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Case Laws
Showing 61 to 80 of 276 Records
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1992 (7) TMI 294 - CEGAT, MUMBAI
Duty liability - Trader - Duty paying documents ... ... ... ... ..... 5/77 issued under Rule 174A sought to be relied upon heavily by the ld. SDR only talks of exemption from licensing control subject to fulfilment of certain conditions. There is no evidence whatsoever to show that these conditions have been violated by the appellants. On the contrary, initial statement indicates that they have not carefully maintained the duty payment document and hence they could not account for the excess. This explanation is to be effectively rebutted. When it is not done, no firm conclusion could be arrived at only on the basis of a suspicion. Suspicion however grave, cannot substitute evidence. Moreover, it is now a settled law that duly can be demanded only from the manufacturer and the manufacturer in this case is the processing house, as has been held by the Supreme Court in the case of M/s. Ujagar Prints - 1989 (39) E.L.T. 493 (S.C.). In view of the aforesaid discussions, I allow all the three appeals and set aside the order with consequential relief.
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1992 (7) TMI 292 - SUPREME COURT
Whether the Tribunal was correct in law in holding that for the purpose of reducing set- off under clause (iii) of the proviso to the explanation to rule 41 of the Bombay Sales Tax Rules, 1959, one per cent, should be calculated not on the entire sale price of the goods despatched by the appellants to their branches, but only on that part of the sale price of the goods sold outside the State which is attributable to the locally purchased raw material on which the appellants were claiming set-off?
Whether the Tribunal was correct in law in holding that for the purpose of reducing set- off under clause (iii) of the proviso to the explanation to rule 41 and clause (y) of the proviso to the explanation to rule 41-A of the Bombay Sales Tax Rules, 1959, one per cent, should be calculated not on the entire sale price of the goods despatched by the appellants to their branches, but only on the part of the sale price of the goods sold outside the State which is attributable to the locally purchased raw material on which the appellants were claiming set-off?
Held that:- Appeal dismissed. Failure to understand how a valid grievance can be made in respect of such deduction when the very extension of the benefit of set-off is itself a boon or a concession. It was open to the rule-making authority to provide for a small abridgement or curtailment while extending a concession. Viewed from this angle, the argument that providing for such deduction amounts to levy of tax either on purchases of raw material effected outside the State or on sale of manufactured goods effected outside the State of Maharashtra appears to be beside the point and is unacceptable. So is the argument about apportioning the sale price with reference to the proportion in which raw material was purchased within and outside the State.
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1992 (7) TMI 284 - HIGH COURT OF CALCUTTA
Oppression and mismanagement ... ... ... ... ..... t the stamps had not been cancelled. Once having done so, it was not open to the company suo mqtu on its own account to deregister that without taking recourse to law. 9. In the case of Rajahmundry Electric Supply Corpn. Ltd v. A. Nageswara Rao 1956 26 Comp. Cas. 91 (SC), it was held that the validity of a petition must be judged on the facts as they were at the time of its presentation and when a petition was valid when it was presented, it cannot cease to be maintainable by reason of events subsequent to its presentation. The withdrawal of consent by some of the members subsequent to the presentation of the application cannot affect either the right of the application to proceed with the application or the jurisdiction of the court to dispose of the said application on the merits. 10. Under those circumstances this Court is of the view that the petitioners are not entitled to an order as prayed for. As a result the application is dismissed. Costs will be costs in the cause.
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1992 (7) TMI 277 - HIGH COURT OF KARNATAKA
Winding up – Powers of tribunal on hearing petition, Avoidance of transfer, etc., after commencement of
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1992 (7) TMI 276 - HIGH COURT OF CALCUTTA
Oppression and mismanagement ... ... ... ... ..... ot been cancelled. Once having done so, it was not open to the company suo motu on its own account to deregister that without taking recourse to law. In the case reported in Rajahmundry Electric Supply Corporation Ltd. v. A Nageswara Rao 1956 26 Comp. Cas. 91 AIR 1956 SC 213, it was held that the validity of a petition must be judged on the facts as they were at the time of its presentation and when a petition was valid when, it was presented, it cannot cease to be maintainable by reason of events subsequent to its presentation. The withdrawal of consent by some of the members subsequent to the presentation of the application cannot affect either the right of the applicant to proceed with the application or the, jurisdiction of the court to dispose of the said application on the merits. Under those circumstances this court is of the view that the petitioners are not entitled to an order as prayed for. As a result the application is dismissed. Costs will be costs in the cause.
