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Showing 141 to 160 of 486 Records
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2003 (4) TMI 471 - CEGAT, MUMBAI
Confiscation - Absolute confiscation and penalty ... ... ... ... ..... in the Arms Act, 1959 and consequently its import can be considered to be absolutely prohibited under Notification No. 40-Cus., dated 6-6-1970. Moreover, we find that the importers have not been able to satisfy the Customs authorities that the Bullet Proof Jacket in question was indeed imported for the Maharashtra Police in the absence of any proof from the police department. As such, we uphold the absolute confiscation of the Bullet Proof Jacket in question ordered by the lower authorities. In view of the fact that we are upholding the absolute confiscation, we do not think it necessary to give a finding on the valuation of the impugned goods as that will be purely of academic interest. 5. emsp Since there are contradictory provisions on importability of the Bullet Proof Jackets under the import policy and the Customs Law, we think it is a fit case for waiving the penalty imposed on the appellants. 6. emsp Appeal is dismissed except for waiver of penalty as indicated above.
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2003 (4) TMI 470 - HIGH COURT OF BOMBAY
Business of banking companies ... ... ... ... ..... find it necessary to refer to the judgments cited by the learned Counsel for the petitioners individually as in our considered view none of those judgments has direct relevance or bearing on the questions raised in this writ petition. We remind ourselves of the classic statement of the Privy Council in Quinn v. Leathem 1901 AC 495 that a case is only an authority for what it actually decides and not what seems to logically follow from it. The judgments referred to, relied upon and cited by the learned Counsel for the petitioners relate to controversy raised therein concerning interest in claim cases and has nothing to do with the interest rate fixed by monetary regulator. 12. We may also observe that while hearing the writ petition, we have taken into consideration the amendments proposed by the petitioner in the civil application treating it as part of the writ petition. With the aforesaid observations, we dispose of the writ petition and civil application as well. No costs.
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2003 (4) TMI 469 - HIGH COURT OF RAJASTHAN
Winding-up - Delivery of property to liquidator ... ... ... ... ..... the same nor he has delivered the possession of the Scooter aforestated to the Official Liquidator. He has not denied the averments made in this application. Thus, it is to be accepted that the Bajaj Scooter No. DAM 8020, the property of the company (in liquidation), is in possession of the respondent. He is unauthorisedly retaining the Scooter and thus has violated the provisions of sections 456, 468 and 477 of the Act, 1956 read with rules 234 and 239 of the Companies (Court) Rules, 1959. The respondent is liable to hand over the possession of the Scooter aforestated to the Official Liquidator. 4. Accordingly this application succeeds and the same is allowed. The respondent is directed to hand over the possession of the Bajaj Scooter No. DAM 8020 to the Official Liquidator within a period of 15 days from the date of receipt of the copy of this order. In case he fails to deliver the possession of the Scooter aforestated, the Official Liquidator is free to execute this order.
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2003 (4) TMI 468 - HIGH COURT OF GUJARAT
Winding up - Circumstances in which a company may be wound up ... ... ... ... ..... vited attention of the Court to the advertisement wherein the number of the Company Petition is mentioned and it is also stated that the petition is filed in the High Court of Gujarat seeking orders of winding up. That being so, only because of the format is different or at variance, it cannot be said that it is not an act of advertisement. Therefore, this contention is also rejected. 15. The learned Counsel did try to distinguish the aforesaid three decisions relied upon by the learned advocate for the company, but is not successful. 16. The learned Counsel also submitted that the Court should take into consideration the events subsequent to filing of the affidavit in reply in the Company Application as stated in para 3 therein in view of the discussion hereinabove the same is of no consequence. 17. In the result, Company Petition No. 210 of 2002 is dismissed. Company Application No. 407 of 2002 is allowed with cost of Rs. 7,500 (Rupees seven thousand and five hundred only).
