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Case Laws
Showing 181 to 200 of 467 Records
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2002 (7) TMI 580 - HIGH COURT OF BOMBAY
Arbitration ... ... ... ... ..... to the law of limitation must be held to be in conflict with the public policy of India as envisaged by section 34(2)(b)( ii). 18. In this view of the matter, it is clear that the learned arbitrator could not have made an award in favour of the respondent in respect of their statement of claim. In particular, the reasons given by the learned arbitrator that the time taken in conciliation proceedings and the time taken to administratively resolve the dispute should be excluded cannot be sustained. Even if the respondent rsquo s letter dated 17-7-1999 is considered, the period of six months had already elapsed. In the result, the petition deserves to be allowed. 19. The petition is, accordingly, allowed in terms of prayer clause (a), which reads as under (a)That this Hon rsquo ble Court be pleased to quash and/or set aside the impugned award dated 5-6-2000 made by the learned Arbitrator Shri Kamal Kumar Jalan being Exh. to the Petition. 20. There shall be no order as to costs.
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2002 (7) TMI 579 - HIGH COURT OF BOMBAY
Suspension of legal proceedings ... ... ... ... ..... winding up. To that extent, SICSP Act is Special Act and Companies Act would be general Act. Provisions of section 20(2) will be binding on the company court. Once that be the case, all procedural formalities including advertising and hearing are dispensed with and the company court is to proceed on the material as already considered by the Board and as reflected in its final decision. In my opinion, therefore, once the Board recommends and sends its opinion to the High Court under section 20(1), the High Court in terms of section 22 is obliged to pass an order of winding up of the company without following the procedure laid down under the Companies Act. The court therefore, has to follow procedure under the Companies Act for giving effect to the order of winding up. In the instant case therefore, company stands wound up based on the report of the court dated 25-4-2001. 5. Official liquidator of this court is appointed as official liquidator in winding up. Order accordingly.
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2002 (7) TMI 578 - HIGH COURT OF DELHI
Winding up - Consequences of ... ... ... ... ..... ants/workmen is called for. This is also for the reason that the position adopted by the applicants is detrimental to the common weal of the entire force of workers. The CA No. 450 of 2001 is without merit and is dismissed. C.A. No. 1882 of 2001 (filed on 13-12-2001) and C.A. No. 661 of 2002 (filed on 29-6-2002). 19. In view of the orders passed in CA No. 450 of 2001, no further orders are called for in these applications. Both. 20. C. As. No. 1882 of 2001 and 661 of 2002 are accordingly dismissed. C.P. No. 159 of 1996 21. The official liquidator is directed to take effective steps for getting the employees evicted from the staff quarters. For this purpose he is further authorised to seek Police assistance. The local Police is directed to render all such assistance as is necessary. The eviction should be carried out within seven days from today. 22. Report be filed by the Official Liquidator within two weeks from today. 23. Renotify the matter for consideration on 27-11-2002.
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2002 (7) TMI 574 - HIGH COURT OF KERALA
Winding up - Power of Court to assess damages against delinquent directors, etc. ... ... ... ... ..... gations now raised and found that nothing wrong therein, there is no necessity to proceed with the case. Therefore the Company Court can proceed with the matter only if there is a prima facie case and there is substance in the allegations. Official Liquidator is entitled to protection under section 635A. If the act is done in good faith, official liquidator cannot be proceeded as he is protected under this section. Hence, we set aside the matter and remand the same to the Company Court for first finding out whether there is a prima facie case to be proceeded with and then, if there is any prima facie case, proceed with the case in accordance with law. Both the appeals are disposed of accordingly. When the judgment was pronounced in open court, the learned counsel appearing for the appellant prayed for leave to file appeal in Supreme Court. We are of the opinion that it is not a fit case to grant leave. Liquidator will be free to take all his defences before the Company Court.
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2002 (7) TMI 570 - HIGH COURT OF DELHI
Winding- up - Circumstances in which a company may be wound up ... ... ... ... ..... ared as is evident from the banker rsquo s certificate annexed to the reply. 4. Significantly, the petitioner has not chosen to proceed against the M/s. Aqua and Power Controls. Accordingly, it is very clear that there is prima facie no privity of contract between the respondents and the petitioner company and the nature of dispute as sought to be raised in this winding up petition cannot be determined in a winding up proceeding as there is a serious dispute about the privity of contract and the liability of the respondent company towards the petitioner company, and this cannot be determined in the present winding up petition. 5. The counsel for the petitioner was, however, asked to indicate whether the petitioner would like to withdraw these proceedings so as to proceed in an appropriate forum by adopting proceedings against the proper parties. However, no response was forthcoming which has led to the present judgment. 6. The winding up petition accordingly stands dismissed.
