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Case Laws
Showing 401 to 420 of 1011 Records
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2011 (7) TMI 1002 - HIGH COURT OF CALCUTTA
Shareholders - control over the company - benami shareholders - transfer of shares of deceased shareholder - Maintainability of this application - held that:- when a proceeding is continuing for a substantially long time, to the knowledge of a Company, and none has come forward on its behalf to challenge the authority of the signatory, such ratification may be implied. Such has happened in this case - No one came forward to challenge his authority. Therefore, there is implied ratification of his authority by the Company and acknowledgment of it by the intervenor. Principles of estoppel would also prevent the intervenor to challenge his authority at this stage – therefore objection is rejected.
Whether the instant proceedings are representative and whether leave of the Court is specifically required to withdraw them, under the Code of Civil Procedure read with Rule 88(2) of the said Rules? Furthermore, whether the intervenor has the right of transposition? - held that:- the above sections 397, 398 Company proceedings are representative proceedings - the consent of those persons who supported the petitioners was the minimum requirement, in the facts of this case, before applying to the Court for withdrawal of the section 397, 398 application. Nothing has been shown to me that these persons have given their consent. After the consent of these persons, leave as required under Rule 88(2) of the Company Court Rules, could be considered by the Court. Perhaps, that is why the prayer in the Judge's Summons is for an order of the Court for dismissal of the section 397, 398 proceedings.
Right of intervenor - held that:- the intervenor's father died in 1968. He claims that his mother and brother transferred shares to him in 1975. His mother died in 2000. Ever since the death of his father in 1968 till 2006 no steps were taken by the intervenor. If he is transposed as a petitioner he will be given the right to prosecute a petition, which he does not now have right to file, by efflux of time.
Due to technical difficulties, as discussed above, the Court will not be in a position to allow the petitioners in the sections 397, 398 application to withdraw from the application. This application has been pending in the file of this Court for more than 25 years. The cause of action mentioned therein no longer survives. Therefore, using my discretion I order dismissal of this application C.P. No. 252 of 1985.
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2011 (7) TMI 1001 - COMPANY LAW BOARD, KOLKATA
Amendment in AOA - Invocation of jurisdiction under section 186 of the Act - to change the articles of association as void and ultra virus – Held that:- prayer for calling a fresh meeting by poll of vote by ballot under the supervision of this Bench. This prayer is not consistent with reliefs sought in the main petition, so it cannot be considered as supplemental prayer to the prayers already made in the original petition. Apart from this, there is no pleading in this application indicating a situation impracticable to call a meeting by the Board which is precondition for invoking jurisdiction under section 186 of the Act. there is no pleading of the petition indicating a situation impracticable to call EGM by the Board of the Club ; secondly the meeting was already called by the time petition was moved before this Bench and the meeting was already held by the time the petitioners' counsel made his submissions. Petition is dismissed
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2011 (7) TMI 1000 - HIGH COURT OF BOMBAY
RTI - Exemption from disclosure of information - the petitioner company functions as a service provider to the Government of Maharashtra. - Information sought under RTI refused on the ground that the contract is confidential in nature. The project has been undertaken by the Petitioner, but attempts are made to exploit the Petitioner for personal gains by various unscrupulous elements. - held that:- The information sought is not in relation to the individual Smart Cards or registration certificates or details thereof. The information sought is in relation to the decision taken and the policy framed for providing the Smart Cards and if the means to provide the same are by inducting private service providers, then, only details of the agreements executed with such service providers and the copies thereof have been sought. In my view, there was nothing in the information sought by the Respondent No. 4, by which commercial confidence, trade secrets or intellectual property is being disclosed, leave alone the disclosure of which would harm the competitive position of a third party or it would lead to incitement of an offence. Merely because the details of the service providers are to be disclosed and the copies of the agreements would be provided, that does not mean that their interests are harmed or their competitive position is affected. It has been rightly pointed out by the Respondent No. 4 that some other Transport Commissioners have been providing such details for the respective territories and States, therefore, there was no need for the Transport Commissionerate for Maharashtra to withhold this information. - Directed to provide the information under RTI.
