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Case Laws
Showing 101 to 120 of 491 Records
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2002 (10) TMI 720 - CEGAT, NEW DELHI
Natural justice - Clandestine removal, accounts and records ... ... ... ... ..... we proceeded to decide the appeal after waiving pre-deposit of duty and penalty. 4. emsp We note in the instant case that the demand is computed on the basis of the sales tax departmental records maintained in the form of Form 39, ST and movement register at the commercial taxes barrier. In the instant case the fact remains that the records were voluminous and therefore, they could not be inspected properly. Further, we note that there was denial of cross-examination of the truck drivers. Thus, there has been violation of the principles of natural justice. In this view of the matter, the appeal is remanded to the adjudicating authority for de novo adjudication. The impugned order is set aside and the adjudicating authority is directed to provide the applicant reasonable opportunity of being heard in person and providing them requisite records and cross-examination of the people specified by them. 5. emsp The stay petition is allowed and the appeal is allowed by way of remand.
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2002 (10) TMI 719 - CEGAT, NEW DELHI
Appeal - New plea - SSI Exemption ... ... ... ... ..... . The matter was remanded only on this limited issue. Appellants accepted this order by not filing any appeal. Therefore, we find no merit in the arguments of the appellants that they can agitate the issue of classification before the Tribunal at this stage. 8. emsp In respect of benefit of notification No. 75/87-C.E., the Commissioner (Appeals), in the impugned order, allowed the benefit of notification No. 75/87-CE with the condition to reverse the Modvat credit taken by the appellants. As the appellants were claiming the benefit of small scale exemption notification, we find no infirmity in the impugned order in respect of the condition imposed by the Commissioner (Appeals) as the appellants are not entitled for the benefit of Modvat credit in respect of inputs used in the manufacture of their final product when they are claiming exemption from payment of excise duty under the small scale exemption notification. 9. emsp In view of above discussion, the appeal is dismissed.
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2002 (10) TMI 718 - CEGAT, NEW DELHI
Confiscation of conveyance - Penalty ... ... ... ... ..... e liable to confiscation. The Hon rsquo ble Supreme Court in the case of Kirpal Singh v. C.C. reported in 1998 (104) E.L.T. 405 (S.C.) held that since the appellants, have failed to prove, as required under Section 115(2) of the Customs Act, 1962, that at the time when the contraband goods were found in the truck, it was being used without the knowledge or connivance of the appellants/his agents therefore, the confiscation is upheld. In the present case, trucks were used with the knowledge of the drivers and cleaners of the trucks. Therefore, there is no infirmity in the impugned order in respect of confiscation of the goods. However, taking into consideration the facts and circumstances of the case, the redemption fine is reduced to Rs. 30,000/- each. In respect of S/Sh. Jai Bhagwan and Pappu, the appellants, as they were transporting the smuggled goods, they are liable for penal action. Therefore, the impugned order is upheld. The appeals are disposed of as indicated above.
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2002 (10) TMI 717 - CEGAT, KOLKATA
Redemption fine and penalty ... ... ... ... ..... In these circumstances, I am of the view that the imposition of redemption fine and personal penalty upon the appellants was not justified. The same are accordingly set aside. 6. emsp As regards the clearance of the goods under D.F.R.C., I find that the said issue was not the subject matter of the adjudication proceedings. In fact, there is no detailed discussion in this regard in the impugned Order and there is one line in paragraph 17 of the impugned Order as under - ldquo 17. emsp The request of the importer for clearance of the goods under D.F.R.C. cannot be acceded to ... ldquo I order for expunging the said line from the impugned Order. However, I make it clear that the Customs Authorities are at liberty to look into the aspect of clearance of the goods under D.F.R.C. afresh, if they so desire. Needless to say that before taking any decision on the said issue, the appellants should be given an opportunity to present their case. The appeal is thus allowed in above terms.
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2002 (10) TMI 716 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit - Demand and penalty ... ... ... ... ..... ewa Singh reiterates the findings of the Commissioner as recorded in the impugned order and concedes the factum of pre-deposit of the amount of Rs. 45 lakhs lying with the department. 4. emsp Having examined the submissions, we find that an amount of over Rs. 45 lakhs is admittedly lying with the department. The duty confirmed by the Commissioner is only a little over Rs. 47 lakhs. We further find that, in the earlier proceedings, the Commissioner had not found it a fit case for imposing mandatory penalty on the assessee under Section 11AC, but she chose to impose such penalty on the party in the impugned order. Prima facie, we are not impressed with this part of the order of the Commissioner. Having regard to the totality of the above facts and circumstances, we think that the deposit of over Rs. 45 lakhs lying with the department will serve the purpose of Section 35F in these appeals. The applications are allowed and the appeals are posted for regular hearing to 26-11-2002.
