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Showing 61 to 80 of 266 Records
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1993 (8) TMI 237
Winding up – Company when deemed unable to pay its debts ... ... ... ... ..... . This court in Hegde and Golay Ltd. v. State Bank of India, ILR 1987 Kar 2673, has explained the scope of a petition arising under section 433(e) of the Companies Act. It was stated therein that whenever a bona fide dispute arises between the parties in relation to a debt due on the basis of which the petition under section 433(e) is filed, the debt must be established and the liability is still due and there is no valid defence to the claim made by the petitioner. In the present case in respect of the claim made by the petitioner, the respondent has raised several objections which are referred to earlier and these objections had been raised even long before the demand for payment was made by the petitioner and therefore the defence to the liability alleged against the respondent by the petitioner cannot be brushed aside as not bona fide. In that view of the matter, I do not think that any case is made out for admission of this petition. The petition is, therefore, rejected.
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1993 (8) TMI 223
Resolution for appointing or removing auditors ... ... ... ... ..... he profession of chartered accountants is a profession of the learned there should not be any feeling of professional rivalry or trade competitiveness amongst the members. The hurt feelings of an outgoing auditor shall not normally influence him to complain against an incoming auditor , only because the company thought it necessary to change its auditor the charge of professional misconduct is a serious charge and the complainant also should remember that in this slippery world, some day, he too may commit some mistake which another may magnify and stigmatise as a misconduct the member of every learned profession owes to himself and to the profession that his fellow member is not unduly and unnecessarily dragged into disciplinary proceedings. Mr. Naganand, learned counsel for the Institute, assured the court that the proceedings against the petitioner would be concluded with utmost speed, without delay. The writ petition is accordingly dismissed. No costs. Rule is discharged.
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1993 (8) TMI 216
Classification ... ... ... ... ..... of white mass fibre with cut slivers and rovings of different lengths alongwith small amounts of brown and dark brown mass fibre which was composed entirely of acrylic fibre was correctly assessable under Tariff Item 68. He (sic) that Tribunal has been consistently taking this view following decision contained in Order No. 396/84-D, dated 17-7-1984 in the case of Oswal Woollen Mills Ltd., Ludhiana v Collector of Customs, Madras and Bombay High Court Judgment reported in 1990 (46) E.L.T.-214 (Bom.) in the case of R.K. Synthetics and Fibres Pvt. Ltd., v. Union of India. He also filed a copy of the latest decision on this issue in the case of Collector of Customs, Bombay v. M/s. OPK Woollen Mills as per Order No. C/587, dated 6-9-1990. We find that the present case is (sic) covered by the aforesaid earlier decisions as it was also pointed out by the Departmental Representative. Following the aforesaid decisions, we set aside the impugned order accordingly, the appeal is allowed.
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1993 (8) TMI 214
Valuation - Design and Engineering Charges ... ... ... ... ..... tax liability. The appellants had not furnished any details about the refund/credit given to them by the DML. In the circumstances the provisions of Interpretative Notes to Rule 4 are not applicable to the facts of the case before us. 75. emsp We find that a sum of Pound 11.50 lakhs was paid by APL to DML towards engineering, design work, plans, sketches etc., undertaken by DML elsewhere than in India, and that these engineering, design work, plans, sketches etc., were necessary for the production of the imported goods, got manufactured by DML and supplied to APL. Thus, this payment was covered by the provisions of Rule 9(1)(b)(iv) of the Customs Valuation Rules. 76. emsp ln the circumstances, we find that the invoice value was correctly loaded by the Additional Collector, Customs, and we hold that the sum of Pound 11.50 lakhs was correctly added to the contract price for the supply of equipment by DML to APL. 77. emsp Accordingly, we reject the appeal and order accordingly.
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1993 (8) TMI 213
... ... ... ... ..... ty bottles. After all nothing which is durable and returnable can last for all time to come. Everything becomes unserviceable because of wear and tear during handling. Therefore, every durable and returnable article of packing comes to an end and consequently its cost also vanishes. As the cost of packing is not includible in the assessable value, we hold that the cost of breakages of empty glass bottles will not be includible in the assessable value. 9. emsp Now coming to the question of expenses incurred for transportation of empty bottles from the wholesale buyer rsquo s premises to the factory, we agree with the ratio of judgment in the case of Spring Fresh Drinks v. C.C.E. reported in 1991 (54) E.L.T. 333 and hold that these expenses have to be excluded from the assessable value. 10. emsp In the light of the above findings, the appeals are dismissed. 11. emsp Consequential relief, if any, will be admissible to M/s. Mamta Drinks and Industries Ltd. in accordance with law.
