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Case Laws
Showing 81 to 100 of 452 Records
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2002 (3) TMI 877 - HIGH COURT OF BOMBAY
Arbitral Tribunal ... ... ... ... ..... which a decree was passed suffered from the vice of perversity and misconduct on the part of the Arbitrator and finally dismissed the execution application observing According to me such a grant of decree does not debar or estop an Executing Court from testing the validity and legality of the award. Even a decree which is confirmed upto the Supreme Court can be questioned when it is to be in execution and the Executing Court can go into the contentions which are open to it under law. With great respect, I do not agree with my learned brother for the view which I have taken. Normally in such a case, the proper course would be to make a reference to a larger bench. However, in the instant case such a course is not necessary as both the learned counsel stated before me that the operation of the judgment of Kochar, J. has been stayed by the appellate bench. 12. In the result, the chamber summons is dismissed with costs of Rs. 2,000 to be paid by the respondents to the applicants.
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2002 (3) TMI 876 - HIGH COURT OF RAJASTHAN
Winding up - Expeditious settlement of claim of creditors ... ... ... ... ..... he applicant has no locus standi to file such application. The law is very clear and if the applicant is ignorant of the same it is not a ground for interference of this court in the matter. If the applicant has any objection against the claim of the Nigam, he may send his objection to Official Liquidator. But the action of the applicant to approach this court in this application is wholly unreasonable and untenable. This application is nothing but only an attempt on the part of the applicant to delay the proceeding and to consume precious and valuable time of the court which is already heavily burdened with the work. It is the duty of the litigant to examine its matter before filing the same in the court. As a result of aforesaid discussion, this application fails and is hereby dismissed. In the facts of this case, I am satisfied that exemplary cost is to be imposed on the applicant. Accordingly the applicant is directed to pay Rs. 1,000 to the Official Liquidator forthwith.
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2002 (3) TMI 875 - HIGH COURT OF BOMBAY
Company when deemed unable to pay its debts, Applicability of Code of Civil Procedure ... ... ... ... ..... en advice, are qualified to give legal advice. In my opinion, therefore, in the absence of such necessary pleadings that question cannot be decided. In any case, for the purpose of deciding these company applications, it is also not necessary for me to consider this question, because I have already held above that all the 21 documents to which these company applications relate are privileged under the provisions of section 126 and section 129 of the Evidence Act, because they came into existence in anticipation of the litigation either for seeking legal advice or for being used for the purpose of defence or prosecution of the legal proceedings, and therefore, whether because these documents also contain advice given by the internal legal department of the applicant, therefore for that reason also they are privileged or not loses its significance. For all these reasons, the company applications are granted in terms of prayers (a) and (b ). Company applications are disposed of.
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2002 (3) TMI 874 - HIGH COURT OF ANDHRA PRADESH
Dishonour of cheque for insufficiency, etc., of funds in account ... ... ... ... ..... hat the cheque was not issued in discharge of a legally enforceable debt or liability. The averments in the complaint, prima facie disclose that the 1st respondent had deposited Rs. 1 lakh with the company and the cheque drawn by the petitioner and another was issued towards payment of the said amount. It is for the petitioner to establish that the cheque for Rs. 1 lakh, which was dishonoured, was not in fact issued towards the discharge of the legally enforceable debt or liability due to the 1st respondent. The question as to whether there is a legally enforceable debt or liability to 1st respondent or not can be decided only after the parties adduce evidence during the trial, but not at this stage. 6. In view of the above, I find no merits in this petition and hence the petition is dismissed. However, the learned Magistrate is directed to dispose of the case as early as possible, at any rate before the end of August, 2002, uninfluenced by the observations made in the order.
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2002 (3) TMI 873 - HIGH COURT OF MADRAS
Appointment of Arbitrators ... ... ... ... ..... ny party or within such extended time as the arbitrators may fix with the consent of the parties to the reference or as the council of management or the President may allow. 4. In the present case, the averments made in the affidavit by the petitioner have not been controverted. Admittedly more than four months from the date of appointment of the arbitrators has lapsed and arbitrators have also referred the matter to an auditor for verifying the books of account and the auditors have also filed their report. In spite of that no award has been passed by the arbitrators. In these circumstances, an umpire shall be appointed in accordance with bye-law No. 248(1) of the bye laws, rules and regulations of the Madras Stock Exchange. Hence the first respondent is directed to appoint an umpire within a period of two weeks from the date of receipt of copy of this order and the umpire shall pass award within eight weeks thereafter. 5. The writ petition is allowed, accordingly. No costs.
