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Case Laws
Showing 121 to 140 of 567 Records
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1997 (7) TMI 552 - HIGH COURT OF GUJARAT
Suspension of legal proceedings ... ... ... ... ..... to be used sparingly and in rare cases to prevent abuse of process of Court. In the instant case, prima facie, ingredients of section 138 are satisfied, consequently, the petitioners shall be deemed to have committed an offence exposing to criminal liability, of course, subject to appreciation of evidence by the Court below. Therefore, in my view, initiation of criminal proceedings is completely in accordance with law and cannot be termed as an abuse of process of Court. Under these circumstances, the application being devoid of merits do not require any further consideration. Hence, the applications are rejected. Notice is discharged. Interim relief stands vacated. 11. At this stage, Mr. Patel for the petitioners, requests the Court to stay operation of order for a period of eight weeks. Mr. Shah for the respondent No. 2 has no objection if reasonable time is given so as to approach the Apex Court. Accordingly, operation of order is stayed till 19-8-1997. SCL q JULY 5, 1998
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1997 (7) TMI 551 - HIGH COURT OF PUNJAB AND HARYANA
Company when deemed unable to pay its debts ... ... ... ... ..... istered notice was sent by the petitioner-company through its advocate and in case there was any dispute, respondent-company had the opportunity to explain the same in its reply. Instead of explaining as to why the notice was not replied to, the respondent-company has simply denied the receipt of the same. In my view, the circumstances of this case, as discussed above, clearly point out that the defence set up by the respondent-company is not a bona fide one and has been set up only in order to deny payment due to the petitioner-company. Thus, it is clear that the respondent-company has failed to make payment of the amount due from it to the petitioner-company and, therefore, it is held that the respondent-company is unable to pay its debts. For the foregoing reasons, this petition is admitted and ordered to be published at least 14 days prior to the date of hearing in the Indian Express, Jansatta (Hindi) and the Haryana Government Gazette. To come up for further proceedings.
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1997 (7) TMI 549 - HIGH COURT OF GUJARAT
Charges – Rectification of register of ... ... ... ... ..... ing cognizance. As no such authorisation was produced before taking cognizance, the complaint was held barred under section 142 of the Act and required to be quashed. In the light of the aforesaid facts and circumstances and in the light of the aforesaid discussion, in my view, since the complaints are filed in the name of the legal entity, respondent No. 2, there is no legal bar and the complaints are maintainable. Continuation thereof is absolutely in accordance with law, hence the question of abuse of the process of the court does not arise. In the same way, as the complaints are in consonance with the provisions of the Act, no interference is warranted in exercise of inherent powers. The ends of justice can also be met in continuing with proceedings as are to fulfil the paramount object of the Act. Hence, the petitions being devoid of merit are dismissed. Rule is discharged. Interim relief, if any, stands vacated. The trial court to proceed further in accordance with law.
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1997 (7) TMI 548 - HIGH COURT OF ALLAHABAD
Court – Jurisdiction of ... ... ... ... ..... e. Learned counsel for the respondent has rightly submitted that no prejudice or failure of justice has been established or even pleaded to show that if the company petition is heard at Allahabad, it shall cause any prejudice or failure of justice to the appellant. It is not disputed before us that the parties have already exchanged counter and rejoinder affidavits and thus the company petition is ripe for hearing. If at this stage the case is transmitted to Lucknow to remove the technical defect pointed out by the appellant, it shall not in any way subserve the ends of justice and in our opinion it may only cause waste of time and money. This company petition is pending in this court for more than a year. For the reasons stated above, we do not find any illegality or error of law in the impugned order justifying interference in the same. The appeal is devoid of any merit and is dismissed. The interim order dated March 31, 1997, is vacated. There will be no order as to costs.
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1997 (7) TMI 533 - HIGH COURT OF ANDHRA PRADESH
Winding up - Inability to pay debts ... ... ... ... ..... notice was issued by the appellant under section 434 of the Compa- nies Act and section 138 of the Negotiable Instruments Act. The reply of the respondent on 4-3-1996 was an acknowledgement of the debt but sticking to their stand for release of the securities proportionately. The appellant sent the pledged shares for transfer in their favour but the respondent has not effected the transfers. 8. The resume of the facts would show, prima facie, of there being a case of the respondent having not been able to clear off the debts. In such circumstance the appellants had a right to file an application under section 433(e). Since such a prima facie case has been made out, the application is entitled to be considered as to whether a winding up proceeding is warranted. 9. In the result, the appeal is allowed and the judgment of the learned company Judge is set aside. The application is directed to be admitted and registered and proceed with in accordance with law. SCL q DECEMBER, 1997
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1997 (7) TMI 531 - SUPREME COURT
Whether a sum of ₹ 79 lakhs representing debenture redemption reserve was includible in computing the capital of the assessee-company for the purpose of Companies (Profits) Surtax Act, 1964?
