The latest ruling from the Apex Court on the need for deciding cases, which are otherwise to be dismissed for delay in filng, on merits reads as follows:-

Courts ought not to dismiss cases on mere technicalities like delay in filing an appeal or a petition unless a malafide intent is apparent on the side of the litigants, the Supreme Court has held.

A bench of Justices Deepak Verma and K S Radhakrishnan observed that courts have a duty to decide every case on merits. It is the duty of the court to see to it that justice should be done between the parties. It is pertinent to point out that unless malafide is writ large on the conduct of the party, generally as a normal rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it out on technicalities.”

The apex court passed the order while upholding an appeal filed by the Improvement Trust, Ludhiana, challenging the concurrent orders passed by the district court and the Punjab and Haryana High Court on the auction of certain properties it owns.

Courts ought not to dismiss cases on mere technicalities like delay in filing an appeal or a petition unless a malafide intent is apparent on the side of the litigants, the Supreme Court has held.

 EDITOR’s comment:-

The present ruling of the Apex court would benefit the Governmental departments more than a private appellant, since the gvenmental procedures sometimes causes undue delay in the filing of the appeals by such departments and in most of the appeals involving merits, the dept. appeal get dismissed on grounds of delayed filing. If the Courts follow the present ruling of the Apex Court, then revenue appeals involving crores of taxes/duties could be decided on merit. If the Tax Tribunals also adopt the revised ruling of the Apex Court, the benefit to both the Govt. and the private parties can be substantial. It may result in clear delivery of justice in deserving appeals.

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS

SUPREME COURT OF INDIA while remanding the case n re: ASST. COMMR. OF COMMERCIAL TAX DEPT. vs. SHUKLA & BROTHERS in C.A.. No.   .3289 of 2010 on 15.4.2010, held as follows: -

QUOTE: The increasing institution of cases in all Courts in India and the resultant burden upon the Courts has invited attention of all concerned in the justice administratin system. Despite heavy quantum of cases in Courts, in our view, it would neither be permssible nor possble to state as a principle in law, that whle exercising power of judicial review on admnistrative action and more particularly judgement of courts in appeal before the higher Court, providing of reasons can never be dispensed with. The doctrne of audi alterampartem has three basic essentials. Firstly, a person against whom any order is required to be passedor whose rights are likely to be affected adverselymust be granted an opportunity of being heard. Secondly, the concerned authoirity should provide a fair and transparent procedure and lastly, the authority concerned must apply its mind and dispose of the matter by a reasoned or speaking order.This has been uniformly applied by Courts in India and abroad.

In exercise of the powe of judicial review, the concept of reasoned orders/actions has been enforced equally by the foreign courts as by the courts in India. The administrative authoirtyand tribunals are obliged to give reasons, absence whereof could render the order liable to judicial chastise. Thus, it will not be far from absolute priniple of law that the Courts should record reasonsfor its conclusions to enable the appellate or higher Courts to exercise their jurisdiction appropriately and in accordance with law. UNQUOTE

[for full text of the judgement, please visit http://taxesinindia.com  and click on the ctation taxind_2010_sc_ca_3289]

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS administrative action, judicial review, proper reasning

SUPREME COURT OF INDIA while dismissing the appeals filed by MADRAS CEMENTS LTD vs. COMMR. OF C .EX. in Civil Appeal No. 2037 of 2006 with C.A. No.7443 of 2008 held as follows: -

QUOTE: -The short point involved is these appeals is whether the Appellant/Assessee is eligible for Modvat credit on certain goods for the period comprising November and December 1999.

The short point involved relates to the eligibility of the Assessee for Modvat credit on certain capital goods which were said to have been used as components, spares and accessories in the manufacturing process of the Appellant for the period in question.

In order to avail Modvat/Cenvat credit, an assessee has to satisfy the assessing Authorities that the capital goods in the form of components, spares and accessories had been utilised durng the process of manufacture of the finished product.

Accordingly, in this case the Appellant was not able to identify the machinery for which the goods in question had been used. In the absence of such identification, it was not possible for the Assessing Authorities to come to a decision as to whether Modvat Credit would be given in respect of the goods in question. …………….