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1993 (8) TMI 211
Stay/Dipensation of pre-deposit ... ... ... ... ..... There are, therefore, certain features which prima facie would differentiate the present case from that Indian Petrochemicals Ltd. case cited by the learned Consultant supra. In such a situation we are of the view that it cannot be held that a prima facie case for totally dispensing with the duty and penalty has been made out. Having regard to their financial position as disclosed in the Annual Report of the applicants for the period 1991-92 and the fact that their application has been registered with the Board for Industrial and Financial Reconstruction, we are of the view, a partial pre-deposit of the duty demanded in this case will be appropriate for the purposes of Section 35F of Central Excises and Salt Act, 1944. Accordingly, we direct that the applicants should pre-deposit an amount of Rs. 20 lakhs on or before 31st October, 1993 and the whole of the penalty is dispensed with and its recovery stayed. Matter to come up for ascertaining compliance on 8th November, 1993.
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1993 (8) TMI 210
Demand - Export of goods under Bond to Nepal ... ... ... ... ..... y. If the Govt. felt that the permission has to be backed by a proper Notification, the facility given by the Ministry in the form of a circular has to be withdrawn by another circular issued by the Ministry. Some internal orders of the Board cannot take away the benefit of the circular issued by the Ministry. 7. emsp Moreover the same facility contained in the Ministry rsquo s circular dated 23-9-1977 is also given by way of Notification issued on 29-7-1981. Hence, we are not persuaded to hold that it was a policy decision of the Govt. to withdraw the facility once for all. 8. emsp Hence, in such a circumstance, the exports permitted by the Collector under bond on the basis of the circular issued by the Ministry of Finance are to be construed as validly effected and cannot be reversed by the internal directions of the Board. 9. emsp Hence, even on merits, we would allow this appeal apart from the reasons contained in the Bench rsquo s order - 1989 (44) E.L.T. 669 (Tribunal).
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1993 (8) TMI 209
Penalty - Accounting mistake ... ... ... ... ..... on has arisen and no mala fide can be attributed to them. He therefore pleads that the penalty may be remitted, since it would be a stigma on their otherwise bone fide nature. 4. emsp After hearing both the sides, and perusing of the order, I find that the duty demand is mainly on account of certain accounting error and there is no allegation of clandestine removal. Moreover, the Collector has also observed that the goods not allegedly accounted for have been properly explained and only with regard to 22 reels found in excess, for which proper explanations are not forthcoming. In view of this I would deem it proper to remit the penalty but administer a warning to the appellants for being careful with regard to maintenance of the accounts of the excisable goods. As regards the goods found in excess, the order of confiscation and imposition of redemption fine do not call for any interference. The appeal is disposed of in the above terms. Consequential relief, if any, to follow.
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1993 (8) TMI 208
Modvat Credit ... ... ... ... ..... may be. Hence, the description given in the declaration does not seek to cover these additives, and I agree with Shri Ravinder Jain that disallowance of modvat credit can be justified. However, in the case of aluminium blanks, both slugs as well as blanks are under the same Chapter Heading and they are recognised as raw materials for the manufacture of aluminium tubes. Moreover, the supplier of these materials has also sent a letter indicating that the description in gate pass has been wrongly given as aluminium blanks. In any case, when viewed in the context of the nature of the material received and the description in the modvat declaration, I would deem it proper to extend modvat credit in respect of the Gate Pass No. 40 dated 6-6-1990 received from Western Slug Industries. I also find that the suppliers are mainly manufacturers of slugs. In view of this, I partly allow the appeal and order restoration of modvat credit denied in respect of Gate Pass No. 40, dated 6-6-1990.
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1993 (8) TMI 207
Demand - Limitation ... ... ... ... ..... er delivery challan after rectification from the suppliers, the same credit was taken. He, therefore, pleads that they have followed the procedure as laid down by the Asstt. Collector and hence the extended period cannot be invoked for confirming the demand. 5. emsp After hearing both the sides, I am satisfied that the appellants have followed the procedure prescribed by the Asstt. Collector after consultation with the Dy. Collector at Surat. The quantities of defective goods were cleared outside by reversal of modvat credit and when these materials after rectification of the defects were received back, the same credit was taken. This is what the Asstt. Collector has directed. Hence, the entire operation was within the knowledge of the Department and it is surprising as to how the Collector can invoke the extended period to confirm the demand in such a case. In view of this, without going into the merits of the case, I allow the appeal on the ground of time bar of the demand.