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2003 (4) TMI 467 - HIGH COURT OF MADHYA PRADESH
Suspension of legal proceedings, contracts etc. ... ... ... ... ..... Ltd. v. P.N.B. Capital Services Ltd. 2000 5 SCC 5152, it has been held that the object of the Act is to afford maximum protection of employment optimize the use of financial resources, salvaging the assets of production, realising the amounts due to the banks and to replace the existing time consuming and inadequate machinery by efficient machinery for expeditious determination by a body of experts to safeguard the economy of the country and protect viably sick units. 14. In the instant case, the work has been obtained by the respondents and the recovery is essentially for the work rendered the labour charges incurred in sign boards and wall painting. It is not a case of execution of decree for any loan or advance, thus, in my opinion, bar created under section 22 is not attracted. 15. For the foregoing reasons, in my opinion, the impugned order P. 4 is not sustainable and is hereby quashed. The executing Court is directed to proceed with the execution. No order as to costs.
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2003 (4) TMI 466 - HIGH COURT OF CALCUTTA
Winding up - Power of Court on hearing petition ... ... ... ... ..... try and preserve the Company and the primary intention of the Court should be to avoid an order of winding up. 54. Similarly the argument of the learned Counsel for the appellant by placing reliance on section 529A of the Companies Act is misconceived. The provisions of section 529A of the Companies Act do not normally come into play until a final order of winding up is made. It is only when a final order of winding up is made the creditors and contributories have a right over the assets of the company but not before that. It may be noted here that the appellants are neither creditors nor workers of the Company. No secured creditor has come forward to claim any priority. 55. Therefore, the contentions raised by the learned Counsel for the appellant are without any substance and are not upheld. For the reasons aforesaid, this Court is of the view that the appeal has no merit and as such is dismissed. All interim orders are vacated. There will be however, no order as to costs.
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2003 (4) TMI 465 - HIGH COURT OF MADRAS
Rectification of name of company ... ... ... ... ..... a direction would certainly affect the right accrued on the petitioner, by virtue of the incorporation of the company and consequentially its trade. 10. Hence, in my considered view, in the absence of a reasonable opportunity to defend the application filed by the second respondent seeking for a direction under section 22 of the Companies Act, the impugned order is liable to be set aside. Accordingly, the impugned order is set aside solely on the ground of violation of the principles of natural justice. The first respondent is directed to hold the enquiry on May 5, 2003, commencing from 10.00 a.m. and if necessary on a further date fixed by him, duly intimate to either parties and pass orders on the merits of the case after hearing both the petitioner and the second respondent. I make it clear that I have not expressed any opinion on the merits of the rival claims. 11. With the above observation, the impugned order is set aside and the writ and petition is allowed. No costs.
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2003 (4) TMI 464 - HIGH COURT OF CALCUTTA
Circumstances in which a company may be wound up, Winding up – Commencement of, Winding up – Powers of tribunal on hearing petition
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2003 (4) TMI 463 - HIGH COURT OF CALCUTTA
Winding up - Circumstances in which a company may be wound up ... ... ... ... ..... berate untrue statement on oath before this Court. I, therefore, issue rule calling upon the said Sitaram Poddar having his office at 64, Sarat Bose Road, Kolkata, to show cause why an appropriate proceeding should not be initiated against him for making such deliberate untrue statement in the affidavit and thereby causing interference with court of justice. Such rule is made returnable eight weeks hence before the appropriate Division Bench taking up such matters. 21. The Registrar of Companies accepted such belated returns as well as balance-sheets and other statutory documents in 2001-02 being about 11 years after the date of commencement. Even then no proceeding had been initiated by the Registrar of Companies. At least the report did not speak of any such proceeding. This act on the part of the Registrar of Companies is deprecated by this court. Registrar of Companies is directed to initiate proceeding against the defaulting directors and officers of the company at once.
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2003 (4) TMI 462 - HIGH COURT OF GUJARAT
Winding-up - Suits stayed on ... ... ... ... ..... r to be situated shall not be responsible for any damage which may be caused by any such detachment or removal of the equipment. There is not even an iota of doubt in the mind of this Court that the document is of hire purchase agreement. 9. The contention raised by Mr. Buch regarding the decree being nullity on the ground of Mahesana Court having no jurisdiction, does not warrant a detailed consideration in light of the fact that the applicant herein has based its right/s on the documents of hire purchase, which as discussed hereinabove, are executed on required stamp fee. This question has lost its significance because no reliance is placed on the decree passed by the Civil Court and, therefore, no further discussion is warranted. 10. In the result, this Company Application is allowed and the Official Liquidator of M/s. Aryan Finefab Limited is directed to hand over the possession of all equipments/machineries described in para 7 of the application to the applicant-Company.
