|
Advanced Search Options
Case Laws
Showing 441 to 460 of 1888 Records
-
2017 (12) TMI 1452
Voluntary winding up - Held that:- The Court having considered the contents of the present report and having considered that as stated in the report, since the Voluntary Liquidator has already discharged his functions and the Official Liquidator having found that the affairs of the company does not seem to have been conducted in the manner prejudicial to the interest of its members, as also to the public interest, the prayers sought in the present report could be considered.
In view of above, the company is ordered to be dissolved in terms of Section 497(6) of the Act. The Voluntary Liquidator shall deposit the amount of ₹ 10,000/- being expenses relating to filing of the present report with the Official Liquidator within a period of two weeks from today. The Voluntary Liquidator shall also preserve the books of accounts of the company for a period of five years from today.
-
2017 (12) TMI 1451
Corporate insolvency process - ‘existence of a dispute’ - Held that:- Having heard learned counsel for the appellant, while we agree that initiation of ‘Corporate Insolvency Resolution Process’ under ‘I&B Code’ cannot be nullified by any order passed by SEBI nor can be a ground to reject an application under Section 9 of the ‘I&B Code’ but as there is an ‘existence of dispute’ with regard to the invoices raised by the Appellant-’Operational Creditor’, we hold that the application under Section 9 of the ‘I&B Code’ was not maintainable. - Appeal dismissed.
-
2017 (12) TMI 1450
Arbitration proceedings - whether the dispute is arbitrable and as per SHA the same should be referred to Arbitration? - exists valid arbitration agreement between the parties? - Whether dispute cannot be referred to arbitration even though some of the respondents are not a party to SHA? - Oppression and mismanagement - Held that:- It is clear that even a non-signatory parties to some agreements can pray and be referred to Arbitration provided they satisfy the prerequisites under sec 44 and 45 of the Arbitration Act 1996.
Therefore, it cannot be said that the matter cannot be referred to arbitration because respondents No. 3 to 7 in the CP were not a party to SHA. Since the respondents, No. 3 and 4 are the nominee directors of Rishima, the respondent No. 2 and R-5 to R-7 are also nominee directors. Therefore, on account of non-party to the arbitration agreement, it cannot be said that matter cannot be referred to arbitration.
On the above basis, it is clear that the alleged dispute is relating to affirmative voting right and Article 112 of the AOA which is covered by SHA and dispute redressal mechanism is provided in SHA and under Article 122 of the AOA. Therefore, there exists valid arbitration agreement between the parties and respondents No. 3 to 7 are only nominee directors. Thus, they are not a necessary party in the case, and their non-party to SHA will not in any way affect the reference to arbitration.
It is also clear from the above that petition under Sec. 241 and 242 is only dressed up a petition with a purpose to bypass the arbitration agreement. So, the issues No. l, 2 and 4 are decided in the affirmative in favour of the petitioner.
Regarding the issue No. 3, it is decided that the dispute is arbitrable and should be referred to arbitration and only on the ground of that some of the respondents are not a party to SHA, application for referring the matter to arbitration cannot be refused.On the above basis, it is clear that the interim application filed by the applicant deserves to be allowed.
-
2017 (12) TMI 1449
Smuggling - Heroin - seizure of contraband item - offence under Section 8(c) read with 21(c) of the NDPS Act - acquittal of offences - Held that: - As regards the contention that there was violation of Section 42 of the NDPS Act, this Court did not find any infraction. In fact, Section 42 of the NDPS At will not apply to this case and only Section 43 of the NDPS Act will apply, since the interception and seizure was in a public place.
Applicability of provisions of Section 50 of the NDPS Act - Held that: - it is seen from the evidence of Krishnamoorthy [P.W.1] and Chandran [P.W.5] that when the Officers intercepted and introduced themselves, Ibrahim [A1] came forward to hand over the travel bag [M.O.2] from Shakila [A2] and took out heroin from inside the bag and gave it to the Officers - the bag was with Shakila [A2] and Ibrahim [A1] took the bag from Shakila [A2] and handed over the same to the Officers. - provisions of Section 50 of the NDPS Act will not apply to the facts and circumstances of the case.