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1993 (8) TMI 206
... ... ... ... ..... declaration and produced the photo copy of the GPs, which were made available by the supplier and on that basis credit was provisionally allowed by the Department. There was no mala fide on their part to take credit without informing the department. He would plead for remitting the penalty. 4. emsp Shri Ravinder Jain, the Ld JDR, however, contends that the penalty is justified in view of the fact that the credit was sought to be taken in the absence of original gate passes and there is no explanation that the gate passes were lost. 5. After hearing both the sides, I find that in this case the credit was taken on the basis of the D-3 declaration and the officer has allowed credit on the provisional basis subject to production of original gate pass. When due to some reasons, they could not produce the gate pass, reversal of proforma credit to the extent of the credit taken on the basis of photo copies of the Gate Passes would meet the end of justice. Hence I remit the penalty.
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1993 (8) TMI 205
Modvat Credit ... ... ... ... ..... Based on the plea made by the Ld. SDR, Shri K.M. Mondal, I find that there is no question calling for reference to the High Court in view of the settled law by the Apex Court that in the case of Eastend Paper Mills - 1989 (43) E.L.T. 201, which has held in clear terms that anything required to make the goods marketable and all processes required for that are to be construed as in the process of manufacture of the final product. For obtaining steam (which is necessary for manufacture of VAM) if certain chemicals are needed for purification of water, they have to be construed as inputs, for VAM, even if such chemicals are used for obtaining steam at the first stage. This view has been taken by the East Regional Bench also in an identical issue. Hence, in view of the law laid down by the Apex Court as above, Reference Application is not called for and is rejected. 4. Cross Reference Application, in the nature of reply to the Reference Application, is also treated as disposed of.
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1993 (8) TMI 204
Appeal - Additional evidence ... ... ... ... ..... igible to the benefit of Notification No. 175/86 in terms of para 7 of the notification. The learned lower authority has devoted a full para (Para No. 9) to find out whether wafers are biscuits or not. The inevitable conclusion that falls from the facts of this case is that the authorities were aware all along that both M/s. Asoka Biscuits and M/s. Asoka Wafers were using the Brand name Asoka rsquo for their respective products, and for the reason as mentioned above they did not proceed to take any action in terms of para 7 of the Notification No. 175/86 till they came to a conclusion that wafers are biscuits. In view of the above we hold that the charge of suppression cannot be held to be maintainable against the appellants and for that reason, therefore, no duty can be demanded beyond a period of six months. In as much as the demand in the present case is beyond six months the same is not maintainable in law. We therefore, set aside the order of the learned lower authority.
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1993 (8) TMI 203
Penalty not imposable when extended period of five years not invoked for raising the demand ... ... ... ... ..... deemed necessary. If the Collector found that there is no justification for invoking the extended period beyond six months, he can confine himself to the adjudication for the period of six months. On the contrary if he finds that there are materials to allege suppression etc. for invoking the extended period, a proper notice alleging this is called for from him. In this case, I find from the communication issued by the Collector, he has not chosen to allege suppression etc. for invoking extended period. Hence, after hearing the appellants, he has confirmed the demand for a period of six months only. Since the classification has been accepted by the appellants, the demand confirmed for six months from the date of approval of the classification list is to be honoured by them. However, I agree that the penalty in these circumstances is not called for and hence I set aside the same. 5. By disposing of the appeal itself in the above terms, the stay application is also disposed of.
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1993 (8) TMI 202
Modvat - Deemed credit permissible on purchase of goods as well as stock transfer ... ... ... ... ..... t, the CBEC, under their circular dated 1-3-1989, have clarified that deemed Modvat credit facility will be available in the case of purchase as well as stock transfers. In this case, the job work is done for M/s Jyoti Structures, who have admittedly, purchased these inputs from the market sources and these marked purchased inputs have been sent for job work to the appellant. Hence the objection taken by the department that deemed Modvat credit is not available cannot be sustained, since it is a case of transfer of M/s. Jyoti Structures to the appellant for purpose of getting the job work done and is also squarely covered by the Board rsquo s circular clarifying the position, subsequently issued. This is the view we have taken in a similar case in the case of Foundry Workshop and Refineries vide our Order No. 348/93-WRB, dt.11-3-1993 since reported in 1993 (66) E.L.T. 534 (Tri. . Hence, we allow the appeal with consequential restoration of the deemed credit to the appellants.