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2003 (4) TMI 461 - HIGH COURT OF ANDHRA PRADESH
Winding up - Preferential payments ... ... ... ... ..... refore, the claim of the present applicant that the arrears of the property tax, the electricity consumption charges and the building maintenance charges shall now be paid by the Official Liquidator cannot be entertained in view of the said clause. 9. In the latter case, the Delhi High Court held that the Official Liquidator who sold the property and assets of a company in liquidation under the orders of the Court could not hold out any guarantee or warranty in respect thereof. That was a case again where the objection as regards the defect in title and description of the property have been raised. Repelling those contentions, the Delhi High Court was of the view that the purchaser should satisfy himself as to the title and encumbrances before participating in the auction and he cannot claim later any defect in title. 10. In any view of the matter, the request of the applicant cannot be considered. 11. In the result, the company application fails and is, therefore, dismissed.
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2003 (4) TMI 460 - HIGH COURT OF ANDHRA PRADESH
Obligation of person who has received advantage under void agreement ... ... ... ... ..... . Under those circumstances, we have to necessarily hold that the denial of interest on the premise that it is contrary to the directives of the Reserve Bank of India is wholly illegal and misconceived, since it is only share deposit account. The trial Court has not properly considered this issue and swayed away by the contentions of the bank that the circular issued by the Reserve Bank of India are binding and opening of S.B. Account and crediting the interest is prohibited and thus dismissed the suit. Such an approach is illegal and contrary to law. The Bank is solely responsible for suppression of the fact and enter into a contract. It is liable to refund the suit amount with interest by way of equity, by virtue of sections 65 and 70 of Contract Act. It is not barred by limitation. Thus, we allow the appeal and decree the suit filed by the Appellant-Plaintiff with costs. But, however, they are entitled for interest 9 per cent from the date of suit till the date of payment.
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2003 (4) TMI 459 - CEGAT, MUMBAI
Modvat/Cenvat - Duty paying documents ... ... ... ... ..... pre-authenticated and further there is no dispute regarding the duty paid nature of the goods. Therefore, credit availed on this document is admissible to the respondents. 3. emsp As for availment of the credit on the strength of the subsidiary gate pass, I find that the respondents have imported goods under Bills of Entry on which they were entitled to take credit and subsidiary gate passes issued by the department were supporting documents and it cannot be said that the respondents took credit only on the basis of the subsidiary gate passes as they are only accompanying or supporting documents under which the respondents could take credit. I, therefore, see no reason to interfere with the impugned order and dismiss the appeal.
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2003 (4) TMI 458 - CEGAT, NEW DELHI
Demand - Valuation ... ... ... ... ..... ale in the spare market even though 98 of the production is being captively consumed. How the value of the goods captively consumed at such circumstances are to be ascertained, has been now settled by the decision of the Apex Court in Ashok Leyland Ltd. v. CCE, Madras, 2002 (146) E.L.T. 503 (S.C.). It has been held there that since the price is ascertainable by way of the direct sale, the question of application of Section 4(1)(b) would not arise. The valuation of the goods captively consumed has to be based on the market price of the goods directly sold. In view of the ratio of the decision of the Supreme Court as above, we find no reason to interfere with the order impugned as far as the demand of duty is concerned. 3. emsp However, since the duty demands are within the normal period, we do not think that the penalty would be attracted in the facts of the case. We, therefore, set aside that part of the order imposing penalty. 4. emsp The appeals are partly allowed as above.
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2003 (4) TMI 457 - CEGAT, MUMBAI
Adjudication - Natural justice - Remand ... ... ... ... ..... Joint Commissioner and upheld the lower order. Hence the appeal. 7. emsp The principles of natural justice require that any material implicating an assessee had to be furnished to him so that he could make his submission regarding the same. Since the department had conducted enquiries on the directions of the Tribunal, it was obligatory on part of the department to supply a copy of the findings to the assessee. In not doing so, and unilaterally depending upon the material to find against the assessee, the adjudication made a grave error. This error was compounded by the Commissioner (Appeals). These orders having been passed in violation of the principle of natural justice do not survive and have to be set aside. 8. emsp The appeal is allowed. The proceedings are remanded to the original adjudicating authority, who shall make available copies of all enquiries conducted by the department to the appellants, permit them to make their submissions and then pass appropriate orders.