Whether the sums of ₹ 6,66,159 constituted reserve and was required to be taken into account in the computation of the capital under the Super Profits Tax Act, 1963 ?
Held that:- Appeal dismissed. The surplus and unallocated balance in the profit and loss account has been specifically excluded from 'reserves' for computation of capital under the Act. Therefore, availability of the amount for utilisation as working capital of the company or for distribution of dividend cannot be a criterion for deciding whether a particular amount retained from the profits of the company will be treated as its reserve or not.
The amount of ₹ 6,66,159 will have to be treated as provision and not reserve.
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1997 (7) TMI 530 - HIGH COURT OF BOMBAY
Compromise or arrangements ... ... ... ... ..... application of the objector is concerned, in view of the aforesaid rulings more particularly the observations made in Miheer H. Mafatlal s case (supra) that if share exchange ratio is fixed by the expert Chartered Accountant upon consideration of various factors and the ratio is approved by the majority of the shareholders in the meeting, the Court will not disturb the ratio, the objector/shareholder in the instant case has not been able to show or attribute any mala fides in the Scheme of Arrangement. 25. Hence, in light of my above discussion, so far as the objections raised by Shri Lakhani are concerned, the same stand rejected. Therefore, in view of the fact that Registrar of Companies has given no objection, petitioner made absolute in terms of prayer clauses (a) , (b) , (c) , (d) , (e) , (g) , (h) , (i) , (j), and (k). 26. Shri Khambata, on behalf of the Petitioner - Company states that he does not press for the relief in terms of prayer clause (f). SCL q NOVEMBER, 1997
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1997 (7) TMI 529 - HIGH COURT OF CALCUTTA
Power to alter Schedules ... ... ... ... ..... ment have to be made in the certificate issued therefore and certain alterations have to be made in the Registrars maintained by the respondent No. 1 for that purpose. Such a regulatory fee is not meant to be a profit making venture nor thereby a retrospective effect can be given so as to completely give a go-bye to the amount paid by the petitioners at the time of initial registration and/or subsequent increase in the authorised share capital prior to coming into force of the impugned notification. 43. Imposition of enhanced fee in such a manner must be held to be wholly unreasonable. 44. In that view of the matter only, the impugned orders cannot be sustained. The purported enhancement has therefore, be held to be unreasonable being against the legislative policy. 45. For the reasons aforementioned, these applications are allowed, the impugned notification are set aside but in the facts and circumstances of this case, there will be no order as to costs. SCL q NOVEMBER, 1997
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1997 (7) TMI 526 - HIGH COURT OF MADHYA PRADESH
Board of directors - Powers of ... ... ... ... ..... as a condition of service that an employee would work 6 frac12 hours only nor is there anything to that effect in the appointment letter of the employee, then section 9A would not be applicable. The mere fact that while the workshop was under completion and there was not enough accommodation for the office/administrative staff in the workshop building, they were accommodated in another building and worked there along with other clerks for only 6Vi hours in a day for a period of six months, will not make it a condition for their service. (p. 968) 8. Thus, their Lordships of the Supreme Court have also held that increase in working hours does not amount to change in service conditions. 9. In view of above, we are of the opinion that the view taken by the learned single Judge does not appear to be well founded. Hence, we allow the appeal, set aside the order of learned single Judge, dated 1-7-1986 and dismiss the petition. There shall be no order as to costs. SCL q MARCH 5, 1998
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1997 (7) TMI 509 - COMMISSIONER OF CUSTOMS (APPEALS), MADRAS
Drawback - Limitation ... ... ... ... ..... led for the export, itself proves that their claim was in time. At the material time, there was no provision for making a separate application. The appeal in respect of six moulds be allowed and the original authority directed to consider the case on merit. 5. emsp I find that the claim for drawback was not examined carefully by the original authority. There is suffcient ground to believe the contention of the appellant that they had filed applications on 22-12-1993. They have supported this by filing a sworn affidavit dated 27-11-1996. It is an admitted fact that they had filed the drawback shipping bill. In any case, the assessment was finalised in 1995 and they filed the drawback claim within a month of their receiving the information. This aspect should have been taken into account by the original authority. 6. emsp In the circumstances mentioned above, I remand the case to the original authority for proper examination of all aspects of the case and disposal of the claim.
