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Case Laws
Showing 81 to 100 of 354 Records
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2003 (6) TMI 394
Termination of chits ... ... ... ... ..... product of a commercial activity such as the conduct of auction chits and in the absence of any such continuance of such activity or an allegation that that activity was continued after winding up the question of payment of kazar or dividends which would not arise at all does not arise. For the above reasons therefore, the plea of the first respondent that she is entitled to the dividends cannot be countenanced. 6. For the foregoing reasons, the Company Application is allowed and there shall be a decree in favour of the applicant for a sum of Rs. 33,000 against the respondents 1 to 4 who are jointly and severally liable to pay the same without any interest. The first respondent is permitted to pay the decretal amount in instalments at the rate of Rs. 1,000 per month commencing from 1-7-2003 and in the event of any default consecutively for two months, the respondents 1 to 4 are liable to pay the amount in lump-sum. Under the circumstances, there shall be no order as to costs.
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2003 (6) TMI 393
Winding up - Circumstances in which company may be wound up ... ... ... ... ..... ondent company shall not withdraw any amount for the purpose of paying it to its sister concerns, associates and Directors or any other company or persons. 6.The Directors and all administrative staff, officers of the company are directed to provide all assistance to the provisional liquidator to discharge his responsibility without any demur or delay. 7.The provisional liquidator will prepare a scheme for settlement of the claims of the investors especially keeping in view the interest of small investors in the first instance. 8.The provisional liquidator shall submit preliminary report to this court and the parties are at liberty to move this court in case any further directions or clarifications are required. 9.The affairs of the respondent company shall be investigated by auditors to be nominated separately to investigate comprehensively into the affairs of the company including valuation of land purchased, marketability of the title and such other issues which may arise.
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2003 (6) TMI 392
Winding up - Circumstances in which a company may be wound up ... ... ... ... ..... (f ). The company petition for winding up can be filed by the creditor or creditors if the company is unable to pay its debts as mentioned in section 433(e) of the Act. For the purposes of filing the winding up petition on the ground of the company being unable to pay its debts, debt should be enforceable in court of law and it is only for ecforceable debt the person becomes a creditor of the company when he files a petition in the court. The creditor should be a person who can enforce his right through a court of law for recovery of the debt which is due to him from the company. In the present case, as we have already held the debt has become time-barred and, therefore in our view the appellant/petitioners could not have filed the petition for winding up of the company on the ground that the company is unable to pay its debts and, therefore, bound to be wound up. 16. For the aforesaid reasons, the appeal fails and is dismissed. Respective costs shall be borne by the parties.
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2003 (6) TMI 391
Smuggling - Confiscation of conveyance ... ... ... ... ..... e. For the above proposition, he relies upon the Tribunal rsquo s decision in the case of Rajdoot Road Carrier and Others v. C.C.Ex., Lucknow reported in 2000 (118) E.L.T. 146 (T) 1999 (35) RLT 69 (CEGAT) , wherein it was held that even running away of the driver at the time of interception is not sufficient to establish his knowledge of smuggled nature of the goods. Similarly, the Tribunal in the case of Prince Gutaka v. C.C.Ex., New Delhi reported in 2001 (135) E.L.T. 109 (Tri. - Del.) has held that confiscation of the truck is not sustainable when the adjudicating authority himself admits absence of any evidence to prove that the appellant had any knowledge of his truck given on hire, which was being used for transport of the contraband goods. Inasmuch as in the present case, there is not evidence on record showing the involvement of either the driver or the owner of the truck in question, I set aside the confiscation of the same with consequential relief to the appellant.
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2003 (6) TMI 390
Classification ... ... ... ... ..... on loan licence basis and the same is appearing on each and every product manufactured for M/s. Rhone Poulenc, whether the pharmaceutical product bears a brand name or a generic name. Therefore, the said logo is a house mark/ trade mark/corporate logo of M/s. Rhone Poulenc. Therefore, the said logo cannot be considered as a brand name. 9. emsp The main issue involved in this case whether the said logo is a brand name/trade name indicating relationship in the course of trade between the mark and medicine or it is merely a house mark. I have seen above case laws in this regard. In my view the matter is covered by the judgments cited above and the logo ldquo rp Rhone Poulenc rdquo put by the appellant cannot be treated as brand name or trade name. Therefore, in my view, the disputed products are classifiable under Chapter sub-heading 3003.20 of Central Excise Tariff as Generic Medicines. 10. emsp In view of the above, the OIO is set aside and the appeal is allowed, accordingly.