Confession statement of the appellant - Held that: - when the accused was produced before the Remanding Magistrate, he did not complain of ill-treatment by the Officers and the Magistrate has recorded 'No Complaint' on the Remand Application [Ex.P.11] - this Court has no reason to believe that the accused was subjected to torture and the confession was obtained thereafter.
That apart, this is not a case based on circumstantial evidence. In other words, the culpability of the appellant is not fixed merely on the confession statement.
Even without the confession statement, the possession of the drug has been established by the prosecution through cogent evidence. The trial Court had acquitted Shakila [A2], because the evidence showed that she was merely pulling the trolley bag [M.O.2], which was given to her by Ibrahim [A2] and when the Officers intercepted, it was Ibrahim [A1], who took out the contraband from the trolley bag and handed over the same to the Officers - appeal dismissed being devoid of merits.
-
2017 (12) TMI 1448
Refund of license fee paid - Termination of licenses granted - cancellation of entry permits - termination on the ground of failure of the petitioners to supply information demanded from them and for non payment of licence fee which was claimed with retrospective effect from 1979 - Held that: - the petitioners paid the amount at the rate of 2% without any demur from 4th October 1995. Moreover, there is no challenge to the demand made at the rate of 2% from the aforesaid date. However, for a period prior to the said date, no such demand can be validly made. The demand of licence fee at the rate of 10% from 3rd September 1984 is lawful. However, there is no legal basis for increasing the same to 11% till 26th December 2001. The second respondent is justified in demanding the licence fee at the rate of 15% from 1st July 2007. If there is any subsequent increase, there is no specific challenge to the same in the petition. Thus, the first respondent was entitled to recover licence fee at the rate of 10% of the annual turnover from 3rd September 1984 till 26th December 2001 - The second respondent is justified in demanding the licence fee at the rate of 15% from 1st July 2007. The first respondent was not competent to demand licence fee at the rate of 2% for the period prior to 4th October 1995. The first respondent was entitled to recover licence fee at the rate of 10% of the annual turnover from 3rd September 1984 till 26th December 2001. From 26th December 2001, the recovery at the rate of 11% was lawful. From 1st July 2007, the levy at the rate of 15% is justified.
We, therefore, propose to direct the Director of Civil Aviation to appoint a competent officer to make an adjudication on the question whether the petitioners have recovered the aforesaid amounts paid to the first or second respondents, from the companies or airlines which employed the third petitioner. Only if the petitioners satisfy the competent officer that the amounts have not been recovered from third parties, the petitioners will be entitled to refund. Even, the computation of the amount of refund with interest will have to be made by the said officer. The refund will carry interest at the rate of 6% per annum from the respective dates of payment.
-
2017 (12) TMI 1447
Seizure of goods - contraband and other documents - Held that: - Admittedly, in this case, the contraband was not seized pursuant to the search of the person of the accused. It is the specific case of the prosecution that the contraband was seized from amongst churidar materials kept inside the carton [M.O.13] in Rajeshwar Textiles. - The provisions of Section 50 of the NDPS Act will apply only when the contraband has been recovered from the search of the person of the accused and not from a bag or box, etc.
There can be no pale of doubt that if an illicit article has been recovered from the search of the person of the accused in violation of Section 50 of the NDPS Act, the recovery will become suspect - In this case, the conviction of the appellant has been for possession of 3.750 kgs of heroin in a carton amongst churidar materials in the premises of Rajeshwar Textiles, where both Madhan [A1] and Chaval [A2] were available at the time of seizure. It was only on their showing, the carton [M.O.13] was opened and searched and heroin was recovered from amongst churidar materials.
This Court is unable to countenance this submission, because Exs.P.4 to 10 and M.Os.1 to 7 are not illicit articles per se under the NDPS Act. The possession of these exhibits and material objects, viz., visiting card, delivery receipt, mobile phones, Indian currency, US dollars and Sri Lankan currency will not attract punishment under the NDPS Act, because they do not come within the definition of a Narcotic drug or a psychotropic substance. These documents and material objects will assume significance only as corroborative pieces of evidence and mere possession of that will not entail conviction under the NDPS Act.
