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Case Laws
Showing 61 to 80 of 286 Records
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1991 (9) TMI 312
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... ... ..... to be drawn from the circumstances of the case. As pointed out by the Apex Court in Deputy Commissioner of Agricultural Income-tax and Sales Tax v. Indian Explosives Ltd. 1985 60 STC 310 the import on the basis of the actual user s licence and the condition prohibiting the diversion of the goods after the import would establish an integral connection and link between the transaction of sale and the import. We are satisfied that on the facts and circumstances of the case and on the basis of the stipulation in the letter of authority to the effect that the assessee would act as an agent of the licensee, the assessee acted only as an agent of the licensee. 4.. For all the above reasons we hold that the transactions clearly amounted to a sale in the course of the import. We, therefore, set aside the order of the Board of Revenue and restore the order of the Appellate Assistant Commissioner. The tax appeal is allowed. There will, however, be no order as to costs. Appeal allowed.
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1991 (9) TMI 311
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... ... ..... e face of the record so far as the earlier order of the Tribunal is concerned. An error which is alleged to have been discovered by reference to case law and material which was admittedly not produced at the earlier stages cannot be said to be an error apparent which may clothe the Tribunal with jurisdiction to review its earlier order. In our opinion, the Tribunal, therefore, exceeded its jurisdiction in reviewing the order dated 7th July, 1981, and by reference to certain material and other judgments, deleting the penalty. The application for review was almost treated as an appeal against the order of the appellate authority, and certainly, a review application cannot be an appeal in disguise. The order of the Tribunal in review application dated 28th January, 1982, is not sustainable. We, therefore, accept this revision and set aside that order. Consequently, the order of the Tribunal dated 7th July, 1981, is restored. There will be no order as to costs. Petition allowed.
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1991 (9) TMI 310
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... ... ..... on Commissioner of Income-tax v. Mohan Meakin Breweries Ltd. 1980 122 ITR 203 (HP). The facts of that case are far from the question involved in this case. The court was concerned, in that case, with the installation of an internal telephone system and they construed the same as a plant and not an office appliance. As already stated that decision has no application to the facts of the present case. Even in the dictionary meaning the words of or pertaining to science or the sciences indicate that the equipment should be relatable to the application of natural science. Thus, looked from any angle, we are not satisfied that steam boilers can be brought within the meaning of scientific equipment or instrument and given the concessional rate of 5 per cent. Consequently, the findings of the Joint Commissioner is perfectly legal and justified and does not call for any interference. The tax appeal fails and is dismissed. However, there will be no order as to costs. Appeal dismissed.
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1991 (9) TMI 309
Classification ... ... ... ... ..... y MP High Court. There is no reason for us to take a different view from these rulings as well as the ruling given by Andhra Pradesh High Court in the case of Siri Pharma. The Revenue has also not indicated any ground for taking a different view from those expressed already by the Tribunal as well as by other High Courts noted above. 11. emsp In view of the evidence produced in regard to the manner in which the product is marketed as food and food supplement and the assessee rsquo s contention clarified by Trade Notice, HSN Notes, there is no reason to interfere with the order of the learned Collector. As rightly pointed out by the assessee rsquo s representative that mere use of colour scheme on the wrapper and marketed in the brand or trade name, would not be a feature to consider the product as a drug or P and P medicine. This by itself is not a ground for considering the product as P and P medicine. Therefore, we uphold the lower authorities order and dismiss this appeal.
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1991 (9) TMI 308
Precedent - Valuation - Notification 201/85-C.E. ... ... ... ... ..... bay High Court decision and give relief to the petitioner or (ii) that the respondent should ignore the judgment of the Bombay High Court and take a contrary view. In the event of the first course being followed the Excise authorities will be prevented from challenging the view taken by the Bombay High Court so far as the present petitioner is concerned because it will not be possible for the respondent to have this matter pursued further in any proceedings. In the other alternative, the result will be ignoring and acting contrary to the judgment of the Bombay High Court by the Tribunal under the Act which would not be consistent with the proper administration of justice but rather will be destructive of it. rdquo 8. emsp In view of the above discussion we very respectfully follow the judgment of the Bombay High Court in the case of G.T.C. Inds. and Another v. U.O.I. reported in 1986 (25) E.L.T. 925 and confirm the findings of the lower authorities. The appeals are dismissed.