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2002 (7) TMI 567 - HIGH COURT OF ANDHRA PRADESH
Oppression and mismanagement ... ... ... ... ..... tion against any Judge of this Court. I shall be ever so grateful for this Hon rsquo ble Court to accept my sincere regrets and accordingly pardon my language on grounds 17, 25, 32 and 46. 18. In view of the apology tendered by the learned counsel in his affidavit, we deleted the grounds 17, 25, 32 and 46 from the grounds of appeal by our order dated 8-7-2002. 19. The writ petitioner after receiving a sum of Rs. 5.17 crores has filed the present writ petition unnecessarily to drag the respondents to this Court. In the circumstances, we have no hesitation in dismissing the writ appeal. Since the writ petitioner has unnecessary dragged the respondents by filing the writ petition, we are of the opinion that it is a fit case for awarding exemplary costs. But we refrain from awarding such costs by taking a lenient view giving the opportunity to the appellant writ petitioner not to indulge in such frivolous and vexatious litigation in future. The writ appeal fails and is dismissed.
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2002 (7) TMI 565 - SUPREME COURT
Whether on the facts and circumstances emerging from the averments in the complaint petition and the materials filed with it a case for quashing the complaint filed under section 482 of the Code of Criminal Procedure, 1973 (Cr PC) is made out or not?
Held that:- Appeal dismissed. The High Court was right in declining to quash the complaint petition and the proceedings initiated on its basis.
Reading of the complaint petition and the materials produced by the complainant with it in the light of provisions in the aforementioned sections it cannot be said that the allegations made in the complaint taken in entirety do not make out, even prima facie, any of the offences alleged in the complaint petition. We refrain from discussing the merits of the case further since any observation in that regard may affect one party or the other. The allegations made are serious in nature and relate to the power company registered under the Act having its head office in this country. Whether the appellants were or were not citizens of India at the time of commission of the offences alleged and whether the offences alleged were or were not committed in this country, are questions to be considered on the basis of the evidence to be placed before the Court at the trial of the case. The questions raised are of involved nature, determination of which requires enquiry into facts. Such questions cannot be considered at the preliminary stage for the purpose of quashing the complaint and the proceeding initiated on its basis.
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2002 (7) TMI 564 - HIGH COURT OF ANDHRA PRADESH
Winding up - Statement of affairs to be made to Official Liquidator ... ... ... ... ..... mittedly, no material is placed before the learned Company Judge to discharge the burden that the appellants have no reasonable excuse in committing the default. A person cannot be prosecuted and convicted under sub-section (5A) merely for the reason that he committed default in complying with any of the requirements of section 454. In addition to establishing the default, the prosecution is required to establish that the person without reasonable excuse has committed such default in complying with any of the requirements of section 454. The second element is completely missing in the instant case for want of proof. The prosecution has utterly failed to lay any evidence to establish that fact. On that short ground, we allow these appeals and set aside the impugned orders. However, this order of ours shall not preclude the learned Company Judge from taking de novo steps in accordance with law and in terms of the provisions of sub-sections (5) and (5A) of section 454. No costs.
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2002 (7) TMI 563 - HIGH COURT OF DELHI
Form of dresses or robes to be worn by advocates ... ... ... ... ..... of the respondents that once the distinction between senior advocates and other advocates is recognised under the provisions of the Advocates Act, the wearing of gown or coat by senior advocates with a different design cannot be assailed as discriminatory or violative of article 14 of the Constitution of India. Simply because the Bar Council of India Rules have not prescribed a different design of the gown or the coat for the senior advocates, the same does not warrant or justify a prohibition on the senior advocates from wearing a gown or a coat different from that of the normal advocates as long as the basic dress code is followed. This is especially so since the senior advocates have been following the long-standing practice of wearing a gown or coat similar to that of a QC. QC have also been those advocates, who have been so designated and honoured by the British Courts in recognition of their ability and standing. Both the writ petitions have no merit and are dismissed.
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2002 (7) TMI 562 - SUPREME COURT
Whether or not the State Consumer Disputes Redressal Commission, could grant time to the respondent to file his reply, beyond a total period of 45 days, in view of section 13(2)(a) of the Consumer Protection Act, 1986?
Held that:- Appeal dismissed. As at the first instance, the Commission itself had fixed the date beyond 30 days and the respondent sought further time which prayer was accepted and 4-5-2000 was fixed. The respondent filed his reply on the date fixed. In such circumstances, there was no occasion to contend that the reply of the respondent should be rejected.
