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Showing 61 to 80 of 474 Records
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2000 (10) TMI 923
Winding up - Circumstances in which a company may be wound up ... ... ... ... ..... . National Industrial Corpn. Ltd. 1966 36 Comp. Cas. 31 , has held that if there is a bona fide dispute about the quantum of debt, the refusal to pay such a debt would not raise a presumption of inability to pay the debt under section 434(1)(a) of the Act. 25. This court, exercising jurisdiction under section 433 of the Act, is not a court which is essentially meant for settling money disputes between the parties. The jurisdiction of this court is to subserve the object of winding up the companies which have not paid their debts or which are unable to pay their debts. Therefore, the first pre-requisite that prima facie there exist a debt against the respondent-company, must be established. However, when a claim or debt is disputed, the proper forum for that is a civil court. 26. Resultantly, the present petition is rejected reserving liberty to the petitioner to approach the civil court for such relief as may be available to him under the law with regard to the disputed debt.
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2000 (10) TMI 922
Demand, penalty and interest - Provisional assessment - Penalty - Valuation ... ... ... ... ..... de. 3. emsp We, therefore, set aside the present order and remit the matter back to the jurisdictional Assistant Commissioner to finalise the Bills of Entries as per law and only thereafter if a demand under Section 28 is required to be issued within the time limit prescribed thereunder, the question of interest can arise. We do not find any case or cause for invocation of penalty as the issue of addition of freight as per the decision in the case of Garden Silk Mills v. U.O.I. 1999 (113) E.L.T. 358 (S.C.) would not call for an offence under Section 111(m) as the valuation is debatable and was settled by the Hon rsquo ble Supreme Court only in the year 1999 vide the above cited decision. We make it clear that but for this reason, if there are other reasons to invoke the confiscation process, the department is free to do so after issuing proper show cause notice drawing up proceedings under the relevant rules. The stay application and appeal are disposed of in the above terms.
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2000 (10) TMI 920
Rectification of Mistake - Order - Recall of order ... ... ... ... ..... the department well before commencement of hearing of the Supreme Court which was in July 1999. 7. emsp A counter was filed in the Supreme Court against the appeal of Bussa Overseas and Bharat Bussa. In drafting this counter, consent of the Mumbai Custom House officers who were concerned in the matter would have been obtained. The departmental representative does not deny that this was done. In addition, the Commissioner and the departmental representative were informed by notice dated 29-12-99 of the date of hearing of 20-1-2000. On that day, the matter was heard at length and adjourned for dictation the next day. The record of the Tribunal does not contain any request by the departmental representative for adjournment on any day. 8. emsp The conclusion is therefore inevitable that the department seeks to take advantage of the delay in issuing order to try and have the matter reheard. Such a course is clearly not permissible. 9. emsp The application is accordingly dismissed.
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2000 (10) TMI 917
Non-Banking Financial Companies ... ... ... ... ..... ontinuance of non-banking financial business by it is detrimental to the public interest as also to that of the depositors. 58. The petition is accordingly admitted for advertisement. Let steps for advertisement as per Rule 24 be taken within two weeks from today. The office will fix a date for hearing in the notice to be published and shall list the case for hearing on that date. The notice shall be published in the Hindi newspaper Dainik Jagran published from Varanasi and English news-paper Times of India published from Lucknow. Publication for the same date shall also be made in the Official Gazette. 59. It is made clear that to protect the interest of large body of depositors, until further orders, the order dated 27-10-1999 passed by this Court shall remain in operation, whereby the respondent-company, its servants and agents have been restrained from transferring, alienating and disposing of any of its assets in any manner or encumbering its property. Order accordingly.
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2000 (10) TMI 914
Modvat/Cenvat - Duty paying document - Unauthenticated invoices ... ... ... ... ..... t submits that this is a rectifiable discrepancy which has since been got rectified. In view of this submission of the appellants, the matter is remanded to the original authority to verify the invoices and if the discrepancy has been rectified, the credit on the same should be allowed. 4. emsp As regards the credit of Rs. 1,789/-, it is submitted that in this case the invoice bears the date 2-9-1993 and the credit is taken by the appellants on 26-4-1994. It is stated that the amendment to Rule 57G stipulating that the credit shall not be taken after six months of the date of issue of the modvatable documents was brought into force w.e.f. 29-6-1995 and in the present case the credit was availed more than two years earlier to be coming into force of these provisions. Since the amending provisions have no retrospective effects, the appeal of the party in respect of this point is admitted and the Modvat credit is allowed to them. 4. emsp The appeal is disposed of in above terms.
