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Case Laws
Showing 61 to 80 of 270 Records
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1990 (2) TMI 251
Winding up - Company when deemed unable to pay its debts, Winding up – Application for ... ... ... ... ..... ad with section 438 of the Act. As there was no response from the respondent-company to the said lawyer s notice, the petition had been filed seeking from this court an order for the winding up of the respondent-company for the reason of its inability to pay its debts. Thus, there is a demand made by the petitioner to the respondent-company for payment of a debt exceeding Rs. 500 and notice of such demand has been duly served upon the respondent-company as provided for under section 434 of the Act. There is no compliance with the demand for a period far exceeding that provided under the said provision. Thus, the respondent-company must be deemed to be a company which is unable to pay its debts. If so, the respondent-company is liable to be wound up on the ground available under clause (e) of section 433 of the Act. In the result, we allow this appeal, set aside the order of the learned single judge, allow the company petition and order that the respondent-company be wound up.
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1990 (2) TMI 250
Audit of cost accounts in certain cases ... ... ... ... ..... or not is a matter which can be proved during the course of the trial. At this stage, it is not possible to interfere under section 482, Criminal Procedure Code, and quash the proceedings against them because there are necessary allegations in the complaint which indicate that they have committed an offence. So, the proceedings against them cannot be quashed. Learned counsel for the petitioners has pointed out that the petitioners are residing at different places and it will be difficult for them to attend the court of the Special Judge, Economic Offences, Hyderabad, on all the dates of hearing and, therefore, requested that their personal attendance may be dispensed with. In view of the fact that they were prosecuted under the Companies Act, the learned Special Judge is directed to dispense with their personal attendance in court except on those dates when their personal attendance is necessary for the purpose of the trial. With the said direction, the petition is dismissed.
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1990 (2) TMI 249
Company when deemed unable to pay its debts ... ... ... ... ..... para Nos. . . . are true to my belief and nothing has been concealed therefrom . The verification underneath reads Verified that the contents of my above affidavit are true and correct to the best of my knowledge and belief and nothing has been concealed therefrom . The petition has also been verified in the following manner Verified that the contents of my above petition contained in paras Nos. 1 to 10 are true and correct to the best of my knowledge and the contents contained in paras Nos. 1 to 10 are true to my belief and nothing has been concealed therefrom . In Mool Chand s case 1986 60 Comp. Cas. 402 (P and H) too, the verification of the affidavit filed in support of the petition had been done in the same manner. It is thus patent that the above-noted verification of the petition or of the affidavit filed in support of the petition cannot possibly be treated as being in accordance with law. In the light of the above-noted conclusion of mine, this petition is dismissed.
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1990 (2) TMI 248
Winding up – Company when deemed unable to pay its debts ... ... ... ... ..... s made to Era Furnishers by the respondent-company and that the respondent-company is financially sound. Under these circumstances, it cannot be said that the amount claimed is not disputed and the dispute raised on behalf of the respondent-company is not a bona fide dispute. It has already been said in the earlier part of this order that the winding up proceedings are no substitute for a civil suit in the facts of this case and it can be said that the winding up petition has been filed to exert pressure on the respondent-company to pay the amount which the respondent-company disputed because certain defects still are said to be existing and which have not been rectified. In my opinion, the petition is an abuse of the process of the court and no winding up order should be and can be made and Era Furnishers, if so advised, may file a civil suit for recovery of the amount. Consequently, I find no merit in the company petition which is hereby dismissed with no order as to costs.
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1990 (2) TMI 224
MODVAT Credit ... ... ... ... ..... t the inputs should be used in or in relation to the manufacture of the final product. In view of these considerations, we find that the order of the Collector (Appeals) does not call for any interference. Incidentally we also observe that the benefit was given to these films under Rule 56A, where requirements are more restricted than the MODVAT scheme and that has not been challenged by the Department, when the Collector (Appeals) held that they are inputs for producing lamination. We are, therefore, unable to appreciate the challenge now made with regard to the eligibility of the same inputs under MODVAT scheme. We make this observation, in the passing, and would like to make it clear that even viewing strictly from the eligibility under Rule 57A, we are satisfied that the inputs, namely BOPP film used in the manufacture of laminates is eligible for MODVAT credit. We, therefore, dismiss the appeal of the department and sustain the order of the Collector (Appeals) on merits.
