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Case Laws
Showing 101 to 120 of 467 Records
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2002 (7) TMI 737 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit ... ... ... ... ..... relied upon the decision of the Tribunal, in which the Tribunal held that when the chemical examiner gave composition of the goods and the importer is not objecting the composition given by the chemical examiner, in such a situation, the adjudicating authority is to decide the classification of the goods after taking into consideration the composition of the goods and there is no need to cross examine the chemical examiner. The facts of the present case are different. In the present case at the first instance, the expert opinion was in favour of the applicants and, thereafter, on clarification, the opinion was given in favour of the Customs authorities. In these circumstances, we find balance of convenience in favour of the applicants, therefore, the application for waiver of pre-deposit of duty and penalty is allowed unconditionally and recovery of the same is stayed during the pendency of the appeal. Registry is directed to list the appeal for regular hearing on 27-8-2002.
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2002 (7) TMI 736 - CEGAT, KOLKATA
Confiscation and penalty ... ... ... ... ..... in lieu of confiscation. rdquo The above observation made by the Additional Commissioner shows that he himself was not very sure about the second hand character of the imported goods. The appellant has also produced subsequently certificate from the manufacturer before the Commissioner (Appeals) which is to the effect that they were engaged in the manufacture of new heater only and they do not deal with second hand goods. They have also given a reason as to how surface of heater may appear rough in some cases. However, the certificate has not been taken note by the Commissioner (Appeals). The perusal of the said certificate now produced shows that the surface of the heater may become rough and give an appearance of used old heater. In view of the foregoing, I do not find any justification for confiscation of the goods or for imposition of penalty upon the appellants. Accordingly, I set aside the impugned order and allow the appeal with consequential relief to the appellants.
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2002 (7) TMI 735 - CEGAT, KOLKATA
Cenvat/Modvat ... ... ... ... ..... ffecting the appellants rsquo right to avail credit under Rule 57A(1). As such we do not find any justification in the Revenue s stand and set aside the impugned order by allowing the appeal with consequential relief to the appellants. rdquo The said order was subsequently followed by the Tribunal vide Order No. A-1241/Kolkata/2001, dated 19-11-2001 when the appeal filed by the Revenue against the same respondents was rejected. 2. emsp Inasmuch as the issue stands decided in favour of the respondents, we find no reasons to take a different view. The Revenue in their memo of appeal have not contented that the above decision of the Tribunal was appealed against by the Revenue or the same has been settled by the Higher Appellate Forum. They were only submitting that the earlier decision is required to be re-considered. We have already taken a view. It has not been challenged by the Revenue. Accordingly, we do not find any merits in the Revenue rsquo s appeal and reject the same.
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2002 (7) TMI 734 - HIGH COURT OF ANDHRA PRADESH
Dishonour of cheques for insufficiency, etc., of funds in account ... ... ... ... ..... of the Act arises. 12. Hence, I find there is no illegality in the order passed by the learned Magistrate. The Supreme Court has not stated that the matter has to be stayed till the disposal of the case before the BIFR, I am of the considered view that the matter cannot be postponed. It is clearly mentioned in the order passed under section 22A that no payment shall be made for which permission of the authorities of BIFR is required. It is always open for the Directors to seek permission before the authorities of BIFR to make provision for payment of the amount. The entire matter has to be judged after presenting the order of the BIFR before the Magistrate. The Magistrate shall reconsider the matter in the light of the observations made in the aforesaid Supreme Court decisions after recording of evidence. 13. The criminal petition is ordered accordingly while upholding the validity of order of the learned Magistrate, namely, taking cognizance of the offence under section 138.
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2002 (7) TMI 732 - HIGH COURT OF ALLAHABAD
Constitutional Validity ... ... ... ... ..... .g. for lack of monsoons, recovery is issued against him and his land is sold in pursuance of the recovery and even his personal assets may be sold, but this will not be done with regard to companies because they can go to the BIFR and get protection of section 22 of the Act. 4. One can understand giving protection to the poor and weak people, but the Sick Industrial Companies (Special Provisions) Act, 1985 does just the reverse by giving protection to the rich in respect of recoveries against them, while no such protection is available to the poor people in respect of recoveries against them. This is prima facie in our opinion highly discriminatory against the poor people of the country. 5. Learned counsel for the petitioners is permitted to implead the Union of India. Learned counsel for the Union of India will intimate the learned Attorney General of India about this order. 6. List on 12-8-2002 before us by which time parties may exchange the affidavits. Order accordingly.