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1991 (9) TMI 301
Winding up – Liability for fraudulent conduct of business ... ... ... ... ..... The official liquidator has not been able to refute the contention raised by learned counsel for the respondents to the effect that there are no averments made in the petition nor is there any evidence on record to prove that the business of the company was carried on with the intention to defraud the creditors of the company or any other person or that it was run for fraudulent purposes. No creditor has come forward to claim any amount due from the company. Learned counsel has failed to show any evidence showing mens rea of the respondents to defraud the creditors or any other person or the company for fraudulent purposes. There is nothing on record from which it can be assumed that any of the respondents who have taken permission for the formation of the company is liable for the acts of misfeasance and breach of trust in the affairs of the company. In view of the observations made above, I find no force in this petition and the same is dismissed with no order as to costs.
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1991 (9) TMI 300
Government company ... ... ... ... ..... en the State or an instrumentality of the State ventures into corporate world and purchases the shares of a company, it assumes to itself the ordinary role of a shareholder... These observations are more apposite in a case where a Government company heavily depends upon foreign collaboration for technology, capital, international loans and avenues of export. I agree with brother Mohd. Shamim that the case nearest to Maruti Ltd. is K. M. Thmos v. Cochin Refineries Ltd., AIR 1982 Ker 248. I hold that Maruti Udyog Ltd. is not an instrumentality of State or an authority for the purposes of article 12 of the Constitution. Even if it is an instrumentality of State, the court should not subject it to the rigour of article 14 of the Constitution so as to adjudicate on the grievance of the petitioner. The writ petition is not maintainable. Dismissed. For the reasons stated above, we hold that the writ petition is not maintainable and is dismissed. There shall be no orders as to costs.
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1991 (9) TMI 299
Penalty for wrongful with holding of property ... ... ... ... ..... as has been made out to be. An investigation by the criminal court into the circumstances of this surrender is, therefore, to my mind, very essential and is also in the public interest. To this extent, I will categorise this case as being one of those categories of cases where the public interest requires that the forum before which the complaint is presented needs in the public interest to embark upon an enquiry of the suspicious circumstances in which an important transaction has taken place and that such an enquiry should not be stifled by having resort to the provisions of section 484 of the Code of Criminal Procedure. Perhaps this is an angle which has not hitherto come up in many cases, but since it has come up in the present instance, these observations are necessary. In this view of the matter, no interference is justified at this stage. The criminal writ petition accordingly fails and is dismissed. The rule to stand discharged and the interim orders to stand vacated.
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1991 (9) TMI 284
Classification ... ... ... ... ..... unal has negatived the claim of the Revenue and upheld that of the assessee. 3. emsp On hearing the ld. Counsel, Sh. Paresh Dave for appellants and Sh. Narasimha Murthy, ld. D.R. for the Revenue, we grant stay and take up the appeals for disposal as the issue of classification of paper based laminated sheets stands concluded by the Tribunal in its decisions cited (supra), the ratio of which is applicable to facts of the present case. The ld. D.R. would, however, reiterate the submission that the Department has challenged the correctness of Tribunal rsquo s decision before the Supreme Court. This, however, in our view, will not be a ground for us not to follow precedent decisions whose operation has not been shown to be stayed by the Supreme Court. Therefore, following the ratio of the precedent CEGAT decisions, the appeals are allowed with consequential relief subject to the aspect of limitation in the case of the refund claim of the appellants before the Assistant Collector.