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1992 (7) TMI 275 - HIGH COURT OF BOMBAY
Winding up - Suits stayed on winding-up order ... ... ... ... ..... submission of Mr. Kadam. It is submitted that in any view of the matter the application for leave was time-barred as under the residuary article 137 of the Limitation Act, 1963, it should have been made within three years from the accrual of the right to apply. Section 446 of the Companies Act does not prescribe any time. Leave can be applied for, as we have held, subsequent to the order of winding up. Article 137 of the Limitation Act, 1963, deals with applications and is a residuary article. Under section 5 of the Limitation Act, the court is empowered to extend the time in filing any appeal or application unlike in a suit. We see no substance in this submission and the same is rejected. In the result, the appellants succeed. The appeal is allowed. The judgment of the learned single judge is set aside. Prayers (a) and (b) of the Company Application No. 366 of 1988 are granted. Leave granted is for continuing Summary Suit No. 494 of 1985. There will be no order as to costs.
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1992 (7) TMI 274 - HIGH COURT OF CALCUTTA
Business expenditure, Deductions ... ... ... ... ..... lly and exclusively incurred by the company for the purpose of its business. The addition of Rs. 15,994 is, therefore, deleted. 10. Here also, the finding of fact that the presentation of wrist watches was in the nature of an incentive to encourage the employees to attend to work punctually and was incurred also to keep the employees happy and to earn their goodwill towards the company as the employer, is not in dispute. In the face of the facts as found by the Tribunal, we cannot accept the contention of the revenue that the expenditure on account of such presentation to the employees was not expenditure wholly and exclusively laid out for the purpose of its business. The ITO, in the assessment order, has not either made out a case that there was extra-commercial consideration in presenting the watches to the employees. 11. We, therefore, answer the third question in the negative (sic) and in favour of the assessee. 12. There will be no order as to costs. Hore, J. - I agree.
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1992 (7) TMI 256 - CEGAT, NEW DELHI
Refund - Unjust enrichment ... ... ... ... ..... by Courts and not by authorities under the Act. Therefore, the impugned order which relates to a refund claim filed and disposed in 1981, a decade prior to the amendment to Section 11B of Central Excises and Salt Act cannot be sustained as the law stood then and the appeal hence deserves to be allowed. As for the implications of the amended Section 11B, the Counsel has cited and relied upon, the Calcutta High Court decision in the case of Titagarh Paper (supra) and no decision contra has been cited. It is, however, observed that this aspect does not arise out of any proceedings under the amended section for consideration before us and it is therefore felt that a finding on this aspect in detail may have await a more appropriate situation where these amended provisions are invoked in the proceedings before the lower authorities and adjudicated upon with reference to a particular claim. In this view of the matter and in the light of the above discussion, the appeal is al1owed.
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1992 (7) TMI 248 - HIGH COURT OF MADRAS
Custody of company’s property, Winding up - Powers of liquidator, Sale to be subject to confirmation by court
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1992 (7) TMI 247 - HIGH COURT OF DELHI
Loans to companies under same management ... ... ... ... ..... d opinion that petitioners Nos. 1 to 8 in C.P. No. 211 of 1990 and Mr. F.R. Vevaina, petitioner No. 1 in C.P. No. 13 of 1991, have acted honestly and reasonably and that having regard to all the circumstances of the case, they ought fairly to be excused and are hereby relieved from their liability in any action that may be brought by the Company Law Board or any other authority under the Companies Act subject, however, to the condition that the said petitioners will render full co-operation to the authorities in their investigation prior to the initiation of action against the company. As regards the company, I am of the view that the protection under section 633 of the Companies Act is not available to the company and is confined only to the officer/officers of the company. For that reason, the petition to the extent it seeks relief in favour of the company is dismissed. The petition is disposed of in the above terms with liberty to the parties to seek any further direction.
