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Case Laws
Showing 461 to 480 of 691 Records
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2010 (5) TMI 416
petitioners had been exporting their goods under the Quota Policy 2000-04 and had been allotted quotas in respect of Group-I and Group-II textiles - petitioners by forging various export documents, used the quota allotted to them in Group-I to actually export goods falling under Group-II in the open market to the other exporters from time to time - according to the respondents, the actions of the petitioners in forging Group-I quotas to export Group-II quotas resulted in the complete quota for total exports from India under Group-II being used up well before the year end resulting in an embargo being imposed by the authorities - all subsequent exports of Group-II textiles to the USA were prevented - The other law abiding exporters, who had been allotted quotas under Group-TI, were thus could not export and suffered great loss as they were unable to fulfill their export contracts – by way of bank guarantee furnished in Writ Petition No. 952/2006 may be ordered to continue for a period of six months - Held that: - during the pendency of the remanded proceedings with direction to keep it alive till the adjudication is complete - absence of any financial liability as on date against the petitioners no security much less by way of bank guarantee can be ordered by this Court - absence of any financial liability against the petitioners as on date, in our considered view, no security much less by way of bank guarantee can be ordered.
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2010 (5) TMI 414
Sold the goods without payment of excise/customs duty and without invoice - shortage of waste yarn was detected - Proprietor of the unit admitted that – imposed penalty - Held that: - goods were not available for confiscation but if they were available, definitely they were liable to confiscation – Held that: - Assessee was aware or had reason to believe that goods are liable to confiscation - penalty under Section 11AC of Central Excise Act, 1944 has been imposed.
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2010 (5) TMI 413
SSI exemption - subject to condition that while availing full duty exemption, they do not avail input duty Cenvat credit - start paying full duty and availing Cenvat credit as soon as their clearances cross Rs. one crore - clearances crossed the limit of Rs. one Crore only on 20-9-01, they started availing the Cenvat credit from 1-9-09 - were availing full duty exemption, the finished product being fully exempt from duty, the Appellants were not eligible for input duty credit – Held that: - Appellants have declared as to on which date the exemption limit of Rs. one crore was crossed by them and accordingly from which date, they became eligible for Cenvat credit and on which date the Cenvat credit in respect of inputs had been taken. Just giving consolidated figure of total Cenvat credit-availed during July’01-Sept’01 period does not amount to disclosing all the relevant facts and from the facts disclosed in the quarterly ER-1 return, it was not possible for Departmental Officers to ascertain as to whether the Cenvat credit taken by them during quarter ending 2001 had been taken only after crossing the limit of Rs. one crore - full facts had not been disclosed and hence longer limitation period has been rightly invoked by the Department - appeal is dismissed.
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2010 (5) TMI 412
Life saving drugs - life saving drugs was covered under Serial No. 50(A) of Notification No. 20/99-Cus. and Serial No. 80(A) of Notification No. 16/2000-Cus. The controversy is with regard to the presence of glucose (carbohydrate) and electrolytes in admixture with amino acids - benefit of the notification is available to these intravenous amino acids - benefit would still be available even if sorbitol or glucose was also present along with amino acids - set aside the impugned order and allow these ap peals, but with the rider that this decision of ours shall not be a precedent for any period subsequent to the period of the subject imports.
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2010 (5) TMI 411
Cenvat credit - cleared excisable goods - against Served from India Scheme (SFIS) certificate, at ‘nil’ rate of duty availing exemption under Notification 34/2006-C.E - separate accounts of inputs used in the manufacture of dutiable goods and in the exempted goods were not maintained, the appellant was required to pay 10% of the total price of exempted goods as per Rule 6(3)(b) of Cenvat Credit Rules, 2004 - no such payment was made - imposition of penalty under Rule 15 of Cenvat Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944 - debits made under DEPB script is equivalent to payment of duty in cash – Held that; It is nobody’s case that the functioning of SFIS certificate is different then the functioning of DEPB scheme. In DEPB scheme the exporters are issued DEPB which allow them specific amount to be utilized as customs duty, while the SFIS scheme, the service providers are issued SFIS certificate which allow them to import or procure indigenous goods without payment of duty by debiting the said script - debits made in SFIS would not amount to exemption from payment of duty - order is liable to be set aside.