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1990 (2) TMI 223
Exemption to SSI units ... ... ... ... ..... e on other categories of watches and clocks. Unless it can be shown that the brand name lsquo master piece rsquo belongs to M/s. Doshi Electronics for use on the wall clocks also, the appellants cannot be held to be within the mischief of para 7. Further we find that there is no finding whether Doshi Electronics themselves are ineligible for the benefit of the notification. The criteria regarding the eligibility of the brand name to the benefit of the notification is also required to be established before the provision for availing of the benefit of the concession under para 7 can be invoked. In regard to both the parameters as described above, there are no findings of the lower authority. In view of what we have discussed above, the lower authority rsquo s order is not maintainable and we, therefore, set aside the same and remand the matter to the lower authority for de novo adjudication, in the light of our observations after giving the appellants an opportunity of hearing.
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1990 (2) TMI 222
Classification ... ... ... ... ..... ower authorities for the reasons set out therein. 5. Having considered the material on record and the submissions before us, we have no doubt that the subject goods were classifiable under Item No. 37II(i), CET. By virtue of Central Excise Notification No. 49/74, dated 1-3-1974, they were eligible for duty exemption since they fell under Item No. 37II(i) and the Censor Board Certificate showed it to be a documentary film. (In this context, we must say we are surprised to note the attitude of the lower authorities who seem to consider that a film (35 mm) certified as a documentary cannot be accepted as a documentary in the 16 mm format unless accompanied by another Censor Board Certificate. This really amounts to non-application of mind and a tendency not to give full, proper and objective consideration to the material on record. This we deplore.) 6. In the result, we set aside the order of the lower authorities and allow the appeal with consequential relief to the appellants.
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1990 (2) TMI 221
Insulator shown to be a refractory product as per technical literature ... ... ... ... ..... on was called for in this particular case since the appellants have shown from the technical material placed before us that after importation the material is fired and the temperature in the kiln is maintained at 1600 deg C and in actually operational use also it can withstand the temperatures upto 2200 deg C, we consider that the submissions of the learned counsel have a strong force. As regards the temperature range of450 deg C to 800 deg C which was the temperature of the insulator tip only and 2700 deg C which was the temperature of the combustion chamber, both are not relevant. The imported material is used for the manufacture of an insulator which satisfies the criteria and the definitions as indicated in the BTN Page 69 sub-chapter I General B of the ISI specification 2.43 of IS 4014-1967. In view of this position, we consider that the imported material would qualify for the benefit of the Exemption Notification No. 49/87 dated 1-3-1987. As such the appeal is accepted.
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1990 (2) TMI 220
Valuation Zip fasteners ... ... ... ... ..... h other. There is also no material that similar goods are imported at a much higher price. In the absence of evidence that the contract is vitiated on account of one of the circumstances mentioned above, there is no reason why the contract price cannot be accepted in the light of the correspondence referred to above. The invoice is based on the contract price. Therefore, the invoice price is to be accepted as it is based on proper contract. It is true that the imports were actually affected in 1981 whereas the price was agreed upon in October 1980, nearly 1 year and 1 month elapsed between price that was agreed upon and imports actually affected. However, as stated above in the absence of material there is no other go except to accept the invoice price as it is based on a proper contract. Having regard to the facts and circumstances of the case we allow the appeals and direct the Asstt. Collector to redetermine the assessable value in the light of the observations made above.
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1990 (2) TMI 219
Catheters - Life Saving Equipment ... ... ... ... ..... Bench is appraised of a decision given by a Larger Bench on the same subject matter, the said Bench should accept and follow the same and not embark upon to consider the matter even if they are inclined to take a different view. That is proper and traditional way to deal with such matters. This practice is founded on healthy principles of judicial decorum and propriety. This doctrine of binding precedent has the merit of promoting certainty and consistency in judicial decisions and enables an organic development of the law, besides providing assurance to the individual as to the consequences of transactions forming part of his daily affairs. In view of the earlier judgments of the Tribunal and the observations of the Delhi High Court in Paras Laminates Pvt. Ltd. v. CEGAT reported in 1990 (45) E.L.T. 521, the appeals filed by the importers are allowed and the appeals filed by he revenue are dismissed. Revenue authorities are directed to give consequential effect to this order.