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2000 (10) TMI 909
Initiation of arbitration ... ... ... ... ..... Bench of the Bombay High Court. I am satisfied that the petition is not maintainable. 5. The applications filed by the petitioner are to the effect that certain documents be produced. Substantial compliance in this regard has already been made by the respondent but the Petitioner rsquo s attempt is to lead the Court into a roving enquiry into settled accounts. None of these documents discloses that there was an absence of free consent at the time when the letter dated 25-3-1994 was written. 6. The petitioner having failed to assail the validity of the letter, in specific and categorical terms, has disentitled himself from raising points which would otherwise have been arbitrable. If a case has been made out in the pleadings indicating that the Petitioner had been coerced or induced by fraud into signing the letter, I would not have hesitated in referring this dispute for adjudication by arbitration. 7. The petition is dismissed and all pending applications are also dismissed.
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2000 (10) TMI 908
Professional misconduct ... ... ... ... ..... been guilty of lsquo infamous conduct in a professional respect rsquo . The Privy Council approved of the definition in George Frier Grahame v. Attorney General AIR 1936 PC 224 and Apex Court in the matter of P. An. Advocate, In re AIR 1963 SC 1313 has followed the same. 10. Judged in the aforesaid background, the respondent was clearly guilty of professional misconduct, and has been held to be so by the Disciplinary Committee and the Council. So far as the proposed removal of the respondent rsquo s name for a period of 15 days is concerned, we feel that it appears to be slightly disproportionate considering the background highlighted above. Additionally, the occurrence took place more than a decade back. Though in all cases, long passage of time cannot be a mitigating factor, while considering the appropriate punishment to be awarded, in the peculiar circumstances of the case, reprimand to the respondent would meet the ends of justice. Reference is, accordingly, disposed of.
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2000 (10) TMI 907
Professional misconduct ... ... ... ... ..... ity is attached to certification done by a Chartered Accountant. Hallmark of the profession is the expertise possessed by its members, in the matters of accountancy and auditing amongst others. Correctness is a matter of rule in a certificate issued by a Chartered Accountant. He is supposed to have tested correctness of the figures certified. If he puts his signature, without proper verification, in any certificate, it certainly is a serious matter. Such conduct does not befit a Chartered Accountant, and is unbecoming of him. In such a case, he fails to do what is the minimum required to be done by him. He does something in the pursuit of his profession which is not only unethical, but also disgraceful or dishonourable. Above being a position, we are of the view that respondent has been rightly found to be guilty of gross negligence. 7. Recommendation of reprimand cannot be said to be unreasonable. We accept the recommendation. 8. The reference stands disposed of accordingly.
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2000 (10) TMI 906
Condonation of delay in certain cases ... ... ... ... ..... s. 2. The learned counsel for the respondents has sought instructions. He allays the apprehension of the petitioner in this regard. The counsel for the respondents had submitted that respondents have amended the prescribed proforma of the certificate granting immunity from penalty. As a result of amendment in the prescribed proforma, reasons are now to be given for condoning the delay and granting immunity in the certificate itself. It may be noted that the statutory provision, i.e., section 637, sub-section (b)(2) itself contemplates giving of reasons. 3. In view of this position, learned counsel for the petitioner does not seek any further relief in the matter. The writ petition stands disposed of. Order accordingly.
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2000 (10) TMI 904
Directors - Additional Directors ... ... ... ... ..... ner as Addl. Director on 16-4-1992. In this view of the matter the co-option of the petitioner as Addl. Director came to an end on 16-3-1993, when the first annual general meeting should have been held of the first accused-company. The petitioner, in any case, in these circumstances ceased to be the Addl. Director of the first accused-company after 16-3-1993, and thus could not be prosecuted in respect of dishonour of cheques issued by the first accused-company which took place in the year 1997-98. 9. For all these reasons, the criminal writ petition deserves to be allowed and is allowed. The order dated 25-1-2000, passed by the Addl. Chief Metropolitan Magistrate, 40th Court, Girgaum, is quashed and set aside. Resultantly, the petitioner rsquo s application for recall of process against him stands allowed. The complaint against the present petitioner stands dismissed. Rule is made absolute in the aforesaid terms. The complaint shall proceed against the other accused persons.
