(2) of the IT Act, 1961, seeking reference of questions to the High Court. The Tribunal had refused to state the case based on the premise that the questions raised were not of law arising from its appellate order. The High Court examined the facts and legal aspects to determine the correctness of the Tribunal's decision.
2. The dispute centered around the allowance of depreciation and investment allowance when the commencement of production was in question. The assessee claimed to have started commercial production on a specific date, supported by the acquisition and installation of machinery, purchase of raw material, and sale of products. The Assessing Officer (AO) and CIT(A) disagreed, leading to the Tribunal's intervention.
3. The Tribunal's decision was crucial in determining whether the assessee had indeed commenced commercial production during the relevant year. The Tribunal found that the machinery was used for trial production, which was essential for the business, even if the commercial production did not proceed as expected. The Tribunal emphasized that the machines were used for the business purpose, supporting the allowance of depreciation and investment based on the factual record.
4. The High Court upheld the Tribunal's findings, emphasizing that the critical factor for allowing deductions like depreciation and investment allowance is the use of machinery for the assessee's business. The Tribunal's conclusion that the machinery was utilized for business purposes during the previous year was considered a finding of fact, justifying the refusal to refer questions to the High Court.
5. Ultimately, the High Court rejected the reference case, affirming the Tribunal's decision not to refer the questions to the High Court for opinion. The judgment highlighted the significance of the factual record and the use of machinery for business purposes in determining the eligibility for deductions under the IT Act, 1961.
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2006 (5) TMI 476
Issues Involved:
1. Whether the acceptance and encashment of cheques by the appellant amounted to acceptance of the offer in full and final settlement of the claim.
2. Applicability of Section 8 of the Contract Act regarding acceptance by conduct.
3. Evaluation of previous judgments and their relevance to the present case.
Issue-wise Detailed Analysis:
1. Acceptance and Encashment of Cheques:
The core issue was whether the appellant's acceptance and encashment of the cheques sent by the Railways amounted to acceptance of the offer in full and final settlement of the claim. The Railways had sent cheques along with a letter stating that if the cheques were not acceptable in full and final settlement, they should be returned forthwith. The appellant encashed the cheques but wrote letters of protest stating that the claims were placed under protest and demanded the balance amount. The Railway Claims Tribunal and the High Court concluded that by encashing the cheques without returning them, the appellant had accepted the offer in full and final settlement.
2. Applicability of Section 8 of the Contract Act:
Section 8 of the Contract Act states, "Acceptance by performing conditions, or receiving consideration - Performance of the conditions of a proposal, or the acceptance of any consideration for a reciprocal promise which may be offered with a proposal, is an acceptance of the proposal." The High Court and the Supreme Court applied this section to conclude that the appellant's act of encashing the cheques constituted acceptance of the Railways' offer. The appellant's subsequent protest did not alter the fact that the offer had been accepted by conduct.
3. Evaluation of Previous Judgments:
The Supreme Court evaluated several previous judgments to determine the applicability of principles regarding acceptance by conduct:
- Rameshwarlal Bhagchand Case: The court held that the plaintiff had accepted the offer by encashing the cheque without prior protest, thus signifying acceptance by conduct under Section 8 of the Contract Act.
- Assam Bengal Cereals Limited Case: The facts differed as the claimant had protested and demanded reasons before encashing the cheque, thus not accepting the offer by conduct.
- Amar Nath Chand Prakash Case: The endorsement of "under protest" before encashment indicated non-acceptance of the offer, thus no accord and satisfaction.
- Gangaram Bhagwandas Case: The plaintiff did not accept the cheque in full satisfaction and continued the suit for the balance amount, indicating non-acceptance of the offer.
Conclusion:
The Supreme Court concluded that in the absence of evidence showing that the protest letters were sent before encashing the cheques, it must be held that the appellant accepted the offer by conduct. The appeals were dismissed without any order as to costs, affirming the decisions of the Railway Claims Tribunal and the High Court that the appellant had accepted the offer in full and final settlement by encashing the cheques.
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2006 (5) TMI 475
Issues: Application to quash summons under Section 482 Cr. P.C.
Analysis:
1. The applicants filed an application to quash the summons issued by the opposite party under Section 14 of the Central Excise Act, 1944/Section 108 of the Customs Act, 1962. The applicants, M/s. TVC Skyshop Limited and Vinod Aggarwal, sought relief through the inherent powers of the High Court under Section 482 Cr. P.C. to prevent abuse of the court process. The impugned summons were issued by the Superintendent, Central Excise CPU (HQRS) Thane-II, in connection with an ongoing inquiry against the applicants.
2. The court deliberated on the scope of inherent powers under Section 482 Cr. P.C. and emphasized that these powers are not to be utilized to interfere in ongoing investigations or inquiries. While the inquiry pending against the applicants may be deemed as a judicial proceeding under relevant statutes, the court clarified that the inherent powers cannot be invoked to impede such proceedings. The court highlighted that the term 'process' encompasses actions taken by the court, and in this case, the summons were issued in the context of the inquiry, not by a court.
3. The judgment concluded by dismissing the application to quash the summons, stating that the applicants have the option to pursue alternative legal remedies such as filing a writ petition under Article 226 or 227 of the Constitution of India. The court reiterated that the inherent powers under Section 482 Cr. P.C. are not applicable to intervene in ongoing investigations or inquiries, thereby rendering the application not maintainable in this instance.