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2011 (7) TMI 999 - HIGH COURT OF HIMACHAL PRADESH
Winding up – company fail to pay rent – Held that:- Merely because the Company has not replied to the notice, is no reason to either wind up the Company or to issue notice. Even issuance of notice for winding up of the Company can cause havoc to the Company. Company Judge was justified in dismissing the petition in limine. The appeal is also dismissed in limine
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2011 (7) TMI 998 - KERALA HIGH COURT
Whether the sales turnover returned by the Petitioner was rightly rejected – Held that:- value fixed by the Commissioner for different varieties of timber for collection of advance tax are based on prevalent market value. It is common knowledge that the current price of timber that is, after 3-4 years of the relevant year, is more than double the price fixed by the Commissioner in the Circular based on which advance tax was paid by the Petitioner without contest. Petitioner has no case that there was decline in the price of timber after the issuance of Circular by the Commissioner. On the other hand, the steady demand of timber in the market is evident from the fact that Petitioner has "nil" closing stock. Assessing Officer, first Appellate Authority as well as the Tribunal rightly rejected the sales turnover declared by the Petitioner which was below the value declared at the entry Check Post where tax was paid on all consignments brought and sold in Kerala Estimation of gross profit - Tribunal adopted lower than the lowest percentage of gross profit declared by similar dealers – Held that:- gross profit addition is made to the purchase value declared by the Petitioner which is admittedly not the real purchase value but the value fixed by Petitioner. Tribunal's order that they have considered the market value of each and every variety of timber transported and sold by the Petitioner and the value fixed in the Circular issued by the Commissioner and has justified the assessment which is by making 12 per cent gross profit addition to the purchase value declared by the Petitioner himself. Revision cases are accordingly dismissed
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2011 (7) TMI 997 - CESTAT, MUMBAI
Redemption fine for violation of the provisions of Sections 111(m) and 111(o) of the Customs Act, 1962 – importation of the car - mis-declaring the model No. of the car – Held that:- appellants themselves have arranged the loan for the car and were having possession of the car under lease agreement as the vehicle imported under Transfer of Residence scheme are not allowed to be sold for two years. When the appellants are in possession of the car and arranged loan for the importation of the car, the appellants are the owner of the car and there is violation of Transfer of Residence scheme in the purchase of the car within two years of the importation. Therefore, it cannot be held that the appellants are bona fide purchaser of the car. car is liable to be confiscated. redemption fine reduced.
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2011 (7) TMI 996 - KARNATAKA HIGH COURT
Writ petition – goods of the petitioner was auctioned by the Respondent for the alleged violation of the provisions of the Customs Act. goods of the appellant was wrongly auctioned without following the procedure, the Writ Petition was filed to recover the value of the goods – Held that:- Respondent has never admitted the case of the appellant herein and they disputed the entire facts. According to them, goods were sold after following the procedure laid down under the provisions of the Customs Act and Rules made therein. - In a case of recovery of amount with interest the remedy open to the appellant is to file a regular civil suit and it cannot invoke Article 226 of the Constitution for its redressal. - Writ Appeal is dismissed.
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2011 (7) TMI 995 - CESTAT, NEW DELHI
Extended period of limitation – Penalty u/s 78 - Held that:- in the case of Cosmic Dye Chemical (1994 - TMI - 43929 - SUPREME COURT OF INDIA - Central Excise) held that for invoking extended period under Section 11A(1) of Central Excises Act & Salt Act, 1944, the intention to evade the duty must be proved and for this purpose, the mis-statement or suppression of facts must be wilful and mere omission to provide some information or omitting to do something which the person is required to do would not be sufficient to invoke the provisions to Section 11 A(l). it cannot be said that non-payment of service tax was wilful or with intention to evade service tax. In view of this, merely on account of not obtaining service tax registration or non-payment of tax, it cannot be concluded that the same was with intention to evade the tax. - penalty set aside.
