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Showing 61 to 80 of 229 Records

• 1994 (8) TMI 262
  
  The High Court dismissed the execution application seeking attachment and sale of properties of different companies to satisfy a decree passed against Bareja Knipping Fasteners Ltd. The court ruled that properties of other companies cannot be sold to satisfy the claim of the decree-holder. The decree-holder can pursue other modes of execution or claim properties owned by the original judgment-debtors.

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• 1994 (8) TMI 255
  
  Issues:
  Valuation for payment of automobile cess under Section 9(1) of the Industries (Development and Regulation) Act, 1951.
  
  Detailed Analysis:
  
  1. Valuation for Cess Payment:
  In the appeal filed by M/s. Ashok Leyland Limited, the issue revolved around the valuation for payment of automobile cess under Section 9(1) of the Industries (Development and Regulation) Act, 1951. The assessee had been paying the cess on the motor vehicles cleared based on the assessable value declared under Section 4 of the Central Excises and Salt Act, 1944. The Revenue contended that the value for cess collection should include the Central Excise duty leviable under the Act.
  
  2. Interpretation of Section 9 of IDR Act:
  Section 9 of the IDR Act allows for the imposition of a duty of excise as a cess for the Act's purposes. The explanation under Section 9 defines the "value" of goods for cess calculation, aligning it with the wholesale cash price without deductions except for trade discount and duty payable. Rule 2(f) of the Automobile Cess Rules, 1984, mandates using Central Excise Act definitions for terms not specified.
  
  3. Precedent and Interpretation:
  The Tribunal referred to a previous case involving Tata Engineering and Locomotive Company Limited, where it was established that the valuation for cess should follow Section 4 of the Central Excises and Salt Act. The judgment emphasized that deductions like trade discount and excise duty payable should be considered in determining the cess value. The Tribunal rejected the argument to interchange "duty" with "cess" in this context, as it would lead to inconsistencies in calculation.
  
  4. Application of Precedent:
  The Tribunal also cited a subsequent case involving Escorts Limited, where the same principles were applied. Following these precedents, the appeal by M/s. Ashok Leyland Limited was allowed, granting them relief based on the deduction of Central Excise duty and Sales tax from the wholesale cash price for calculating cess.
  
  5. Final Decision:
  In conclusion, the Tribunal upheld the appeal, following the established precedent regarding the valuation for automobile cess payment under Section 9(1) of the IDR Act. The decision aligned with the interpretation that cess calculation should mirror the Central Excise duty collection method, allowing for deductions like trade discount and payable duty.

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• 1994 (8) TMI 248
  

  Whether the entry under section 14(ia) of the Act says "coal, including coke in all its forms, but excluding charcoal"

  Held that:- Appeal dismissed. There is no such phrase under section 14(ia) of the Act. In the case of "oil-seeds" occurring under section 14(iv) of the Act, similar phraseology, namely, "that is to say" occurs. This Court in Sait Rikhaji Furtarnal v. State of Andhra Pradesh [1990 (8) TMI 344 - SUPREME COURT OF INDIA] wherein held that is difficult for us to accept the submission that after the Act has been amended reliance is available to be placed on the circular. Thus we must hold that the expression 'that is to say' employed in the definition in the statute with reference to oil-seeds is exhaustive and is not illustrative. Since on amendment these five items are no more included in oil-seeds, the appellant is not entitled to claim the benefit.

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• 1994 (8) TMI 242
  

  Whether the coal mines welfare cess, stowing duty and rescue cess recovered by the petitioner from its customers when coal is despatched to them by road forms part of the sale price of coal and is includible in the turnover for assessment of sales tax/

  Held that:- Appeal dismissed. Having regard to the definition of the "sale price" in the Madhya Pradesh General Sales Tax Act, 1958, the High Court has held, following the decisions of this Court, that the said cesses and duties are includible in sale price. Thus no reason to take a different view.

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• 1994 (8) TMI 237
  

  Whether the State had arbitrarily exercised its power under section 5 of the Jammu and Kashmir General Sales Tax Act, 1962 by not extending the period of exemption from sales tax enjoyed by the brick manufacturers of the State?

  Held that:- Appeal dismissed. The Government, in exercise of its power given by section 5 of the Act, can decide to exempt any goods from taxation. The power may be exercised having regard to social, economic, administrative and fiscal considerations.