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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
Issues Involved:
1. Validity of two-tier arbitration under the Arbitration and Conciliation Act, 1996.
2. Nature of the ICC arbitrator's role (whether appellate or not).
3. Classification of the ICC award as a foreign award.
4. Adequacy of opportunity for HCL to present its case before the ICC arbitrator.
Issue-wise Detailed Analysis:
Issue No. 1: Validity of Two-Tier Arbitration
The court examined whether the second part of Clause 14 of the agreement, which provided for a two-tier arbitration, was valid and permissible under the Arbitration and Conciliation Act, 1996. Both the Division Bench and the learned Single Judge had previously held that such an agreement was valid. The court noted that two-tier arbitration was permissible under both the 1899 and 1940 Acts, citing cases like Hiralal Agarwalla v. Jokin Nahopier & Co., Fazalally Jivaji Raja v. Khimji Poonji & Co., and M.A. & Sons v. Madras Oil & Seeds Exchange Ltd. The court found no prohibition in the 1996 Act against two-tier arbitration, emphasizing that the parties' autonomy to contract as they desire should not be curtailed by Section 34 of the Act. The court concluded that the two-tier arbitration agreement was valid and permissible in India, and it did not violate public policy.
Issue No. 2: Nature of the ICC Arbitrator's Role
To determine whether the ICC arbitrator acted in an appellate capacity, the court closely examined Clause 14 of the agreement. The clause allowed for arbitration in India and, if either party disagreed with the result, an appeal to a second arbitrator in London under the ICC rules. The court emphasized the significance of the word "appeal" in the clause, indicating that the ICC arbitrator was intended to act as an appellate forum. The ICC arbitrator's award explicitly stated that the first award was wrong, further supporting the appellate nature of the second arbitration. The court concluded that the ICC arbitrator did act in an appellate capacity, overturning the Division Bench's finding that the second arbitration was not an appeal.
Issue No. 3: Classification of the ICC Award as a Foreign Award
The court addressed whether the ICC award was a foreign award under Section 44 of the Act. The learned Single Judge had held it to be a foreign award, while the Division Bench disagreed. Section 44 defines a foreign award based on three conditions: commercial relationship, written agreement, and award made in a convention country. The court found that all these conditions were met in this case. The Division Bench had relied on the phrase "unless the context otherwise requires" to argue that the award was domestic due to the governing Indian law. However, the court distinguished this case from previous rulings under the repealed Foreign Awards (Recognition and Enforcement) Act, 1961, noting that the 1996 Act deliberately omitted a similar provision. The court concluded that the ICC award was indeed a foreign award, as the conditions under Section 44 were satisfied.
Issue No. 4: Adequacy of Opportunity for HCL to Present Its Case
Under Section 48(1)(b) of the Act, enforcement of a foreign award can be refused if the party against whom it is invoked was unable to present its case. The court examined whether HCL had a fair opportunity to present its case before the ICC arbitrator. Despite HCL's initial refusal to participate, the court noted delays in the proceedings not attributable to HCL and the impact of the 9/11 terrorist attacks on communication. The court found that the ICC arbitrator's refusal to consider materials submitted by HCL after a certain date was based on a technicality and that HCL did not receive a fair hearing. Consequently, the court set aside the ICC award and remitted the matter back to the ICC arbitrator for fresh disposal, directing that a new award be passed within three months.
Conclusion:
The court disposed of both appeals, setting aside the judgments of the Division Bench and the learned Single Judge of the Calcutta High Court. The matter was referred to a larger Bench for further consideration due to the difference of opinion among the judges.
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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
Issues:
Assessment order refusal for exclusion of turnover on the ground of manufacturer type, appellate authority's exemption grant, department's challenge, failure to examine manufacturer details, and legal sustainability of the Tribunal's order.
Analysis:
The judgment pertains to an assessment order under the U.P. Trade Tax Act, 1948 for the year 1993-94, where the claim for exclusion of turnover related to footwear trade was refused based on the manufacturer's type. The first appellate authority allowed the appeal, exempting the turnover on the grounds of footwear being covered under commodities manufactured in a khadi industry. Subsequently, the department filed a second appeal, which was dismissed, leading to the present trade tax revision.
The department contended that the assessee, not being a manufacturer of the footwear and failing to prove that the traded footwear was from a small-scale or gramodyog industry, was not entitled to tax exemption solely based on registration with the Khadi Gramodyog Board. The Tribunal's failure to consider this aspect led to the quashing of its order, as the manufacturer details were crucial for determining exemption eligibility.
The counsel for the assessee argued that notifications and certificates supported the exemption claim based on the Khadi Gramodyog Board's certificate. However, the Tribunal's failure to examine whether the traded footwear was manufactured by a relevant industry or the applicability of the exemption certificate raised concerns about the order's legal sustainability.
The court emphasized the Tribunal's duty to thoroughly examine all relevant facts and legal aspects, including the manufacturer's details and the exemption certificate's scope. As the Tribunal failed to address these crucial points, the order was quashed, and the matter was remanded for a detailed reconsideration, ensuring a reasoned decision based on all pertinent issues. The trade tax revision was allowed, subject to the specified observations, for a comprehensive reevaluation by the Tribunal.
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2006 (5) TMI 469
The applicant filed for waiver of pre-deposit of service tax demand of Rs. 60.38 lakhs and penalties. Adjudicating authority treated applicant as "Mandap Keeper" liable for service tax. Applicant cited Calcutta High Court cases where services to members were not taxed. Pre-deposit waived for appeal hearing. Stay petition allowed.
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9911796707
