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Benami plea when available ? ; Admissions in Earlier suit whether admissible ? ;Hindu Succession Act

Benami plea when available ?- in the absence of pleadings and evidence that 'purchase in the name of wife or unmarried daughter is not intended to confer any benefit on the person in whose name document was obtained'. it can not be said that the husband is the owner but not wife though holds register document in her favour as Benami for her husband before commencement of Benami Prohibition Act - the document was that of 1933 much earlier to the Act - Benami Plea can be raised but mere pleading and evidence that his father purchased the properties in the name of  first wife is not sufficient to bring the properties of partition - Burden lies on the plaintiff who claims that it is a Benami for real owner but his evidence is silent as to whether Rama Swamy obtained documents in the name of Narasamma without intending to confer any benefit on her.  ;

Admissions in Earlier suit whether admissible ? - Section 21  and 115 of the Act of 1872. -admissions may be proved as against the pe…

whether the commodities RB Fatty Acid and RB Acid Oil which emerged in the unit of the dealer, which is manufacturing Rice Bran Oil, are different commodities and entities known differently in commercial parlance and whether such emerged commodities are distinct from Rice Bran Oil. Secondly, whether such distinct and different commodities are capable of being put to the same use? Thirdly, whether such distinct and different commodities differ not only in character and economic perspective but also in common and commercial parlance understanding? On the application of the tests and on consideration of the facts and circumstances of the case, we are of the considered view that RB Fatty Acid and RB Acid Oil are distinct and different from Rice Bran Oil. Admittedly Rice Bran Oil is an edible oil whereas the other two commodities viz., RB Fatty Acid and RB Acid Oil are useful for manufacturing of soaps and are not edible. How an article or commodity is understood in the trade i.e., by the dealer or customer is also one of the important considerations. Functional utility and predominant usage have also to be taken into account while determining the class of commodity. The law is well settled that in the law dealing with sales tax, the taxable event is the sale and not the manufacture of goods. Nevertheless, if the question is whether a new commercial commodity has come into existence or not, it is necessary to examine whether the goods ceased to be the goods of one taxable description and had become commercially different commodity of different category and description during the course of manufacture. When un-refined raw rice bran oil is subjected to a process of refining, two distinct and different commodities namely RB Fatty Acid and RB Acid Oil had also emerged. Therefore, the manufacturing process had altered the identity of one commercial commodity and new commercial commodities had emerged. The law of sales tax is also concerned with goods of various descriptions. It cannot be disputed that the two commodities namely RB Fatty Acid and RB Acid Oil, which are of commercially different category and description, had emerged during the process of manufacture of Rice Bran Oil. The principle which is fairly well settled is that the words or expressions under the statute must be construed in the sense in which they are understood in the trade, by the dealer and the consumer because it is they who are concerned with it and it is the sense in which they understand it that constitutes the definitive index of the legislative intention when the Statute was enacted. Therefore, the test is how the product is identified by the class or section of people dealing with or using the product. That is the test which is attracted whenever the Statute does not contain any definition. It is generally, by its functional character that a product is so identified. Therefore, coming to the commodities in the case on hand, Rice Bran Oil which is fit for human consumption can only be a different and distinct commodity from the other two commodities viz., RB Fatty Acid and RB Acid Oil as the former is fit for human consumption while the latter two commodities are only used in the process of manufacture of soaps/cattle feed. It is pertinent to note that RB fatty acid and RB acid oil and Rice Bran oil are considered as distinct and different commodities for the purpose of levy and collection of excise duty. 7. (e) Therefore, we do not find any merit in the contention of the learned counsel for the appellant/dealer that RB Acid Oil and RB Fatty Acid could not be considered as distinct and different from Rice Bran Oil. As a sequel we find that the order of the respondent, which is impugned, is in accordance with the law and does not brook interference. The point is accordingly answered against the appellant/dealer. In the result, the Special Appeal is dismissed. There shall be no order as to costs.

THE HONBLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE  M. SEETHARAMA M.SEETHARAMA MURTI                

Special Appeal No.1 of 2004

12-03-2015

M/s.Sri Venkata Rama Oil Industries Limited, Hussainpuram, Samalkot, East
Godavari District.. Appellant                                

Commissioner of Commercial Taxes, Andhra Pradesh, Hyderabad.... Respondent  

Counsel for the appellant: Sri S.Krishna Murthy

Counsel for Respondent No.1     : None appeared
Counsel for Respondent No.2     : Special Standing Counsel for
                                  Commercial Taxes

<Gist :

>Head Note:

? Cases referred:

1.  1989(4) E.L.T. 287 (SC)
2.  1960 (Vol.XI) STC page 827
3.  1988 (Vol.7) APSTJ page 4
4.  1994 (Vol.95) STC page 181