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2002 (7) TMI 731 - HIGH COURT OF MADHYA PRADESH
Winding up - Overriding preferential payment ... ... ... ... ..... of final payment of the total dues payable to the workers and the total amount of the appellant banks due towards the liquidated company. In case of P.C. Agrawal v. Payment of Wages Inspector, M.P., the apex court by its order dated 30-4-1998 by its order dated 30-4-1998 has justified ad hoc payment to the workmen out of the funds available and held that It will be also open to the learned Judge after hearing the parties concerned, including the liquidator to direct ad hoc payment to the workers in the mean-time. 5.1 Consequently, this company appeal filed on behalf of the appellant banks is devoid of any merits and substance. We decline its admission and dismiss the same summarily. 6. As a result of dismissal of the appeal, M(C)P2747/2001 filed on behalf of the appellant (petitioners) seeking stay of the impugned order, dated 31-8-2001 of the Company Judge, is also dismissed and we expect that all concerned shall comply with the impugned order of the Company Judge forthwith.
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2002 (7) TMI 730 - HIGH COURT OF CALCUTTA
Act to have overriding effect ... ... ... ... ..... ced before the Court by the Calcutta Stock Exchange, as no affidavit-in-opposition has been filed by them. Therefore, there was no sufficient material before the learned Single Judge to come to the conclusion that the Calcutta Stock Exchange is a lsquo State rsquo within the meaning of Article 12 of the Constitution nor was it necessary in this case. As such the view taken by the learned Single Judge on this question cannot be sustained as the controversy involved in the matter cannot be decided without going into the detail facts. 13. Therefore, we find no merit in the appeal filed by the petitioner-company and the same is dismissed. The appeal filed by the Calcutta Stock Exchange Association Limited is allowed and the view taken by the learned Single Judge that the Calcutta Stock Exchange is a lsquo State rsquo within the meaning of Article 12 of the Constitution is set aside. There will be no order as to costs. Jayanta Kumar Biswas, J. mdash 14. I agree. Order accordingly.
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2002 (7) TMI 729 - HIGH COURT OF RAJASTHAN
Liquidator - Powers of ... ... ... ... ..... e assets which are put to sale under the tender notice dated 1st June, 2002 has been made. The sale is to be made on as is, where is and whatever there is basis. The terms and conditions of the sale of the assets have been specified in the tender notice. The application is filed seeking directions to the Official Liquidator to supply information to the applicant. These are not required to be furnished to the applicant by the Official Liquidator and reference may have to the notice inviting tenders. It is for the applicant to inspect the unit and gives its offer/tender. It is not in dispute that again inspection thereof has been permitted and made by the applicant. During the course of arguments, learned counsel for the applicant has given out that the applicant is not giving any offer for the purchase of the assets of the company (in liquidation). Thus otherwise also this application is not maintainable. In the result, this company application fails and the same is dismissed.
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2002 (7) TMI 728 - HIGH COURT OF BOMBAY
Compromise and arrangement, Shares - Power of company to purchase its own securities ... ... ... ... ..... ect of issue of debentures were violated. We have gone through the record and we are satisfied that these guidelines have been substantially complied with by the company. The debentures are rated as AA and the rating was disclosed in its letters sent to the shareholders. The Western India Trustee and Executor Co. Ltd. have been appointed as trustees. This fact was also disclosed in the option letter sent to the shareholders. Thus, there is no merit in the contention that there is non-compliance with the guidelines. Lastly, it was contended that cheques have been issued along with option forms, though it was provided in the scheme that payment would be made after the option forms are received from the shareholders. Even assuming that there was irregularity in sending the cheques along with option forms, in our opinion, this would hardly constitute a ground for setting aside the scheme. 30. In the result, appeals as well as notice of motions are dismissed. No order as to costs.
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2002 (7) TMI 727 - HIGH COURT OF DELHI
Arbitration agreement ... ... ... ... ..... he NTPC as a sub-contractor in terms of clause 37 of the general conditions of contract, which, though provides for appointment of a sub-contractor by the contractor but such an appointment has to be with the prior written approval of the accepting authority i.e., NTPC. Further, the said clause also stipulates that employment of piece rate workers shall not be deemed as sub-contracting. It is not in dispute that GEL had employed the applicant as a piece rate worker (PRW). In my view, the NTPC is not at all concerned with the underlying contract/agreement, which the applicant had entered into with GEL on 31st August, 1999. 16. In my considered opinion there is no privity of contract between the applicant on the one hand and the NTPC on the other and, therefore, the present application under sections 8 and 11 of the Act by the applicant is misconceived. Applicant rsquo s remedy may lie elsewhere. 17. For the foregoing reasons, the application fails and is accordingly dismissed.
