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Case Laws
Showing 81 to 100 of 266 Records
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1994 (1) TMI 215 - HIGH COURT OF BOMBAY
Company when deemed unable to pay its debts ... ... ... ... ..... ceable . Mr. Coelho Pereira s contention is that the expression a default , in the consent decree in the civil suit would mean a single default. In my view, prima facie the contention does not appear to be correct, as a default in the consent decree of the civil suit in clause 5 will have to be read with clause 13 of the consent decree obtained in the company appeal which speaks of two defaults. I have refrained from interpreting the consent decree in the company appeal as well as in the civil suit and said that I have taken only a prima facie view only because in the event petitioner feels that she has any claim against the company she can do so in execution proceedings without getting influenced by the above observations. Taking any view of the matter, therefore, inasmuch as the petitioner has a remedy, it is difficult to accept the petitioner s case in a winding-up petition. On the facts and circumstances of this case, I would not admit this petition. The same is rejected.
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1994 (1) TMI 214 - MONOPOLIES AND RESTRICTIVE TRADE PRACTICES COMMISSION
Unfair trade practice - Respondent-company was engaged in vegetable and fruit industry - It invited public to invest in its project with very alluring advertisement promising to repay double amount invested in their project within two years which would be tax-free - Respondent furnished no reliable data in support of its promises - Whether respondent-company could be said to have indulged in unfair trade practice within meaning of section 36A(1)(iv) and (viii) and a 'cease and desist' order deserved to be passed against it - Held, yes
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1994 (1) TMI 213 - HIGH COURT OF ORISSA
Officer who is in default - Whether where neither in the complaint nor the evidence on record there was any averment that the respondent was knowingly guilty of the default in non-compliance or he knowingly and wilfully authorised or permitted a default of non-submission of balance sheet in time as provided under the Act nor was evidence adduced by prosecution on that score, it could be said that respondent was an 'officer in default' thereby liable to punishment for offence under section 220(3) - Held, no
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1994 (1) TMI 212 - HIGH COURT OF MADRAS
Penalty for wrongful with holding of property ... ... ... ... ..... tion in paragraph 5 of the complaint that he was using the funds of Messrs. Asoka Betel-nut Co. P. Ltd. and those amounts were not paid back to the company by the accused and thus offence under section 630(1) of the Act was committed. I am unable to accept this submission for the reason that it was not said to be the property which was returned. The amount due from Shenthil Traders was shown as the amount retained by the accused and for it, a direction was sought in paragraph 15 of the complaint. That apart, even assuming that the accused was using the funds of Messrs. Asoka Betel-nut Co. P. Ltd. for his own purposes, that was not the premise on which this complaint has been laid for offence under section 630(1) of the Act. Looking at the case from any angle, I am clear that the prosecution cannot be sustained. In the result, the petition is allowed. All further proceedings in STC No. 340 of 1992, on the file of the Judicial Magistrate No. II, Coimbatore, shall stand quashed.
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1994 (1) TMI 211 - SUPREME COURT
Stock Exchanges - Grant of recognition to - With a view to providing improved services to investors, Central Government while replying to letter of Delhi Stock Exchange conveyed its approval on 5-2-1987 to proposal for increasing membership by 250 members - New members admitted through public issue of shares and through dilution of existing shareholding were required to pay to Delhi Stock Exchange a deposit of Rs. 3 lakhs, and Rs. 1 lakh respectively - Selection of members was to be made on objective criteria taking into consideration experience, professional qualifications and other relevant factors through an Expert Committee to be constituted for that purpose - On writ, terms of approval granted by Central Government were questioned on ground that they were arbitrary, illegal and void and violative of article 14 -Constitution of Expert Committee was also challenged as violative of article 14 on account of inclusion of directors/members of Delhi Stock Exchange therein -Whether members of public and authorised assistants of members of Delhi Stock Exchange did not constitute a homogeneous group and condition in regard to higher deposit from those belonging to first category as compared to those belonging to second category was constitutionally valid - Held, yes - Whether as selection of members of Expert Committee was purely by members of Board of Directors, it would be wrong to say that constitution of Expert Selection Committee was arbitrary - Held, yes - Whether selection of members of Stock Exchange could be set aside merely on ground that a large number of chartered accountants were selected and merely because some of them had qualified only recently - Held, no - Whether Supreme Court can issue a mandate for enhancing number of members of stock exchange - Held, no