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2003 (6) TMI 389
Stay/Dispensation of pre-deposit - Limitation - Goods not assessed ... ... ... ... ..... d any document to show that the goods in question were assessed and ordered to be removed by the Customs. In view of this, prima facie the Applicants have not made out a case of demand being time barred. However, they have made out a prima facie case for availment of Notification No. 196/89-Cus. The Applicants have also pleaded undue hardship on account of repair etc. of the impugned goods which in our view is in the normal course of business and should not come in the way of Government getting its due revenue. We, therefore, direct the Applicants to deposit Rs. 3 crores towards duty on or before 30-8-2003 and on complying with this direction, there will be waiver of pre-deposit of remaining amount of duty and entire amount of penalty and the recovery of the same will remain stayed during the pendency of the appeal. Any failure to comply with this order will result in dismissal of appeal without any further notice. The matter will come up for reporting compliance on 5-9-2003.
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2003 (6) TMI 388
Penalty - Quantum ... ... ... ... ..... n the grounds of appeal is that the duty was deposited even before issuance of the show cause notice. Therefore, in respect of the penalty lenient view may be taken. 5. emsp The contention of the Revenue is that appellant availed the credit without receipt of the inputs. Therefore, it is not a case for reduction in penalty. 6. emsp After taking into consideration the facts and circumstances of case as appellants deposited the duty on asking of the Revenue even before issuance of show cause notice, we find that penalty of Rs. 50,000/- (Rupees Fifty Thousand Only) will meet the ends of justice. Therefore, the penalty is reduced to Rs. 50,000/-, otherwise the appeal is dismissed.
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2003 (6) TMI 387
Appeal - Abatement of ... ... ... ... ..... t the Respondent K.T.M. Abdul Khader who was running the concern under the name and style of M/s. Tokyo Industries has since closed because of his demise on 18-9-99. He has produced the death certificate of late K.T.M. Abdul Khadar and prays for closing the case. 2. emsp Heard ld. DR. 3. emsp In view of the Proprietor of the Respondent died, the Respondent rsquo s concern closed, and the case cannot be pursued under Rule 22 of the CESTAT (Procedure) Rules, 1982, the appeal is dismissed as abated.
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2003 (6) TMI 386
Durametal Cold Welding System Repair Kit ... ... ... ... ..... n of specially selected steel and aluminium micro particles used to make repairs where welding and soldering are not possible, as it can adhere to oily, greasy and wet surfaces, which results in saving valuable parts and machinery of heating systems, radiators and air-conditioners through repairs. It does not satisfy the definition of consumer goods as it does not directly satisfy human needs. There is no finding in the adjudication order or in the impugned order as to how these goods satisfy the definition. The goods are for industrial use only. Therefore, we hold that the impugned order is not sustainable and accordingly set aside the same and allow the appeal.
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2003 (6) TMI 385
Redemption fine ... ... ... ... ..... remains present for the respondents in spite of notice. Hence I heard the learned SDR and perused the records. 3. emsp I find that there is a clear conclusion arrived at that the VCR is a used item and the Commissioner has fixed the redemption fine after noting that the item is a used item and the extent of duties which should have been imposed on legitimate import. The learned SDR has not been able to point out the provisions under the law regarding duty liability when the item is a used one. I therefore see no reason to interfere with the impugned order, accordingly uphold the same and reject the appeal.
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2003 (6) TMI 384
Smuggling - Proof - Goods seized by BSF - Place of seizure ... ... ... ... ..... iddle of the river, Padma. This fact by itself, is sufficient to hold that the seizure was, in fact, not made from the place from where it has been shown by the BSF Officers. The report as regards the exact place of seizure is also very detailed showing that the BSF Officers have seized the goods when the same were being transported in van rickshaws to the appellants rsquo shops. It has also not been disputed that the appellants have their licensed shops in that area and the goods were purchased by them under regular bills for further retail sales from their shops. The Commissioner (Appeals) should have taken note of the fact as disclosed in the above report of the Customs Officer instead of sidelining and ignoring the same. It is seen that there is no evidence on record to show that the said goods were being attempted to be exported to Bangladesh. In these circumstances, I set aside the impugned Order and allow the appeals of the appellants with consequential relief to them.