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1990 (2) TMI 218
Plastic moulds used for production essentially of plastic soles for shoes ... ... ... ... ..... ct used for production essentially of plastic soles for the shoes and what is therefore, manufactured with the moulds is the plastic sole in the process. It is also noted that the plastic sole is a recognised component of a shoe and as such an article but in the peculiar process employed there is an integrated process by which the sole which is moulded is also fused with the upper again by an injection process in an injection moulding machine imported from the foreign manufacturer of footwear injection moulding machine, as seen from the manufacturer rsquo s invoice for the moulds imported. In these circumstances, therefore, in our view, the moulds imported can be taken to have satisfied the condition for exemption under Notification 314/85 and the same cannot be denied on the ground taken by the department in view of the peculiar facts related to this case and the process of production of the shoes which are the final product. In this view of the matter the appeal is allowed.
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1990 (2) TMI 217
Excess production incentive credit ... ... ... ... ..... ther there was any production/ clearance during that period or not. Thus, we hold that both the authorities below erred in partly rejecting the claim of the appellants to avail the credit in terms of Rule 56AA. 7. Before we part, we would like to state that the case of Collector of Central Excise v. M/s. Indian Organic Chemicals Ltd. supra, on which much reliance was placed by the learned Counsel for the appellants stating that it applies on all fours to the instant case is not correct because in that case there was both receipt of raw materials under the D.3 intimations to the department as well as clearances during that period and it was found that a labour force was laid of but the factory otherwise functioned. Whereas the instant case is a case of tool-down strike and neither any rawmaterial was received nor there was any clearance during the said period of tool-down strike. 8. In the result, we set aside the impugned orders and allow the appeal with consequential relief.
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1990 (2) TMI 216
Confiscation ... ... ... ... ..... circumstances, the department has to either return the T.V. to the applicant or in the alternative, the seizure value of the T.V. as on the date of its seizure should be paid to the applicant. Otherwise, great injustice will be caused to the parties. The department itself valued the property at the time of seizure and during the proceedings if they sell the properties at a lower rate the parties are not bound by the same. Equity, justice and good conscience requires that the department should return the seizure value of the property which was estimated by the officers of the department itself while the T.V. was seized. In such circumstances, we are of the opinion that the applicant is entitled for the seizure value of the T.V. in question, and we hereby direct the learned Collector of Customs and Central Excise, Shillong to refund the seizure value of the T.V. set i.e., Rs. 15,000/- only to the applicant within a period of three months from the date of receipt of this order.
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1990 (2) TMI 215
Valuation of goods captively consumed ... ... ... ... ..... e at the factory gate is available. It is not the case of the respondent and it cannot also be the case of the appellants that the price available at the factory gate is not genuine as these sales are to the Government undertakings and to the industrial consumers. The department also not disputed that these sales are to the Government undertakings and industrial consumers. Therefore the assessable value in respect of HCl consumed captively should be on the basis of ex-factory price. In Orient Papers v. CCE - 1987 (27) E.L.T. 272 it was held that captive use of paper is akin to that of industrial consumers and hence the price charged to industrial consumers should be the assessable value. Following the above we direct that the Asstt. Collector to determine the assessable value by adopting the price at which the Hydrochloric Acid (HCL) is sold at the factory gate to the industrial consumers. 11. We accordingly allow the appeal and set aside the order of the Collector (Appeals).
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1990 (2) TMI 214
Demand - Limitation ... ... ... ... ..... the longer period of limitation is not available to the Department. The demand for duty is time-barred and as a result, the demand is set aside. 33. Regarding the imposition of penalty, under Rule 173 Q (i) and Rule 210 of the Central Excise Rules, since we have held that the demand for duty is hit by limitation, the penalty cannot be sustained. Accordingly, we set aside the penalty imposed on the appellants. 34. We also set aside the seizure of 500 kgs of phenolic moulding compound as there was no clandestine removal of the same, in which case alone seizure is justified as has been held by the Andhra Pradesh High Court in the case of Southern Steel Ltd. (Hyderabad) v. Union of India and Others (1979 E.L.T. J-402). 35. As the appellants are entitled to succeed on the aspect of limitation alone, we see no necessity to consider the other points on merits. 36. In the light of the foregoing discussion, we set aside the order dated 30-5-1985 in its entirety, and allow the appeal.