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1997 (7) TMI 501 - CEGAT, KOLKATA
... ...
... ... ..... ion 4(4)(d)(i) speaks of ldquo does not include the duty of excise, if any, payable on such goods, it means the duty payable at the time of clearance of the goods will have to be excluded from the wholesale price of the goods..... if the manufacturer has utilised duty-paid inputs for manufacturing the goods or has utilised the duty-paid wrapping paper before delivery, no deduction before delivery already paid on the inputs can be allowed under Section 4(4)(d)(ii). The duty will have to be levied at the time of removing from the factory rdquo . We observe that the controversy in the Mysore Paper Mills case has no relevance in the facts of this case. It is only the duty on the T.V. sets in terms of Section 4(4)(d)(ii) has to be decided. This is what has actually been done by the respondents while submitting the price list. In other words, deduction of duty of Rs. 1675/- has been made from the sale price including duty of Rs. 6670/-. Hence the appeal of the Revenue is dismissed.
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1997 (7) TMI 493 - CEGAT, NEW DELHI
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... ... ..... lso. It was also contended that sales numbering 278 during the period 21-11-1981 to May, 1982 where these charges were not collected were representative in nature and that during the entire period such sales without collection of service charges were more in number. They had not given the actual particulars for such period. We are of the view that the percentage whether it is 2 as held by the Department or more as claimed by the appellant would not really make a difference as to the nature of such charges whether they were optional in nature or otherwise. The plea regarding the understanding about the non-includibility of the said charges in the assessable value in the light of the legal position during the period before the pronouncement of the Bombay Tyre International judgment, also merits acceptance. In view of the above position, we hold that the appeal succeeds both on grounds of limitation as well as on merits. The impugned order is set aside and the appeal is allowed.
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1997 (7) TMI 486 - CEGAT, CALCUTTA
... ...
... ... ..... order dated-8-11-1985 .What we are required to do in the present case is to arrive at the assessable value of the diamond drilling bits using salvaged diamonds. Apart from the-agreed cost of the salvaged diamonds, it is not denied that the appellants are also collecting extraction charges of the old and used diamonds from the. old and used diamond drilling bits. Therefore, this being a pre-manufacturing cost before undertaking manufacture of the diamond drilling bits using salvaged diamonds, there is no reason as to why this pre-manufacturing cost should not form part of the assessable value of the goods because it is a settled principle that manufacturing cost plus manufacturing profit would form part of the assessable value of the goods. Keeping that principle in view, the extraction charges collected by the appellants will rightly form part of value of the goods and duty has been rightly demanded from the appellants by the Revenues authorities. Hence we dismiss the appeal.
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1997 (7) TMI 485 - CEGAT, MADRAS
Modvat - Capital goods ... ... ... ... ..... goods as set up under Rule 57Q. Before the benefit is allowed finding is required to be entered that the goods in question answer to the definition of capital goods as set out under the said rule that is to say that the goods themselves either are capital goods in terms of the definition or that these are spare parts of such capital goods. The lower appellate authority we observe has entered a cryptic finding without adverting to the nature of the goods where they are used and whether in the context of the use, the same can be considered as capital goods as defined under Rule 57Q. We observe that the benefit of Rule 57Q is available only for certain category of goods which are used as set out under Rule 57Q and those goods will alone be eligible for the benefit. In the circumstances we hold that the lower authority s order is not proper order and we set aside the same and remand the matter to the said authority for de novo consideration and decision in the light of the above.
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1997 (7) TMI 484 - CEGAT, CALCUTTA
Paint - Manufacture ... ... ... ... ..... g both containers a single container is liable to duty as ready mixed paint or paint not otherwise specified under Tariff Item 141(3)(iii) and sub-item No. 5 of Item No. 14(i). 2. emsp It has been held by the Tribunal in its aforesaid order in the case of Berger Paints (supra) that packing of aluminium paste and varnish in a dual container does not amount to manufacture of a new commodity. In view of this finding, there is no question (sic) duty on the goods so packed and cleared from the factory of the respondent. The question of classification, therefore, does not arise. Hence both these Appeals of the Revenue are dismissed.