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2011 (7) TMI 994 - CESTAT, NEW DELHI
Whether appellants are entitled to take cenvat credit on the strength of invoices where the goods described as C.R. Sheets instead of H.R. sheets or not – manufacturing business of motor vehicle parts. - Held that:- appellants are entitled to take cenvat credit on the goods received by them. It is not the allegation that the appellants had procured H.R. Sheets clandestinely without cover of invoice, therefore, the cenvat credit cannot be denied. description of the goods different but the fact is not denied, the appellants received the goods, therefore, the appellants are entitled to take credit. appeal is allowed
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2011 (7) TMI 993 - CESTAT, NEW DELHI
Whether the M.S. plates, beams, angles, channels, sheets etc. used for repair and replacement of damaged parts of cement plant and machinery - clin, pre-heater, cement mill, raw mill, coal mill etc. are eligible for Cenvat credit either as capital goods or as inputs – Held that:- foundation and supporting structures embedded to earth are capital assets and the same do not qualify as capital goods as defined in Rule 2(a) of Cenvat Credit Rules and hence the steel items used for erection of the supporting structures are not eligible for Cenvat credit. order denying Cenvat credit in respect of these items is upheld Whether unmachined steel castings and rough HRCS castings used for replacement of damaged parts of the cement plant and machinery are eligible for Cenvat credit – Held that:- these items are used as a replacement for parts of the machinery and hence the same have to be treated as components and accessories of the cement, plants and machinery. Commissioner (Appeals)’s order denying Cenvat credit in respect of these items is not sustainable Whether nitrogen gas falling under Chapter 28 and PVC sheets plastic sheets of Chapter 39 are eligible for Cenvat credit – Held that:- appellant have not specified as to how the same are used in or in relation to the manufacture of the finished goods. Commissioner (Appeals) finding denying the Cenvat credit upheld
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2011 (7) TMI 992 - CESTAT, NEW DELHI
Construction of residential complex - section 65(91A) - proceedings on the basis of circualr - Held that:- when the adjudicating authority proceeded basing on a circular, the appellant should have been given an opportunity by the Appellate Authority to lead defence against proposal for taxation of service relating to construction of aforesaid quarters. The appellate order is cryptic and unreasoned. Therefore, we consider it proper to send the matter back to the Appellate Authority who shall have opportunity to reexamine the issue of taxability.
Waiver of penalty u/s 80 - deposit of service tax before Show Cause Notice - lot of confusion in law at the inception stage on taxability of the service provided by contractors - held that:-
Ld. adjudicating authority has rightly considered the defence plea in relation to penalty and waived the same invoking section 80 of the Act for which he did not levy penalty u/s 76, 77 & 78 of the Act on the demand confirmed by him. The appellant has substance in his argument and waiver of penalty imposed by the first appellate authority on the amount of demand confirmed in adjudication is warranted. That is ordered accordingly.
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2011 (7) TMI 991 - CESTAT, NEW DELHI-LB
Application for rectification of mistakes - Turnkey Projects - Composite Contracts - original order in CCE, RAIPUR Versus M/s BSBK PVT LTD (2010 -TMI - 76005 - CESTAT, NEW DELHI - LB) - writ petition against this order was dismissed by the HC in LARSEN AND TOUBRO LTD. Versus CESTAT (2010 -TMI - 76005 - CESTAT, NEW DELHI - LB) filed by another intervener - It was noticed that present two applications (interveners) calls for reconsideration of whole case for substituting earlier decision of Larger Bench in reference by a new decision, that is impracticable since order of the Larger Bench was not interfered by Hon’ble High Court due to dismissal of Writ Petition of Larsen and Toubro - An error apparent on the face of the record means an error which strikes on mere looking and does not need long-drawn-out process of reasoning on points where there may conceivably be two opinions - Arguments on behalf of interveners show that detailed exercise is essential to appreciate the facts and circumstances of the case. Such exercise is permissible only if an appeal is decided or power of review is exercisable which is not conferred on the Tribunal.
It is, no doubt, true that a mistake capable of being rectified is not confined to clerical or arithmetical mistake. On the other hand, it does not cover any mistake which may be discovered by a complicated process of investigation, argument or proof. As observed by Apex Court in Master Construction Co. (P) Ltd. v. State of Orissa (1965 -TMI - 100065 - SUPREME COURT OF INDIA), an error which is apparent from record should be one which is not an error which depends for its discovery on elaborate arguments on questions of fact or law.