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2000 (10) TMI 903
Suspension of legal proceedings ... ... ... ... ..... to be the converse). Turning to ground (c), it is in terms admitted by the appellant that the certificate of recovery could not be enforced against Singhal Swaroop Ispat Ltd. (principal debtor) as it was declared a sick undertaking, though a corollary is drawn from it, that the insolvency petition based on the said certificate against the appellant-guarantor was not tenable. We are unable to read in either ground the contention that Mr. Makhija so strenuously urged before us. The insolvency petition was not contested. Nor is there any case made out before us for interference with the impugned order of the learned Single Judge (Rebello, J.). We are, therefore, of the view that this appeal too has no substance and needs to be dismissed. 16. Hence the following order (i)Appeal No. 821 of 2000 is dismissed. (ii)Appeal Lodging No. 899 of 2000 is dismissed. (iii)The appeals having been dismissed, nothing survives in Notices of Motion Nos. 2820 and 2827, which are hereby dismissed.
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2000 (10) TMI 902
Deficiency in service ... ... ... ... ..... e appellant does not cease. 7. After hearing Mr. K.L. Lal, Officer of the appellant and Shri Ramesh Chandra Saxena, respondent in person and going through the affidavits placed on record of the complaint case and also from the perusal of the judgment of the District Forum we find that the complaint was allowed and a direction was issued to the appellant to pay the maturity value of Rs. 30,240 to the complainant along with interest at the rate of 12 per cent per annum from 1-1-1998 till payment. In view of the fact that the principal amount has been paid to the respondent under the orders of the Delhi Court referred to above on 20-6-2000, the order of the District Forum is modified to the extent that the appellant was now to pay interest on the maturity value of Rs. 30,240 with interest at the rate of 12 per cent per annum from 1-1-1998 to 20-6-2000 and shall also pay a cost of Rs. 550 as ordered by the District Forum. The appeal is disposed of accordingly. Appeal disposed of.
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2000 (10) TMI 901
Deficiency in service ... ... ... ... ..... received by the complainant Mrs. Veena Sharma from the appellant on account of sub-brokerage in cash. Keeping in view these facts and circumstances, we are of the considered opinion that the District Forum-II fell in error in holding the appellant liable for the payment of the maturity value of Rs. 18,216 with interest thereon at the rate of 12 per cent per annum from 14-7-1997 till payment, conjointly with the Finance Company, i.e., McDowell Krest Finance Ltd. Resultantly, this appeal is allowed and the order of the District Forum is modified to the extent that the appellant, i.e., Bajaj Capital and Investment Centre Ltd. is not held liable for the payment of the maturity value with interest thereon and costs of Rs. 250. The order under appeal insofar as it directs the Company, i.e., McDowell Krest Finance Ltd., Madras, opposite party No. 1 in complaint case and the respondent No. 2 in this appeal to pay the maturity value with interest and costs is affirmed. Appeal allowed
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2000 (10) TMI 882
Appeal by Department - Defects in filing appeal ... ... ... ... ..... the appeal but of no avail. In similar circumstances we have dismissed a number of appeals. Shri Choubey however submits that he should be given time for rectification of the defects. We grant his request and post this case of compliance on 30th August, 2000. Needless to say that absence of compliance on that day will result in dismissal of the appeal. Dustee to both sides. rdquo 2. emsp When the case was called out today there was no compliance on record. Shri Patwari requests for some more time. We do not see under the propriety and dismiss this appeal.
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2000 (10) TMI 874
Whether when one party had, on demand by the other party, appointed an arbitrator - though beyond the period stipulated in the contract, - the Chief Justice (or his nominee), could, when approached by the other party, appoint another (sole) arbitrator?
Held that:- In the light of the contentions and material, which in our opinion have a substantial bearing on the matter, and further inasmuch as this question is one arising almost constantly in a large number of cases in the various High Courts, it is desirable that this Court re-examines the matter.
Therefore, direct the papers to be placed before the Hon’ble Chief Justice of India for passing appropriate orders.
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2000 (10) TMI 873
Whether in a case falling under section 11(6), the opposite party cannot appoint an Arbitrator after the expiry of 30 days from the date of demand?