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1992 (7) TMI 235 - CEGAT, CALCUTTA
Precedents and past practice ... ... ... ... ..... a fide and in view of the fact that no public notice was issued cautioning the importers that such imports will not be allowed in future in view of the fact that the past practice was erroneous, we are of the opinion that this is not a case which warrants the confiscation of the goods in question. These are the principles laid down by the Supreme Court of India in the case of Akbar Baddruddin v. Collector of Customs reported in 1990 (47) E.L.T. 161. 11. In the result, we are of opinion that on the facts and circumstances of the case, though the goods in question are not covered by the licence, the confiscation of the goods is not in accordance with law, in view of the past practice of the Custom House and in view of the fact that no Public Notice was issued in this regard, intimating that such future imports will not be allowed. The appeal is accordingly allowed and the confiscation of the goods in question set aside. The appellants are entitled for the consequential reliefs.
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1992 (7) TMI 226 - CEGAT, CALCUTTA
Modvat credit - Input ... ... ... ... ..... redit wrongly taken is mentioned as Rs. 3.2 lakhs approximately in the order. The penalty is hardly 10 of the loss of duty involved. The quantum of penalty does not call for any relief to be considered. The penalty has been imposed under Rule 173Q which, because of the charge contained in the show cause notice as discussed in the order, is attributable to wrong taking of credit which is specifically covered by sub-rule 1(bb) thereunder. The non-mention of this sub-rule in the notice or in the order is no disability as the charge has been spelt out properly. The penalty is in order. We see no merit in the contention in the appeal that penalty should be imposed under Rule 209A. We find that the wording in Clause (bb) thereunder is used in Rule 173Q also as regards wrong taking of credit. The penalty has been correctly imposed under Rule 173Q. We uphold the same and dismiss the appeal as far as quashing of penalty has been sought. 8. The appeal is disposed of in the above terms.
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1992 (7) TMI 225 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... ble to penalty under Rule 9(2). It is clear, therefore that the Central Excise do not hold that the clearances were contrary to Rule 9(1). Therefore, the only appropriate rule would be Rule 10 of Central Excise Rules. Therefore, the demand must be held to be time-barred. Other arguments were advanced before the Bench. But it is not necessary now to discuss them . 16. emsp Taking the various rulings cited above into consideration and applying the ratios thereof, the contention of the appellants that there is no wilful mis-declaration or wilful suppression in the case has to be accepted. The Tribunal has already accepted that when Section 11C notification is issued, then there is a scope of holding a bona fide belief and extended period cannot be invoked. Applying these ratios, the demands for larger period are set aside but however, the assessee will be liable to pay those demands which are within time. The appeals are disposed of on the above terms with the said modification.
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1992 (7) TMI 224 - CEGAT, BOMBAY
Remand - Scope of ... ... ... ... ..... other show cause notice, when there is no specific order of quashing those notices. Moreover, the Collector, Baroda has got into the proceedings only by way of order of remand passed by Collector (Appeals). It is not by way of assuming original jurisdiction. That could only be the reason why the notices issued by the Supdt. have not been superseded with the issue of fresh notice by the Collector. 22. In these peculiar circumstances created by the overzealous officials hunting for a case of suppression, the notices issued well within the normal period of limitation remain in suspended animation, without any final orders thereon. 23. While expressing no opinion on the availability of the S.C.Ns issued by the Supdt. over which an adjudication is yet to be done and only for that purpose remand order was passed by Collector (Appeals), I certainly agree that the order of the Collector is bad in law based on misconception of the terms of remand and hence is required to be set aside.
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1992 (7) TMI 223 - CEGAT, CALCUTTA
Rectification of mistake ... ... ... ... ..... tions made by the Hon rsquo ble High Court clearly reveal that the transfer of the case to the Special Bench was challenged before their Lordships and that plea of the petitioner was negatived by the Hon rsquo ble High Court. Therefore, the orders passed by the Hon rsquo ble High Court have become final in this matter. The same cannot be reopened by this Tribunal. The Tribunal has no such power to review the original order passed by it in view of the fact that this original order of transfer made by the Tribunal is confirmed by the Hon rsquo ble Calcutta High Court. Such an order is binding on the petitioner, this Tribunal and the Respondents as well, and the same cannot be called in question before this Tribunal. Therefore, there is no question of rectification involved in this case. In view of the above said order passed by the Hon rsquo ble Calcutta High Court, in our opinion, this Application is misconceived. It is devoid of any merits and accordingly we dismiss the same.
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1992 (7) TMI 222 - CEGAT, BOMBAY
... ...