We are not, therefore, inclined to interfere with the orders of the Tribunal and the Appeals are accordingly, dismissed. UNQUOTE

[for full text of the judgement, please visit http://www.taxesinindia.com and click on the citation taxind_2010_sc_ca_2037]

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS 1944, CEX. RULES, MODVAT CREDIT, RULE 57Q

SUPREME COURT OF INDIA while dismissing the appeals filed by MADRAS CEMENTS LTD vs. COMMR. OF C .EX. in Civil Appeal No. 2037 of 2006 with C.A. No.7443 of 2008 held as follows: -

QUOTE: -The short point involved is these appeals is whether the Appellant/Assessee is eligible for Modvat credit on certain goods for the period comprising November and December 1999.

The short point involved relates to the eligibility of the Assessee for Modvat credit on certain capital goods which were said to have been used as components, spares and accessories in the manufacturing process of the Appellant for the period in question.

In order to avail Modvat/Cenvat credit, an assessee has to satisfy the assessing Authorities that the capital goods in the form of components, spares and accessories had been utilised durng the process of manufacture of the finished product.

Accordingly, in this case the Appellant was not able to identify the machinery for whch the goods in question had been used. In the absence of such identification, it was not possible for the Assessing Authorities to come to a decision as to whether Modvat Credit would be given in respect of the goods in question. …………….

We are not, therefore, inclined to interfere with the orders of the Tribunal and the Appeals are accordingly, dismissed. UNQUOTE

[for full text of the judgement, please visit http://www.taxesinindia.com and click on the citation taxind_2010_sc_ca_2037/2006]

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS

DUE TO CERTAIN CALAMITIES IN MY FAMILY LIFE, I COULD NOT CONCENTRATE ON POSTING IMPORTANT LEGAL NEWS ITEMS FOR THE PAST THREE MONTHS. NOW THAT ALL SUCH WORRIS ARE OVER, I AM BAK WITH FULL ENERGY TO UPDATE THE LEGAL NEWS / JUDGEMENTS etc. THANK YOU FOR YOUR PATIENCE.

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS

SUPREME COURT OF INDIA while deciding the Civil Appeal No. 786 of 2010 with C.A. Nos. 787-792 of 2010, on 20.01.10, in re: COMMISSIONER OF INCOME TAX, MUMBAI vs EMPTEE POLY-YARN PVT. LTD, observed as follows: -

QUOTE: Repeatedly this Court has recommended to the Deaprtment, be it under Excise Act, Customs Act or the Income Tax Act, to examine the process applicable to the product in question and not to go only by the dictionary meanings. This recommendation is not being followed over the years. Even when the assessee gives an opinion on a given process, the Department does not submit any counter opinion wherever such counter opinion is possible. PRIMA FACIE, however, in this case, we do not see possibility of any counter opinion to the opinion given by the Mumbai University, vide letter dated 10th July, 1999.

[for full text of the judgement please visit http://www.taxesinindia.com      and click on the citation taxind_2010_sc_ca_786]

SUPREME COURT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS Customs Act, DICTIONARY MEANING, Excise Act, INCOME TAX ACT, PRIMA FACIE

SUPREME COURT OF INDIA while deciding the Civil appeal no.8036 of 2009 with C.A.Nos. 8037-8044 of 2009, on 2.12.09, in re: INCOME TAX OFFICER, UDIAPUR vs ARIHANT TILES & MARBLES (P) LTD observed as follows:-