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2002 (10) TMI 715 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - Demand and penalty - Classification of goods ... ... ... ... ..... he product is not anything other than portland cement modified by the addition of other substances to accelerate its hardening property appears to be sound. 5. emsp Even, if we hold, as the departmental representative suggests, a contrary view on the ground that the Commissioner (Appeals), in the order impugned in this appeal, has furnished the basis on this conclusion, it would still follow that the applicant is entitled to waiver of deposit. It is a well settled principle that where there is a difference of opinion as to classification or valuation etc. by the co-ordinate authorities, the benefit of the doubt at the interim stage would go to the applicant, and waiver will be granted. This is not a case of the applicability of the benefit of exemption where the benefit of doubt may flow to the state. Accordingly, we waive deposit of the duty and penalty and stay their recovery. 6. emsp Appeal to be listed in 3rd December, 2002, in view of the recurring nature of the dispute.
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2002 (10) TMI 714 - CEGAT, KOLKATA
Valuation - Demand - Limitation ... ... ... ... ..... not disclosed to the Department. The mere submission of transshipment documents would not disclose to the Customs Department that extra transport charges are being incurred by the Appellants. Recently the Supreme Court in the case of BPL India Ltd. v. CCE, Cochin, 2002 (143) E.L.T. 3 (S.C.) upheld the decision of the Tribunal for invoking larger period of limitation as the Manufacturer manufactured the goods and removed the same without any intimation to the Department which clearly goes to show that their Action was with an intent to evade payment of duty. We, however, agree with the learned Sr. Advocate for the Appellants that a penalty equal to the amount of duty under Section 114A is not warranted in the present matter. We are of the view that a penalty of Rs. 1 crore will meet the end of justice in the present matter. We order accordingly. We also set aside the penalty of Rs. 10 lakhs imposed under Section 112 of the Customs Act The appeal is disposed of in above terms.
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2002 (10) TMI 713 - HIGH COURT OF DELHI
Offences and prosecutions ... ... ... ... ..... ble in respect of offences under FERA. 13. An objection has been raised by learned counsel for the respondent as to the instant petition being barred by limitation. This attempt is highly feeble and is difficult to accept as there is no limitation prescribed for any relief sought under section 482 CrPC. This provision is to prevent abuse of process of any court or otherwise to secure the ends of justice. Merely because the revision petition was filed at a belated stage cannot provide colour of legality to an order which is patently illegal or suffers from the abuse of process of any court. The underlying object of provisions of section 482 CrPC is to secure the ends of justice. Nothing more and nothing less. 14. The upshot of the aforesaid discussion is that petition has to be allowed. The impugned order of learned ACMM is set aside. However, in order to be fair to respondent, the learned trial Judge is impressed upon to expedite the trial and if possible on day to day basis.
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2002 (10) TMI 712 - HIGH COURT OF KARNATAKA
Winding up - Circumstances in which a company may be wound up ... ... ... ... ..... , there is a relationship of a creditor and debtor and such creditor can file a petition for winding up under section 439 of the Act and this is what the Apex Court has observed in Harinagar Sugar Mills Co. Ltd. rsquo s case (supra). Therefore, the relief sought for by the petitioner-company requires to be granted. 17. Accordingly, the following ORDER (i)This company petition is allowed. (ii)An order is made to wind up the respondent-company. (iii)An Official Liquidator is appointed to take effective steps to implement the orders made by this Court. (iv) Petitioner-company is permitted to produce a copy of the orders made by this Court before the Registrar of Companies, within 30 days from today. (v)Petitioner-company shall publish the orders made by this Court in one Edition of lsquo Times of India rsquo newspaper within 14 days from today. (vi)Petitioner-company shall deposit a sum of Rs. 15,000 with the Official Liquidator towards the initial expenses. Ordered accordingly.
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2002 (10) TMI 711 - HIGH COURT OF ANDHRA PRADESH
Debts - Other modes of recovery ... ... ... ... ..... l liquidator as the case may be is directed to take into his custody or under his control the property, effects and actionable claims, the company is or appears to be entitled to by reason of the provisions contained in section 456 of the Companies Act, there cannot be any doubt whatsoever that leave of the Court must be obtained. By reason of the aforesaid provision a legal fiction is created. rsquo rsquo (p. 351) Thus the judgment of this Court in Pennar Patterson rsquo s case (supra) does not in any manner takes a contra view from the view taken by me. The application filed by Syndicate Bank at the stage when the matter is posted for confirmation of sale by this Court is not maintainable as per the provisions of DRT Act, Companies Act, Second and Third Schedules to the Income-tax Act, which are made applicable by reason of section 29 of the DRT Act. This application is misconceived, and is liable to be dismissed. Accordingly, the Company application is dismissed. No costs.