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2002 (7) TMI 726 - HIGH COURT OF ANDHRA PRADESH
Dishonour of cheques for insufficiency, etc., of funds in account ... ... ... ... ..... f a word lsquo cheque rsquo in the complaint do not make it as a lsquo cheque rsquo . In view of the interpretation put on by me, I find that the document, bill of exchange, refund order, and final interest warrant do not constitute cheques within the meaning of section 138 of N.I. Act. No offence is made out under section 138 of N.I. Act and the averments made in the complaint do not constitute an offence. I agree with the contention of the learned counsel for the petitioner. 8. To sum up, I find that the alleged document issued do not constitute a lsquo cheque rsquo and no offence is made out under section 138 of N.I. Act as the documents are issued in pursuance of the directions of Reserve Bank of India. As the complaint do not constitute an offence under section 138 of N.I. Act, the proceedings are quashed against the petitioner. In so far as the Company is concerned, the trial shall go on. 9. In the result, this Criminal Petition is allowed to the extent indicated above.
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2002 (7) TMI 725 - HIGH COURT OF ANDHRA PRADESH
Public deposits ... ... ... ... ..... asoned judgment of the single judge was interfered with in a casual manner. The impugned judgment rests on fragile foundations and reads more like an ipse dixit. 29. The judgments of the Supreme Court in Kamla Devi case (supra) and S.R.M.T.s case (supra ) squarely apply to the facts of this case. The petitioners in fact have remedies both under the Companies Act and the RBI Act before the Company Law Board. 30. In the result, for the aforesaid reasons, the writ petition fails and is accordingly dimissed holding that these proceedings are not bona fide and only a sharp practice designed to abuse the process of the Court to take unfair advantage before the law enforcing agencies, investigating agencies and the depositors of the first petitioner company. The petitioners, therefore, have to be burdened with heavy exemplary costs of Rs. 20,000 (rupees twenty thousand only). It is open to any depositor of the first petitioner-Company to enforce this order for recovery of the costs.
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2002 (7) TMI 724 - HIGH COURT OF DELHI
Winding up - Application for ... ... ... ... ..... y the question of deadlock, proceeding on the basis that petitioner Nos. 1 and 2 were entitled to be treated as shareholders of 25 per cent shares cannot be invoked as the petitioners hold only 25 per cent shares and in the absence of the support from any other shareholder, the question of deadlock cannot be said to arise even according to Hind Overseas (P.) Ltd. rsquo s case (supra). Consequently the applicants have been able to substantiate the averments made in the application to the effect that the petitioners do not have the locus to maintain the present winding up petition. This application is accordingly allowed and the winding up petition is accordingly dismissed. However, it is made clear that the allowing of this application and the consequential dismissal of the winding up petition will not come in the way of the petitioners in assailing in an appropriate forum in law the decision of the company to refuse to transfer the shares in favour of petitioner Nos. 2 and 3.
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2002 (7) TMI 723 - HIGH COURT OF CALCUTTA
Offences and Prosecution ... ... ... ... ..... also restored and affirmed. 12. The Criminal Appeal is allowed. 13. Let the L.C.R. of the case be sent down to the learned trial Court forthwith. 14. The learned trial Magistrate after receiving the records shall direct the convict to comply with the above orders of this Court within two months from the date on which such direction will be issued by the learned Magistrate. If the convict fails to make payment of the fine as per the order within the said stipulated period, then the learned Magistrate shall issue non-bailable warrant of arrest against the convict and after procuring his appearance send him to the jail to serve out the sentence of imprisonment in default of payment of fine. If the convict fails to comply with the second part of this order, that is, if he fails to deliver up vacant possession of the disputed flat in favour of the complainant-company as directed, then the complainant will be at liberty to proceed against him in accordance with law. Appeal Allowed.
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2002 (7) TMI 722 - INCOME-TAX APPELLATE TRIBUNAL, CALCUTTA
Export - Total turnover - Computation of ... ... ... ... ..... n 80HHC(3) of the Income-tax Act, 1961. 25. emsp In view of the aforesaid discussion, we are of the opinion that though ldquo total turnover rdquo may include the receipts of excise duty and sales tax, etc., in its general parlance and under specific statute, because of its wider coverage in the definitions given thereunder, it has to be given a restrictive meaning while computing the ldquo export profit rdquo for the purposes of Section 80HHC, namely, only that part of the receipt for sale consideration is to be taken as part of the total turnover which has an element of profit therein and, accordingly, the receipts of excise duty and sales tax which do not include an element of profit should be excluded from ldquo total turnover rdquo . 26. emsp In the result, the Assessing Officer is directed to compute the deduction under section 80HHC on export profits arrived at on the basis of the export turnover and total turnover exclusive of the receipt of excise duty and sales tax.