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1991 (9) TMI 276
Winding up – Circumstances in which a company may be would up ... ... ... ... ..... adverse findings. The grievance about the inadequacy of time to establish all that the petitioner intended to, also appears to be genuine. The petitioner has to be liberated from the oppression of these prejudicial factors. It is all the more necessary, inasmuch as we have declined to go into the details of the allegations and assess the correctness of the findings of the learned judge. We would, therefore, vacate the factual findings on the various allegations as entered by the learned judge. It will be open to the petitioner to approach other authorities in accordance with law and seek ventilation of his grievances. Needless to add, it will be open to the respondents to present before such authorities their version and justification. The authorities, if and when approached by the petitioner, will adjudicate upon the grievances of the appellant uninhibited by any of the findings and observations of the learned judge. Subject to the above observations, we dismiss the appeal.
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1991 (9) TMI 275
Winding up - Appeals from orders ... ... ... ... ..... 66. To that extent, a decree against him is passed for this amount. To that extent the judgment and decree of the single judge is modified. The appeal (C. A. No. 11) of the other defendants stands dismissed. Civil Appeal No. 8 of 1986 has been filed in C. P. No, 75 of 1982. The amount found due by the single judge has been rightly fixed. However, at the time of passing of the final decree the court will adjust a sum of Rs. 6,766.97, which has been found in excess while deciding Civil Appeal No. 10 of 1986, filed by defendant No. 8, B. P. Gupta, appellant. He will also be given adjustment for the amount of sale proceeds of the machinery. To that extent the judgment and decree of the single judge stands modified. Civil Appeal No. 9 of 1986, in C. P. No. 75 of 1982, is dismissed with the observation that the amount of the sale proceeds of the machinery would be adjusted at the time of passing of the final decree. The parties in all these appeals are left to bear their own costs.
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1991 (9) TMI 267
Manufacture ... ... ... ... ..... that the Tribunal has held that the powdered rubber is not a new product merely because no chemical reaction is involved in the process of crushing and that this is erroneous. This is a very narrow reading of the Tribunal rsquo s order. The Tribunal has not only given a finding that the powder is secured by a mere process of crushing but also that the crushed product was not a new product. This is essentially a finding of fact. We, therefore, dismiss the appeal. rdquo 1990 (45) E.L.T. A.67 It is, further, seen that the appellants in their reply to the show cause notice have specifically referred to Gujarat Reclaim and Rubber Products Ltd., being one of their competitors and that the method of producing the powder in the two units is the same. Therefore, in view of the Tribunal rsquo s decision that such an activity will not amount to manufacture, as upheld by the Supreme Court, we see lot of force in the appeal which is accordingly allowed and the impugned order is set aside.
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1991 (9) TMI 256
Meeting and Proceedings – Power of Company Law Board to Order Meeting to be Called, Contents and manner of service of notice and persons on whom it is to be served, Meetings and proceedings - Explanatory statement to be annexed to notice, Directors - Right of person other than retiring director to stand for directorship, Compromise and arrangement
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1991 (9) TMI 255
Company when deemed unable to pay its debts ... ... ... ... ..... from the records and further correspondence that this 10 per cent. had not been accepted by the petitioner. A perusal of the correspondence and statement of accounts of the very petitioner which is relied upon by Shri Dias for the company indeed shows a balance due in the amount of Rs. 75,574.46 as late as May, 1990, but the company had shown a discrepancy and have admitted that as per their books of account what is due to the petitioner is a sum of Rs. 73,952.66 only. In view of the deficiency in the petition and in the absence of particulars starting from the statutory notice under section 434 and more particularly no averment that the company is commercially insolvent and otherwise is unable to pay the debts, in my view, the only fit order that I can make is to direct the company to pay the amount of Rs. 73,952.66 on the admission of the company on or before 31st December, 1991, to the petitioner. Subject to this direction the petition stands dismissed and rule discharged.
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1991 (9) TMI 242
Coal Tar Pitch and Blends of Pitch not entitled to benefit of exemption under Notification No. 121/62-C.E.
