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Case Laws
Showing 81 to 100 of 547 Records
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1997 (12) TMI 586
Winding up - Powers of liquidator ... ... ... ... ..... tion of the Legislature, nor can the provisions of section 457(1)(a) be interpreted in such manner. That apart, if it is held by the Tribunal that the liability to pay the assessed tax is not that of the directors in their personal capacity but of the company, in that case it will be open to the company court after the income-tax is determined and its payment demanded from the official liquidator to decide and determine whether the same should be accepted as a lawful liability on the funds of the company (in liquidation) as observed by the Supreme Court in S.V. Kondaskar, Official Liquidator v. V.M. Deshpande, ITO 1972 42 Comp Cas 168 1972 83 ITR 685. In the application further prayers have been made to direct the Income-tax Tribunal to dispose of the appeals expeditiously and to stay the coercive proceedings against the applicant. These prayers in my view are misconceived and cannot be allowed. As a result, this application appears to be misconceived and is rejected as such.
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1997 (12) TMI 575
Appellants aggrieved by the Industrial Policy Resolution of 1989 of the State of Orissa which came into force from December 1, 1989 in so far as it restricted the benefit of deferment of sales tax to industries which had gone into commercial production after April 1, 1986 and denied such benefit to those which had gone into production before April 1, 1986.
Held that:- Appeal dismissed. Para 2.18 of the 1989 policy and the corresponding provisions of the Notification SRO No. 790 of 1990 (Finance) dated August 16, 1990, in so far as they extended the benefit of the 1989 policy only to the continuing units of 1980 policy which had gone into production after April 1, 1986, the said classification is valid and was not hit by article 14 of the Constitution of India.
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1997 (12) TMI 574
Competence of the State Legislature to pass any law relating to “transportation of goods” - Held that:- The assurance given by the counsel of the State in court was “whether the applicants are dealers or not, he assures that if and when the applicants approach the Commissioner of Taxes, he shall ensure that these forms are supplied to the petitioners”. This assurance was clearly against the law. Form XVIII-A cannot be issued to the transporters.
Although the order dated March 3, 1997 was based on the assurance given by the Senior Advocate appearing for the State the order will have to be recalled. An advocate appearing on behalf of the State cannot undertake that the State will do something contrary to the statute. Therefore, this application is allowed.
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1997 (12) TMI 569
Whether the price of the containers or the packing is charged separately or not?
Whether the cardboard cartons cannot be taxed once again when sold along with the beer?
Held that:- Appeal dismissed. In view of the clear provisions of section 5(3-D) of the Karnataka Act and the corresponding provisions of section 5(5) of the Kerala Act there is no basis for the argument that if the price of the goods and the price of the containers or packing materials are separately charged, the provisions of the aforesaid two sections will not be applied at all. The law is quite clear that when the goods contained in containers or packed in packing materials are sold the containers and the packing materials will have to be taxed at the same rate at which the goods are liable to be taxed. It will not make any difference if the price payable for the containers or packing materials are shown separately in the bills raised by the seller.
Sub-section (5) of section 5 specifically provides that the rate of tax and point of levy applicable to the containers shall be the same as those applicable to the goods sold. Therefore, even if the cartons have already been subjected to tax by virtue of specific provisions of section 5(5) they will be liable to tax at the same point and at the same rate as the goods contained therein.In calculating the turnover of the goods, packing materials will have to be taken into account. The packing materials will be taxed at the same rate and at the same point as the goods contained in the packing material.
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1997 (12) TMI 564
Whether the cess payable under the provisions of the Rubber Act, 1947, will form part of the purchase turnover of the respondents under the Kerala General Sales Tax Act, 1963?
Held that:- Appeal allowed. The incidence of duty is directly relatable to the production of rubber. The character of levy is not altered merely because the payment of duty is deferred till the purchase of the rubber by the manufacturer. The character of levy is on the production of the rubber and the duty paid should, therefore, be deemed to be part of the price that the producer had paid for the goods purchased. Neither a provision for deferred payment nor the liability cast on the manufacturer of rubber goods for payment of the duty to facilitate easy collection, can alter the duty as being one on the production of rubber as provided by section 12(1) of the Rubber Act and such duty even though paid later, will be a part of the price of goods purchased and would, therefore, form part of the producers turnover.
