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Case Laws
Showing 61 to 80 of 219 Records
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1991 (11) TMI 194
Compromise and arrangement, Amalgamation ... ... ... ... ..... is involved in the transaction and that the assessee cannot be said to have transferred any property to any one. When he was allotted shares of the New Shorrock Co. he was entitled to such allotment because his holding of the shares of the Shorrock Co. was merely a qualifying condition entitling the assessee to the allotment of the shares of the New Shorrock Co. This decision of the apex court is the direct answer to the points raised by Mr. Arvind P. Datar in his additional grounds as well. Thus, none of the points raised by Mr. Arvind P. Datar deserve consideration and hence all the objections raised by the objector are rejected. In the result, the company petition succeeds and sanction is accorded to the proposed scheme of amalgamation. In view of the fact that the company has to be dissolved without winding up, notice will go to the official liquidator under section 394 of the Act. The scheme will be operative from June 1, 1990, as provided in the scheme of amalgamation.
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1991 (11) TMI 193
Scope of section 633 of the Companies Act, 1956
Whether the learned single judge was right in granting relief under section 633 of the Act in respect of offences committed under the Employees' Provident Funds and Miscellaneous Provisions Act of 1952?
Held that:- Appeal dismissed. In the case of a company falling under the Explanation to section 14A of the Provident Funds Act which does not come within the purview of the Companies Act, the liability of the persons would be governed only by section 14A(1) and (2) of the Provident Funds Act. They will not be entitled to any relief under section 633. The benefit available under a social welfare legislation, namely, the Employees' Provident Funds Act cannot be defeated in this manner. We may also add that if the interpretation suggested by the appellants is accepted, it would cover not only the existing laws but all legislations to be enacted in future.
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1991 (11) TMI 192
Oppression and mismanagement – Right to apply under sections 397 and 398, Inherent powers of Court
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1991 (11) TMI 169
Classification ... ... ... ... ..... r in Sl. No. (vi) in Babubhai Nyal Chand Mehta rsquo s case and held it to be classifiable under TI 17(2). Therefore, the ruling of the Supreme Court being later in time of period overrules the ruling of the Tribunal rendered in the case of Warden and Co. Sh. Jagadeesan stated that the product is predominated by hessian and therefore, is classifiable under TI 22(A). There is no test report in this matter. The hessian content is not known. In the case of East India case the hessian content was 30 , bitumen 53 and kraft paper 17 and the Tribunal held it to be classifiable under TI 17(2). The Hon rsquo ble Supreme Court having already considered the classification of jute lined bituminised water proof packing paper and hessian lined kraft paper to be classifiable under TI 17(2). We are bound by the ruling of the Supreme Court. In the circumstances, applying to the said ruling, the impugned order is set aside and the order of the Asstt. Collector is upheld by allowing the appeal.
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1991 (11) TMI 161
... ...
... ... ..... aside. 5. emsp Shri Jain hearing for the Department reiterated the order of the Collector. 6. emsp The Collector while enhancing the value relied upon the world car catalogue 1981 on the ground that the world car catalogue for the year 1982 is not available. The Collector has also not doubted the genuineness of the transaction value. The model referred to in the world car catalogue of 1981 is different from the car which is imported under dispute. Since the Collector has not doubted the genuineness of the transaction value and since there is no other comparable import of similar goods or identical goods, the Collector ought to have accepted the transaction value. The world car catalogue of 1981 is irrelevant as the model is different and the year also is different. Therefore, the order of the Collector is set aside and the appeal is allowed and the authorities below are directed to reassess the car on the basis of the transaction value. The appeal is, thus, allowed by remand.
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1991 (11) TMI 160
Refund - Interest - Unjust enrichment ... ... ... ... ..... Division Bench judgment of this Court in M/s. Parekh Prints and Others v. Union of India and Others, 1992 (62) E.L.T. 253 (Del.) 1991 (3) Delhi Lawyer 99. In this case the Bench held that the petitioners were not entitled to withhold the amount of additional excise duty after having collected the same from the consumers and since the petitioners had utilised the amount of said duty for their own business purposes, the Union of India was allowed to encash the bank guarantees pertaining to the said amount of excise duty and it was held that the Union of India was entitled to interest on this amount at the rate of 17.5 per annum from the date the duty became payable. 8. emsp In view of the above discussion the Writ petition is allowed. We, therefore, direct the respondents to pay to the petitioner interest at the rate of 17.5 per annum on the amount of Rs. 1,09,60,000/- from the date of deposit of the said amount till it was refunded within 4 weeks from today. Order accordingly.