When the Larger Bench decision goes back to Division Bench for consideration of appeal for decision, the material facts, evidence, surrounding circumstance, law applicable shall govern the decision of Division Bench instead of the Division Bench merely guided by opinion of Larger Bench - Application is dismissed
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2011 (7) TMI 990 - CESTAT, NEW DELHI
Refund of service tax paid - first Appellate Authority who granted relief to the Respondent on the ground that the Respondent was a sourcing agent to the bank and such service being taxable with effect from 10-9-2004, but the Respondent was not liable to Service Tax. - Notification No. 14/2004, dated 10-9-2004 - held that:- Nowhere the Respondent has pleaded that it was collaborator to the financing bank to serve clients of the Bank concerned. - the moment service was provided by the Respondent to the funding bank service of the bank begins to serve clients of the later. - no tripartite agreement was executed among the Respondent, financing bank and the borrower, nor there is any letter of appointment in that regard. There is no role of the Respondent to discharge any obligation to the prospective borrowers of the Bank. Therefore the material fact suggests that there was no provision of service to third party by the Respondent on behalf of the financing bank. The first Appellate order proceeded under misconception of law misconstruing the notification benefit. - Decided against the assessee - refund rejected.
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2011 (7) TMI 989 - CESTAT, NEW DELHI
Assessable value - Misdeclaration in quantity - Confiscation - Held that: admittedly the Commissioner of Customs (Imports), Mumbai has issued the guidelines for adopting the assessable value of the lesser known brand Chinese brand therein. Such guidelines have been issued after taking into account the average cost of material, wastage, manufacturing cost and other charges etc - Tribunal in the case of Techno Marketing v. CC, Kolkata (2003 -TMI - 110156 - CESTAT, NEW DELHI) - the adoption of the assessable value at the rate of US $ 1.60 per kg cannot be faulted upon - Decided against the assessee
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2011 (7) TMI 988 - CESTAT, MUMBAI
Classification - It was found by the DYCC office that the goods are 'Composite absorbent material composed of celllulosic material (pulp) bonded/treated with polymeric absorbing material and additives with pre-made laminate of non-wovens' - the certificate issued by UDCT, Matunga, Mumbai also indicates that the product under reference 'Airlaid Core' contains cellulose or pulp 68%, synthetic bicomponent fibres 11%, AGM powder 17%, latex binder 4%, whereas, Airland STS contains cellulose or pulp 47%, PE powder 27%, latex binder 4%, NWPP 22% - The original authority while relying upon the report of DYCC and the certificate issued by UDCT, Matunga, Mumbai has held that the goods in question are not chemical wood pulp but it has been treated with various chemicals including binder for use in sanitary napkin - it is mentioned in the HSN note that pulps from this process are used in the manufacture of absorbent products such as fluffing and napkins for babies - Held that: these goods falling under CTH 4703 are further processed to be used in the manufacture of absorbent products whereas in the Explanatory Note to CTH 4818, we find that this heading covers toilet paper and similar paper, cellulose wadding or webs of cellulose fibres, of a kind used for household or sanitary purposes - the goods imported by the respondents are classifiable under CTH 4703 - Appeal is dismissed
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2011 (7) TMI 987 - CESTAT, BANGALORE
Diversion of the duty free imported raw materials into the local market by violating the scheme of 100% EOU - Demand - whether the show cause notice issued was based on the correct provisions of law or not and by answering that even if the show cause notice was not issued by invoking the correct provision of law - Held that: there has been no consideration of each of the contentions raised by the assessee on merits with regard to the validity of the show cause notice except stating that the Managing Director of the appellant had admitted certain facts.
It was informed that retraction was not done immediately and the said statement was retracted at the stage of show-cause notice. It is also on record that the said Managing Director was arrested and sent to jail on the next day when the shortages were noticed and he preferred a bail application before the competent court and in the said bail application also there was no retraction of the first statement given by him. - we cannot come to the conclusion that the statements were recorded under duress and not voluntary.