THE HONBLE SRI JUSTICE K.C. BHANU      
AND
THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI          
Spl.A.No.1 of 2004

JUDGMENT: (per Honble Sri Justice M. Seetharama Murti)

        This special appeal by the appellant/dealer is directed against the
order…

we are of the well considered view that the panel of Arbitrators who are experts in the field had considered all the clauses in the contract and also the change in the legislation revising Works Contract Tax from 2% to 4% under the composition scheme before answering the reference. The learned Additional Advocate General appearing for the appellant could not show as to how the view taken by the Arbitral Tribunal and confirmed by the Court below can be said to be beyond the scope of the agreement. It could not also be shown as to how the Tribunal traveled beyond the scope of reference and its jurisdiction. Except contending that the claims are made contrary to the terms of the contract and that the panel of Arbitrators exceeded the jurisdiction, the appellant could not point out any specific terms of the contract which are violated by the Arbitrators while passing the Award. It is not the case of the appellant that the panel of Arbitrators mis-conducted themselves or any part of the Award is contrary to the Public Policy of India. The appellant could not show that the facts were not accurately considered and that there is misreading or mis-appreciation of evidence and improper application of the evidence to the facts. Therefore, the material aspects on record also do not support any of the contentions now raised before this Court. There is nothing on record to show that the approach of the panel of Arbitrators is arbitrary or capricious. On the other hand, we find that the Arbitrators who are experts in the field had considered the issues properly having regard to the terms/clauses of the contract between the parties and the law applicable. The reasons assigned also could not be shown to be faulty. No grounds based on facts, much less, the required statutory grounds were made out and therefore, none of the grounds urged merit consideration. The point is accordingly answered against the appellant. In the result, the Civil Miscellaneous Appeal fails and is, accordingly, dismissed.

THE HONBLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE  M. SEETHARAMA                

Civil Miscellaneous Appeal No.238 of 2008

18-03-2015

Managing Director, A.P. Road Development Corporation  And Ex-officio Engineer-
in-Chief (R & B), Errum Manzil, Hyderabad. . Appellan

M/s.IRCON International Limited, Secunderabad and 3 others. Respondents  

Counsel for the appellant:  Additional Advocate General

Counsel for Respondent No.1     : Sri K.Prabhakar
Counsel for Respondent No.2 to 4: None appeared

<Gist :

>Head Note:

? Cases referred:

1.  (2008) 13 SCC 80
2.  2014(13) SCALE 226
3.  2014(9) SCALE 687

THE HONBLE SRI JUSTICE K.C. BHANU      
AND
THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI          

C.M.A.No.238 of 2008

JUDGMENT: (per Honble Sri Justice M. Seetharama Murti)

                This civil miscellaneous appeal filed by the appellant under
Section 37 of the Arbitration & Conciliation Act, 1996 is directed against
the order dated 20.02.2007 passed in OP.No…

Whether a Magistrate, who forwarded the private complaint filed before him to the police for investigation under Section 156(3) Cr.P.C. can interfere in the pending investigation by directing the police to add some more sections of offences in the FIR and investigate? - yes - Private complaint under sec.420, 406 r/w 34 and 120 B I.P.C. forward for investigation - Crl.M.P. filed to added additional sections 409 and 477 A I.P.C., and to investigate - Magistrate allowed the petition - their lordships held that Section 2(h) " investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf; - So, the investigation is an exercise conducted by the police or by the person authorised by magistrate to collect the evidence relating to a particular offence.- as held by Apex court It is well-settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing - In my considered view, by this order, he has not committed any judicious overreaches and made an impermissible penetration into the domain of investigation. The prerogative of police to investigation has been kept in tact, but they were only asked to investigate whether the accused have in fact committed the offences under the newly added sections including the ones which are already referred. So, the act of Magistrate cannot be found fault with.- 2015 Telagana & A.P. msklawreports

The defacto complainant filed a private compliant against A1 to A3
before I AJMFC, Kothagudem on the allegations that complainant and
accused are employees of Singareni Collieries Company Limited,
Kothagudem  under Sections 420, 406 r/w 34 and 120B
IPC.
The Court referred the complaint to I Town PS, Kothagudem under
Section 156 (3) Cr.P.C. and the police registered a case in Cr.No.443 of
2014 and investigating the case.
While so, the complainant filed
Crl.M.P.No.8 of 2015 under Section 156 (3) Cr.P.C. requesting the Court to
direct the police to incorporate Sections 409 and 477A IPC in FIR No.443
of 214. 
The accused opposed the petition on the ground that the Court
cannot interfere with the investigation. 
However, the learned Magistrate
turned down the objection and allowed the petition.

Section 156 in The Code Of Criminal Procedure, 1973
156. Police officer' s power to investigate cognizable case.
(1) Any officer in charge of a police station may, without the order of a
Magistrate,
investigate any…