Held that:- Appeal dismissed. We do not think that the first respondent, in appointing the second respondent as the Arbitrator, failed to follow the procedure contemplated under the Agreement or acted in contravention of the arbitration clause. Hence, the appellant, while filing the application under section 11 had no cause of action to sustain the same as there was no failure of the agreement or that the first respondent failed to act in terms of the agreement. The application was rightly rejected.
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2000 (10) TMI 863
SSI Exemption - Date of effect ... ... ... ... ..... Products Pvt. Ltd. v. C.C.E., Bombay - 1999 (35) RLT 120 (CEGAT) and M/s. Indian Refrigeration Industries v. C.C.E., New Delhi - 2000 (121) E.L.T. 174 (T) 2000 (38) RLT 986 (CEGAT). The ratio of the said orders is applicable to the facts of the present case. Accordingly, in the facts and circumstances of the case on hand, I entirely agree with the view of learned Member (Judicial) that benefit of Notification No. 175/86-C.E. would be available to the appellants with effect from 29-4-1988 i.e. the date of commencement of production. 17. emsp Registry shall initiate appropriate further action in the matter. Sd/-(S.N. Busi)Member (Technical) FINAL ORDER In view of the majority opinion, the benefit of Notification No. l75/86-C.E. would be available to the appellants with effect from 29-4-1988 i.e. the date of commencement of production. The appeal is thus allowed with consequential reliefs to the appellants. Sd/-(S.N. Busi)Member (Technical) Sd/-(Archana Wadhwa)Member (Judicial)
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2000 (10) TMI 860
Modvat/Cenvat - Modvat on inputs ... ... ... ... ..... fore the issuance of this notification. Therefore, credit cannot be denied on this ground. He, therefore, submits that the appeal be allowed. 5. emsp Heard learned JDR. 6. emsp The proceeding in the present appeal is arising out of the consequential relief in view of the order in appeal No. 638/CE/CHD/96 dated 14-11-96 passed by the Commissioner (Appeals). In this order the Commissioner (Appeals) specifically held that the appellants are entitled for the benefit of Modvat credit provided that supplier got themselves registered even thereafter, but before 31-12-94. This order was not challenged by the appellant. Therefore, this order becomes final between the parties and the appellant are entitled for the consequential relief as per the conditions imposed by the order. The appellants are claiming the consequential relief without complying with the conditions imposed in the order which is not permissible. Hence, I find no infirmity in the impugned order. The appeal is rejected.
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2000 (10) TMI 859
Refund - Unjust enrichment - Duty paid on cum-duty invoices ... ... ... ... ..... accepting the appellant rsquo s claim is that the appellant had indicated the cum-duty price and the amount of duty in some of its invoices, which could be deducted in arriving at the assessable value. Therefore the Collector (Appeals) finds in the cases in which the refund is claimed the appellant had forgotten to include the duty in those invoices which were issued. This view is simplistic. It is at least, equally possible that the appellant had omitted the duty from the invoices in arriving at the duty payable. However, if we accept this claim it would necessarily lead to the conclusion that the duty on which the refund is claimed had been included in the invoice price which has been paid by the customer. The incidence of duty therefore has been passed on to him. The refund therefore would not be payable to appellant by virtue of the provisions of sub-section (2) of Section 11B of the Act. 5. emsp In this view of the matter we see no reason to interfere. Appeal dismissed.
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2000 (10) TMI 845
... ...
... ... ..... depreciation. Even in respect of addition made on account of low GP the AO made an addition of Rs. 1,42,948 and the CIT(A) retained it at Rs. 1,00,448 and the Tribunal sustained the addition only to the extent of Rs. 60,000. In fact the Tribunal passed a consolidated order in the case of the assessee for assessment years 1986-87 to 1988-89 wherein the issue of addition on account of low GP shown by the assessee for the three years was considered. The Tribunal upheld the addition on the ground that the assessee was not maintaining any quantitative tally for goods produced or sold and the amount debited on account of labour charges where not fully verifiable. In such a situation there may be a good ground for rejecting the books and making the additions but this alone will not justify levy of any penalty for concealment of income or for furnishing inaccurate particulars of income. Accordingly the penalty levied is directed to be deleted. 7. In the result, the appeal is allowed.
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