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• 1994 (8) TMI 233
  

  Whether entry 147 of the Andhra Pradesh General Sales Tax Act, 1957, relating to fried or parched gram dal, is valid or not?

  Held that:- Appeal dismissed. The restriction is limited only to whole or separated gram or gulab gram and gram or gulab gram with husks or dehusked. Section 15 being so specific, it is impermissible to read it as applicable to gram which has been parched or fried. Lastly, the gram having undergone the process of parching or frying would appear to have become a new and distinct commodity and no evidence has been let in on behalf of the appellants to prove the contrary.

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• 1994 (8) TMI 231
  

  Whether the classification made between the Khadi Ashram, Panipat, and its units and the other co-operative societies is discriminatory and violative of article 14 of the Constitution of India?

  Held that:- Appeal dismissed. The principles for determining the validity of classification in taxing statutes are well-settled and so also the limits of judicial review in. testing the validity thereof on the touchstone of equality under article 14. The test applicable for striking down a taxing provision on this ground is one of palpable arbitrariness in the context. It has also been held that a classification is permissible in a taxing statute of dealers on the basis of different turnovers for levying varying rates of sales tax.

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• 1994 (8) TMI 222
  

  Since these matters pertain to levy of penalty and having regard to the facts and circumstances of the case and the findings recorded by the High Court dismissing the petitions filed by the appellant (Commercial Taxes Officer, Circle A, Kota), requesting the High Court to direct the Board of Revenue, Rajasthan at Ajmer, to state a case for the opinion of the High Court under section 15(3A) of the Rajasthan Sales Tax Act, 1954, which could not be challenged successfully before us, no interference is called for.

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• 1994 (8) TMI 207
  
  Issues Involved:
  
  1. Constitutional validity of clause (c) of sub-section (3) of section 22A of the Securities Contracts (Regulation) Act, 1956.
  2. Justification of the Company Law Board's decision to refuse registration of share transfers.
  3. Refusal by the Company Law Board to accept additional affidavits from the petitioners.
  4. Request for interim relief to restrain the company from transferring ownership, paying dividends, or issuing right/bonus shares.
  
  Issue-wise Detailed Analysis:
  
  1. Constitutional Validity of Clause (c) of Sub-section (3) of Section 22A:
  
  The petitioners challenged the constitutional validity of clause (c) of sub-section (3) of section 22A, claiming it violated Article 14. The court found this submission devoid of merit, stating that the plain reading of clause (c) shows in-built guidelines prescribed by the Parliament. The board of directors must examine whether the transfer is likely to change the composition of the board and if such change would be prejudicial to the interests of the company or public interest. The decision of the board of directors is not final and is subject to the approval of the Company Law Board. The court concluded that the challenge to the validity of clause (c) on the ground of infringement of fundamental rights under Article 14 is without any substance.
  
  2. Justification of the Company Law Board's Decision to Refuse Registration of Share Transfers:
  
  The petitioners argued that the Company Law Board erred in accepting the company's decision to refuse registration of share transfers. The court held that the writ petition cannot be converted into an appeal and it is not permissible to examine the merits of the rival contentions. The Company Law Board had examined all facets of the matter and recorded findings of fact, which cannot be disturbed in exercise of writ jurisdiction. The court found no infirmity in the reasoning or the conclusion recorded by the Company Law Board. The decision of the board of directors was justified based on the material available at the time, and the Company Law Board's approval of this decision was sound and justified.
  
  3. Refusal by the Company Law Board to Accept Additional Affidavits:
  
  The petitioners contended that the Company Law Board erred in not permitting them to file additional affidavits to bring subsequent events on record. The court found no error in the Company Law Board's decision, noting that the arguments had concluded and the petitioners had adequate opportunity to plead their case. The alleged subsequent facts had no bearing on the decision taken by the board of directors at the time of refusal to register the transfer of shares. The court concluded that the petitioners had not suffered any prejudice by the Company Law Board's action in declining to take affidavits on record after the hearing was concluded.
  
  4. Request for Interim Relief:
  
  The petitioners requested an injunction to restrain the company from transferring ownership in shares, making payment of dividends, or issuing right/bonus shares. The court found no substance in this contention, noting that section 206(1) applies during the interregnum between the date of lodgement of the application for transfer of shares and the date of registration, and has no application when the transfer is refused. The court also noted that the petitioners had taken no steps to get back the share certificates which were lodged for transfer, despite a previous court order allowing them to do so. Consequently, the request for interim relief was denied.
  