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2002 (7) TMI 560 - HIGH COURT OF MADRAS
Prospectus - Penalty for fraudulently inducing person to invest money ... ... ... ... ..... heir Lordships have held that the intention of the accused depends upon the inducement, which may be judged by his subsequent conduct also. The facts of this case reveal that there is a chain of events taking place from the year, 1995 to April 1996, and consequently, I find there is sufficient ground for the magistrate to take cognizance of the offence as against the accused. Yet another argument has been advanced by learned counsel for the petitioners that for the offence under the Companies Act, the complaint has to be given only by the Registrar. Here again, at the risk of repetition, I may state that none of the parties has stated under what section the magistrate had taken cognizance and at any rate, this is a matter which could be raised at the time of framing charges by the magistrate. In the above circumstances, I do not find and reason to quash the complaint. Accordingly, this petition is dismissed. Consequently, connected criminal miscellaneous petitions are closed.
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2002 (7) TMI 548 - CEGAT, KOLKATA
Appeal - Restoration of ... ... ... ... ..... appellant has no right for praying for restoration of the appeal. 4. emsp From records, it is seen that the appellant was directed to deposit the amount in the year, 1999. Thereafter, after depositing an amount of Rs. 25,000.00 (Rupees twenty-five thousand), an application for restoration was moved, which was rejected by observing that the full amount has not been deposited. Now, the appellant has deposited the full amount and prayed for restoration. Though the amount directed to be deposited, has been deposited after a period of almost two years, in view of the peculiar facts and circumstances of the case and by taking note of the Gujarat High Court rsquo s decision reported in Hussein Haji Harun v. U.O.I. - 1995 (77) E.L.T. 803 (Guj.) laying down that when substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be preferred, I restore the appeal to its original number and fix the same for disposal on 2-8-2002.
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2002 (7) TMI 547 - CEGAT, CHENNAI
Remission of duty - Refund ... ... ... ... ..... held that rejection of refund claim is justified for the reason that the goods were within the custody of the appellant. This was the facts even in the judgment rendered in the case of Golden Hills Estates v. CCE, Madras 1997 (90) E.L.T. 301 (Mad.) by Hon rsquo ble High Court of Madras. Both these judgments are distinguishable on facts. 5. emsp We notice that in the case of Hindustan Petroleum Corporation Ltd. (supra), the Bench clearly held that remission of duty is admissible on pilfered goods even after the order for clearance for home consumption had been made before the actual delivery is taken by the importer. Therefore, in view of the ratio of these two judgments and also in view of the public notice issued by the Commissioner of Customs, New Delhi in Standing Order No. 54/94, dated 21.5.95, the appellant s claim is sustainable and the same is required to be allowed. The impugned order is set aside and appellant s claim for refund is allowed with consequential relief.
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2002 (7) TMI 546 - CEGAT, KOLKATA
Confiscation of conveyance ... ... ... ... ..... at gas cylinder loaded in his truck were of smuggled character. Shri T.K. Kar, ld. SDR however submits that the driver in spite of summons never appeared for recording of his statement and this fact reflected upon his guilty mind. 3. emsp I find that the provisions of Section 115 (2) of the Customs Act, provide for confiscation of vehicle used as a means of transport in the smuggled goods unless the owner of the conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance. In the present case, owner has been held to be un-knowledgeable about the use of truck for the said purposes, by the Commissioner himself. The driver rsquo s statement was also not there to show that the truck was so used with his knowledge. In the circumstances, I am of the view that the confiscation of the truck is not warranted. Accordingly, I allow the appeal filed by the appellant with consequential relief.
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2002 (7) TMI 545 - CEGAT, KOLKATA
Rectification of Mistake ... ... ... ... ..... ction 129A(1) of the Customs Act, 1962. However, after going through the said order passed by the Tribunal as also passed by the Commissioner and after hearing Shri P.K. Ghosh, ld. Consultant and Shri T.K. Kar, ld. SDR I find that the order of the Commissioner does not exclusively deal with the confiscation of imported baggage. As a result of seizure made by the Customs authorities at the Airport, further investigation were conducted residential premises of the appellants rsquo were put to search and the goods recovered therefrom were seized. The Commissioner had passed only one order in respect of all the cases. It is not possible to bifurcate issue at the Tribunal level and sent the baggage issue to the Government of India and to decide the other issues at the Tribunal level and as such I find, by disposing all the appeals against the common order of the Commissioner, the Tribunal has not committed any error. The rectification of mistake application is accordingly rejected.