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1994 (1) TMI 210 - HIGH COURT OF RAJASTHAN
Officer in default - Whether where there is a managing director of company, directors thereof can be held to be falling within expression 'officer who is in default' as defined in section 5 and can be held liable criminally, for default in complying with requirements of sub-sections (1) and (2) of section 220 - Held, no
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1994 (1) TMI 209 - HIGH COURT OF RAJASTHAN
Companies Law Board – Power of ... ... ... ... ..... e the appellant has been inducted on the board of the company, it was imperative for the Company Law Board to have issued a notice to the appellant before making an order which could affect the position of the appellant as a director. If there is any dispute regarding the validity of the resolution passed on May 7, 1991, declaring that respondent No. 2 has ceased to be on the board and induction of the appellant as director is challenged by respondent No. 2, the minimum which was required to be done by the Company Law Board was to give an opportunity of hearing to the appellant. This having not been done, there is no escape from the conclusion that the impugned order is liable to be set aside on the ground of breach of principles of natural justice. For the reasons stated above, the appeal succeeds and it is hereby allowed. The order dated July 30, 1993, passed by the Company Law Board is declared illegal and it is hereby quashed. The parties are left to bear their own costs.
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1994 (1) TMI 208 - HIGH COURT OF RAJASTHAN
Balance sheet - Default in filing copies of ... ... ... ... ..... who were directors, at the relevant time, did not fall within the expression officer in default and they could not be held liable criminally, for the default in complying with the requirements of sub-sections (1) and (2) of section 220 of the Companies Act. In the above situation, when the averments made in the complaint, if taken on their face value, do not make out a case against the petitioners, it would be in the interest of justice to quash the complaint to prevent abuse of the process of the court (see R.P. Kapur s case, AIR 1960 SC 866 and Madhu Limaye s case, AIR 1978 SC 47). The result of the above discussions is that this petition deserves to be allowed and it is, hereby, allowed. The criminal proceedings against the petitioners in Complaint No. 47 of 1991 are quashed and the complaint against them is, hereby, dismissed. However, the case shall proceed against the remaining accused, namely, the company and Shri P.C. Maheshwari, the managing director of the company.
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1994 (1) TMI 207 - HIGH COURT OF DELHI
Shares – Allotment of, Power to make regulations ... ... ... ... ..... s for investors. In fact, all those persons who apply within three days of January 6, 1994, will automatically become unitholders. The petitioner-company has not made any distinction between the investor and the unitholder, therefore, first come first served basis in this sense would mean all those persons who invest within three days of the commencement of the public issue. Therefore, inspection will be allowed to every person who applies. This format is approved by the SEBI. For the reasons stated above, I find that prima facie no case is made out for grant of interim injunction. Even otherwise the balance of convenience is also not in favour of the respondents, on the contrary, if injunction is allowed it would cause irreparable loss to the petitioner. In this view of the matter, the present petition is allowed and the ex parte restraining order passed by the trial court is hereby set aside. Any observation made in this order will have no bearing on the merits of the case.
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1994 (1) TMI 181 - CEGAT, NEW DELHI
Refractory bricks for convertors - Notification No. 77/90-Cus.- Penalty ... ... ... ... ..... we are also unable to accept the arguments put-forth that because of the past clearances, the Customs are barred from changing the assessment practice since it is well-settled that a previous erroneous interpretation by the assessing authorities would not confer any enforcible right on the assessee. The observations made by the Supreme Court to laying down that there is no estoppal against taxation in the case of Dunlop India Ltd. v. Union of India - 1983 (13) E.L.T. 1566 (S.C.) are also relevant. In this result, we hold that the refractory bricks imported can be held to be for use in industrial furnace and we remand the case to the Collector for examination whether these refractory bricks could be said to be for use as component parts of industrial furnace for being eligible for the exemption. We also find that the appellants should be given the benefit of doubt for setting aside the penalty on them which is ordered accordingly. The appeal is disposed of in the above terms.