  Conclusion:
  
  The court discharged the rule in each of the petitions with costs, finding no merit in the contentions raised by the petitioners. The decision of the Company Law Board to refuse registration of share transfers was upheld, and the challenge to the constitutional validity of clause (c) of sub-section (3) of section 22A was repelled. The court also found no error in the Company Law Board's refusal to accept additional affidavits and denied the request for interim relief.

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• 1994 (8) TMI 206
  
  Issues Involved:
  1. Constitutional validity of sub-section (3)(c) of section 22A of the Securities Contracts (Regulation) Act, 1956.
  2. Justification of the Company Law Board's decision to refuse registration of share transfers.
  3. Refusal by the Company Law Board to accept additional affidavits after the conclusion of arguments.
  4. Request for interim relief to restrain the company from transferring ownership in shares, making payment of dividend, or issuing rights/bonus shares.
  
  Issue-wise Detailed Analysis:
  
  1. Constitutional Validity of Sub-section (3)(c) of Section 22A of the Securities Contracts (Regulation) Act, 1956:
  
  The petitioners challenged the constitutional validity of sub-section (3)(c) of section 22A, claiming it violated Article 14 of the Constitution by conferring undue powers on the board of directors without guidelines. The court held that the provision includes in-built guidelines requiring the board to refuse registration only if the transfer changes the board composition prejudicially affecting the company or public interest. The court emphasized that the decision of the board of directors is not final and requires the approval of the Company Law Board, ensuring checks and balances. Thus, the challenge to the validity of sub-section (3)(c) was dismissed as being without merit.
  
  2. Justification of the Company Law Board's Decision to Refuse Registration of Share Transfers:
  
  The petitioners contested the Company Law Board's approval of the board of directors' decision to refuse registration of share transfers. The court noted that the Company Law Board thoroughly investigated the matter and found that the acquisition of shares by Chhabria and his associates was aimed at taking over the company, which would be detrimental to the company's interests and public interest. The court upheld the findings of the Company Law Board, which concluded that the decision to refuse registration was justified based on the substantial evidence of Chhabria's takeover attempts and the potential negative impact on the company's management and public interest.
  
  3. Refusal by the Company Law Board to Accept Additional Affidavits After the Conclusion of Arguments:
  
  The petitioners argued that the Company Law Board erred in not accepting additional affidavits after the conclusion of arguments to bring subsequent events on record. The court found no fault in the Company Law Board's decision, noting that the petitioners had ample opportunity to present their case during the hearings. The court highlighted that the affidavits did not introduce any new facts unknown at the time of the hearing and that the subsequent events mentioned were not relevant to the board's initial decision. Therefore, the refusal to accept the affidavits did not cause any prejudice to the petitioners.
  
  4. Request for Interim Relief to Restrain the Company from Transferring Ownership in Shares, Making Payment of Dividend, or Issuing Rights/Bonus Shares:
  
  The petitioners requested interim relief to restrain the company from transferring ownership in shares, making payment of dividends, or issuing rights/bonus shares. The court rejected this request, noting that section 206(1) of the Companies Act applies only between the lodgment of the transfer application and its registration, not when the transfer is refused. Additionally, the court observed that the petitioners had not taken steps to retrieve the share certificates despite a previous court order allowing them to do so. Consequently, the request for interim relief was denied.
  
  Conclusion:
  
  The court dismissed the petitions, upheld the constitutional validity of sub-section (3)(c) of section 22A, and found the Company Law Board's decision justified. The refusal to accept additional affidavits was deemed appropriate, and the request for interim relief was rejected. The rule in each petition was discharged with costs.

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• 1994 (8) TMI 205
  
  Issues Involved:
  1. Scope of enquiry or hearing before admitting and advertising a company petition.
  2. Nature and contents of the order at the stage of admission and advertisement of a company petition.
  
  Summary:
  
  Issue 1: Scope of Enquiry or Hearing
  The legal judgment addresses the procedural questions related to the stage prior to the admission and advertisement of a company petition for winding-up under section 433(e) of the Companies Act, 1956. The court considered whether company petitions could be admitted and advertised ex parte or if a summary enquiry should be conducted to determine the petitioner's right to move the petition. The judgment emphasized that for companies that are going concerns, a summary enquiry is necessary to establish whether the petitioning creditor is indeed a creditor, the debt is ascertained and due, and the company's defense is not valid or is mere moonshine. The court ruled that such an enquiry must be conducted after issuing notice to the company and hearing its objections. This procedure is essential to prevent premature admission and advertisement, which could have severe adverse effects on the company's reputation and financial standing.
  