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2010 (5) TMI 410
Classification of goods - spectacle lens (made of plastic) - first type of goods was a circular, not optically worked, tinted, curved piece of plastic, which had no optical property - second type of goods was an article of plastic for protecting both the eyes, which consisted of the front portion Of a spectacle frame with two eye covers - article was made out of a single piece of coloured transparent plastic and did not possess any optical property. The assessee classified both the types of goods under SH 9001.40 for the purpose of payment of basic customs duty (BCD) and under SH 9001.10 in respect of Countervailing Duty (CVD) - Goods falling under SH 9001.10 were chargeable to ‘nil’ rate of duty - customs authorities that the subject goods were not classifiable under SH 9001.10 - first item under SH 9001.50 and the second one under SH 9004.90 – Held that: - protective spectacles and goggles generally consist of plain or curved discs of ordinary glass (whether or not optically worked or tinted), of plastic, of glass, etc. and these include sunglass - sunglasses could be used by mountaineers, airmen, motorists, motorcyclists, welders, foundry workers, etc. Nowhere is it stipulated that these items would not be classified under SH 9004.10 unless these are fitted with arms or other accessories for the purpose of being mounted - appropriately get classified under SH 9004.10 as sunglass.
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2010 (5) TMI 409
Provisional release subject to payment of differential duty - documents and things seized pending adjudication - which is not a condition for release under Section 110A – Held that: - impose such conditions for furnishing of bank guarantee as the Commissioner of Customs deems fit and proper, to secure the claim of the Revenue and may further direct renewal thereof within a stipulated time prior to its date of expiry, upon notice to the Commissioner of Customs, failing which the bank guarantee shall be invoked without further reference to the petitioners - The writ application is disposed of.
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2010 (5) TMI 408
Waiver of pre-deposit - demand service tax on services and interest - appellants were engaged by M/s. APSRTC preparing bus pass identity cards - They produced new cards and renewed the existing passes. After due process of law, the original authority found that this activity involved business auxiliary services (BAS) - Held that: - activities involved are prima facie not covered under the category of Business Auxiliary Services. Lower authorities have not substantiated under which of the various categories of taxable activities enumerated under BAS, the impugned activity is classifiable - activity was originally found to be liable under the category of photography services and that the related demand had been vacated by this bench - waiver of pre-deposit
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2010 (5) TMI 407
Cenvat credit - adjustment of the CENVAT credit, which it had reversed on the raw material, against the duty liability as settled by the Settlement Commission - credit was not permissible on inputs, which were used in the manufacture of “exempted” goods - invoice-wise details were placed before the Settlement Commission along with the said letter (as Annexure-1) which was filed subsequent to the hearing – Held that: - observation of the Settlement Commission that no evidence or precise data had been produced proving the exact amount of duty paid on the inputs gives an impression as if the petitioner had not filed any information at all - Settlement Commission is directed to examine this aspect of the matter only and pass an appropriate order. The re-examination by the Settlement Commission will be limited to this aspect of the matter based on the documents which were filed prior to the date of final hearing given by the commission - petition stands disposed of.
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2010 (5) TMI 406
Cenvat credit - wrongly availed - die blocks which are used in the manufacture of moulds and dies and in turn these moulds and dies are used in the manufacture of goods processed on job work basis and cleared the same without payment of duty contrary to the provisions of erstwhile Rule 57AD of Central Excise Rules, 1944 read with Rule 6 of CENVAT inasmuch as they were wrongly availing Cenvat credit on the inputs - demanding the assessee to pay the amount that was wrongly availed, along with interest and penalty - respondent-assessee filed an appeal before the competent authority who in return without considering the relevant material on record and without assigning valid reasons proceeded to allow the appeal filed by the respondent – Held that: - Tribunal has committed a grave error in passing the order impugned without assigning any valid reasons and without any discussion. By merely following the order passed in similar matters it has proceeded to pass the impugned order, allowing the appeal filed by the respondent - order is cryptic in nature and such a non-speaking order cannot be sustained - matter stands remitted back to the Tribunal for fresh consideration.
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2010 (5) TMI 405
Winding-up - Suits stayed on winding-up order ... ... ... ... ..... y the applicant, it was for the applicant to place before Court substantial legal evidence of the fact in issue, and in the absence of which, it cannot but be said that Exs. P1 to P5 can hardly be said to be satisfactory proof that the respondent is due and payable to the applicant Rs. 1,28,956.60. Although learned counsel for the Official Liquidator submits that the statement of affairs filed as required by section 454 of the Companies Act is sufficient to establish the liability of the respondent. I am afraid that contention cannot be countenanced Merely because the Ex-directors of a company-in-liquidation file a statement of affairs, indicating that the respondent is due in a specified sum of money, that by itself and nothing more cannot be said to constitute substantial legal evidence of the fact in issue. The contention that the application filed is beyond the period of limitation, in the circumstances need not be adverted to. In the result, the application is dismissed.
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2010 (5) TMI 404
Whether the applicant proves that the respondents are liable to make good ₹ 26,83,000 with interest at 18 per cent p.a. with effect from 26-2-1999 being the difference of value declared in statement of affairs and the valuation by M/s. KSFC on 19-9-2002 in respect of the fixed assets, plant and machinery, furniture and fittings, etc.?