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1991 (11) TMI 159
Remission of duty ... ... ... ... ..... Collector is only required to be satisfied that loss has occurred and it is not for him to go into the reasons of loss. If that loss is established by acceptable evidence and it has been reported before the clearance for home consumption, remission of duty under Sec. 23 shall have to be given. The wordings used under Sec. 23 themselves indicate ldquo shall remit rdquo and no discretion is vested with him for looking to the reasons for loss and whether the loss has been reported within 48 hours or otherwise. The time limit prescribed is that, it should be noticed before the clearance for home consumption is effected. Only on account of this legal position, we are to allow the appeal, though we may agree with the findings of the authorities below that there had been negligence on the part of the appellants, causing not only loss to the Government by way of foreign exchange but also causing danger to the environment. 8. In the result, appeal is allowed with consequential relief.
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1991 (11) TMI 158
Demand and penalty ... ... ... ... ..... ffer from factory to factory and unless some test in this regard is conducted in the factory of the appellants, no such conclusion can be arrived at on presumptions and assumptions by relying on the production report of other concerns like M/s. PACOR and M/s. OMC Alloys. In such circumstances, as point No. (ii), we hold that the conclusion arrived at by the learned Collector that the appellants had clandestinely removed 313.823 M.Ts. of charge chrome is not based on any reliable evidence and consequently the demand of duty amounting to Rs. 47,57,761.78 is hereby set aside. Point No. (ii) is decided accordingly. 35. Point No. (iii) Since we have reached the conclusion that there is no reliable evidence to show that the appellants had removed 313.832 M.Ts of charge chrome clandestinely, the imposition of penalty of Rs. 10 lakhs under Section 112 of the Customs Act, 1962 is also not legal and proper and accordingly we set aside the same. 36. In the result, the Appeal is allowed.
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1991 (11) TMI 157
Set-off of duty ... ... ... ... ..... had been satisfied, there was no reason why the benefit extended by Collector (Appeals) in all these cases should be denied by the Tribunal. 9. We have carefully seen the papers and given thought to the matter. We observe that the respondents had furnished the requisite statement to the Superintendent of Central Excise. The input output ratio indicated in this statement was also explained to us at the hearing and the learned Sr. D.R. was also satisfied that the co-relation had been established correctly. We agree with Collector (Appeals) that it is not a requirement of the notification that the benefit therein must be claimed at the time of clearance of the goods alone and cannot be claimed by way of refund of duty subsequently. All that is necessary is that the condition stipulated in the notification should be fulfilled. Since the conditions have been fulfilled, we see no reason to interfere with the orders passed by the Collector (Appeals) and reject all the five appeals.
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1991 (11) TMI 156
MODVAT Scheme ... ... ... ... ..... quasi-judicial adjudications and appeals and there is also no warrant for grant of such relief in law or on facts either. It is also fairly well-settled that a Trade Notice issued by a Collectorate cannot be construed to be statutory in nature and even in the interests of justice if the Trade Notice of Hyderabad Collectorate No. 94/89 dated 18-5-1989 could be construed to be statutory in character and by a broad and liberal interpretation could be brought within the mischief of Rule 57F(4)(b) and treated as one issued by the Central Government, the respondent would not get any relief out of the same for the simple reason that me Trade Notice was issued on 18-5-1989 whereas the period involved is between 20th January, 1988 and 20th July, 1988. There is no warrant in law to construe it as operative retrospectively and, therefore, in any view of the matter the impugned order is not sustainable in law. In this view I hold that the appeal has to be allowed and I order accordingly.
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1991 (11) TMI 155
... ...