... ... ..... , could be those goods which render the services directly and not those which help in proper maintenance of the machinery. This could be the only rational interpretation that could be given, otherwise any item could be treated as the capital goods. The item being not capital goods, notwithstanding the other reasons adopted by the authorities below, the goods cannot be treated as falling under Appx. 1B, entry No. 2(9). Under the circumstances, the order passed by the authorities below on that account also does not appear to be suffering from any infirmity and has to be sustained. 7. All the same, the appellants are the actual users of the item. There is no profit motive involved. In that case, redemption fine of 100 of the value of the goods does not appear to be justified. I, therefore, reduce the redemption fine to Rs. 15,000/- (Rupees fifteen thousand only). With this modification in the order, the order of the authorities below is sustained. Consequential relief to follow.
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1992 (7) TMI 221 - CEGAT, BOMBAY
Reference to High Court - A settled question of law not referable ... ... ... ... ..... lector based, on the same evidences, could not have merely acted on a corrigendum. This is what we have observed in our order. It is also a settled law that when the order itself is set aside without remand, the original notice issued cannot survive for consideration. A fresh notice is therefore called for. Hence referring the point of settled law to the High Court does not arise. 7. As regards question No. (ii), we have not given any findings on the issue namely whether Rule 57-I during the material period not prescribing any time limit, the show cause notice can be or cannot be issued within a reasonable period, independent of provisions of Section 11A. A reference can be made only, on a finding given by the Bench, on a particular legal issue. Hence question No. (ii) also does not survive any consideration. In view of the fact that both the questions do not arise, the third question does not survive for consideration. 8. In the result, the reference application is rejected.
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1992 (7) TMI 220 - CEGAT, BOMBAY
Modvat - Transitional provision ... ... ... ... ..... redit could be extended under Rule 57H not only in respect of inputs lying in stock but also in respect of inputs used in the manufacture of final product, which have been cleared from the factory on or after 1-3-1987. Hence, when clause (ii) aforesaid was available, verification of inputs contained in final products cannot be done by physical verification of inputs but has to be done only on the basis of the records regarding utilisation of the inputs in the final product which are cleared on or after 1-3-1987. In view of this position, we find that the objection taken by the Collector (Appeals) is not tenable. Since the factual position regarding the existence of inputs as such in stock as also in processed and contained in the final product, as verified by the Assistant Collector is not disputed, the order of the Assistant Collector is required to be upheld. Hence, we allow the appeal, set aside the order of Collector (Appeals) and restore the order of Assistant Collector.
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1992 (7) TMI 219 - CEGAT, BOMBAY
Appeal - Condonation of delay ... ... ... ... ..... existed then, and it is only because, some contrary view has come to be expressed by a forum, an attempt is made to revive the issue, under the cover of misdirection from a lawyer. The liberal approach, as advised by the Supreme Court in the aforesaid decision, in our opinion, may not be available in such a case. 13. We, under the circumstances find no justifiable ground to hold that the applicants were prevented by just and sufficient cause, from agitating the matter, so as to warrant any condonation of delay. On the contrary, the party having accepted the verdict of the Collector (Appeals), has permitted the time to lapse, and has come only when some new point, on account of some other decision, is now available. The application for condonation of delay under the circumstances, does not merit any consideration. 14. The application for condonation is therefore rejected. The Appeal filed at No. E/244/92 is as a consequence, dismissed as filed beyond the period of limitation.
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1992 (7) TMI 218 - CEGAT, BOMBAY
Modvat credit - Appellants manufacturing Carburettors through castings ... ... ... ... ..... r functional operation of machine. 9. Coming to the last item, Trichloroethylene, it is used on the carburettors in not condition for degreasing oil, water etc. from the body of carburettor. Hence, this is an item used directly for cleaning of final product. It is not an item used in any equipment. 10. Thus after going through the usages, we find that all these items are consumable chemicals, which are essential for the manufacture of final product and they do not get hit by explanation to Rule 57A, either as an equipment or part of equipment or as an item going into the preparation of an equipment or used in the functional operation or upkeep of an equipment. There is no requirement in Rule 57A that the input should be present in the final product. Even consumables, which are essential and are used in or in relation to the manufacture of final product, are eligible input under Rule 57A. 11. In the result, we allow the appeal and set aside the orders of the authorities below.
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