When a case under Section 420 IPC/135 of the Customs Act is committed to the Special Court, the question is, what procedure the Special Court should follow, whether the procedure under Chapter XIX or the procedure under Chapter XVIII of the Code? This has been answered by Section 44(1)(d) of the PMLA. Section 44(1)(d) states that the trial of the scheduled offence and the trial of the money-laundering case shall be conducted in accordance with Chapter XVIII of the Code. Such a dichotomy cannot happen under the NDPS Act, because the offence under the NDPS Act is not dependent upon the commission of an offence under another enactment, whereas, the offence under Section 3 of the PMLA is dependent upon the commission of an offence mentioned in the schedule to the PMLA. Hence, the comparison is misconceived.
This Court does not find any infirmity in the conviction of the appellants by the Special Court warranting interference. As to the sentence, the trial Court has imposed the sentence of 14 years for each charge against the appellants. Interest of justice will be served if the sentence is reduced to 10 years Rigorous Imprisonment, that being the minimum for the convicted offences - the sentence imposed in C.C.No.4 of 2013 by the II Additional Special Court for NDPS Cases, Chennai is reduced to 10 years Rigorous Imprisonment.
Appeal disposed off.
-
2017 (12) TMI 1446
Whether the order of acquittal passed by the learned Judicial Magistrate-I, Sankari is liable to be set aside? - cheque bounced - statutory presumption under Section 118 of Negotiable Instrument Act, 1881
Held that: - the trial Court had completely erred in shifting the onus of proof on the appellant/complainant. The trial Court has also misinterpreted the provisions of the Act, as well as the rulings relied upon to arrive at the conclusion of finding on the accused not guilty of the offence under Section 138 of NI Act. Therefore, the order of acquittal passed by the learned Judicial Magistrate No.I, Sankagiri warrants interference by this Court.
Appeal allowed.
-
2017 (12) TMI 1445
Hawala transactions - Offence alleged under Sections 420, 465, 467, 468, 471, 477A, 120B of Indian Penal Code 1860 - maintainability of appeal - alternative remedy of appeal - Held that: - the preliminary objection of the respondent has no merits and the petitioner has rightly invoked statutory remedy under Section 397 read with 401 of Cr.P.C., rather than invoking inherent jurisdiction - there is no hesitation in holding that it is not only within the jurisdiction, but is an obligation of this Court to look into as to whether the taking of cognizance and issuance of process was mechanical without there being any prima facie case for bringing home the charge of the offences alleged against the petitioner.
The allegations in the case concern hawala, total amount of which as alleged now is likely to be more than ₹ 5000 crores. Bogus bill of entry is the genus of the scam. Total 861 Bills of Entry were under scrutiny by Custom Department, out of which at least 454 bill of entries have been found to be bogus amounting to ₹ 2846 crores - The petitioner is neither director nor any authorized person for any of these seven companies, and there is neither any allegation that any of these companies were formed and controlled by the petitioner, nor that the bank accounts of any of these companies were managed by the petitioner.
Neither there is any allegation or material to show that the petitioner was fraudulently sending abroad his undisclosed income by the alleged modus operandi, nor is there any iota of allegation or material to show that he was receiving cash from any person whatsoever to fraudulently send the same abroad i.e. for hawala to earn any commission. In absence of any such tangible material, there is no strong and reasonable basis for such degree of suspicion, that the petitioner may have received commission towards the hawala scam, which can be considered sufficient for proceeding against the petitioner and subjecting him to rigours of trial. I am satisfied that there is no prima facie material against him.
The trial Court has committed manifest error in taking cognizance and issuing process against the petitioner for proceedings against him for the alleged offence vide the impugned order, when there is no prima facie material sufficient to proceed against him - petition allowed.