... ... ..... e us that the gold was also confiscated under the proceedings enunciated against the appellants under the Defence of India Rules, 1962. But in this case, when the provisions of the Customs Act are contravened and when the appellant could not adduce any evidence to show the licit importation of the gold in question in view of the fact that the burden was shifted on to him to prove the same, the confiscation of the same under the Customs Act, 1962 cannot be assailed on the ground that it was also confiscated under the Defence of India Rules, 1962. The contravention under the Defence of India Rules, 1962 is a separate one from the contravention of the Customs Act, 1962. This argument also cannot be accepted. In that view of the matter, the confiscation of the goods, i.e. five gold bars and the gold ornaments seized in this case are upheld. The penalty imposed on the appellant is only Rs. 20,000/- and the same cannot be said to be excessive. Accordingly, this appeal is dismissed.
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1991 (11) TMI 154
Stay - Imports ... ... ... ... ..... s subject to the condition that they shall have to produce the End-Use Bonds and other necessary bonds as to the actual consumption of such stamping foils in the leather industry to the satisfaction of the Customs Authorities and they shall also produce a Certificate of the consumption of the imported stamping foils in the leather industry to be verified by the Central Excise Authorities or any other authority concerned and the applicants/appellants should also execute a personal bond for the redemption fine of Rs. 1,00,000.00 as well as additional duty which may have to be paid ultimately in this case by the applicants /appellants if it is found that they are not entitled for the benefit of the Notification Number 224/85. Subject to the above condition the stay prayed for is granted. 6. Since the appeal proper pertains to the Special Bench the Registry is directed to send the papers and connected records to the Special Bench at New Delhi, for disposal in accordance with law.
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1991 (11) TMI 153
Appellate Tribunal’s order ... ... ... ... ..... t has taken no action to see that the Orders passed by this Tribunal are implemented in time as mentioned in the Order. However, we have taken note of the submissions of Shri M.N. Biswas, learned S.D.R. that the matter is going to be settled by the end of December, 1991. Under the circumstances, we hereby order that the market price of the goods in question shall be paid to the applicant before us before 24th December, 1991 failing which this Tribunal will have no other alternative except to proceed against the respondent for contempt of Court proceedings under Section 10 of the Contempt of Courts Act, 1971 by referring the matter to the Hon rsquo ble High Court of Calcutta and for taking necessary action in this regard against the respondent. The respondent is directed to report the compliance of the same by 24th of December, 1991, failing which the action sought for as stated above will be initiated by this Tribunal in this behalf. Copy of this Order be given to both sides.
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1991 (11) TMI 152
Prosecution ... ... ... ... ..... 1990 MPLJ 621 and AIR 1979 S.C. 711. These lapses could not be explained. Thus, the prosecution suffers from not one but a number of serious infirmities namely, violation of Sections 41 and 42 of the Act and breach of Section 50 of the Act. Even the important fact that the contraband was recovered from the pant-pocket of the appellant has not been mentioned in the seizure memo. In such cases where the minimum penalty is 10 years R.I. and a fine of Rs. 1 lac, an officer who embarks upon an enquiry is expected to be fully conscious of his procedural obligations and is expected to carry them out scrupulously. Under the circumstances, in view of the infirmities aforementioned, it must be held that the procedural lapses committed by PW-4 have resulted in material prejudice to the defence and the conviction is liable to be set aside. 6. Accordingly, the appeal is allowed. Appellant rsquo s conviction and sentence as aforesaid are hereby set aside and he is acquitted of the charge.
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1991 (11) TMI 151
... ...
... ... ..... emand duty from the appellants in the Show Cause Notices, demanding the said duties vide the Orders-in-Original is not sustainable in law. On this short point alone, the original orders do not survive. As far as the imposition of penalty is concerned, when the Show Cause Notices issued alleged that the structurals were fabricated and erected by the job workers, there is no question of contravention of Rule 46,174 or 178 by the Appellants. According to the settled case law on the subject, supplier of raw materials is not a manufacturer unless the job workers are proved to be dummies or facades of the supplier. In the instant case, no such evidence is let in. Therefore, there is no justification of imposition of penalties on the appellants. Accordingly without going into the detailed merits of the case, the impugned orders are set aside allowing the appeals without prejudice to any further action that may be taken against the two job workers rsquo firms, if warranted otherwise.