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2003 (6) TMI 383
Cenvat/Modvat - Duplicate copy of invoice lost ... ... ... ... ..... copy of the invoice. The Department never disputed the actual receipt of the goods and utilisation of the same by them in their factory for the production of the final product. Therefore, the Commissioner (Appeals) has rightly under these circumstances allowed them the Modvat credit on the original copy of the invoice. The contention of the learned JDR that unless the Assistant Commissioner was satisfied, no credit could be taken on the original invoice in terms of Rule 57G(6) cannot be accepted keeping in view the above referred facts and circumstances and the fact that the Assistant Commissioner had never intimated to tile respondents regarding his non-satisfaction about the loss of the duplicate copy of the invoice by them. The Commissioner (Appeals) has rightly, as observed above, allowed Modvat credit to the respondents. 4. emsp In view of the discussion made above, the impugned order of the Commissioner (Appeals) is upheld. The appeal filed by the Revenue is dismissed.
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2003 (6) TMI 382
Transfer of case - Partisan attitude of Judge ... ... ... ... ..... asked to pay witness batta of Rs. 2,300/- which is an excess sum and the cross-examination was asked to be limited to chief examination and the petitioner has prayed for transfer of the case. 3. emsp Heard the learned counsel for the petitioner at length. 4. emsp The main grievance of the petitioner is that full opportunity to cross-examine the witnesses may not given by the trial Court. It is needless to say that every opportunity must be given to the accused for the purpose of cross-examination of the witnesses. The other allegations seem to have no basis. The petitioner has not made out any ground for transfer of the trial from the court concerned and no case is made out for admission. 5. emsp In the circumstance, the petition is dismissed. However, the trial court is directed to dispose of the case in C.C. No. 625 of 1995 as expeditiously as possible by giving full opportunity of cross-examination to the petitioner, connected Crl. M.P. No. 4727 of 2003 is also dismissed.
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2003 (6) TMI 380
EXIM - Consumer goods ... ... ... ... ..... ion of the learned counsel that consumer goods must be one which are used as domestic appliances is in-correct. The Sodium Vapour Lamps are normally not used in the residential premises but still will not cease to be consumer goods because the consumers of Sodium Vapour Lamps are municipal corporation or airport authorities or stadium authorities. The expression lsquo consumer goods rsquo cannot be limited to the consumption by domestic users, in our judgment, the adjudicating authority very rightly held that the import of Sodium Vapour Lamps squarely falls within the expression lsquo consumer goods rsquo . rdquo 6. emsp As such, we find no infirmity in the impugned order holding the impugned goods to be consumer goods. As regards the quantum of fine, we observe that the Adjudicating Commissioner has already taken a very lenient view in not imposing any penalty and imposing only a nominal fine and as such, the same does not call for any reduction. 7. emsp Appeal is dismissed.
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2003 (6) TMI 379
Board - Particle board - Laminated particle boards ... ... ... ... ..... tion, a Particle Board continued to be a Particle Board and that lamination did not affect the identity of the goods. 3. emsp We are in agreement with the assessee. In the present case, the exemption is available to ldquo Cement Bonded Particle Board rdquo . There is no dispute that even after lamination, the goods in question are Cement Bonded Particle Board. It is settled law that not every process leads to manufacture of new goods. We have accepted this position with regard to Particle Boards in the case of Bombay Burmah Trading Corporation Ltd. The fact that laminated and un-laminated Boards have been given different brand names is also of no consequence. In fact, the goods which are same in every detail may be sold under different brand names. Brand names and inter se positioning of different brands are merely matters of marketing policy. They do not reflect on the classification of products. 4. emsp In the result, the appeal is allowed with consequential relief, if any.