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1997 (12) TMI 552
Penalty - Evidence - Statement of co-accomplice ... ... ... ... ..... jail for long time. He is deprived of his wife rsquo s money of Rs. 4,500/- which is adjusted towards the penalty amount of Rs. 25,000/- which appears to be excessive. From the facts of the case, it is seen that he has not derived any benefit from the alleged understanding and attempt to help Peter David to escape with contraband gold outside the Customs area. As contended by his ld. Counsel in the argument the appellant is unable to maintain his family as he is still under suspension. We feel the penalty imposed on the appellant requires to be reduced to the amount already adjusted that is Rs. 4,500/-. So to that extent the case of the appellant is accepted, and the point raised is answered in the negative. We pass the following order. ORDER For the reasons discussed above, the impugned order is modified by reducing the penalty amount of Rs. 25,000/- to Rs. 4,500/- which is already adjusted. The rest of the impugned order is confirmed. The appeal is disposed of accordingly.
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1997 (12) TMI 544
Appeal - Limitation for ... ... ... ... ..... uded. Any other view will defeat the very purpose of the appeal provision. Even assuming that section 12 of the Limitation Act has no application, the principle of section 12 has to be applied. 23. In the present case, the award is dated 8-5-1995 and the petitioner had applied for certified copy of the award and judgment on 12-5-1995. The certified copy was made ready and delivered to him on 7-7-1995 and the appeal has been presented on 31-8-1995. As such, the time taken by the Registrar from 12-5-1995 to 7-7-1995 has to be excluded. Hence, appeal preferred by the petitioner is well within the time prescribed under section 70. 24. In the circumstances, the impugned order is quashed. The writ petition is allowed and the matter is remitted back to the first respondent with a direction to take up the appeal on file and dispose of the same on merits in accordance with law. Rule nisi is made absolute. No costs. Consequent-ly, WMP No. 4303 of 1996 is also closed. SCL q MAY 20, 1998
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1997 (12) TMI 543
Whether the discretionary order of temporary interim injunction granted by the Commission pending the passing of final orders in the injunction application filed by the respondents-complainants, is liable to be set aside or modified ?
Held that:- Appeal dismissed. The order passed by the Commission was a purely discretionary order and was also an interim order pending the passing of a final order of temporary injunction and is not liable to be interfered within this appeal. The matter being technical in nature, if the Commis-sion felt, as suggested by the appellant in its reply, that a panel of experts could go into the correctness of rival claims and give its opinion and if the Commission further said that after the opinion was given, parties could make their final submissions in the injunction application and if the Commission felt that till then, an order of an interim nature should operate, we do not think that it is a fit case for interference with such a discretionary order.
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1997 (12) TMI 540
Jurisdiction of District Forum ... ... ... ... ..... where they were expected to receive the transferred shares. Furthermore in the present case, the dispute is not with respect to transfer to 1500 shares. Rather it relates to the grant of bonus shares on the ground that the complainant is already a shareholder of 1500 shares in lieu of 900 shares. Complainant received the bonus shares at Jalandhar and in lieu of 600 shares, he was to receive bonus shares at Jalandhar. If part of the contract was to be performed at Jalandhar, i.e., bonus shares were to be received at Jalandhar, it can well be said that part of cause of action has accrued at Jalandhar and the District Forum, Jalandhar could entertain the complaint. For the reasons recorded above, this appeal is allowed, the order of the District Forum is set aside and the complaint case is remanded back to the District Forum for decision according to law. Parties through their counsel are directed to appear before the District Forum on 2-2-1998. Appeal allowed SCL q MAY 20, 1998
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1997 (12) TMI 539
Winding-up - Inability to pay debt ... ... ... ... ..... espondent-company on the face of it appear to be bona fide and such defences are likely to succeed. Therefore, following the principles, detailed above, it is not a fit case for the exercise of powers of winding-up under section 433. 13. There is yet another aspect of the case. Admittedly, a civil suit for the recovery of the amount, claimed in the present petition, has been filed by the petitioner-company against the respondent-company and such suit is pending adjudication. Under these circumstances, the machinery for winding-up cannot be allowed merely as a means for realising a debt, which is disputed and is subject-matter of a suit. The High Court of Punjab and Haryana in State Trading Corpn. of India Ltd v. Punjab Tanneries Ltd 1989 66 Comp. Cas. 634, also had declined to exercise the powers under section 433, in view of the fact that the petitioner therein had already resorted to a civil suit for recovery of the disputed debt. 14. Resultantly, the petition is dismissed.