  Issue 2: Nature and Contents of the Order
  The judgment also dealt with the nature and contents of the order to be passed by the company judge at the stage of admission and advertisement. It was held that the order should not be a non-speaking one but must briefly indicate the reasons and evidence considered by the judge. The order should provide sufficient reasoning to enable the parties and the appellate court to understand the basis for the judge's decision. The court clarified that while the findings at this stage are prima facie and not final, they must be adequately reasoned to ensure transparency and fairness in the judicial process.
  
  Conclusion:
  The court concluded that before admitting and advertising a company petition under section 433(e), a summary enquiry must be conducted to establish prima facie findings on the debt's existence, its ascertained amount, its limitation status, and the company's inability to pay its debts. The order resulting from this enquiry must be sufficiently speaking to indicate the reasons behind the judge's decision. This procedure ensures that the company's interests are protected and prevents misuse of the winding-up process. The judgment in O.S.A. No. 19 of 1993 was set aside and remanded for reconsideration in light of these procedural guidelines.

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• 1994 (8) TMI 204
  
  Issues:
  1. Dismissal of complaint by District Forum
  2. Dispute over purchase of shares and payment due
  3. Allegation of loss suffered by complainant
  4. Right of lien over shares by Opposite Party
  5. Reliance on Sauda book and account statements
  6. Interpretation of stock exchange settlement program
  7. Allegation of deficiency of service by Opposite Party
  
  Analysis:
  
  The judgment revolves around an appeal against the dismissal of a complaint by the District Forum. The complainant, an investor, alleged that the Opposite Party, a share broker, falsely claimed he had ordered 100 shares of Reliance Industries on 25-3-1992. The complainant contended he only ordered 50 shares and sought delivery or refund. The Opposite Party argued that the complainant did order 100 shares and had a right of lien over the shares purchased. The District Forum relied on the Sauda book, contract notes, and account statements to support the Opposite Party's version. It found no deficiency of service and dismissed the complaint.
  
  The key issue was the dispute over the purchase of shares and payment due. The complainant claimed he only ordered 50 shares, while the Opposite Party insisted on the order for 100 shares. The District Forum analyzed the evidence, including contract notes and account statements, to conclude that the Opposite Party's version was more credible. It found that the complainant's denial of the 100-share order was not substantiated, leading to the dismissal of the complaint.
  
  Another significant aspect was the alleged loss suffered by the complainant. He claimed a loss of Rs. 28,000 due to missing an opportunity to apply for shares and debentures. However, the District Forum, based on third-party affidavits, determined that the complainant did not sustain any actual loss. This finding further supported the dismissal of the complaint.
  
  The judgment also addressed the Opposite Party's right of lien over the shares purchased. By citing relevant stock exchange regulations and contractual obligations, the District Forum upheld the Opposite Party's right to withhold the shares until the outstanding amount was settled. This aspect reinforced the decision to dismiss the complaint.
  
  Overall, the judgment emphasized the importance of documentary evidence, such as contract notes and account statements, in resolving disputes between investors and share brokers. It highlighted the need for clarity in transactions and the significance of adhering to contractual terms and stock exchange regulations to determine liabilities and rights in such matters.

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• 1994 (8) TMI 183
  
  Issues Involved:
  
  1. Legality of the privatisation of Tamil Nadu Steels Ltd.
  2. Compliance with sections 169 and 293 of the Companies Act, 1956.
  3. Alleged violation of Article 39(b) and (c) of the Constitution.
  4. Judicial review of policy decisions.
  5. Impact on employees' rights and public interest.
  
  Detailed Analysis:
  
  1. Legality of the privatisation of Tamil Nadu Steels Ltd.:
  
  The petitioners challenged the privatisation of Tamil Nadu Steels Ltd., a wholly-owned subsidiary of Tamil Nadu Industrial Development Corporation Ltd., on the grounds that it was illegal, unconstitutional, and violative of the Companies Act, 1956. The petitioners argued that the company had been making profits for the last three years and that the decision to privatise was taken with mala fide intentions, without convening a general body meeting or a board meeting, thus violating sections 169 and 293 of the Act.
  