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2002 (7) TMI 721 - CEGAT, KOLKATA
Refund - Return of defective goods ... ... ... ... ..... ue of duplicate paper was higher than the value of Maplitho Deluxe Paper. 2. emsp The appellants rsquo claim for refund of duty paid on the Maplitho Paper, has been denied by the authorities below on the ground that the same do not belong to the lsquo same class rsquo and as such, the conditions of Rule 173L(3)(iii) do not stand fulfilled. 3. emsp I find that the Tribunal in a number of cases, has held that the phrase - lsquo same class rsquo - appearing in the said Rule, is of wider connotation and it is not necessary that the same type of paper should be manufactured by the appellants from the returned paper. In any case, I find that both the returned product as well as the re-manufactured product was nothing but paper which can be said to be belonging to the same class, though may be of different quality. As such, I find no justification for upholding the impugned Order. The same are accordingly set aside and the appeal allowed with consequential reliefs to the appellants.
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2002 (7) TMI 720 - SETTLEMENT COMMISSION, CUSTOMS & CENTRAL EXCISE, N
Settlement application - Maintainability of - Acceptance of additional duty liability ... ... ... ... ..... hannels and there is no allegation of any hawala payment or any evidence that the proceeds received are in respect of anything other than the export goods in question. 21. emsp In view of our findings above, we allow the applications to be proceeded with under Section 127C(1) of the Act. The accepted duty liability of Rs. 2,03,69,587/- shall be appropriated from the deposit of Rs. 10 crores with the DRI and compliance thereof submitted to the Commission within two weeks of the receipt of this order. 22. emsp DRI shall submit all original records relied upon in the SCN in question including the reports received from investigation agencies abroad to the office of the Commission within 2 weeks of the receipt of this order. 23. emsp The applicant shall furnish a certificate from RBI with regard to the remittances of export proceeds as claimed by them in the application. 24. emsp Attention of all concerned is drawn to sub-section (2) and sub-section (3) of Section 127F of the Act.
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2002 (7) TMI 719 - CEGAT, KOLKATA
Smuggling - Penalty ... ... ... ... ..... f Shri Babubhai as the godown was let out to him. As such by not bringing the owner of the goods on record, the appellant has connived in storing, keeping, harbouring the goods with full knowledge in the matter that the goods are of smuggled nature. I find that the authorities are not doubting the statement of the appellant that the godown was given to him on rent to one Shri Babubhai. Merely because the appellant could not give the residential address of Babubhai by itself does not reflect upon his connivance with Babubhai for storing the goods in the godown. If that be so, he would not have given the mobile number of Babubhai. He has also tried to help the customs officers by giving the physical description of Shri Babubhai. If the enquiries conducted by Revenue have resulted in failure, the appellant cannot be held responsible for the same. As such by extending the benefit of doubt to him I set aside the personal penalty imposed upon him. His appeal is accordingly allowed.
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2002 (7) TMI 718 - CEGAT, NEW DELHI
Cenvat/Modvat - Modvat on inputs - Denial of ... ... ... ... ..... There is also no evidence on the record to suggest that the raw material for doing the job work was being supplied to them by the Badarpur unit of the appellants. The Patparganj unit of the appellants, where the raid was conducted, stands independently registered with the Central Excise Department and had been clearing the finished goods i.e. Ball Bearings independently on payment of duty. It is not the case or allegations of the Department, that this unit cleared the goods in a clandestine manner without payment of duty. Having cleared the goods on payment of duty during the disputed period, the Patparganj unit of the appellants was therefore entitled to claim the Modvat credit in respect of the duty paid inputs used in the manufacture of the goods. Therefore, in our view, the impugned order of Commissioner (Appeals) cannot be sustained and the same is set aside. 4. emsp In view of the discussion made above, the appeal of the appellants is allowed with consequential relief.
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2002 (7) TMI 717 - CEGAT, NEW DELHI
Demand - Limitation - Suppression of facts - Redemption fine - Import - Penalty - Quantum of ... ... ... ... ..... Under these circumstances, we are of the view that it is not a fit case for imposing redemption fine. 4. emsp Now coming to the quantum of penalty, we find that the duty amounting to Rs. 12.62 crores had been demanded 200 since the goods were classified under Chapter 98.03 as lsquo Baggage rsquo . As submitted by the learned Counsel for the appellant that if the goods had been imported as air cargo on the valuation arrived at by the Customs authorities, the duty would have come to only about Rs. 63 lakhs. It is true that since the appellant had opted to import the goods through courier they are liable to pay duty at 200 . Still in the matter of imposition of penalty the contention of the appellant as referred above, is liable to be considered. We are, therefore, inclined to reduce the quantum of penalty. The penalty is reduced to Rs. 1 crore as against the company and Rs. 10 lakhs as against the Managing Director Shri M.K. Dhir. 5. emsp The appeal is partly allowed as above.
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