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1994 (1) TMI 180 - CEGAT, NEW DELHI
Adjudication - jurisdiction ... ... ... ... ..... he facts and circumstances, evidence brought on record substantiate that the goods were underinvoiced and the invoice value was not the normal price under Section 14(1)(a) of the Act. After taking overall evidence and in the fact circumstances of this case, the Collector was right in determining the value at US 5 per piece based upon the voluntary statement of the party that it was negotiated price against quotation price is at US 5.75 per piece. US 5 per piece is not the declared price but admitted by the party and difference in value was substantiated by way of compensatory payments and in the circumstances the burden shifts to the party to adduce the evidence that US 5 was not the normal price and the statements given by him with reference to the value was not voluntary. In the facts and circumstances, we do not find any infirmity in the impugned order passed by the adjudicating authority and accordingly we uphold the impugned order. In the result, the appeal is dismissed.
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1994 (1) TMI 178 - CEGAT, NEW DELHI
Modvat credit ... ... ... ... ..... dquo On examination of the essential ingredients of this Rule, I find that the rule does not only say that a declaration may be filed but lays down shall file a declaration. rsquo The rule also prescribed obtain a dated acknowledgment of the said declaration. rsquo From these two requirements of the rule it may very clearly be said that the requirement of the rule is not just a technical formality or a procedural requirement but the use of the words in the rule clearly brings out that modvat credit can be taken only after filing the declaration and obtaining acknowledgment thereof. Thus the requirement of the rule is substantive and not procedural or a technical one. As this requirement of the rule admittedly was not complied with by the appellant, I hold that the impugned order as well as the order passed by the Asstt. Collector is sustainable in law. Having regard to this finding I do not see any reason to interfere with the impugned order and reject the appeal accordingly.
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1994 (1) TMI 177 - CEGAT, BOMBAY
Refund when duty paid goods returned for re-processing, repair or re-conditioning ... ... ... ... ..... of the Collector (Appeals) holding the issue in favour of the assessee, especially, when the facts are not disputed. In certain cases, reprocessing can be done separately with regard to the returned goods. But in the case of chemical items, where the process is a continuous one, which cannot be stopped and it is not possible to reprocess the returned goods separately. It is not necessary, for accountal purpose that the returned goods are to be reprocessed separately and they cannot be mixed up with the running lot. Such a requirement is not envisaged under Rule 173L when the above factors clearly indicate that the returned goods have been subjected to re-processing and the reprocessed goods of the same class have been cleared on payment of duty again, Rule 173L would be available for granting refund, if other conditions specified in the Rule have been satisfied. We, therefore, dismiss the appeals from the Revenue and allow the appeal from the assessee with consequent relief.
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1994 (1) TMI 176 - CEGAT, NEW DELHI
Manufacture - Duty liability ... ... ... ... ..... eived back after machining and they were being cleared against Central Excise gate passes either without any further processing or after galvanising the appellants failed to obtain the permission from the Collector for despatching the semi-finished castings to the premises of the job-workers for finishing and also did not comply with the other requirements of Rule 56B. Under these circumstances we are inclined to agree with the finding of the Collector that the appellants had wilfully suppressed material facts and other relevant information in respect of the disputed goods with the intention to evade duty. We, therefore, hold that the Collector rsquo s order invoking the extended period of limitation under the proviso to Section 11A of the Act is sustainable. 11. In view of the above discussion, we find that the Collector rsquo s order confiscating the seized goods and imposing penalty on the appellants is also sustainable. 12. In view of the foregoing the appeal is rejected.
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1994 (1) TMI 175 - CEGAT, NEW DELHI
... ...
... ... ..... e determined on the basis of mere assumption and presumption. Suspicion however grave but it will not substitute positive proof, sufficient cogent evidence must be brought on record to reject transaction value. The cases referred to by the learned SDR including M/s. Sharp Business Pvt. Ltd. (Supra) with reference to issue of valuation on the basis of quotations are not applicable to the facts of this case since the correctness of valuation itself is under challenge in this case. In view of discrepancy with reference to issuance of quotation from the supplier and in the absence of detailed enquiry brought on record, benefit of doubt should be given to the party. We do not find any justification in rejecting the transaction value. Accordingly, the value of the goods has to be determined based on invoice price. 9. With these observations, the appeals filed by the parties are allowed with consequential relief and Appeal No. C/2344/91-A filed by the department is hereby dismissed.