Whether the applicant proves that the respondents are liable to pay ₹ 1,61,605 with interest at 18 per cent p.a. from 26-2-1999 as disclosed in the head of account, loan and advances in the audited balance sheet, made up to 31-3-1998 which was not realised?
Whether the applicant proves that the respondents are due and payable ₹ 6,096 and ₹ 18,126 under the head of account, cash in hand and cash at Bank as disclosed in the audited balance sheet made up to 31-3-1998 together with interest at 18 per cent from the date of winding up order, i.e., 26-2-1999 ?
Held that:- It is no doubt true that in the balance sheet Ex.P3 duly signed by 1st respondent Managing Director of the company as on 31-3-1993 discloses ₹ 1,61,605 towards loans and advances as detailed in Schedule-I. So also under the head of account cash in hand and Bank discloses ₹ 24,222 which the ex-directors, respondents herein have failed, in the first place, to deposit with the Official Liquidator and in the second, make available necessary material particulars of the Bank so as to make good the said sum. Apparently, this claim is not opposed by filing statement of objections or tendering evidence of the respondents. In fact, learned counsel for the respondent states that he has no instructions. In that view of the matter, it cannot but be said that the respondents are guilty of misapplication, retention and become liable and accountable for money of the applicant-company.
Having regard to the fact that the amounts due to the company are retained by the ex-directors, it is appropriate to levy interest at the rate of 12 per cent p.a. on the said sum as against the claim for interest at the rate of 18 per cent p.a.In the result, the application is allowed in part. The respondents are jointly and severely liable to pay ₹ 1,85,827 with interest at 12 per cent with effect from 22-6-1999 up to the date of payment.
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2010 (5) TMI 403
Winding up - Delivery of property to liquidator ... ... ... ... ..... over the documents of title which are in possession and custody of 1st respondents. Respondent Nos. 2, 4 and 5 are conspicuously absent and unrepresented despite service of notice, while 3rd respondent though served and represented, none have opposed the application by filing statement of objections. 6. In the circumstances, the 1st respondent is directed to handover the documents of title in respect of immovable property belonging to the company-in-liquidation to the Official Liquidator forthwith. The Official Liquidator is directed to consider the claims of the Secured creditors as and when invited, in accordance with section 529-A of the Companies Act. The application is, accordingly allowed. 20 days time is granted to the 1st respondent to handover the original documents of title to the Official Liquidator. Time is extended by two months thereafter, to the Official Liquidator to execute the sale deed and handover the title deeds of the properties to the successful bidder.
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2010 (5) TMI 402
Powers and jurisdiction of the Insurance Regulatory Development Authority (IRDA) herein under section 64UM of the Insurance Act, 1938 and the powers of the Central Government, Respondent No. 1 herein, as the Appellate Authority under section 110H of the Insurance Act questioned
Held that:- Although there is no procedure prescribed as such, given the scope of the powers and the functions of the IRDA as set out in section 14(2)(b) of the IRDA Act, in the present case the IRDA was wholly within its jurisdiction in entertaining the Petitioner’s appeal. Therefore, by appointing the independent surveyors and calling for a report the IRDA did not commit any illegality. In deciding to act upon the report of one of them, again, the IRDA did not commit any illegality.
Counsel for Respondent No. 3 is right in his contention that by filing an appeal before the Appellate Authority under section 110H, the Petitioner has waived its right to question the jurisdiction of such Appellate Authority at a later stage. Be that as it may, the question that next arises is about the scope of powers of the Appellate Authority under section 110H. This Court is of the opinion that the Appellate Authority was justified in directing the IRDA by its order dated 5th March, 2004 to appoint two fresh surveyors to again assess the loss because one of the assessors who had been appointed earlier turned out to be an interested party. Given the scope and functions of the Appellate Authority, which is co-terminus with that of the IRDA, these directions could not be said to be illegal or ultra vires the powers of the Appellate Authority under the Insurance Act. The challenge to the impugned orders and the report of the Joint Surveyors by the Petitioner must fail.
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2010 (5) TMI 401
Dissolution of company-in-liquidation seeked
Held that:- No purpose is going to be served to continue with the proceedings in regard of the company-in-liquidation and there appears to be no possibility for recovery of debts and in these circumstances, the company-in-liquidation M/s. Auto Electrical Private Limited in exercise of powers under section 481(1) of the Companies Act stands dissolved and the Official Liquidator may send its report, in terms of section 481(2) to the Registrar of Companies for taking necessary action in accordance with law.