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1997 (7) TMI 474 - CEGAT, MADRAS
Classification - Demand - Limitation ... ... ... ... ..... nt did not explain the source of the knowledge or the circumstances under which the particular belief came to be entertained. The decisions of the Tribunal at least from 1985 took a consistent view in favour of the departmental stand. Reliance is placed on Calcutta II Trade Notice No. 112 (CH.33)-3/CE/Cal-II/91 dated 4-10-1991 but this can have no value as it was contrary to the consistent view taken by the Tribunal. In any event, the Calcutta II Trade notice of 1991 could not have created any bona fide belief in 1989-90 in the mind the appellant that the product was not an excisable product. Having regard to the flagrant nature of statutory violations and other circumstances, it is clear that there was deliberate suppression of material facts with intention to evade duty. The Commissioner was justified in invoking the larger period of limitation prescribed in the proviso to Section 11A(1) of the Act. 15. emsp We find no ground to interfere and accordingly dismiss the appeal.
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1997 (7) TMI 473 - CEGAT, CALCUTTA
Exemption to goods - Valuation - Clandestine removal ... ... ... ... ..... ding plant and machinery, materials etc. with an option to the appellants to redeem the same on payment of redemption fine of Rs. 1 lakh, we find that the demand confirmed by the adjudicating authority would vary on account of our findings given in the preceding paragraphs and various legal propositions. No data is available with the Tribunal as regards the reduction in quantum of duty on these counts. As penalty and redemption fine are directly relatable to the quantum of duty short paid and as we are remanding the matter to the lower authority for quantifying the demand in the light of our discussions above, we leave it to the adjudicating authority to redecide the quantum of penalty and redemption fine accordingly. 16. emsp As a result, we set aside the impugned order, remand the matter to the Collector for requantification of the demand in view of our discussions above and also to redecide the quantum of fine and penalty. 17. emsp Appeal is disposed of in the above terms.
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1997 (7) TMI 465 - CEGAT, NEW DELHI
Revision/Review by Collector - Show cause notice ... ... ... ... ..... Appeals) under Section 35-E(2) was sustainable as held by the Collector (Appeals). In the case of Collector of Central Excise, Bangalore v. Raman Boards Ltd. as reported in 1985 (22) E.L.T. 892, the Tribunal has held that the power under Section 35-E(2) and 35-E(3) vis-a-vis Section 11A are entirely different and they operate entirely in different fields with different objectives and purposes, and one cannot be super-imposed over another. In that view of the matter, the impugned order of the Collector (Appeals) is set aside and the matter is remanded to Commissioner (Appeals) to determine the points raised by the Collector in his review order on merits. The cross objection filed by the assessee is also disposed of. Ld. Commissioner has to take up the matter on merits and decide the review application and the cross objection of the assessee together and dispose of the same on merits after giving the assessee an opportunity of hearing. Appeal remanded to Commissioner (Appeals).
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1997 (7) TMI 464 - CEGAT, CALCUTTA
Demand - Limitation ... ... ... ... ..... wilful misstatement or suppression of facts on the part of the respondents. Hence the demand of cess is barred by time. We will mention that we are not going into the leviability of cess at all in the present case. 6. emsp At this stage, learned Consultant Shri S.P. Chatterjee (sic). The Cross Objection filed by the respondents herein, on the ground that the amount of Rs. 14,257.65 paid by them, should be refunded to them since the oil cess was not leviable. hellip hellip ..the merits of the case as hellip .. find that the Cross Objections are according to the data given by them in the EA-4 Form. It is stated that they received the notice of the appeal having been filed by the Department on 8-9-1994. Cross objections have been received in the Tribunal on (sic). The limitation stipulated under the provisions of the Central Excise Act, 1944 for filing the Cross objections is 45 days. Hence it is grossly barred by time as hellip . Hence, the C. Os. are dismissed as time barred.
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1997 (7) TMI 457 - CEGAT, MUMBAI
Import of office furniture gifted as free ... ... ... ... ..... able seeds, bees and new drugs by any importer. rdquo 5. emsp As per para 6 of the impugned order the quantity and description of goods imported shows one item each of 10 articles, worth Rs. 9,460/-, which is evidently a Trade Sample. There is no dispute between the parties that foreign exchange remittance is involved. Any importer can import, as bona fide one. As discussed in paras 5 to 9 of impugned order, bona fides of the Respondent is made out. According to Respondent the import is a free gift, which is not challenged. As contended by Respondent the above provision does not require the Respondent firm to prove as contended in the grounds of appeal. So the contention of the Appellant cannot be upheld. It is rejected. Impugned order is quite exhaustive and well founded. There are no sufficient grounds to come to different conclusion. The point raised is answered in the negative. Hence I pass the following order. ORDER For the reasons indicated above the appeal is rejected.
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