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2003 (6) TMI 378
Smuggling - Non-notified item - Metal scrap ... ... ... ... ..... Receipts showing the said purchase of the metal scraps which have not been put on record for verification by the Revenue and have been dismissed without showing any reason. Similarly, I note that fleeing of the driver on seeing the BSF Officers is by itself, no proof of the goods being of smuggled character, as held by the Tribunal in the case of Rajdoot Road Carrier and Others v. C.C., Lucknow reported in 2000 (118) E.L.T. 146 (Tribunal) 1999 (35) RLT 69 (CEGAT), wherein it was held that running away of the driver at the time of interception is not sufficient to establish his knowledge of smuggled nature of the goods. Similarly, filing of the claim petition by the appellant claiming ownership of the goods after a period of seven days from the date of seizure, does not lead to an inevitable conclusion that the metal scrap in question was smuggled. 7. emsp In view of the foregoing, I set aside the impugned Order and allow the appeal with consequential relief to the appellant.
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2003 (6) TMI 376
Appeal to Appellate Tribunal ... ... ... ... ..... to be remarked also is that if despite the passage of seven years, the other employees of the applicant cannot remember of these facts about the conduct of the clerk who was then in charge for the details, they at the same time completely forgot is entirely the issue after the clerk left. There is also no explanation as to why, if the Custom House rsquo s official refused to accept the money as is claimed, the Tribunal was not informed. Mr. Shah has no answer to this question. 4. emsp The only conclusion we can gather from this is that there has been no attempt to pay the amount in question after the Tribunal passed the order. The fact that payment has now been made, seven years after the event, is no answer. It in fact indicates that had the applicant wished to pay the amount earlier would have been accepted by the Customs. We therefore do not find ground for condoning this inordinate delay. 5. emsp The appeals are dismissed for non-compliance under Section 129E of the Act.
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2003 (6) TMI 375
Stay/Dispensation of pre-deposit ... ... ... ... ..... ing No. 39.21 plates, sheets, etc. applies only to plates, sheets, etc. and to blocks of regular geometric shape, whether or not printed or otherwise surface-worked uncut or cut into rectangles (including squares) but not further worked (even if when so cut they become articles ready for use) and emphasized that the impugned goods have not been further worked by them and as such are classified under sub-heading 3921.1 (sic) of the Tariff. 3. emsp Opposing the prayer Shri Jagadish Singh reiterated the findings as contained in the impugned Order. 4. emsp After considering the submissions of both the sides we are of the view that the Appellants have made out a strong prima facie case in their favour in view of Note 10 to Chapter 39 and the classification advice from Nomenclature and Classification Directorate of Customs Cooperation Council. We, therefore, stay the recovery of entire amount of duty during the pendency of appeal which will come up for regular hearing on 19-8-2003.
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2003 (6) TMI 374
Production capacity based duty - Annual capacity of production ... ... ... ... ..... se of Sangam Processors Bhilwara Ltd. v. CCE, Jaipur, 2001 (127) E.L.T. 679 (Tri. - LB) 2001 (42) RLT 429 (Cegat - LB). The Tribunal has held that ldquo A gallery which is having no rails, fan or radiator attached to it cannot come within the purview of ldquo any other equipment rdquo as contemplated by Explanation 1 to Rule 3 of the Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules. The Commissioner (Appeals) has rejected the Appeal filed by the Appellants on the ground that the period under dispute is upto March, 1999 and the revised Rules were formulated in 2000 which cannot be applied lor the past period. The Supreme Court has observed in S.P.B.L. case that there is not much difference between Rules, 1998 and Rules 2000 and ldquo it cannot be held that the Tribunal committed any error in relying upon the doctrine of contemporanea exposito to remove ambiguity in understanding the language of the 1998 Rules. rdquo The Appeal is thus allowed.
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2003 (6) TMI 373
EXIM - Leather goods - PVC used on directions of customers ... ... ... ... ..... mers which were supplied free of cost and were cleared on payment of duty and the DEPB benefit claimed by them was only for the leather portion of the goods. This position is not controverted by the Revenue. Further, it is not the case of the Revenue that they have come out with tested samples which disproved the claim of the appellants in regard to the pre-dominance of the leather content in the goods. In view of the above we are of the considered opinion that merely because out of 12,882 pieces of goods, 1686 pieces of goods had outer visible surface of PVC material, those goods cannot be considered as non-leather goods in the face of the clarification given by the Indian Leather Products Association and by the Project Head of National Leather Development Programme as noted above and have to be considered as leather goods only. In the facts and circumstances of the case as narrated above, we set aside the impugned order and allow the appeal with consequential relief if any.
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