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2010 (5) TMI 400
Deletion of the name Toshiba from the name of the company in liquidation viz., Toshiba Anand Batteries Ltd challenged
Held that:- The chances of revival is only a hypothetical probability and we are in agreement with the learned Single Judge that order of dissolution is inevitable. According to us, the respondent company is justified in seeking deletion of its tradename from the name of a company in liquidation
The learned senior counsel for the appellant was not able to convince us of any serious legal prejudice which may be occasioned to the company in liquidation by the deletion of the name Toshiba from its present name. True, the Registrar of Companies had raised a contention that allowing deletion applied for presently will prejudice the ongoing litigations initiated by the Official Liquidator but importantly such a contention is not shared by the Official Liquidator who figures as plaintiff in these litigations. We are convinced on the materials available that the word "Toshiba" is the tradename and trademark of the respondent/company and they are justified in insisting that their name should not continue in the name of a company which is on the verge of dissolution. Appeal fails.
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2010 (5) TMI 399
Scheme of Arrangement by demerger - Held that:- The Scheme, sanction of which is sought seeks demerger of the seed division from the investment division. This does not, however, seem to be the sole purpose of the Scheme. It also seeks conversion of the Zero Coupon Redeemable Preference Shares (ZCRPS) and Zero Coupon Non-Convertible Bonds (ZCNCB) given under the 2003 Scheme.By such conversion J.K. Industries Ltd. (JKIL), the promoter-company acquires shares in Florence Alumina Ltd. (FAL), the applicant No. 2 whereby its shareholding increases. This increase will not benefit any shareholder except the promoters. Therefore, the conversion contemplated will benefit the promoters and none else. This cannot be the intention of the propounders of the Scheme.
The conversion is intended to promote the interest of JKIL which is a separate class and a meeting of such class ought to have been called as held in 1975 (3) AER 382 to ascertain the intention of its shareholders with regard to acceptance of the arrangement. Thus this application for sanction of Scheme of Arrangement and Demerger is rejected.
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2010 (5) TMI 398
Efficacy of the third proviso to section 15(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 questioned
Held that:- The third proviso under section 15(1) of the Act of 1985 relieves the specified strength of secured creditors from that shackle and permits them to pursue their remedy under the provisions of Securitisation Act, which have been introduced as a special enactment to further the cause of financial sector and the financial institutions to which the same is applicable. Suffice it to observe that the above position is reinforced from the provisions and in particular the third proviso to section 15(1) read with section 22 of the Act of 1985 itself. Thus, section 37 of the Securitisation Act cannot be pressed into service to whittle down the sweep of the third proviso to section 15(1) of the Act of 1985.
Thus there is no question of finding fault with the action taken by the Respondent No. 5-bank of invoking remedy under section 13 of the Securitisation Act and taking the same to its logical end, which action is protected by the sweep of the third proviso to section 15(1) of the Act of 1985 qua the Respondent No. 5-bank being the sole secured creditor at the relevant point of time. Appeal dismissed.
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2010 (5) TMI 397
Circular No. Mktg/CRM/558/23, dated 24-4-2006 which came into force with effect from 1-5-2007 challenged
Held that:- It is material to note that while the assignment is charged, re-assignment is not charged with such service charges because by re-assignment, original policyholder will be entitled to all the benefits of the insurance policy and will also be entitled to share in the profits or surplus of the respondent No. 1. Therefore, in our considered opinion, not only there has been intelligible differentia, but also there is a rational relationship with the object to be achieved by the impugned Circula. The impugned Circular charges a service charge/fee, without there being a power to charge a fee, the impugned Circular on that count has to be held illegal and unconstitutional as it violates articles 19(1)(g) and 300A and to that extent, the petition has to be allowed.
On behalf of the respondents, the learned counsel prays for stay. Considering that we have held that the fee is ultra vires the Act, it is not possible to grant stay. Hence, the stay is rejected.
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2010 (5) TMI 396
Whether after amalgamation of the original landlord with the Transferee Company, the Transferee Company is entitled to avail the benefit of the order of eviction granted under section 10(3)(a)( i) and (iii) as passed by the Rent Controller, approved by the Appellate Authority and the High Court?
Held that:- Appeal dismissed. The object of the Act is to prevent unreasonable eviction of the tenant in occupation and to control rents. Similarly, when landlord wants the property for its own purpose, it takes into account the fact of the landlord’s occupation of other properties and not its ownership of other properties which does not in occupation. The Act permits eviction on reasonable grounds as provided for in the Act. It may be that there may be cases where it would be reasonable to evict the tenant, but that requirement may not strictly fall in any one of the provisions of section 10 of the Act to entitle the landlord to evict the tenant. Section 29 of the Act therefore, enables the Government to grant exemption of the building in such cases so that the landlord may be entitled to evict the tenant under the ordinary remedy of suit.
The present case being one where the order of eviction is eminently just, fair and equitable as ordered by two authorities and confirmed by the High Court, no valid ground for interference, on the other hand, we are in agreement with the conclusion arrived at by the authorities as well as the High Court.
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