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1994 (1) TMI 174 - CEGAT, MADRAS
S.S.I. exemption ... ... ... ... ..... e of one unit being with the other. The appellants have before the learned Collector explained their position and he has accepted that there was one lathe available. In view of the facts on record, while there may be suspicious circumstance pointing out to the close working of the two units, in view of the position as analysed above by us and also as held by us in a number of cases that unless units can be shown as having been functioning as one financial entity, the benefit of doubt will have to be given to the appellants so far as clubbing of the clearances of the two units is concerned and the two units for excise purposes will have to be treated as two independent entities. So far as clearances made in the name of M/s. SPL Syndicate is concerned the learned Collector has not entered any findings and we are therefore not going into this aspect. The learned lower authority should pass orders under the law in this regard after giving the appellants an opportunity of hearing.
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1994 (1) TMI 173 - CEGAT, MADRAS
SSI Exemption ... ... ... ... ..... iterion for exemption and the units, therefore, came within the ambit of Notification 175/86 on 27-4-1989 based on the criteria of the clearance of Rs. 2 crores made during the previous year and also became eligible for the benefit of the notification. The goods manufactured by their unit, therefore, became eligible for the benefit of Notification only from this date. There is nothing in the wording of the amending notification to say that notwithstanding the amendment having been made on 27-4-1989 the goods manufactured in the unit would be eligible for the benefit of the notification from 1-4-1989. In the absence of any express provision in this regard, on a well settled principle of law that the Notification would be effective only prospectively and not retrospectively, unless otherwise set out in the notification, we hold the learned appellate authority rsquo s order is maintainable in law. We find no merit in the appeal of the appellant and therefore, dismiss the appeal.
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1994 (1) TMI 172 - CEGAT, BOMBAY
Spare parts include tools - Import Policy ... ... ... ... ..... machine which is required to be replaced, when a part or sub-assembly is worn out. The machine consists of various parts and some of them may be inter-changable tools, which require frequent replacement particularly cutting tool fitted with the machine is a part falling in this category. Hence, viewed in this context, we are unable to appreciate the findings of the authorities below holding that spare parts do not include tools. So long as it is not disputed that the cutters imported are fitted to the machine as a replacement part they are squarely covered by the definition given in the Policy and the import licence permits import of these non-permissible spares. We are also told by Shri Venkataraman that a similar consignment has been cleared against the same import licence earlier and no objection has been taken. Since we are not able to agree with the view of the lower authorities for the above reasons, we allow the appeal and grant consequential relief to the appellants.
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1994 (1) TMI 171 - CEGAT, NEW DELHI
SSI exemption - Captive consumption ... ... ... ... ..... a pure question of law whether Explanation III is application in such circumstances or not. 5. emsp We have perused the facts and circumstances of this case, as given in the impugned order of the Asstt. Collector as well as of the lower appellate authority. We have also gone through the Notification No. 175/86. Effect of Explanation III to the said notification is very clear that the value of clearances of inputs captively used in the manufacture of final products is not to be taken into account for the purpose of determining the duty liability of the appellants in respect of the specified goods. Reliance placed by the learned advocate on Dukart and Co. (P) Ltd. is also correct in the facts and circumstances of the case. Question of duty liability on parts of power driven pumps captively used within the factory of production does not arise. Accordingly, we do not see any merit in the case of the Revenue. Hence we allow the appeals with consequential relief to the appellants.
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1994 (1) TMI 170 - CEGAT, MADRAS
Stay/Dispensation of pre-deposit ... ... ... ... ..... note that the finding in the said order of the Tribunal in Para 4 does not flow from the wording of Section 22 of Central Act 1 of 1986. We further note that even in the impugned order the Tribunal has taken note of the sick nature of the unit and also the financial position and further found that the company is a working unit and ldquo have recovered over Rs. 2 crores which were outstanding rdquo . We also take note of the fact that the plea made on behalf of the petitioner offering to pre-deposit Rs. 5 lakhs has also been taken note of and referred to in Para 4 of the impugned order dated 20-8-1993. Therefore, we are not able to accept the plea of the learned counsel for modification of the order. However, in the facts and circumstances we grant further extension of time by 6 months to the petitioner to make the pre-deposit in terms of the Tribunal rsquo s order and report compliance by 29th July, 1994. The matter will be called on 29th July, 1994 for reporting compliance.
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