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1997 (12) TMI 535
Appeals to Appellate Board, Penalty for contravention of order made by adjudicating officer, etc.
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1997 (12) TMI 521
Winding up - Inability to pay debts ... ... ... ... ..... does not attend to his duties thereafter and, therefore, it cannot be said that until the resignation letter is accepted the employee would not be entitled to claim damages particularly because even if the resignation letter is not accepted there is a clause in the agreement that in the event of failure to fulfil conditions the employer would be entitled to claim liquidated damages. Whether the office was closed and whether the crafts were not available are disputed questions of fact which cannot be decided one way or the other without recording the evidence. 14. For the foregoing reasons, I reach the conclusion that the respondent-company has raised a bona fide dispute to the claim of the petitioners by way of setting up a counter-claim, which can only be decided in the civil court. 15. In the result, the petition fails and is hereby dismissed at the admission stage itself. However, the petitioners shall be at liberty to institute a suit for recovery of their alleged claim.
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1997 (12) TMI 520
Allocation of sale amount of membership card of defaulter member in priority ... ... ... ... ..... tio was that when there is a conflict between the provisions of the Statute and the Rules, the Statute will prevail over the Rules. There is absolutely no doubt in this respect. In the present case, we do not have any such conflict between the Statute and the Rules framed under the said Statute. As held by the Privy Council in the aforesaid case, once a defaulting member ceases to be a Member of the Stock Exchange, no interest in his card remains in himself and none can pass to his assignee, and interest of a Member in the Stock Exchange is not a property, as defined under section 12. 20. For the reasons stated above, we find absolutely no substance in the petition which fails and the same is rejected with no order as to costs. 21. The learned counsel for the petitioner seeks leave to appeal to the Supreme Court. That prayer is rejected as the question is concluded by the decision rendered by the Privy Council and thereafter by various other judgments. SCL q FEBRUARY.20, 1998
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1997 (12) TMI 519
Whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of order 7 rule 11/
Held that:- Appeal allowed. Non-movement of goods by the seller could be due to a variety of tenable or untenable reasons, the seller may be in breach of the contract but that by itself does not permit a plaintiff to use the word ‘fraud’ in the plaint and get over any objections that may be raised by way of filing an application under order 7 rule 11. The ritual of repeating a word or creation of an illusion in the plaint can certainly be unravelled and exposed by the Court while dealing with an application under order 7 rule 11(a). Inasmuch as the mere allegation of drawal of monies without movement of goods does not amount to a cause of action based on ‘fraud’, the bank cannot take shelter under the word ‘fraud’ or ‘misrepresentation’ used in the plaint.
The learned counsel for the appellant also contended that this was a case where a Letter of Credit was without recourse to the invoice value. Thus we hold that there is no cause of action even from the plaint allegations, against the appellant. Thus plaint is rejected under order 7 rule 11(a) as against the appellant-5th defendant.
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1997 (12) TMI 518
Winding up - Overriding preferential payments, Costs of voluntary winding up ... ... ... ... ..... eived. 9. 1t is also required to be noted that section 529A is a subsequent provision. It contains a non obstante clause. Therefore, to my mind the provisions of section 529A would override the provisions contained in sections 520 and 476 of the Companies Act. It is well established principle of law that if there is an apparent conflict between two sub-provisions of law, the special provision must prevail. See in this connection Union of India v. India Fisheries (P.) Ltd 1965 57 ITR 331 (SC). I am fully supported in my view by the judgment of the Kerala High Court in Giovanola Binny Ltd, In re 1990 182 ITR 134. The learned Single Judge of that Court has held that the Income-tax Department will have no priority over the workers claim under sections 529 and 529A. 10. In view of the foregoing discussion, prayers (a) to (e) of the liquidator s report are granted. On the request made by Mr. Khatri, the operation of this order is stayed for a period of six weeks. SCL q JULY 5, 1998
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1997 (12) TMI 506
Demand - Show cause notice - Natural justice ... ... ... ... ..... stant Collector during the pendency of the proceedings in the High Court and Supreme Court, there is no reason why the respondent could not have filed an appeal before the Collector (Appeals). Treating the order passed by the Assistant Collector as an order passed by the statutory authority, the view taken by the Collector (Appeals) appears to be correct. In this view, the aspect that the respondent failed to renew the bank guarantees and did not make any deposit as required by the High Court has no significance that is because it is not the case of the appellant that the High Court passed any order enabling the Department to recover the amount otherwise than by recourse to proceedings under the statute. Shri Srivastava was not able to inform us as to whether any proceedings are pending in the High Court or the Supreme Court and if so, at what stage the proceedings lie. 5. emsp For the reasons indicated above, we find no ground to interfere and accordingly dismiss the appeal.
