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Case Laws
Showing 41 to 60 of 230 Records
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1985 (9) TMI 314
Whether the resales effected by the assessee were sales within the State?
Held that:- Appeal allowed. As the assessee resold the goods within the State as mentioned in the declarations in form No. S.T. 17 furnished by the assessee to the selling dealers and it cannot be said that the assessee used the goods for a purpose other than that mentioned in the declarations. We must therefore allow these appeals and set aside the assessments made on each assessee to the extent that the assessments sought to include in the taxable turnover the purchase price paid by the assessee in respect of the goods purchased against declarations in form No. S.T. 17 furnished to the selling dealers. The respondents will pay to the assessee in each appeal costs throughout including the costs of the appeal.
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1985 (9) TMI 313
Whether the movement of the goods from the registered office at Hyderabad is occasioned by the order placed by the buyer or is an incident of the contract?
Whether the sale is one which occasions the movement of goods from one State to another?
Held that:- Writ petition dismissed. We direct the Commercial Tax Officer to afford a reasonable opportunity to the company to collect C forms and furnish them to the assessing authority before making an assessment against the company in respect of such transactions. We understand that so far as the turnover for the assessment year 1979-80 is concerned, the assessment order has been set aside in appeal and the case has been remanded to the assessing authority for granting sufficient time to the company to file the C forms in order to enable it to avail of the concessional rate of tax.
The petitioners have prayed for the further relief that as the aforesaid transactions have been held to be inter-State sales their inclusion in the assessment made under the corresponding State Sales Tax Acts should be deleted. We give liberty to the petitioner-company to make an application to the assessing authority concerned for the grant of such relief, and if the application is made within two months from today, we direct the said assessing authority to entertain the application, notwithstanding any period of limitation prescribed for such a proceeding, and to dispose of the claim in accordance with law.
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1985 (9) TMI 298
Balance sheet - Default in filing copies of, Removal of director ... ... ... ... ..... nnual general meeting was not held. There is no limitation of period after which a defaulter is absolved from his liability. In the background of this object, it is also to be kept in view that the Registrar acted in this case very casually. It took him one and half years to file the complaint and without any explanation for the delay which speaks much in respect of that office. The amended law was also now in the field. The affairs of the company were in bad shape as is revealed from exhibit A. Imposition of the maximum daily fine for six months in the circumstances would not be justified. It is also to be taken note of that six years after the complaint was filed, the respondents are being punished. Accordingly, while convicting the respondents under section 220(3) of the Act, each of them is directed to pay a fine of Rs. 50 (fifty) in default to undergo simple imprisonment for one week. In the the result, the appeal is allowed and the order of the trial court is set aside.
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1985 (9) TMI 283
Custody of company’s property ... ... ... ... ..... ejudice the parties in future if litigation arises on that score. Therefore, interesting though the point is, I refrain from answering the same in this proceeding. Since Mr. Sinha submitted that the advertisement for sale which is sought to be obstructed in the application under section 456 of the Act is covered within the mortgaged properties as per exhibit A series, they are, on the face of it, excluded from the jurisdiction of this court under the Act in a proceeding arising out of Companies Act Case No. 4 of 1977. I may observe that the effect of such sale is to be dealt with in an appropriate forum if at all the same is questioned and not in this proceeding since properties whose possession have been taken over under section 29 of the State Financial Corporations Act have been excluded. In the result, the application of the applicant, Sri H. K. Panda, has no merit. It is accordingly dismissed. In the peculiar circumstances of the case, there will be no order as to costs.
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1985 (9) TMI 282
Loans to companies under same management ... ... ... ... ..... R 1971 SC 2551). In other words, the word loan in section 370 must now be construed as dealing with loans not amounting to deposits, because, otherwise, if deposit of moneys with corporate bodies were to be treated as loans, then deposits with scheduled banks would also fall within the ambit of section 370 of the Companies Act. Mr. Rele has, however, fairly conceded that deposits with scheduled banks do not fall within the ambit of section 370 of the Companies Act. Then to treat certain deposits of money and not others as being within the ambit of section 370 of the Act would be to give an inconsistent construction to the section. In the circumstances, the contention of Mr. Rele that in this case the moneys given by Birla Consultants Ltd. to the Associated Cement Companies Ltd. is a loan within the meaning of section 370 of the Companies Act must be negatived. In the result, the petitioners would well be entitled to the relief in terms of prayers (a) and (d ) of the petition.
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1985 (9) TMI 268
Winding up – Suits stayed on winding-up order ... ... ... ... ..... Comp. Cas. 30) Failure to obtain leave of the company court before institution of a proceeding against a company in liquidation would not entail dismissal of the proceeding the suit or proceeding instituted without leave of the court would be ineffective until leave was obtained, but once leave was obtained the proceeding would be deemed instituted on the date of granting leave. Respectfully agreeing with the same, we are of the view that the rule laid down by the Supreme Court in Bansidhar Shankarlal s case 1971 41 Comp. Cas. 21, still holds the field and the change made in the phraseology of the present section is of no consequence so far as the competency of the court to grant post facto sanction to continue with the suit instituted after the winding up order is concerned and the suit shall be deemed to have been validly instituted from the date requisite sanction is granted. The case may now be listed before the learned single judge on October 25, 1985, for further trial.
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1985 (9) TMI 267
Company when deemed unable to pay its debts ... ... ... ... ..... o it from the respondent company also ought to have been decided by him, and also the parties should not have been relegated to yet another litigation in a civil court on the question whether or not the appellant was entitled to interest on the principal amount of debt. We feel that the question of entitlement of the appellant to payment of interest was not such a disputed question as could not fall within the ambit of adjudication of a winding up petition under section 434(1)(a) of the Companies Act. We accordingly set aside the order dated July 20, 1984, of the learned company judge. The question whether or not the appellant is entitled to interest claimed by it on the principal amount of debt and whether the ground of non-payment of such interest falls within the mischief of section 434(1)(a) of the Companies Act to entitle the appellant to the relief of winding up of the respondent company shall be decided by the learned company judge. There shall be no order as to costs.
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1985 (9) TMI 251
... ...
... ... ..... d to the price in the course of international trade. 10. The department has mainly relied on the difference in the value and have urged that the value worked out as per the newspapers was about 81 higher than the prices mentioned in the invoices. If the department wanted to make this as a ground, they should have set out this in the show cause notice. We notice that the same has not been done in certain cases. The Collector of Customs has given cogent and convincing reasons why the value claimed by the department should be accepted. There is no reason to discard the prices set out in the invoices. In the absence of any finding that the department has no other option but to have recourse to Section 14(b), we are inclined to accept the findings of the Collector of Customs (Appeals). 11. For the reasons stated above, we find no merit in all these appeals and dismiss the same. The Cross Objections are also dismissed in the light of the observations contained in this common order.
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1985 (9) TMI 250
Classification ... ... ... ... ..... ot reveal the presence of pigments. The dark viscious nature of the product would rule out its being classed as a Varnish which as ordinarily understood, gives a transparent coat to the surface on which it is applied. McGraw-Hill Encyclopaedia of Science and Technology (Volume 14, page 357) has the following passage ldquo Asphalt varnishes are made by treating a bituminous material, such as gilsonite, with a drying oil and dissolving the reaction product in a solvent. These varnishes are black and opaque, unlike other varnishes. They are used for insulation, and for metal coatings for heat or corrosion resistance. rdquo The above description does not appear to fit the product in this case which, besides bituminous material and a vehicle, contains epoxy resin. Considering the state of the material available before us, we are of the view that the subject goods are more appropriately classifiable as Coal Tar Black under Item 14 II(ii) CET. 6. In the result the appeal is allowed.
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1985 (9) TMI 246
Value of clearances ... ... ... ... ..... y. Instead of holding, on the basis of this unsupported proposition, that the decision of the Tribunal in the case of Sanghvi Enterprises was wrong, we can more appropriately hold, on the basis of the considered decision of the Tribunal in the case of Sanghvi Enterprises, that Shri Sachar s proposition is wrong. We also find that the example given in the order dated 18-4-1985 to controvert Shri Sachar s proposition is quite apposite, and is not answered by bringing in the final product in the DCM case, namely vegetable product, which emerges at a much later stage. 9. In the result, we find no reason to depart from the view taken by the Tribunal in its order dated 18-4-1985 in the case of the present appellants. We hold that the sawn timber valued at Rs. 6,36,482.73 should be excluded for the purpose of applying the ceiling of Rs. 20 lakhs in terms of Notification No. 80/80, and that the appellants should be given the consequential relief. The appeal is allowed in these terms.
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1985 (9) TMI 245
Paper — Hessian laminated bitumenised paper ... ... ... ... ..... and of the notification. We do not think so. For this we have in support, our decision in the Kiran Printing and Packaging case (supra) 1984 (15) E.L.T. 570 . In that case, the product was paper coated with wax on one side and with a solution of sodium Benzoate on the other side to impart anti-rust property. Notification No. 71/76 conferred duty exemption inter alia on waxed paper. The Tribunal held that such paper can be described either wax-coated paper or as sodium benzoate coated paper. The fact that it was not entirely coated with wax was apparently not considered to come in the way of its being called a wax-coated paper. On the same analogy, we do not see that the presence of layer of hessian should debar the paper under consideration from being called bitumenised paper. Once this position is reached, it follows that Serial No. 3 and Clause (b) of the second Proviso to the Notification 46/71 are attracted. We allow the appeal with consequential relief to the appellants.
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1985 (9) TMI 240
Import - Canalised item ... ... ... ... ..... entitled to import licence for the balance of registered demand from Respondent No. 2 and 3 it was also the duty of Respondent No. 4 in the circumstances to issue ldquo No Objection Certificate rdquo . But that could have disclosed their own fault and failure to supply and they kept mum in spite of repeated requests of the petitioner. 17. Under the circumstances, nandamus is accordingly issued to Respondent No. 2 and 3 to issue necessary import licence for the balance quantity of tin plate w/w as well as the M.S. Steel Sheets (Defective) in the circumstances of the case. Because mandamus being issued to Respondent No. 2 and 3, it is not necessary to issue mandamus to Respondent No. 4 for issuance of ldquo NO OBJECTION CERTIFICATE rdquo . The petitioner is however, to be entitled to cost which are assessed to be Rs. 2,000/-. It will be payable by Respondent No. 4. 18. Respondent No. 4 is also directed to refund the earnest money of Rs. 50,000/- lying with them within a month.
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1985 (9) TMI 237
Demand - Time limit ... ... ... ... ..... unsel for the department also expressed incomprehension over the period taken by the Collector to fall within time. However, if the Collector took one year to be the time limit, then 1-7-1977 Would be the correct dividing date, because when the show cause notice was issued on 27-3-1979, one year can reach back to the beginning of the accounting year ended on 30-6-1978 this year began on 1-7-1977. 7. ensp But as we have said, the time limit, at the time of issue of the show cause notice, was six months, not one year, from the close of the financial year. And whether, it is one year or six months, the notice of 27-3-1979 will not be operative for the year ended 30-6-1979. 8. ensp Though the two opposing counsels spent little time on the time bar, the above facts dominate all other arguments on merits that they advanced at the hearing. 9. ensp The demand being invalid, shall be void and of no effect and the appellants M/s. Special Steels Limited shall not be required to meet it.
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1985 (9) TMI 236
... ...
... ... ..... ice in the course of international trade. 10. ensp The department has mainly relied on the difference, in the value and have urged that the value worked out as per the newspapers was about 81 higher than the prices mentioned in the invoices. If the department wanted to make this as a ground, they should have set out this in the show cause notice. We notice that the same has not been done in certain cases. The Collector of Customs has given cogent and convincing reasons why the value claimed by the department should be accepted. There is no reason to discard the prices set out in the invoices. In the absence of any finding that the department has no other option but to have recourse to Section 14(b), we are inclined to accept the findings of the Collector of Customs (Appeals). 11. ensp For the reasons stated above, we find no merit in all these appeals and dismiss the same. The cross Objections are also dismissed in the light of the observations contained in this common order.
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1985 (9) TMI 229
... ...
... ... ..... thing but addition and condensation, including poly-addition and poly condensation. In this light, both Sub-item (i) and (ii) really refer to the same kind of materials these two sub-items merely list different plastics by name or nature or structure they are not meant to be exclusive lists of processes that is neither necessary nor practicable. 27. emsp We are not convinced by the arguments that polyvinyl alcohol being a modification product from polyvinyl acetate is not a polyvinyl derivative. We rule that polyvinyl alcohol is a derivative of polyvinyl acetate and correctly assessable under Item 15A(l)(ii). In view of this, no further discussions are necessary in respect of the appellants alternative claim for assessment under item 68. 28. emsp The request for a larger bench is rejected. Such a request was premature it assumed that this bench is of the view that polyvinyl alcohol is not assessable under Item 15A(l)(ii) CET when it (this bench) had not even made up its mind.
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1985 (9) TMI 226
Confiscation and penalty ... ... ... ... ..... e penalty imposed on respondent Parasmal is concerned, inasmuch as he was away from Madurai at the time when the goods were received into his shop, we are inclined to give him the benefit of doubt and set aside the penalty imposed on him. Since the respondent Ganesa Thevar, the landing agent and main source of supply of the contraband goods, has been let off with a nominal penalty of Rs. 1,000/-, we feel there is justification to reduce the quantum of penalty on respondent Mittalal and accordingly we reduce the same to Rs. 1,500/- (Rupees one thousand five hundred only). There will be no interference with regard to the penalties imposed on respondents Ramdoss Alias Kannan and Ganesa Thevar. There being no appeal from Rajaram even to the Board, the order of the Additional Collector imposing a penalty of Rs. 1,000/- on Rajaram would stand. There will be no modification in respect of the car MDO 5022 or of the balance quantity of the zips under confiscation. Ordered accordingly.
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1985 (9) TMI 225
... ...
... ... ..... t disputed that the RT-12 return was required to be filed in terms of Rule 173-G and that the same was also filed. Therefore, Section 11A is attracted in the present case. Besides, the provisions of the Act would always over-ride those of the Rules. Therefore, when Section 11 A prescribes recovery of duty not levied within the time limit of six months in normal circumstances, these provisions would apply to any duty which is recoverable in terms of Rule 160 or any other rule of the Central Excise Rules. The requirements of Section 11A further stipulate that the person chargeable with the duty has to be given a notice showing cause why the short levy should not be recovered from him, appellants in this behalf are therefore correct. Considering the above circumstances of the case, we find that the Collector rsquo s order is not in accordance with law and accordingly we set aside the same and allow the appeal with consequential relief to M/s. Hindustan Petroleum Corporation Ltd.
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1985 (9) TMI 219
Appeal - Limitation - Delay in filing appeal condonable ... ... ... ... ..... ay seem to verge perilously on negligence on the part of the State Government - a critical legislature and a vigilant public opinion must censure the impersonal callousness of the Government. rdquo ldquo A private person can take instant decision while a bureaucratic or democratic organ hesitates and debates, consults and considers, speaks through paper, moves horizontally and vertically till at last it gravitates towards a conclusion, - unmindful of time and impersonally. rdquo See 1974 S.C.C.Vol.I, page 71 of Journal Section. 9. emsp In this case, the somewhat strong criticism of Sri Vishwanatha Shetty that the conduct of the authorities was perilously close to negligence, is perhaps, not wholly without force. The authorities could have acted with greater dispatch but having regard to the circumstances of the case, we think that appellant should be enabled to agitate the questions arising on the appeal on the merits. 10. I.A.I, is accordingly allowed and the delay condoned.
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1985 (9) TMI 218
Classification of goods ... ... ... ... ..... parrot lover as to keep 15 of them as pets, besides his own admission that he had brought them for commercial purposes. The import, therefore, required an import licence or CCP which the appellant did not possess, and according to the Policy at the relevant time, the import of such birds was banned except by the Government recognised zoos. The observation of the Calcutta High Court in Sheikh Mohd. Omar v. Collector of Customs ibid also supports the above view, wherein the High Court held that the import of a mare for breeding purposes as unaccompanied baggage was unauthorised nor, in the circumstances of the case, could the mare be called a pet animal. The ratio of this decision is applicable in this case. Therefore, the import being unauthorised, and the goods being banned items, the absolute confiscation thereof is valid in law. 9. emsp In the result, there is no reason to interfere with the Order passed by the Additional Collector of Customs, Delhi. The appeal is rejected.
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1985 (9) TMI 217
Refund - Reference date for commencement of limitation ... ... ... ... ..... he reference date for the computation of the period of imitation prescribed in Rule 11, read with Rule 173-J. The date of adjustment of the P.L.A. (if any such adjustment took place) consequent on the receipt of a copy of the RT 12 return with the assessment memorandum completed by the proper officer could be another reference date for computation of limitation, but strictly limited to the additional sum of duty, if any, paid as a result of the direction in the assessment memorandum. 23. emsp The papers may now be placed before the learned Members of the Bench, who heard the case, for final disposal of the appeals. 24. Final Order . - In view of the majority opinion we dismiss Appeal No. 1/85 filed by M/s. Siemens (India) Ltd. 25. emsp The Appeal No. 6/85 filed by the Collector of Central Excise, Thane, is allowed in part. The refund claim for the period of one year prior to 5-4-1977 i.e. from 6-4-1976 to 5-4-1977, should alone be considered as not being barred by limitation.
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