-
2017 (12) TMI 1444
Levy of service tax - construction contract executed on turnkey basis - indivisible contracts - Held that: - Upon appreciation of evidence, the tribunal has come to the conclusion that there is an indivisible contract.
On the aspect as to whether Service Tax can be levied in respect of composite contract or indivisible contract, the Hon'ble Supreme Court in Commissioner of Central Excise & Customs, Kerala Vs. Larsen & Toubro Limited [2015 (8) TMI 749 - SUPREME COURT] has held that assessees are correct in their submission that a works contract is a separate species of contract distinct from contracts for services simpliciter recognized by the world of commerce and law as such, and has to be taxed separately as such.
Upon consideration of the clauses in the contract, the tribunal has arrived at a categorical finding of fact that there is an indivisible contract. No concrete material, contra, is placed, before us for reversal of such finding.
Decided against Revenue.
-
2017 (12) TMI 1443
Penalty - the appellant did not pay the service tax and it was only paid when the intelligence visited the premises of the appellant - Held that: - the appellant paid the service tax along with interest during investigation and before the issue of SCN. The appellant entertained a bona fide belief that their activities are not liable to service tax during the period in dispute and it is only on 06/11/2006, the Board clarified the issue - there cannot be a suppression with intent to evade tax when the assessee entertained a bona fide belief on the basis of certain decisions in favor of the assessee - penalty set aside - appeal allowed - decided in favor of appellant.
-
2017 (12) TMI 1442
Voluntary Compliance Encouragement Scheme (VCES) - rejection of the application - Appellant submitted that, merely because the appellant had been issued with a notice for the earlier period, would not mean that the First Proviso to subsection (1) of Section 106 of the Finance Act, would come into operation - Held that: - identical issue decided in the case of Durgapur Diesel Sales & Service & Another Versus Superintendent (Service Tax) Central Excise Durgapur – I Division & Others [2015 (2) TMI 50 - CALCUTTA HIGH COURT] where it was held that The second proviso envisaged an embargo in making a declaration even for a subsequent period on the same issue - appeal dismissed - decided against appellant.
-
2017 (12) TMI 1441
CENVAT credit - consultancy services - denial on the ground that the project for which consultancy was received was fully abandoned without its implementation - Held that: - CENVAT credit once rightly availed is indefeasible and subsequent development of abandoning of plant will not make the appellant liable to reverse the CENVAT credit which was rightly availed by them - the credit was rightly availed during the period 2004-06 for the purpose of availing the Management Consultancy Service received by the appellant during the said period - credit remains allowed - appeal allowed - decided in favor of appellant.
-
2017 (12) TMI 1440
Rejection of VCES application - the Revenue noticed that the appellant has failed to declare his service tax liability properly and by-alleging substantial misdeclration of service tax dues in the VCES declaration, a SCN was issued - Held that: - the total amount of consideration received by the appellant has not been found to be any different from what was declared - Revenue has not made out a case of substantial misdeclaration in this case. They have not brought on record any contract or document which indicates that the appellant has not made full declaration of the service tax liability for the disputed period. The Revenue has only taken a different interpretation as far as the classification of services. This cannot tantamount to substantial misdeclaration - tax liability accepted in the VCES by the appellant is not being interfered - appeal allowed - decided in favor of appellant.
-
2017 (12) TMI 1439
Transmission & distribution of electricity - N/N. 45/2010-ST dated 20.07.2010 - negative list - POT rules - Held that: - the adjudicating authority has not dealt with the assessee’s stand of the services being covered by the negative list and as such his views are not available - the stand of the Revenue is that the consideration received subsequent to 01.07.2012 would also be taxable is required to be adjudged and examined in the light of the point of Taxable Rules, 2011 - matter needs to be remanded to the adjudicating authority for fresh decision - appeal allowed by way of remand.
-
2017 (12) TMI 1438
Penalties u/s 76 and 77 - delayed payment of tax with interest - Held that: - since there was not intent to evade duty involved, tax with interest was paid although after delay - penalty u/s 77 dropped by invoking section 80.