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2002 (3) TMI 872 - HIGH COURT OF DELHI
Interim measures, etc., by Court ... ... ... ... ..... situation, readiness of the vendor becomes a secondary consideration. 18. Apart from this, the element of expiry of extended period agreed between the parties vide subsequent agreement dated 1-10-1995 cannot be lost sight of. Ordinarily for the sale of immovable properties, time is not an essence but where the parties by way of agreement to sell make time an essence as an imperative factor, agreement has to be taken to be of the nature that time is essence. It all depends upon the facts of each case. Had time been not the essence, there was no purpose for the parties to execute subsequent agreement dated 1-10-1995 for extending the time upto December, 1995 and at the same time agree that unless and until time is further extended in writing, the agreement will not subsist. 19. Taking overall view of the above facts and circumstances, I find that the petitioners have failed to make out a prima facie case for the injunction as prayed for. Petition has no merit and is dismissed.
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2002 (3) TMI 871 - HIGH COURT OF BOMBAY
... ...
... ... ..... tes, no action needed to be taken, yet in view of the decision taken by the Institute on April 24, 1990, and the said decision being justified as already held by us, the petitioners cannot pursue the profession of company secretaries in practice simultaneously with practice in law and, therefore, refusal by the Institute to renew the certificate of practice so long as the petitioners do not surrender or get their sanad suspended from the Bar Council cannot be faulted. Since the decision taken by the Institute on April 24, 1990, not to permit advocates to practice as company secretaries as well does not suffer from legal infirmity or constitutional vice, no infirmity can be found in the communication dated September 27, 1990, and December 4, 1990, addressed to Sri T.U. Khatri and communication dated September 27, 1990, addressed to Sri R.P. Joshi. The two writ petitions, accordingly, have no merit and deserve to be dismissed which we hereby order. Rule is discharged. No costs.
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2002 (3) TMI 870 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... e included in the assessable value of such goods. Amortisation is a method of including these additional costs in that value. Each mould has a specific life. The additional consideration therefore would form part of the price of the total number of these components made by using the mould. It is in order to allocate the portion of these costs to each mould that amortisation is resorted to. This is what the applicant has done. The fact that the commercial invoice issued by the applicant for these goods is different from the excise invoice in that it does not include the duty element on the amortised cost and does not, at this stage it appears to us, have any relevance and we are unable to appreciate the emphasis that the Commissioner has placed upon this. On the face of it, the assessee has been paying duty on the additional consideration. 4. emsp Accordingly, therefore, we waive deposit of the duty demanded and penalties imposed on both the applicants and stay their recovery.
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2002 (3) TMI 869 - CEGAT, NEW DELHI
... ...
... ... ..... heard on the contention raised in the appeal regarding the imposition of penalty. The period involved is from 1-4-93 to 31-12-96. A penalty of Rs. 26,29,499/- has been imposed by the Commissioner under Section 11AC of the Central Excises and Salt Act, 1944. A token penalty of Rs. 10,000/- was also imposed on the appellant under Rule 173Q of the Central Excise Rules. The provisions contained under Section 11AC were introduced in the statute only w.e.f. 28-9-96. Therefore, except for a period of three months the entire period of demand is before introduction of Section 11AC. In the light of the above, we are inclined to set aside the penalty imposed under Section 11AC but there is no reason to interfere with the token penalty of Rs. 10,000/- imposed under Rule 173Q. 4. emsp In view of the above, we set aside the order impugned to the extent it has imposed a penalty of Rs. 26,29,488/- under Section 11AC of the Central Excises and Salt Act, 1944. The appeal stands partly allowed.
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2002 (3) TMI 868 - CEGAT, NEW DELHI
Adjudication - Order - Appealable order ... ... ... ... ..... ate of filing of application is rejected on the ground that this can be allowed only from the date of approval of the request. The Commissioner allowed the request for sharing of cost of recovery charges from 10-10-2000. The impugned order is not an order passed in adjudication proceedings and, therefore, is not appealable. Hence the appeal is dismissed as non-maintainable.