  2. Compliance with sections 169 and 293 of the Companies Act, 1956:
  
  The petitioners contended that the decision to privatise was taken without convening a general body meeting or a board meeting, contrary to sections 169 and 293 of the Companies Act. The respondents argued that the transfer of equity shares in a wholly-owned subsidiary by the holding company does not amount to the sale or disposal of an undertaking and thus does not attract section 293. Consequently, section 169 also has no application. The court agreed with the respondents, stating that the transfer of shares did not require compliance with sections 169 and 293.
  
  3. Alleged violation of Article 39(b) and (c) of the Constitution:
  
  The petitioners argued that the privatisation was against the constitutional goals embodied in Article 39(b) and (c) of the Constitution, which deal with the distribution of material resources and prevention of concentration of wealth. The court noted that while directive principles are not justiciable, they guide state policies. However, the court found that the privatisation decision, taken in public interest, did not violate these constitutional provisions. The court emphasized that it cannot sit in judgment over the wisdom of policy decisions unless they violate fundamental or statutory rights.
  
  4. Judicial review of policy decisions:
  
  The court referred to previous judgments, including the Supreme Court's observations in Premium Granites v. State of Tamil Nadu and Fertilizer Corpn. Kamagar Union v. Union of India, which held that courts should not interfere with policy decisions unless they are arbitrary, mala fide, or violate constitutional or statutory provisions. The court reiterated that it cannot question the wisdom of policy decisions taken in public interest and that the decision to privatise Tamil Nadu Steels Ltd. was a policy decision not amenable to judicial review.
  
  5. Impact on employees' rights and public interest:
  
  The petitioners expressed concerns about the impact of privatisation on employees, arguing that it would prejudice their interests and affect public sector undertakings dependent on the company's products. The respondents countered that the decision was taken in public interest to bring in a capable entrepreneur to run the company efficiently. They assured that employees' rights would be protected under existing labour laws and that the change of ownership did not imply job losses. The court concurred with the respondents, stating that employees' rights could be addressed through appropriate legal forums and that the privatisation aimed to reduce the burden on public resources and promote new industries.
  
  Conclusion:
  
  The court dismissed both writ petitions, upholding the decision to privatise Tamil Nadu Steels Ltd. It emphasized that the decision was a policy matter taken in public interest, not subject to judicial review, and did not violate constitutional or statutory provisions. The court also noted that employees' rights would be protected under existing laws and that the privatisation aimed to serve the larger public good.

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• 1994 (8) TMI 182
  
  Issues Involved:
  1. Whether debentures can be considered as 'goods' within the meaning of section 2(e) of the MRTP Act before they are allotted to the debenture holder.
  2. Whether any trade practice is involved when a company invites applications for the allotment of debentures for raising capital.
  3. Whether the company provides any service to prospective investors by issuing debentures and inviting applications within the meaning of section 2(r) of the MRTP Act.
  
  Detailed Analysis:
  
  Issue 1: Debentures as 'Goods' Before Allotment
  The Commission examined whether debentures are 'goods' under section 2(e) of the MRTP Act before they are allotted. It was argued that debentures, until allotted, are merely instruments of debt and not movable property. The definition of 'goods' under section 2(7) of the Sale of Goods Act, 1930, excludes actionable claims and money. Debentures, unless secured by a mortgage, are considered actionable claims and thus not 'goods'. The Commission concluded that debentures are not 'goods' before allotment, even if they are convertible into equity shares.
  
  Issue 2: Trade Practice Involved in Issuing Debentures
  The Commission analyzed whether inviting applications for debenture allotment constitutes a 'trade practice'. It was held that issuing debentures is a mode of raising capital and not a trade practice. The Full Bench in T.T.K. Pharma Ltd.'s case had similarly concluded that issuing shares or debentures does not constitute a trade practice. The Supreme Court in Morgan Stanley Mutual Fund v. Kartick Dass reinforced this view, stating that raising capital through public issues is not a trade practice.
  
  Issue 3: Provision of Service to Prospective Investors
  The Commission considered whether issuing debentures and inviting applications constitutes providing a service under section 2(r) of the MRTP Act. It was concluded that merely inviting the public to subscribe to debentures does not involve providing any service. The Supreme Court in Morgan Stanley Mutual Fund's case also held that a prospective investor does not hire the services of the company for consideration at the stage of application for allotment.
  