Penalty u/s 76 - Held that: - since the appellant has paid the dues after a lapse of longer period, therefore he is liable to pay the penalty under Section 76 as held by the original authority - penalty u/s 76 upheld.
Appeal allowed in part.
-
2017 (12) TMI 1437
CENVAT credit - relevant documnets for clearing the goods - inputs in question were duly received at Malanpur Unit and used in the manufacture of the Plastic Laminates and Paper Laminates which were removed by the Appellant from Malanpur Unit on payment of appropriate Central Excise Duty under paper invoices to the buyers - Held that: - in absence of any provision akin to erstwhile Rule 57GG wherefrom provision of gate passes were omitted by N/N. 15/1994 dated 30/03/1994 and invoices were brought in their place as valid documents under which goods could be cleared from the factory by the manufacturer or could further be passed on by the dealer to the third party; and that N/N. 15/1994 the Government having not issued the instructions replacing gate passes with the invoice as valid documents allowing endorsement of the invoices from availing Cenvat Credit and the fact that the unit at Haridwar is not operating under the Cenvat Scheme, their final product being exempted, we perceive that no substantial question arises for consideration - appeal dismissed.
-
2017 (12) TMI 1436
Maintainability of appeal - Penalty - Valuation - Held that: - the decision in the case of Commissioner of Customs, Central Excise and Service Tax, Indore Versus Avtec Limited [2017 (12) TMI 1424 - MADHYA PRADESH HIGH COURT] shall apply mutatis-mutandis in the present case also, where it was held that if multiple questions are involved in the matter, then the department has to raise all these issues before the Supreme Court by filing an appeal under Section 35L of the Central Excise Act, 1944 - present appeal also dismissed following the above case.
-
2017 (12) TMI 1435
Clandestine removal - statement of some of the supplier of fabric were recorded who admitted that they are receiving processed fabric without payment of excise duty and some of the supplier denied the receipt of goods without payment of duty - Held that: - Certain documents were resumed but there is no independent witnesses to say that these documents have been recovered from the premises of the appellant. Therefore, in the absence of panchnama, the documents recovered from the possession of the appellant cannot be relied upon as a piece of evidence as per the supplementary instructions.
Further, the revenue has relied upon the various statements of suppliers and the appellant. Although, some of the statements have been retracted but apart from that, the statements were not examined in chief during the course of adjudication in terms of Section 9D of the Central Excise Act, 1944. Therefore, same cannot be relied upon.
Demand not sustainable - appeal allowed - decided in favor of appellant.
-
2017 (12) TMI 1434
CENVAT credit - Return of inputs for rectification - applicability of Rule 3(5) of CCR, 2004 - Held that: - the goods were returned to the supplier for rectification but the appellants have not produced any proof that the repaired goods were received back - further, the appellants have not followed the procedure as prescribed in Rule 16 of the CCR, 2004.
Demand of differential duty upheld - penalty u/r 25 is set aside as the appellant is a state government undertaking and there is no intention to evade duty on the part of the appellant.
Appeal allowed in part.
-
2017 (12) TMI 1433
N/N. 6/2006-CE - international competitive bidding - case of appellant is that the goods were meant only for supply against international competitive bidding and hence, asserted that thy will be eligible for the benefit of N/N. 6/2006 - Held that: - the Project Authority Certificate available on record, indicates that the goods under dispute are meant to be supplied by the appellant to the power plant being executed by Jindal Power Ltd. for the mega power plant at Raigarh. This satisfies the main condition of the N/N. 6/2006 (Sl. No.91) - in similar circumstances, the benefit of alternate N/N. 21/2002 Cus. has been held to be allowable in the decision of the Tribunal in the case of Kent Introl Pvt. Ltd. [2014 (2) TMI 633 - CESTAT MUMBAI], where it was held that So long as the goods are exempt, the condition to be satisfied by the domestic suppliers is that they should be supplied under International Competitive Bidding which the appellant has fulfilled in these appeals and is eligible for exemption - appeal allowed - decided in favor of appellant.
............
|
9911796707