Regarding Notification No.13/81 - once a benefit is extended to the assessee under Notification for discharge of nil rate of duty and such conditions are violated, it would amount to short levy which requires to be demanded from the assessee only under Section 28 (1) of the Customs Act, 1962 - there is no dispute that the appellant is not able to provide the correct reconciliation of the materials which were imported duty free by him - Appeal are rejected
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2011 (7) TMI 986 - DELHI HIGH COURT
Search - Prosecution - white medicinal powder, which on chemical analysis was found to be Desxamethasone, was allegedly recovered from the shampoo and talcum powder bottles. - Learned counsel for petitioner submits that the Joint Secretary to the Government of India has accepted the contention of the petitioner that she had no knowledge about the substances in the aforesaid shampoo and talcum powder bottles, therefore, in this case there cannot be any mens rea since the petitioner had no knowledge about the substance found in the aforesaid bottles - The Joint Secretary has maintained the order of confiscation and the same has not been challenged by the petitioner since the said two bottles were of the substances which are not permissible to be given to the petitioner - since there is no adjudication pending against the petitioner and the petitioner has been exonerated, in the adjudication proceedings, therefore, the criminal proceedings pending before the trial court cannot go on - Petition is allowed
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2011 (7) TMI 985 - MADRAS HIGH COURT
Curtailing benefits and privileges conferred under the Foreign Trade Policy - Circular M.F. (D.R.) No. 58/2004-Cus., dated 21-10-2004 - star export house - The exporters, who are status holders, have been issued with show cause notices, by the various officers, under the Customs Act, 1962, forcing them to furnish bank guarantees for the entire duty to be paid by them. Such notices are being issued arbitrarily, jeopardising the operation of the exporters, contrary to the benefits conferred under the Foreign Trade Policy. - held that:- Even though the petitioner had been enjoying certain privileges, as a status holder, as per the notification issued under the Foreign Trade Policy, such privileges had been granted subject to certain conditions prescribed in the Hand Book of Procedures. Further, it has been contended on behalf of the second and the third respondents that the petitioner had committed certain irregularities by misdeclaration and suppression of facts, while claiming additional duty exemption in the clearance of imported goods, under the Duty Free Import Authorization (DFIA) Scheme. - As the writ petition is devoid of merits, it is liable to be dismissed. Hence, it is dismissed.
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2011 (7) TMI 984 - CESTAT, NEW DELHI
Manufacturing from bought out items - Assembly - Whether the respondents had right to realise the duty from the buyers on CJK when such goods were not manufactured and were not dutiable - Held that:- prior to the judgment of the Tribunal and the Apex Court, the respondents were paying duty on the CJK by treating the same as excisable as the department was of the view that the process of assembly of CJK amounts to manufacture. However, the respondent continued to pay the duty on CJK even after the decision of this matter in their favour by the Tribunal’s order and upholding of the Tribunal’s order by the Hon’ble Supreme Court vide judgment dated 3-3-2001. So long as the respondent were paying duty on the CJK, they could always recover the same from their customers as central excise duty is an indirect tax and there is no prohibition in the Central Excise Act, 1944 or the Rules made thereunder in this regard.
Provisions of section 11D - held that:- since the amount collected in respect of sale of CJKs as excise duty was paid by the respondent to the Government and as such, there is no contravention of the provisions of Section 11D, the question of asking them to pay this amount to the Government does not arise.
Whether the respondent are entitled to adjustment of the duty payable on the intermediate products manufactured by them against the duty paid on CJKs which were not dutiable - Held that:- The process of adjustment of duty paid on CJK on which no duty is payable, towards duty liability in respect of the intermediate products, on which duty is payable, amounts to just changing the head under which the duty had been paid and so long as the duty is not being refunded to the respondent, there would not be any unjust enrichment. - refund of tax means giving the tax paid back to the assessee, which he can use the way he wants and the same can not be equaled with adjustment of tax paid under some head which was not payable, against tax liability under some other head, which is to be discharged. For such adjustment no application under Section 11B is required - Decided against the revenue by third member decision.
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2011 (7) TMI 983 - CESTAT, MUMBAI
MRP bases valuation under section 4A - Charging Optional Service Charges (OSC in short) and “Rust Proof Protection Charges (RPP in short) over and above the MRP - Violation of principles of natural justice - Circular No. 432/64/98-CX.3, dated 23-11-98 - Held that: on top of the packing box of each refrigerators/washing machines there is a sticker showing 5 years warranty which is very much in the knowledge of the customers when they buy the refrigerators/washing machines - It is also the fact on record that when these refrigerators/washing machines were cleared by their dealers to retail customers, dealers issue a composite invoices for the sale price+OSC/RPP - The contention of the appellants that the OSC is an additional consideration and is not affecting the value of the goods chargeable to duty under MRP valuation is not convincing as the goods were cleared by the dealers of the customers through consolidated invoices wherein the MRP+OSC and RPP are collected from the customers collectively - the goods have been sold over and above the MRP, therefore, the OSC/RPP are includable in the assessable value - Decided against the assessee
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