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1991 (11) TMI 150
Appeal - Condonation of delay ... ... ... ... ..... en collected personally from the Department as it was done many a time in practice. Under the circumstances, the fact as to receipt/despatch of the order-in-original by post or in person may be got ascertained from the party itself. rdquo 3. Shri Ashok Mehta undertakes to place a copy of this report also on record of the Tribunal. 4. After having brought on record the aforesaid report of the Assistant Collector of Customs, he leaves the matter to the discretion of the Bench. 5. We have carefully considered the submission of both sides. In view of the report of the Asstt. Collr. of Customs, it is clear that the respondents are not challenging the date of communication of the impugned order by the appellants/applicants. Accordingly the appeal has been filed in time and there is no need for a COD application. Under these circumstances, the COD application, as titled by the Registry, is dismissed as infructuous and the explanation of the learned Advocate is accepted in this case.
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1991 (11) TMI 149
Stay/Dispensation of pre-deposit of penalty ... ... ... ... ..... as no prima facie case. 3. We have considered the submissions of both sides. The detailed facts with reference to circumstances against the accused are to be ascertained while hearing the appeal proper. But at this juncture, the record shows that there was a demand made by the applicant to cross examine the Seizing Officer who had taken down the statement under Section 108 Cr. P.C. Such a cross-examination was not allowed and the Order does not show as to on what ground this cross-examination was denied. The Order also does not indicate about this request of applicant for cross-examination as could be seen from the reply filed by the applicant. In such circumstances, in view of the decision of the Calcutta High Court reported in 1986 (23) E.L.T. 14, the applicant appears to have aprima facie case. In the result, we grant absolute stay as prayed for and pre-deposit of the penalty during the pendency of the appeal is hereby waived. The appeal proper may be posted in due course.
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1991 (11) TMI 148
Modvat credit - Ramming Mass used for coating the bricks used for lining the furnace ... ... ... ... ..... red to be applied in the present case as we have to first see whether the material in question is used in or in relation to the manufacture of the final product. As has been explained in the appeal and as has been discussed in the orders of the lower authorities the Ramming Mass is used for coating the bricks which are used for lining the furnace. Thus, their use is in connection with or in relation to the furnace for its maintenance for lining its broken inner surface after each heat. Such use is not in the manufacturing process for the production of steel. Applying the test spelt out by the Supreme Court in the Ballarpur case, the utilisation of Ramming Mass is not in the manufacturing process but in relation to the apparatus, for its repair. Hence, as it is not used in or in relation to the manufacture of steel, it has been rightly held to be ineligible for the benefit under Rule 57A. 9. For the foregoing reasons, we see no merit in the appeal which we dismiss accordingly.
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1991 (11) TMI 147
MODVAT Credit ... ... ... ... ..... item. The other may be pre-treatment of the raw material which go into the manufacturing stream or the materials which may be used for making the end product ready for marketing. The use of the materials has to be such that they carry by their participation, in the manufacturing stream the process of manufacture a step further. 5. Therefore, following the ratio of the judgment of the Hon rsquo ble Supreme Court and of this Tribunal cited supra, we hold that both Hydrochloric and Sulphuric Acid would be eligible for the benefit of MODVAT Credit, as these are used for treatment of water as seen from the order of the lower appellate authority. So far as Hydrazene 100 is concerned, it is also used for treatment of water. Its use is for the generation of steam which is used in the manufacturing process and we hold that Hydrazene 100 is also eligible for the benefit of MODVAT Credit. In view of above, we find no merits in the appeal of the Revenue and therefore we reject the same.
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1991 (11) TMI 146
Reference to High Court - Import trade control ... ... ... ... ..... no other salt of Thiamine in it. In the same way, in lsquo Multivitaplex Forte rsquo capsules also the only component relatable to Vitamin B1 is Thiamine Mononitrate, again used as such. Thus, it is found that in practice Thiamine Mononitrate is used in India as a Vitamin ndash B1 by a recognised Pharmaceutical company to whom the goods are said to have been sold by the importer. 10. In the light of above, it is clear that Thiamine Mononitrate is a Vitamin-B1 whose importation is not permitted to an export house unless it is against licence linked to exports of Vitamin B1 tablets. 4. Following the ratio of the above decision, we uphold the findings of the Tribunal in the impugned order which are in appreciation of evidence. 5. The plea that by reason of prior practice of clearance allowed by the authorities a reference is called for on ground of estoppel is not acceptable since there is no estoppel against law or statute. In the result, the reference application is dismissed.
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