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1991 (9) TMI 233
Words & Phrases ... ... ... ... ..... emsp The decision of the Tribunal in Herdillia Chemicals case (supra) is also not applicable to the present appeals because the points to be decided by us is not on whose behalf the goods were manufactured. 27. emsp Certain other facts which were placed before us in the form of an affidavit of Shri S.A. Ranganathan, Dy. Manager (Legal) of the appellant company also go to support the basic conclusion that after exclusion of the areas from their ground plans, the boilers units were no longer within the factory premises of the three sugar mills. We agree with the conclusions of Collector of Central Excise, Coimbatore who has recorded detailed findings on these questions in paragraphs 10-12 (Appeals No. 2542/87-D) and paragraphs 11-13 (Appeal No. 2543/87-D) of the two impugned orders. 28. emsp The amounts of duty demanded in the three impugned orders have not been disputed in the appeals. The appeals fail for detailed reasons recorded above and all them are, therefore, rejected.
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1991 (9) TMI 226
Confiscation of smuggled zip fasteners ... ... ... ... ..... get the goods on approval basis and only on finalisation of the transaction bills are prepared. He however pleaded that the penalty is not justified. He is not a smuggler in zip fasteners. He has only purchased it for the purpose of setting to the customers. 4. emsp After hearing both the sides, I find that the order of confiscation is sustainable because of the fact that the bills produced are subsequent to the date of seizure. When the goods have already been seized, the question of preparing the bill after approval does not arise. In any case, these cannot be said to cover the zip fasteners and have been obtained subsequent to the seizure for covering up the seized goods. Hence the order of confiscation passed by the lower authorities is sustainable. As regards the penalty, having regard to the quantity of the goods involved and in the absence of any other evidence to prove that he is habituals dealing in smuggled goods, I extend the benefit of doubt and remit the penalty.
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1991 (9) TMI 225
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... ... ..... i, Member (T) . - I observe that the manner of utilisation of the credit allowed in respect of inputs is set out under Rule 57F. There is no provision in the said Rule for utilisation of the credit for payment of duty in respect of the goods which had already been cleared before the Scheme came into force. Under the MODVAT Scheme, the MODVAT Credit taken in RG 23A Part II is not like a money in the hands of the importer. The credit is only allowed to be set off for the purpose of payment of duty in respect of specified end products in respect of which the appellants have filed a declaration. In the present case it is not the case of the appellant that their finished product were entitled to the benefit of Modvat credit in respect of the inputs which were used. Even otherwise in the absence of any provision for retrospective application for utilisation of the MODVAT credit, the question of allowing the appellant rsquo s plea does not arise. The appeal is, therefore, dismissed.
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1991 (9) TMI 224
Refund - Protest - Payment of duty under protest ... ... ... ... ..... (Appeals) that the bona fide of the appellants in filing the letter of protest before the Supdt. is open to doubt, is not supported by factual position as indicated above. 6. emsp Filing of the letter of protest before the Superintendent simultaneously with the filing of the revised classification list, which was approved by the Assistant Collector has to be construed as substantial compliance of the requirement for the purposes of Rule 233B. Even factual position does not indicate that the letter of protest was manipulated subsequently to get the benefit of saving of limitation. In the circumstances, we are of the view that the lower authorities were not justified in dismissing the letter of protest as not saving the limitation. We, therefore, set aside the orders of the authorities below but remand the case back to the Assistant Collector for consideration of their claims on merits and pass orders in accordance with the law. 7. All the appeals are allowed by way of remand.
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1991 (9) TMI 223
Refund of duty on duty paid goods ... ... ... ... ..... y. Here however is not the case for refund of duty amount. The duty is already paid at the first removal, and that was the correct stage for payment of duty. The amount paid as duty at the second removal stage was actually on excess payment, and the doctrine of unjust enrichment, even assuming to be applicable to the refunds granted under the Excise Act, could not stand attracted here. 11. Taking all the factors into consideration, the case of the appellants would fall within the purview of Rule 173H, so far as receipt and retention of the machine in the premises is concerned. As per the said provision, the appellants could have removed the same without payment of duty and as such duty paid second time has to be taken as the excess duty liable to be refunded as per the general provisions. The claim filed is within six months from the date of payment. 12. The appeal is therefore allowed. The order rejecting the claim is set aside, and the refund claimed is directed to be paid.
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