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2002 (3) TMI 867 - CEGAT, NEW DELHI
EXIM - VABAL - Modvat facility restored to exporter ... ... ... ... ..... he entire value, is a question of fact and has got far reaching bearing on the merits of their claim. Since both the authorities below have failed to decide this question, the impugned order of the Commissioner (Appeals) in which the order-in-original had merged, cannot be legally sustained and deserves to be set aside on this short ground. Even, both the sides have conceded that the matter should be sent back to the adjudicating authority for giving fresh thought to this aspect before deciding the claim of the respondents. 6. emsp In view of the discussion made above, the impugned order of the Commissioner (Appeals) is set aside and the matter is sent back to the adjudicating authority for fresh decision in the light of the observations made above. The other contentions, if any, raised by both the sides shall also be taken by the adjudicating authority who will afford reasonable opportunity of hearing to them. 7. emsp As a result, the appeal is thus allowed by way of remand.
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2002 (3) TMI 866 - CEGAT, NEW DELHI
Rectification of mistake ... ... ... ... ..... he learned DR also who took us through the grounds made in the ROM and the adjudication order. 4. emsp We have perused the records and have considered the rival submissions. It is clear from the findings in the impugned order itself that the reassessment of the goods was not on the basis that there were additional sums collected in respect of ex-factory sales of the goods and that such additional sums should be added to the ex-factory sale price to arrive at the correct assessable value. This position is abundantly clear from Para 71 of the adjudication order impugned in the appeal before the Tribunal. Collection of additional sums was not the issue in the dispute between the department and the assessee. 5. emsp In view of the position mentioned above, we find no basis for the contentions raised in the ROM. The Revenue would appear to be seeking to re-open the dispute by filing an ROM, which is beyond the scope of such an application. Accordingly, ROM application is rejected.
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2002 (3) TMI 865 - CEGAT, MUMBAI
Penalty - Failure to enter the goods in the RG 1 register - Words and phrases ... ... ... ... ..... le 173Q has to be accepted. The Commissioner does not find any intent to evade duty and has only gone by failure to enter the goods in the RG1 register. The contention of the departmental representative that rule 173Q(1)(b) which holds liable to confiscation of goods which are manufactured does not account for will apply is not acceptable. The term ldquo account for rdquo is by no means synonymous with the words ldquo enter in the account. rdquo The goods have been accounted for since they were found. It is their not being carried in the account that has led to the contravention. The provisions that would actually apply is Rule 226 which specifically deals with cases where the manufacturer fails to maintain records which he is required to do. This rule provides for confiscation of goods and imposition of penalty to the maximum of Rs. 2000/-. 4. emsp On the facts of this case, I reduce the penalty on the appellant from Rs. 5000/- to Rs. 2000/- but otherwise dismiss the appeal.
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2002 (3) TMI 864 - CEGAT, NEW DELHI
Cenvat/Modvat - Interest not leviable ... ... ... ... ..... ischief. The departmental proceedings to compel them to set things right are under challenge in the present appeal and the same will be sustained. 6. emsp In view of the findings recorded above, this appeal is held to be without bona fides or merit on the substantive issue. However, having regard to the facts and circumstances of this case, I find no valid reason for imposing any penalty on the assessee. Further, as rightly pointed out by the Counsel, the order for levy of interest is also not sustainable as there was no provision of law at the material time authorising such levy. Therefore, the order for interest and penalty is set aside. Barring this, the impugned order is upheld. As regards the PLA debit, which is extraneous to Appeal No. 1055/95, the appellants are at liberty to take recourse to the remedy available in law. 7. emsp The appeal is disposed of in the above terms. Registry shall place a certified copy of this order in the file of Appeal No. E/1055/95-NB also.
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2002 (3) TMI 863 - CEGAT, CHENNAI
Modvat/Cenvat - Modvat on capital goods ... ... ... ... ..... careful consideration of the submissions, I am unable to accept the DR rsquo s prayer for upholding the order of Commissioner (Appeals) in view of the fact that matters are no longer res integra and these very items have been held to be eligible for grant of Modvat credit in the rulings cited and referred to supra. I also notice that Apex Court in the case of CCE v. Jawahar Mills Ltd. (supra) have upheld the Tribunal rsquo s larger bench judgment in that case wherein the definition of ldquo capital goods rdquo have been analysed and the benefit has been extended to ldquo cables and wires rdquo . Appellant have shown that these items are required for the purpose of manufacture of their final goods and without which the final goods cannot be manufactured. In view of this submission, and the ratio of the judgment being applicable to the facts of this case, the impugned order in respect of these items is set aside and appeal allowed with consequential relief, if any, as per law.