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2003 (4) TMI 456 - CEGAT, KOLKATA
Smuggling - Evidence - Burden of proof - Non-notified goods - Confiscation of goods - Evidence
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2003 (4) TMI 455 - CEGAT, NEW DELHI
Appeal - Restoration of appeal dismissed for non-compliance of stay order ... ... ... ... ..... is remanded to the Adjudicating Authority without asking for any pre-deposit, the issue in respect of imposition of penalty on the present applicant is also required remand. 5. emsp We find that Tribunal vide final Order Nos. A/1153 to 1158/02-NB(D), dated 12-12-2002 in appeal filed by Tamilnadu Tobacco Company Limited at the stay stage remanded the matter to the Adjudicating Authority for deciding afresh. The penalty on the applicant is imposed only on the basis of demand in respect of Tamilnadu Tobacco Company Limited. Therefore, in the interest of justice, final order is recalled and stay order is modified and pre-deposit of penalty is waived for hearing of the appeal. 6. emsp In view of the final order dated 12-12-2002 passed by the Tribunal in the case of Tamilnadu Tobacco Company Limited, the matter is remanded to the Adjudicating Authority for deciding afresh after affording an opportunity of hearing to the appellant. 7. emsp The appeal is disposed of by way of remand.
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2003 (4) TMI 454 - CEGAT, NEW DELHI
Production capacity based duty - Abatement of duty ... ... ... ... ..... ure could have been given by the party to the departmental authorities was the first working day after the continuous holidays of 16th and 17th May, 1998. They have given the intimation accordingly. In the absence of departmental circular or Trade Notice laying down specific procedure for intimation of closure in such ldquo holiday situations rdquo for the material period, it has to be held that the intimation of closure given by the party to the Range Officer on the 18th May, 1998 was in substantial compliance with Clause (a) of Rule 96ZO(2). The case law cited by the Counsel is squarely on a question identical to the one involved in this case. I follow the cited decision and hold that the appellants are entitled to abatement of duty for the 16th and 17th of May, 1998. The same ratio will apply to the 15th and 16th August, 1998. In the result, abatement claim is allowed for the four days and, to this extent, the impugned order is set aside. 5. emsp The appeal stands allowed.
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2003 (4) TMI 453 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... cleared by them from time to time. The demand had been raised only on the basis of the report of the Audit party without collecting any other independent evidence regarding the suppression of any material facts by the appellants. Therefore, proviso to Section 11A of the Act, for invoking the extended period of limitation, could not be made applicable to the case of the appellants. The duty demand raised by the Department, therefore, must be held to be time-barred. 9. emsp Since the impugned order is liable to be set aside on the question of limitation, the issue of classification of the goods in question (speedometers), in our view is not required to be gone into in this appeal. This issue is left open and both sides will be at liberty to raise the same at appropriate time. 10. emsp In view of the discussion made above, the impugned order of the Commissioner is set aside. The appeal of the appellants stands allowed with consequential relief, if any, permissible under the law.
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2003 (4) TMI 452 - CEGAT, NEW DELHI
Production capacity based duty - Annual capacity of production ... ... ... ... ..... ot applicable as the facts are different. In the said matter the Appellants therein had opted initially to pay duty under Rule 96ZO(3) and subsequently under their letter dated 23-2-98 they withdrew their option and sought permission to discharge duty liability under Rule 96ZO(1) w.e.f. 1-3-98 and in view of the Supreme Court decision in UOI v. Supreme Steel and General Mills - 2001 (133) E.L.T. 513 (S.C.) 2001 (47) RLT 129 (S.C.) they had contended that they are eligible to change the option from the next financial year i.e. 1-4-98. In the light of these facts the Tribunal had remanded the matter to the Commissioner for determining the actual production under Section 3A(4). In the present matter, as observed earlier, the letter to re-determine the capacity of production on the basis of actual production has been given by the Appellants only on 14-12-2000. Accordingly we do not find any reason to interfere with the impugned Order and reject the appeal filed by the Appellants.
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