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2002 (10) TMI 710 - HIGH COURT OF ANDHRA PRADESH
Bills of exchange and promissory note ... ... ... ... ..... Instruments Act several contentions had been advanced by both the learned Counsels. But, however, in the light of the clear evidence of PW1 and PW2 and admissions made by DW1 and also the different provisions under sections 26, 27 and 28 of the Negotiable Instruments Act, 1881 and also section 47 and also section 147(1)(c) of the Indian Companies Act, 1956, it is not necessary to further discuss these aspects in detail since it will not alter the situation in any way in favour of the appellants/defendants 2 and 3. Hence all the findings recorded by the trial Court are hereby confirmed. Point d 32. In the light of the findings recorded above in detail especially in the light of the oral and documentary evidence available on record the appeal is devoid of merits and accordingly the appeal is dismissed with costs. 33. This Court also records its appreciation for the able assistance given by both the learned Counsels Sri Chitturu Srinivas and Sri Ram Mohan in deciding the matter.
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2002 (10) TMI 709 - HIGH COURT OF BOMBAY
Arbitral Tribunal ... ... ... ... ..... ed on evidence. Having regard to the limited parameters of the jurisdiction under section 34 of the Act, I am of the view that no case for interference is made out. The award cannot be construed, in any manner, as amounting to a breach of public policy. 8. Finally, it has been urged that the arbitrator has awarded a disproportionately high rate of interest of 18 from the date of the reference, e.g., 12 May, 1999. Having regard to all the facts and circumstances of the present case, I am of the view that it would be appropriate to reduce the rate of interest which has been awarded by the arbitrator from 18 to 15 . Subject to the aforesaid modification in the rate of interest, I am of the view that no interference of the court is called for. The award cannot be regarded as being outside the jurisdiction of the arbitrator, and in any manner contrary to public policy. The arbitration petition is, in the circumstances, subject to the modification in the rate of interest, rejected.
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2002 (10) TMI 708 - HIGH COURT OF MADRAS
Exclusion of certain time in computing periods of limitation ... ... ... ... ..... dated March 27, 1984 accordingly I answer the issue in favour of the applicant and hold that the present application is not barred by limitation. 11. Coming to the merits of the claim, no serious argument was advanced, except stating that the claim is barred by limitation. When the respondent has paid or settled the amounts as claimed as referred to in the various bills (annexure A), undoubtedly it could have been mentioned in the account books and ledgers of the company in liquidation. In the absence of any such material, as stated earlier, those accounts were subjected to scrutiny by the auditors cannot be doubted and no reason to disbelieve the same. Accordingly, I accept the claim of the official liquidator. However, considering the grievance expressed and of the fact that the amount is due from 1984, there will be a decree for Rs. 1,47,797.60 with interest at 12 per cent per annum from August 30, 1984, till the date of payment. Company application is ordered accordingly.
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2002 (10) TMI 707 - SUPREME COURT
Whether the appointment of the third arbitrator should necessarily be done by the two appointed arbitrators by sitting together and in writing?
Are they required to consult the parties too, while doing so, or at least, to put the parties on previous notice?
Whether it can be said that Mr. K.B. Verma while agreeing for appointment of Mr. Williams as third arbitrator was under a mistake as to Indian law, and if so, then its effect?
Held that:-
Held that:- Appeal dismissed. It is not necessary within the meaning of section 11(3) that the presiding arbitrator must be appointed by the two appointed arbitrators in writing nor it is necessary that the two appointed arbitrators must necessarily sit at one place, deliberate jointly and take a decision in the presence of each other in regard to the appointment of the presiding arbitrator. It is enough if they have actually consulted or conferred with each other and if both or any of them communicates to the parties the appointment of the presiding arbitrator as having taken place by the joint deliberation of the two. It is clearly spelled out from the correspondence between the two arbitrators reproduced hereinabove that the two arbitrators had agreed on principle that the third arbitrator shall be of a nationality different from the one to which either of the parties belongs.
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2002 (10) TMI 706 - CEGAT, KOLKATA
Project import ... ... ... ... ..... quest for registration of Project Import as per direction of the Tribunal, requested the appellants to produce the sponsoring authority rsquo s recommendation with attested list of proposed imported goods from the concerned Ministry. The appellants have now produced a letter dated 9-9-99 from the Office of the Development Commissioner confirming the essentiality of the goods imported by them. We observe that this letter was neither brought to the notice of the Adjudicating Authority nor the Commissioner (Appeals). We also, further, observe that it is not clear from the said letter that Development Commissioner, Falta Export Processing Zone, has been made the sponsoring authority in the present matter. No material has also been brought on record to show that the Development Commissioner has become the sponsoring authority. As the appellants have not produced the document required by the proper officer in connection with the registration of the contract, the Appeal is rejected.
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2002 (10) TMI 705 - CEGAT, NEW DELHI
... ...