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2002 (3) TMI 859 - NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
Refund of excise duty - Jurisdiction of District Consumer forum ... ... ... ... ..... he State Commission that the petitioner in the exercise of his power under Section 11B of the Act rejected the claim on frivolous grounds. There was thus deficiency in service on the party of the Maruti Udyog Ltd., the manufacturer. 9. emsp We would, therefore, allow this petition and would set aside the orders of the District Forum as well as that of the State Commission and would dismiss the complaint qua the petitioner. Since the amount of duty of excise as permissible under the exemption notification aforesaid has been paid to the complainant we would leave the matter at that. 10. emsp Since we have held that there is deficiency on the part of the Maruti Udyog Ltd. the interest as ordered by the District Forum on the amount of Rs. 6,984/- and cost shall be payable by the Maruti Udyog Ltd. to the complainant - the 1st respondent. 11. emsp Petitioner shall, however, also be entitled to the cost of this petition which we assess at Rs. 2,000/- payable by the Maruti Udyog Ltd.
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2002 (3) TMI 857 - CEGAT, KOLKATA
Penalty and interest - Cenvat/Modvat ... ... ... ... ..... er - ldquo 2. emsp After hearing Shri A.K. Chattopadhyay, ld. JDR, I find force in the submissions made by the ld. Consultant. It is not a case where the credit was availed by the appellants in a clandestine manner. On the contrary, the credit of additional duty of Customs was availed by them in full knowledge of the Department. As such it can be safely concluded that the appellants were under bona fide belief that Rule 57A allows them to take credit. The Revenue objected to taking of the credit after all the papers were submitted by the appellants. As such I do not find any justification for imposition of penalty upon the appellants. The same is accordingly set aside and the appeal is allowed to that extent. rdquo 4. emsp In view of the foregoing, I set aside the penalty amount imposed upon the appellants and the interest is also not leviable inasmuch as the duty was paid by the appellants before passing of the impugned order. Both the appeals are allowed in the above terms.
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2002 (3) TMI 855 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... . While, on the one hand, the fact that drill can be, and is often, used without its holder supports the applicant rsquo s case, the Explanatory Notes to the Harmonised System of Nomenclature seem to suggest that fittings for electro mechanical tools permitting them to temporarily fixed to a support are classifiable under Heading 85.08. We therefore think it appropriate to ask the applicant to deposit Rs. 60,000/- towards duty within a month from today, whereupon we waive deposit of the balance of the duty and stay its recovery. 3. emsp Compliance on 7-5-2002.
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2002 (3) TMI 854 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... e bound to carry it out. The applicants cannot escape this basic mandate of law. I, therefore, reject the Consultant rsquo s plea that the requirement of re-exportation of the poly bags within six months was extra-legal. The applicants have failed to establish a prima facie case. I note that an amount of 40,000/- is lying in deposit with the department and, further, that the penalty of Rs. 10,000/- has been imposed without any proposal therefor. I further take into account the Consultant rsquo s submission that the applicants are a small scale exporter, though there is no plea of financial hardships in the present application. In the result, I direct the applicants to deposit an amount of Rs. 75,000/- and report compliance on 1-4-2002. In the event of due compliance with this direction, there will be waiver of pre-deposit and stay of recovery in respect of the balance amount of duty. There will also be unconditional waiver of deposit and stay in respect of the penalty amount.
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2002 (3) TMI 853 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... ed that the item in question falls within the definition of various scrap contained in the tariff emerged as a result of wear and wear of article which cannot be used as such. The question, however, is whether this scrap has emerged as a result of manufacture by the applicant. Wear and tear of these goods has taken place because of the operation of the elements. It is difficult in these circumstances to say that it is as a result of manufacturing activity which the applicant undertook, that the scrap has emerged. On this prima facie view, we waive deposit of the duty demanded and penalty imposed and stay their recovery.
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