QUOTE : In the present case, we have extrated in detail the process undertaken by each of the respondents before us. In the present case, we are not concerned only with cutting of marble blocks into slabs. In the present case we are also concerened with the activity of polishing and ultimate conversion of blocks into polished slabs and tiles. What we find from the process indicated hereinabove is that there are various stages through which the blocks have to go through before they become polished slabs and tiles. In the circumstances, we are of the view tat on the facts of the cases in hand, there is certainly an acitivitywhich will come in the category of MANUFACTURE or PORDUCTION under Section 80 IA of the Income Tax Act. As stated hereinabove, the judgement of this Court in AMAN MARBLE INDUSTRIES (PVT). LTD was not required to construe the word PRODUCTION in addition to the word MANUFACTURE. One has to examine the scheme of the Act also while deciding the question as to whether the activity constitutes MANUFACTURE or PRODUCTION. Therefore, looking to the nature of the activity stepwise, we are of the view that the subject activity certainly constitutes MANUFACTURE or PRODUCTION in terms of Section 80 IA. In this connection, our view is also fortified by the following judgements of this Court which have been fairly pointed out to us bt learned counsel appearing for the Department. UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_sc_ca_8036]

SUPREME COURT JUDGEMENT

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS manufacture, production section 80 IA of the Income Tax Act

SUPREME COURT OF INDIA while deciding the Civil Appeal No. 7129 of 2002 on 23/4/08 in re: MOTOR INDUSTRIES CO. LTD vs COMMR. OF CUSTOMS, observed as follows: -

QUOTE: No special or extraordinary reasons have been recorded for rejecting the transaction value. It is settled law that unless transaction value is rejected for extraordinary or special reasons, the same has to be accepted. We agree with the submission made by Mr. Vellapally appearing for the assessee that the Tribunal has fallen in error in taking a decision contrary to the principle laid down by this Court in case of EICHER TRACTORS [2000-122-ELT-321(SC) and other decisions mentioned above. Under the circumstances, the impugned order of the Tribunal and the adjudicating authority are set aside and that of the first appellate authority is restored. The appeal is allowed accordingly. UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com  and click on the citation taxind_2009_sc_ca_7179]

SUPREMR COURT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS REJECTION, SPECIAL OR EXTRAORDINARY REASONS, Transaction value

SUPREME COURT OF INDIA [bench of Justices Tarun Chatterjee and Surinder Singh Nijar] held on 03.12.09 as follows: -

Getting your job back after a long bitter legal battle with your employer hardly means he has to pay you the entire back wages FOR CONTRIBUTING LITTLE OR NOTHING to the establishment. Employers can decide on a case-to-case basis if they really have to pay full back wages to a staffer, who had been terminated from service but had gone to court and won his jpb back. The payment of back wages having a discretionary element involved in it, had to be dealt with in the circumstances of each case and no straight jacket formula can be evolved. The rationale for the pick and choose policy, the court said, is that an ousted employee ends up CONTRIBUTING LITTLE OR NOTHING to the employerduring the period of absence. Payment of full back wages upon an order of termination being declared illegal cannot be granted mechanically. It does not automatically follow that reinstatement must be accompanied by payment of full back wages even for the period when the workman remained out of service and contributed little or nothing to the industry. The court was deciding an appeal by a Kanpur based marble company against their oldf-time accountant.

[full text of the judgement will be placed in the website http://www.taxesinindia.com as soon as it is available for publication]

SUPREME COURT ORDER

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS DISCRETIONARY ELEMENT, FULL PAYMENT OF BACK WAGES, REINSTATEMENT

IN THE HIGH COURT OF DELHI, while deciding on 28.8.09 the W.P.(C) Nos.1854 and 1895-1898/1992 in re: J&K CIGARETTES LTD vs CCEX the conclusions were summarised as follows:-

QUOTE: Thus, we summarize our conclusions as under:-

(i) We are of the opinion that the provisions of Section 9D(2) of the Act are not unconstitutional or ultra vires
(ii) while invoking Section 9D of the Act, the concerned authority is to form an opinion on the basis of material on record that a particular ground, as stipulated in the said Section, exists and is established.
(iii) such an opinion has to be supported with reasons
(iv) before arriving at this opinion, the authority would give opportunity to the affected party to make submissions on the available material on the basis of which the authority intends to arrive at the said opinion; and
(v) it is always open to the affected party to challenge the invocation of provisions of Section 9D of the Act in a particular case by filing statutory appeal, which provides for judicial review.

UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_del_wpc_1854]

HIGH COURT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS challenge the invocation of provisions, opportunity to make submissions, ultra vires, unconstitutional