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1993 (8) TMI 201
Penalty for attempt to export foreign currency from India ... ... ... ... ..... h regard to the confiscation of foreign currency and imposition of penalty on Shri A. Desai, the order is not challenged on merits and hence it is required to be confirmed. The plea of Shri Willingdon is only for extending leniency. Having regard to this plea and the ground urged in this regard, we are inclined to extend leniency and reduce the penalty to Rs.1.25 lakhs on Shri Abubackar Desai. 7. emsp As regards Shri Jayesh Shah, we agree with Shri Shah that Section 114 of the Customs Act cannot be invoked for imposing penalty on this appellant, because the allegation against Shri Jayesh Shah is that he introduced the other appellant to some unauthorised money exchanger at Navsari. He could not be said to have abetted in the illicit export of currency through Bombay, when knowledge about the export or his presence at Bombay are not evident. In the circumstances, we set aside the order of penalty imposed on Shri Jayesh Shah. Both the appeals are disposed of in the above terms.
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1993 (8) TMI 200
Scrap - Ship breaking scrap - Exemption ... ... ... ... ..... und in the order-in-original passed by the adjudicating authority, the demand of duty and consequently imposition of penalty on the appellants is not sustainable. The appeal is thus allowed. PENALTIES ON INDIVIDUALS IN THE CASES OF TIGRANIA METAL and STEEL LTD. AND AMIT STEEL ROLLING MILLS 2.34 emsp For imposition of penalties on the individuals under Rule 209A certain more material facts regarding the personal role of the individuals in evasion of duty has to be brought on record. We find that there is a total lack of such evidence in respect of the role of each of the individuals visited upon with penalties in the two cases, mentioned above. In the facts and circumstances of the said two cases, we do not find any justification for imposition of penalty on - (1) N.K. Gupta and V.N. Dhhoot M/s. Tigrania Metal and Steel Ltd . (2) R.C. Mittal, A.R. Agarwal, Smt. R.V. Sali, Smt. S.A. Agarwal and Smt. V.S. Agarwal Amit Steel Rolling Mills . 3. Appeals are disposed of accordingly.
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1993 (8) TMI 199
S.S.I. Exemption - Value of clearances ... ... ... ... ..... tor has done. He has held two independent companies, which are geographically apart and without any financial flowback or being dummy of one other, to be one company. Such an interpretation is unique and unknown to law and it is a total misapplication of law. The Learned Collector has applied the ruling of Bhoormul rsquo s case 1983 (13) E.L.T. 1546 . With due respect to learned Collector, this ratio is totally inapplicable as the case dealt about smuggling activity and Customs evasion, which is not the case here. 9. emsp As observed earlier, there is nothing on record to show that M/s. Prima is a dummy unit of M/s. Avcon. The learned Collector has held that he can lift the mask of corporate entity. But the revenue has not placed sufficient evidence in this regard to uphold the charge. 10. emsp Therefore, applying the ratio of the citations noted by us the impugned order deserves to be quashed and we order accordingly by allowing the appeal with consequential benefits if any.
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1993 (8) TMI 198
Valuation - Natural justice ... ... ... ... ..... e limit in the licence, it is deemed proper to set aside the entire order of the adjudicating authority. 10. emsp While ordering the remand, it is directed that the Ld. adjudicating authority shall furnish the copies of the documents sought to be relied upon for the purpose of valuation. As the copy of the second test at the private laboratory is already supplied, no specific direction is given. The adjudicating authority shall after supply of the copies of all relevant documents in relation to fixation of valuation, shall, after giving reasonable time, fix the matter for personal hearing and shall take appropriate decision according to law. It is however clarified that the remand is only on the limited issue of valuation and the consequences that follow on that account. 11. emsp The appeal is thus allowed. The order of the authority below is set aside and the matter is remanded to the adjudicating authority to re-adjudicate, keeping in view the observations made hereinabove.
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1993 (8) TMI 197
S.S.I. Exemption - Value of clearances ... ... ... ... ..... under clauses (a) and (b) had been crossed any subsequent clearances would have to be at the full rate of duty. We observe that in paras 1 and 2 it is clearly stated that the value of clearances of specified goods in terms of clause (a) and clause (b) taken together shall not exceed Rs. 75 lakhs. It goes to show that the goods which are allowed to be cleared at exempted rate or at concessional rate of duty shall not exceed Rs. 75 lakhs. The appellants are only claiming this benefit of aggregate value of Rs. 75 lakhs. We have held in our earlier decisions referred to supra that the benefit of the concession cannot be contingent upon the sequence of the clearances but has to be taken in the context of the totality allowed to be cleared at the concessional rate or exempted rate. We find that the ratio of our earlier decision would squarely apply to the facts of this case and we, therefore, hold that the appellants rsquo plea has to be allowed. The appeal is, therefore, allowed.
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