  Conclusion:
  1. Debentures before allotment are not 'goods' within the meaning of section 2(e) of the MRTP Act, regardless of whether they are convertible.
  2. No 'trade' or 'trade practice' is involved when a company invites applications for debenture allotment to raise capital.
  3. Issuing debentures and inviting applications does not constitute providing a service to prospective investors within the meaning of section 2(r) of the MRTP Act.
  
  The Commission dismissed the enquiries and compensation applications, ruling that it lacked jurisdiction over the subject matters. There was no order as to costs. The Commission appreciated the valuable assistance provided by the senior counsel and other representatives involved in the case.

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• 1994 (8) TMI 181
  

  Certain provisions of the Companies (Amendment) Act, 1988 challenged by which an independent Company Law Board was constituted - Held that:- Appeal dismissed. Proceedings of this Court would show that this case was being adjourned from time to time to enable the Government to finalise the aforesaid rules which having been done in 1993 and having undergone amendment in 1994, the grievance about the qualifications of the members of the Board, about which the Act, when enacted, was silent inasmuch as it left the qualifications and experience to be prescribed, has been well met. So the petition has served its purpose well, as stated in the opening paragraph of the judgment. It may be put on record that the qualifications as amended in 1994 do leave sufficient room for appointment of persons with judicial experience as a Judicial Member of the Board. This has not been disputed by Shri Satish Chandra.

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• 1994 (8) TMI 164
  
  The Appellate Tribunal CEGAT, New Delhi allowed the appeal filed by M/s. Osio Electronics, Noida, against the order of the Collector of Central Excise. The appellants, a SSI unit, assemble Radio Cassette Recorders and Audio Tape Recorders from imported parts with the brand name 'Sharp'. The Tribunal granted stay on duty payment based on earlier decisions and undue hardship faced by the appellants. No recovery proceedings to be pursued during the appeal.

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• 1994 (8) TMI 160
  
  Issues:
  1. Whether MODVAT Credit can be availed for duty paid on tin sheets used in manufacturing metal containers for packing Vanaspati.
  2. Whether metal containers used for packing Vanaspati can be considered "intermediate products" under Rule 57D of the Central Excise Rules, 1944.
  
  Analysis:
  
  Issue 1:
  The Revenue filed a Reference Application challenging the Larger Bench's decision favoring the Respondents regarding the admissibility of MODVAT Credit for tin sheets used in making metal containers for packing Vanaspati. The Ld. SDR argued that metal containers are final products exempt from duty if manufactured without power aid. Citing a Madras High Court case involving plastic granules for cosmetics, the Ld. SDR contended that a similar provision for packing was absent in the classification of Vanaspati. Furthermore, it was asserted that metal containers cannot be deemed intermediate products under Rule 57D.
  
  Issue 2:
  Upon considering both parties' arguments, the Tribunal found that the Larger Bench's decision was based on a Madras High Court ruling involving plastic granules for cosmetics packaging. The Tribunal noted that the key issue was whether the materials, though different (plastic granules vs. tin sheets), were converted into exempted products used for packing the final goods. The Tribunal emphasized that the term "intermediate product" under the MODVAT Scheme should be interpreted based on the manufacturer's production stages. It was established that components not produced in the same line but assembled separately should still be considered intermediate products if used for final product packing. The Tribunal rejected the argument that metal containers could not be classified as intermediate products, aligning with the Madras High Court's decision.
  
  Conclusion:
  Regarding the absence of a Chapter Note similar to Chapter 33 for Vanaspati in Chapter 15, the Tribunal clarified that Vanaspati, being a consumer product, necessitates packing for marketability. It was emphasized that packing falls under the definition of processes incidental to completing Vanaspati manufacture. Consequently, the Reference Application challenging the MODVAT Credit eligibility for tin sheets used in metal container production for Vanaspati packing was dismissed as unfounded.

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• 1994 (8) TMI 158
  
  Issues Involved:
  1. Jurisdiction and validity of the adjudicating authority's order.
  2. Discrepancies between the draft order and the final order.
  3. Procedural irregularities in issuing the order.
  4. Contempt proceedings against the adjudicating officer.
  5. Remand for de novo adjudication.
  
  Detailed Analysis:
  
  1. Jurisdiction and Validity of the Adjudicating Authority's Order:
  The primary issue was whether the order passed by the Collector of Central Excise, Chandigarh, was valid. The appellants contended that the order dated 2-7-1990 was without jurisdiction as the adjudicating authority, