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Case Laws
Showing 61 to 80 of 216 Records
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1988 (9) TMI 309
Notification No. 4(23)FD/Gr. IV/83-45 dated January 15, 1986 (S.O. 165) quashed. All concerned parties will pay tax at the uniform higher rate.
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1988 (9) TMI 287
... ...
... ... ..... ition, he can at least be treated as the principal officer of the company, if not its secretary, competent to sign and verify the pleadings on behalf of the company. The object of the provisions regarding the verification of the pleadings is just to make sure that the person who signs and verifies the pleadings must be one who can depose to the facts of the case. I am fortified in this view by a decision of the Privy Council in Delhi and London Bank Ltd. v. Oldham 1893 20 IA 139. (See also United Bank Ltd. v. Prabhas Ch. Deb, AIR 1977 Cal 55, All India Reporter Ltd. v. Ramchandra Dhondo Datar, AIR 1961 Bom 292). The contention of the defendant that the pleadings have not been signed and verified properly and as such the suit has not properly been instituted is liable to be rejected. The court below, therefore, has rightly found the issue in favour of the plaintiff. The C.R.Ps., for the reasons stated above, are liable to be dismissed. Accordingly they are dismissed. No costs.
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1988 (9) TMI 286
Winding up – Receiver not to be appointed of assets with liquidator, Avoidance of certain attachments, executions, etc.
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1988 (9) TMI 273
Whether there is need for the continuance of the order of injunction passed by this court on August 25, 1988?
Held that:- It is difficult in the absence of any reliable data for any person to come to a conclusion as to how exactly the publication of articles of the type published by the respondents would cause prejudice in the manner contended for by the petitioner. It seems to me, however, that the danger apprehended by the petitioner company is not so real or substantial as to warrant the continuance of the injunction order passed by us on August 25, 1988. Even if, for the purpose of argument, one were to assume that such claims for refund will be made, they cannot straightaway harm the interests of the petitioner company. There is no possibility that, pending determination of the issues raised, any court will order interim relief to such applicants by way of grant of such refunds. The petitioner will be liable to make any such refund only if it is ultimately decided by this court or any other court that the issue of debentures is invalid and that the application moneys have to be refunded. That, of course, the company will have to do in any event. There is however, no immediate cause for any apprehension on the part of the petitioner that the publication of any such article could abort the debenture issue in the manner it could have done before August 31, 1988. I, therefore, agree that there is no justification for the continuance of the interim order dated August 25, 1988, any longer.
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1988 (9) TMI 272
Shares warrants and entries in register of members, Oppression and Mismanagement, Oppression and Mismanagement – Right to apply under section 397 and 398
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1988 (9) TMI 271
... ...
... ... ..... therefore, be deemed to have been made by the board itself. This argument was rightly repelled by the learned single judge with the observation that, it seems to me that the managing director nakedly usurped their powers. The board of directors, in causing approval to the order of termination, have mutely surrendered their powers to the managing director. This is an impossible situation and cannot be given the seal of approval by the court. On this score alone, the order of termination of services of the petitioner is bad in law. No other point was argued on behalf of the appellant. However, learned counsel for the respondent wanted to argue the other grounds as well taken in the writ petition challenging his termination, but as the learned single judge did not deal with those contentions, the same were not allowed in this appeal particularly when the order of the learned single judge is being maintained in appeal. Consequently, this appeal fails and is dismissed with costs.
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1988 (9) TMI 270
Penalty for wrongful with holding of property ... ... ... ... ..... en the proceedings in the criminal court should be stayed when there are civil proceedings pending, but I propose not to deal with those cases, lest my observations may, in any way, prejudice the defence or the case of the complainant, and counsel for both the parties also say that it is not necessary to discuss all those cases. Every case has to be decided on its facts, and under certain circumstances, to avoid failure of justice, it becomes necessary to stay the criminal proceedings pending the civil proceedings, but that is not the case in the present matter. In the result, there is no substance in the petition and it is hereby dismissed. The rule is discharged. The interim stay is vacated. The writ shall be immediately sent to the trial court. The parties are directed to appear in the trial court on September 21, 1988, and the learned Additional Chief Metropolitan Magistrate shall continue the trial and dispose of the matter as expeditiously as possible within six months.
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1988 (9) TMI 269
Winding up - Suits stayed on winding-up order ... ... ... ... ..... hen, in general, but prima facie preference. To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope and object of the whole Act to consider (1) What was the law before the Act was passed (2) What was the mischief or defect for which the law had not provided (3) What remedy Parliament has appointed and (4) The reason of the remedy. There is nothing in section 458A to restrict its application to the one year period after the winding up order has been passed in cases where the claim does not get barred during the pendency of the winding up application. The section, to a limited extent mentioned therein, has only extended the period of limitation and to that extent has revived the remedy which would have been otherwise lost under the law of limitation. For the aforesaid reasons, we see no merit in the contention that the respective claims involved in these appeals are barred by limitation. The appeals fail and are accordingly dismissed.
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1988 (9) TMI 268
Winding up - Company when deemed unable to pay its debts ... ... ... ... ..... prima facie case alone will be looked into (G. Claridge and Co. Lid. v. Nav Bharat Investments Ltd. 1977 47 Comp Cas 428 (Bom)). Anyhow, there cannot be any dispute that the forum of the company court cannot be misused under the guise of a petition for winding up to wreak vengeance on the company when such a procedure is absolutely unnecessary for realisation of the amount. In this case, the company is prepared to make the payment and it has got assets also. It is not in a stage of insolvency, commercial or actual, and there is no such case also. What the company wants is only to make a legitimate adjustment of an admitted liability. This petition is not actuated by any bona fide desire to seek redressal of a grievance or enforcement of a claim. The desire is only to get the company wound up on personal grounds of animosity under the cover of a claim for the enforcement of which such a course is absolutely unnecessary. The forum of courts should not be used for such purposes.
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1988 (9) TMI 237
Quartz cups ... ... ... ... ..... , we find considerable force in the appellants plea. Since the position is that fused quartz and fused silica have to be considered as glass because of the extended meaning given to glass , by Chapter Note 3 in the Customs Tariff Act itself. It would be logical to conclude that but for this chapter note fused quartz and fused silica would not ordinarily be considered as glass and, therefore, in the absence of a corresponding note or explanation in the Central Excise Tariff glass in Item 23A CET would not ordinarily include fused quartz or fused silica. Though Shri Chatterjee urged, on behalf of the Departments, that fused silica is nothing but glass, he produced no evidence or literature to substantiate his argument. We have, therefore, to uphold the claim of the appellants so far as countervailing duty is concerned. rdquo 9. emsp As a result we do not find any reason to differ from the earlier order or to interfere with the impugned order. We, therefore, dismiss this appeal.
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1988 (9) TMI 233
Modvat Credit - Exemption from payment of duty available in respect of inputs only conditional
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1988 (9) TMI 232
Confiscation and penalty ... ... ... ... ..... arly explained the legal acquisition, as discussed by us above. However, we are of the opinion, that there is no duty cast on the appellant to explain the legal acquisition as no burden was cast on him in the circumstances of this case. 18. In this view of the matter narrated above, as per Point No. 1 is concerned we hold that the confiscation of the goods in question is not in accordance with the law. In view of this finding on point No. 1, point No. 2 to the effect that the confiscation without option to redeem is to be interfered or not, does not arise. So also, with regard to point No. 3, we hold that the imposition of penalty on the appellant is not in accordance with the law. For the above said reasons we hereby accept the appeal and order the release of the goods in question in favour of the appellant. We hereby set aside the order of the learned Additional Collector imposing the penalty of Rs. 5,000/- on the appellant. 19. The appeal is disposed of in the above terms.
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1988 (9) TMI 231
Confiscation and redemption fine ... ... ... ... ..... Seamless Stainless Steel Tubes and Pipes also, but, I.T.C. authorities have themselves clarified that Seamless Stainless Steel Tubes and Pipes of the description, proposed to be imported by the appellants were outside the purview of S.No. 662(c) of Appendix 3 of AM-83 Policy Book. It is difficult to understand how the appellants can be penalised for proceeding with the import in accordance with this clarification. It is noteworthy that in this case, appellants were cautious enough to obtain a clarification from the I.T.C. authorities before making the import. There can, therefore, hardly be any imputation of mala fides on their part. 9. Even if we are to agree with the view of the Additional Collector that the goods are liable to confiscation, the facts and circumstances did not justify imposition of any fine. A caution would have served the purpose. 10. In the circumstances, we set aside the fine levied in lieu of confiscation. The appellants be granted consequential relief.
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1988 (9) TMI 230
Import of vehicles under Carnet ... ... ... ... ..... i Mondal on the other hand contended that the appellant had earlier visited India. His wife also had visited India. He was fully acquainted with the Carnet system and he would have been aware of the requirement of the registration. Therefore, it cannot be contended that there was no mala fide in the appellant rsquo s action. 33. It has come on record that the earlier vehicles brought by the appellant and his wife were re-exported. The conduct of the appellant cannot be considered as contumacious requiring imposition of penalty. I, therefore, set aside the penalty on the appellant. 34. Subject to the above modification this appeal fails and the same is rejected. The appellant be allowed to re-export the vehicle to Dubai on payment of fine of Rs. 50,000/- (Rupees fifty thousand). He shall exercise this option within a period of two weeks from the date of communication of this order. Since the appellant had not paid or deposited the penalty the question of refund does not arise.
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1988 (9) TMI 225
Refund - Limitation ... ... ... ... ..... nder Section 27(1). From the records, it is clear that the claim had been made within six months from the date of payment of duty therefore, the Asstt. Collector rsquo s order that it was barred by time is totally erroneous and therefore the said finding is set aside. 6. Though I set aside both the orders, since the claim is required to be examined afresh, I remand the matter to the AC(MCD) for consideration of the claim on merits. He shall take into consideration the documents such as Customs examination certificate, BPT rsquo s short landing certificate and other documents if any to be produced by the appellants. Thereafter, pass orders in accordance with law. 7. As the claim relates to the year 1981, I direct the Asstt. Collector to dispose of the matter within three months from the receipt of this order. The appellants shall produce, the necessary documents by obtaining the original from the Tribunal rsquo s office before the Asstt. Collector within a period of one month.
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1988 (9) TMI 222
... ...
... ... ..... e appellants that laboratory chemicals are not covered by items falling inter alia in Appendices 3 and 5 unless the prefix or suffix ldquo laboratory grades rdquo or ldquo all grades rdquo is attached to chemicals mentioned in those appendices. I am of the view that the Customs House practice has been squarely provided by the appellants herein. It has also not been disputed by the lower authorities that the plea had been taken right from the beginning that the chemicals in question are laboratory grades and therefore they are of necessary purity as required for such purposes. Since the aforesaid chemicals mentioned in Appendices 3 and 5 do not carry out the word ldquo laboratory grade rdquo or ldquo all grades rdquo , I hold that the chemicals imported and under consideration here are not covered by the said Appendices. Therefore, they are covered by the licence produced by the appellants. Hence, the appeal is allowed and the consequential relief be granted to the appellants.
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1988 (9) TMI 221
Classification ... ... ... ... ..... 22 which was not the department rsquo s case earlier. The Assistant Collector rsquo s order was not reviewed though according to law it could have been reviewed at that stage. Therefore for reasons of legality, both the Item namely 19 and 22 cannot be considered by us at this stage. Besides, this being originally a proceeding in review the scope is somewhat limited. We cannot go beyond the facts on record and beyond the Assistant Collector rsquo s and Collector (Appeals) orders. During arguments before us, the learned DR ruled out Tariff Item 19 and it will not be legal for us to thrust a classification which neither side stands for. Item 22 is a fresh introduction at review stage, at the time of notice. Therefore, there is an impasse here. Besides, it is not as if the Revenue has succeeded in demolishing the impugned order on facts and law. The benefit of the tangled situation has to go in favour of the assesse, the Respondent. We order accordingly, and drop the proceedings.
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1988 (9) TMI 216
Cancellation illegal ... ... ... ... ..... ter the Gold Dealers rsquo licence was issued to the appellant. The earlier penal action taken against the appellant was in his capacity as a partner of M/s. Metha Emporium was set in his individual capacity. If at all the licence that could be cancelled would be the licence that was issued to M/s. Metha Emporium and not the licence issued to the appellant in his individual capacity in the year 1984 which was renewed up to 31-12-1989. Apparently, the learned Collector had not made any distinction between the two licences in question. Admittedly, the appellant did not contravene any of the provisions of Gold (Control) Act or rule or any other law after issue of licence No. 64/gold/84 dated 17-7-1984. In the said circumstances, there is no scope to invoke Section 50(1)A of the Gold (Control) Act and therefore, the impugned order is illegal and not sustainable in law. We, therefore, set aside the same. 10. In the result this appeal is allowed and the impugned order is set aside.
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1988 (9) TMI 215
Adjudication - Benefit of doubt ... ... ... ... ..... Hong Kong without declaring to the proper Customs Officer as required under Section 77 of the Customs Act, 1962 and in contravention of Clause 3(1) of the Exports (Control) Order, 1977 issued under Section 3 of the Imports and Exports (Control) Act, 1947 (as amended) read with Section 3(2) of the Imports and Exports (Control) Act, 1947 and Section 11 of the Customs Act, 1964. The said contravention is punishable under Section 114 of the Customs Act. Clause (i) of Section 114 provides for the imposition of penalty not exceeding 5 times of the value of the goods or Rs. 1,000/-, whichever is the greater. In the instant case the value of the illegally exported silver was found to be Rs. 1,67,000.00. Thus taking into consideration the facts and circumstances of the case and the value of the goods coupled with the fact that economic offences like smuggling shake and wreck the entire national economy we impose a penalty of Rs. 2,00,000.00 (Rupees Two Lakhs only) upon the respondent.
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1988 (9) TMI 214
Import - Tyres, Tubes and flaps ... ... ... ... ..... replaced. 10. We concur in the view taken in the decision of this Bench in the case of Colour Chem Ltd. v. Collector of Customs, Bombay as regards what can be considered of consumer goods for I.T.C. purposes. The tyres, tubes and flaps imported by appellants, who indisputably are commercial undertaking, were evidently for the servicing of their large fleet of motor vehicles including trailers and required for replacement purposes. In this view of the matter, they cannot be considered as common purpose consumer goods meant directly for satisfying human need. 11. We also concur in the view taken by this Tribunal in M/s. Indian Airlines, Calcutta v. Collector of Customs, Calcutta. Department rsquo s stand that being components, the goods in question are hit by S. No. 557 of Appendix 5 of AM-83 Policy, has therefore also to be rejected. 12. In the light of these discussions, orders appealed against are set aside. 13. Appeal allowed. The Appellant be granted consequential relief.
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