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2002 (7) TMI 544 - CEGAT, KOLKATA
Judicial discipline - Precedents - Following of - Modvat/Cenvat - Inputs ... ... ... ... ..... m of hierarchy required the first appellate authority to follow the decision of the Larger Bench of the Tribunal instead of creating and introducing artificial distinction without discussing as to how the Larger Bench rsquo s decision was distinguishable from the facts and circumstances of the present case. The grievances expressed by the appellants are not unjustified inasmuch as the issue, which could have been decided by the Commissioner (Appeals) had to travel up to Tribunal defeating the very purposes of settling at rest the disputed issue of law by the Larger Bench of the Tribunal. I am not happy to observe so but am constrained by the action of the Commissioner (Appeals) to pass an order on contrary to the law settled by the Larger Bench. 2. emsp Inasmuch as the issue is covered by the decision on Shri Ramakrishna Steel referred (supra). I set aside the impugned order and allow the appeal with consequential relief to the appellants. Stay Petition also gets disposed of.
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2002 (7) TMI 543 - CEGAT, NEW DELHI
Export - DEPB credit ... ... ... ... ..... It is seen that the Commissioner (Appeals) has set aside the order in original and ordered that the DEPB credit be allowed to the appellants on the FOB value of the exports subject to restriction of 50 of the PMV. The learned Counsel for the respondents also points out that there are two clarifications to the respondents from the DGFT dated 31st December, 2001 and on 5th February, 2002 clarifying that DEPB credit is to be calculated on FOB value of the export product subject to the entitlement being restricted to 50 of the present market value (PMV). 3. emsp In view of the fact that the Collector (Appeals) s order is in conformity with the clarifications given by DGFT as also the circular dated 3rd June, 1997 issued by the Ministry of Finance, Department of Revenue, we see no merit in the appeal filed by the Commissioner of Customs (Air Cargo Unit), New Delhi against the said order in appeal. Accordingly, the stay application and the appeal filed by the Revenue are dismissed.
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2002 (7) TMI 542 - CEGAT, KOLKATA
Confiscation of goods - Smuggled nature of goods - Evidence - Confiscation of conveyance ... ... ... ... ..... being smuggled in the absence of any other evidence. The other circumstancial evidence discussed by the adjudicating authority does not advance their case. The driver and the khalasi has nowhere in un-equivocal terms, have stated that the goods are smuggled from Nepal. They have simply loaded the truck from Jalpaiguri which place is in India. The betel nuts are non-notified items and as such onus to prove that the same are smuggled is upon the Revenue and is required to be discharged by production of sufficient positive evidence. As such, I am of the view that the confiscation of betel nuts is not in accordance with law. The same is accordingly set aside. 8. emsp Inasmuch as, the confiscation of betel nuts has been set aside, there is no justification for confiscation of the truck or for imposition of personal penalties upon the three appellants. The same are also set aside. 9. emsp In a nutshell, all the three appeals are allowed with consequential relief to the appellants.
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2002 (7) TMI 541 - CEGAT, KOLKATA
Modvat/Cenvat ... ... ... ... ..... .N. Chattopadhyay, ld. consultant and Shri T.K. Kar, ld. SDR I find that as per the provisions of law, the appellant is required to file monthly returns with its jurisdictional central excise authorities along with the invoices. As such the intimation about the loss of duplicate and the fact that the credit was availed by the dealer on the basis of the original copy of the invoice would be placed before the Central Excise authorities along with filing of the returns. A formal request made subsequently will not ipso facto result in denial of the credit to the appellant or to make the invoices invalid. The Asst. Commissioner should have looked into the appellants rsquo prayer and satisfied himself about the loss of the duplicate. As such I set aside the impugned order and remand the matter to the Asst. Commissioner for looking into the appellants rsquo prayer for allowing them the credit on the basis of the original copy of the invoices. Appeal is thus allowed by way of remand.
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2002 (7) TMI 540 - CEGAT, NEW DELHI
Order - Appealable order ... ... ... ... ..... y Commissioner. Through this letter, the official on behalf of the Deputy Commissioner had only conveyed the order. The learned Commissioner (Appeals) has rightly observed that it is no order in the eye of law and the appellants should approach the competent authority for getting the legal order. The learned counsel has not been able to point out any legal fault in this order of the Commissioner (Appeals). The Commissioner (Appeals) has observed that the order appealed against before him was no order in the eye of law. Therefore, the appellants are at liberty to approach the competent authority for getting a fresh speaking order, as per law. They cannot be said to have any grievance against the impugned order of the Commissioner (Appeals) who has rather held in their favour that the letter issued on behalf of the Deputy Commissioner was not a legal order having a force of law. Therefore, the appeal of the appellants is not maintainable and the same is ordered to be dismissed.
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