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1990 (2) TMI 213
Classification of goods — Import ... ... ... ... ..... Section 14(l)(b) of the Customs Act, 1962 read with Customs Valuation Rules have to be resorted to. The appellants had declared the value of the goods at Rs. 6,84,554.00 and whereas the revenue had assessed the same at Rs. 74,78,870.00 and had also ordered the confis.c.ation of the goods of the value of Rs. 59,05,870.00 under Section 111(d) of the Customs Act, 1962 and had further ordered tor the redemption of the same on payment of fine of Rs. 38,00,000.00 (Rs. thirty eight lacs) and penalty of Rs. 20,00,000.00 (Rs. twenty lacs) was also imposed. In earlier paras we have ordered the examination of the remaining packages. We are of the view that the fine and penalties imposed are highly excessive. The Collector to refix the fine and penalty after taking into consideration the gravity of the offence. The revenue authorities are directed to give consequential effect to this order in view of our above observations. Except for this modification, the appeal is otherwise rejected.
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1990 (2) TMI 212
Project Imports - Customs assessment ... ... ... ... ..... purposes of Section 14 of the Customs Act, 1962 which has to be determined only when the provisional assessments are finalised under Section 18 of the Customs Act, 1962 in accordance with law. It is also held that the CIF value adopted by the licensing authority functioning under a different Act cannot for that reason be taken as assessable value for the purposes of Section 14 of the Customs Act, 1962 which has to be determined under the relevant Section and Rules thereunder by the Customs authorities functioning under that Act. We further hold that in respect of the claim of non-import of certain equipments from USA, a factual finding has to be given by the Collector, as also on the question of demand of duty for spares in excess of 10 of the value of main equipment as permissible under Heading 84.66 for Project Import. This demand on excess spares imported should be re-determined in terms of the discussion on this aspect supra. The appeal is disposed of in the above terms.
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1990 (2) TMI 211
Dutiability ... ... ... ... ..... to the cops room was not accounted. In view of the finding already given by us that mother yarn itself is dutiable under Item 18-II (i) (a) of Central Excise Tariff, its removal to an un-authorised and un-approved place from the place of manufacture without assessment of duty thereon would constitute an offence under Rule 9 (2) and to that extent, the Collector rsquo s finding that the goods were liable to confiscation is well founded. However, in regard to the quantum of penalty, we find that admittedly, there was some correspondence and representations about the dutiability of the mother yarn itself and the appellants are also placing reliance upon an order of the Additional Collector in their favour in another seizure case relating to mother yarn in his order dated 23-8-87 and in these circumstances, on penalty is to be imposed. Accordingly we set aside the penalty of Rs. 10 lakhs imposed upon the appellants. 34. The appeals are accordingly disposed of in the above terms.
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1990 (2) TMI 210
Confiscation of Truck ... ... ... ... ..... Company to the effect that the goods were wrongly cleared under the impression that the Gate Pass and . Delivery Challan had already been given to the watchman. The learned SDR invites our attention to the driver rsquo s statement that every day he used to collect the transport documents from factory and then only drive the lorry out of the factory and points out that this was the normal practice and that there is no proper explanation for the departure from the usual course of conduct. We are inclined to accept the contention of the learned SDR and we uphold the confiscation of the truck which has been released on payment of redemption fine of Rs. 10,000/-. 10. In the result, the inclusion of erection/assembling charges in the assessable value is set aside with consequential relief and the penalty on M/s, Brady and Morris Engg. Co. Ltd. is reduced to Rs. 15,000/- and the order of the Collector is otherwise confirmed. 11. The appeal is dismissed with the above modifications.
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1990 (2) TMI 209
Stay - Pre-deposit of duty ... ... ... ... ..... that the testing charges are not includible in the assessable value. When they have been contesting this stand of the Department it is not for them to include this, but on the contrary, it is for the Department who are aware of the nature of transaction and the pattern of invoicing etc. to either insist on provisional assessment pending a decision or issuing a demand within six months. It has been pointed out by the learned S.D.R. that part of the demand is within a period of six months and it is not that the entire demand is time-barred. While we are taking note of this we feel that on the question of prima facie merits of the includibility of the testing charges and also taking note of the hardship asked for, which has been referred to by the learned Counsel we grant the stay prayed for. Since these appeals pertain to the Special Bench we direct the Registry to transfer both these appeals to the C.E.G.A.T., New Delhi for disposal by the Special Bench in accordance with law.
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