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1997 (12) TMI 505
Valuation - Captive consumption ... ... ... ... ..... . 4. emsp The decision of the Government of India in Union Carbide squarely laid down that while arriving at the assessable value of the finished product (excluded sheets and section) credit of the duty paid on the raw material or components under Rule 56A will have to be deducted. The issue in the Kirloskar Brothers case was not this. It was whether the credit of the duty paid on electric motors which formed part of monobloc pumps could be deducted from the assessable value of such pumps. That case will not have any application to the facts of the present case. The value in that case was to be determined under Section 4 whereas the value in the present case is in terms of Rule 6(b) of the Valuation Rules. The principle ratio laid down in the earlier case referred to has been affirmed by the decision of the Larger Bench with regard to Modvat credit in Dai Ichi Karkaria v. CCE - 1996 (81) E.L.T. 676 (Tribunal). 5. emsp We therefore see no reason to interfere. Appeal dismissed.
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1997 (12) TMI 504
Modvat/Cenvat - Valuation ... ... ... ... ..... 81) E.L.T. 676. He has pleaded, the Tribunal has held that the element of the duty which has been taken as Modvat credit is not required to be reckoned towards the cost element for arriving at the assessable value under Rule 6 (b) of the Valuation Rules. 3. emsp Heard the learned JDR for the department. 4. emsp We observe that inasmuch as the duty liability is not contested, the levy of the goods to duty is upheld. 5. emsp In regard to the valuation aspect, we observe that the appellants would be entitled to the benefit in terms of the Full Bench decision of the Tribunal in the case of Dai Ichi Karkaria, and also we direct the learned lower authority to consider granting of the Modvat credit notwithstanding the non-filing of the declaration under Rule 57G, in case the appellants are found to have satisfied other requirements of Modvat as set our in the Modvat rules, since the duty has been demanded now. 6. emsp With the above observations, the appeal is, otherwise, dismissed.
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1997 (12) TMI 485
Benzene and Toluene - Exemption - Classification ... ... ... ... ..... covers cyclic hydrocarbons. The HSN also shows these products under Heading 29.02 which covers cyclic hydrocarbons - cyclanes, cyclenes and cyloterpenes as follows 2902.11 Cyclohexane 2902.19 Others 2902.20 Benzene 2902.30 Toluene The Condensed Chemical Dictionary, Tenth Edition revised by G. Hawley indicates the two products diagramatically. Toluene (methylbenzene phenylmethane C6H5CH3 This is required to be kept in view. 17. emsp In so far as this case is concerned a reference to the Chapters was enough, hence our decision is with reference to the Chapter only and not with reference to Heading or Sub-heading. However, we have taken the precaution of mentioning the above extracts from the HSN and the Hawley rsquo s Condensed Chemical Dictionary as an abundant caution (so that the error apparent in the impugned order does not go unnoticed). 18. emsp In view of the above position, the impugned order is set aside and the appeal is accepted with consequential relief if any due.
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1997 (12) TMI 476
Import - OGL ... ... ... ... ..... importability or otherwise of the items were not the questions which were before the Hon rsquo ble Supreme Court or before the Hon rsquo ble High Court in those cases. Therefore, the ratio of those decisions do not apply to the facts of this case. 8. emsp In this particular case, it is seen that these items are not items which are required for the functioning of the fans as such. It is only a decorative item to provide light to the fan. Its character as an electric lamp or a light is not changed merely because it is fixed to a fan. Therefore, these items are clearly mentioned as restrictive item under heading 94054000. In this view of the matter, we are of the view that the confiscation made in this case is legal and proper. 9. emsp However, in the facts and circumstances of the case, we reduce the redemption fine to Rs. 7,50,000/- (Rupees Seven Lakhs Fifty Thousand). In the circumstances of the case, we are of the view that no penalty is called for and we set aside the same.
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