... ... ..... e smuggled gold. I uphold the penalty imposed on him. 6. emsp As far as other four Appellants are concerned, they had denied to have made any purchase of gold biscuits on 13-6-1997. Nothing incriminating had even been seized as a result of search of their business and residential premises. There is nothing to connect them with the seized Indian Currency except the statements of the co-accused. Accordingly, penalty cannot be imposed on these four Appellants for want of evidence about their dealing with the smuggled gold. The decision in the case of Naresh J. Sukhawani, supra, is not applicable as in that case there were photographs and other intrinsic material on the basis of which the revisional authority had concluded that the co-accused incriminated himself and the Appellant in passing off foreign currency out of India. I, therefore, set aside the penalty imposed on Shiv Narain Agarwal, Kamal Kishore, Daulal and Premchand. All the Appeals are disposed of in the above terms.
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2002 (10) TMI 704 - CEGAT, CHENNAI
Eligible for exemption under Notification No. 91/89-Cus. ... ... ... ... ..... k mechanism incorporating a motor would be squarely covered by Notification and allowed the benefit. 2. emsp Revenue rsquo s contention in this appeal is that Motor is not part of lsquo Tape Deck Mechanism rsquo and the benefit of Notification No. 91/89 which is available only to Tape Mechanism cannot be extended to additional item of motor. 3. emsp We have heard Shri C. Mani, ld. DR for the Revenue and Shri M.S. Kumaraswamy, ld. Consultant for the Respondents. 4. emsp We have perused the orders and also the Appraising Department Circular No. 1/87 and the definition of the term lsquo Tape Deck Mechanism rsquo and lsquo Tape Recorder rsquo which has been seen by the Commissioner as noted in the order. We find that the Tape Deck Mechanism is mounted on the Tape deck along with a motor and it is a part of the said system. Therefore, there is no infirmity in the impugned order and hence we do not find any merit in this Revenue appeal and the same is rejected. Ordered accordingly.
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2002 (10) TMI 703 - CEGAT, KOLKATA
Confiscation and penalty - Misdeclaration - Redemption fine - Quantum of - Penalty ... ... ... ... ..... margin of profit considered in this case is 79 . No benefit of demurrage, etc., has been considered as it is clear from this file. We therefore find that the redemption fine of Rs. 3,00,000/- imposed by the lower authorities is on the higher side. The same is reduced to Rs. 1,50,000/-, when the demurrage of Rs. 1.50 lakh stated by ld. Advocate is considered. 5. emsp We find that there is a misdeclaration rendering the goods liable for confiscation under Section 111(m). Therefore the importers are liable for penalty under section 112 as arrived at by the lower authorities. The penalty of Rs. 1,50,000/- imposed on the appellants is on the higher side. No fresh grounds have been brought before us to completely waive the fine and penalty. Considering that they were to get benefit of duty by this mis-declaration. We have reduced the fine. The penalty is also reduced to an amount of Rs. 75,000/- in the facts and circumstances of this case. 6. emsp Appeal disposed of in above terms.
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2002 (10) TMI 702 - CEGAT, NEW DELHI
Cenvat/Modvat ... ... ... ... ..... 7Q. The latter issue was examined in para 22 of the Apex Court rsquo s judgment and decided against the assessee. It is this part of the Apex Court rsquo s decision that has been relied upon by the lower appellate authority in the impugned order and by the learned DR today. Lubricants were recognized as capital goods w.e.f. 1-3-1997. The period of dispute in this case is January to March, 2000. There is not dispute of the fact that lubricants were capital goods under Rule 57Q during the said period. But that rule had further stipulated that the capital goods should have been used in the factory of production of final product. In the instant case, the lubricants were used in the off-factory mines. The Apex Court has taken note of like factual situation and denied Modvat credit on capital goods to like manufacturers for like period. The issue involved in this case stand squarely covered against the appellants by the decision of the Apex Court. The appeal is dismissed in limine.
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2002 (10) TMI 701 - CEGAT, NEW DELHI
Stay/Dispensation of pre-deposit - 100% Export Oriented Unit ... ... ... ... ..... 43/- and the goods are still with Customs. He submits that since over a large amount of goods Customs have still control pre-deposit of duty and penalty may be waived. 3. emsp Shri Rajeev Tandon, learned SDR appearing for Revenue submits that a huge amount of duty is due from the appellant and that the goods might have depreciated inasmuch as capital goods were imported sufficiently long back and that the depreciated value has not been taken into consideration. He submits that applicant may be directed to deposit at least a part of duty and penalty. 4. emsp We have heard the rival submissions. In the instant case we note that goods valued over Rs. 2 crores are still with the Customs. The amount of duty on the goods is only a little more than Rs. 1.0 crore. Since substantially valued goods are still available with the Customs Authorities pre-deposit of duty and penalty is waived. However, since stakes are very high the matter should be listed for regular hearing on 18-11-2002.
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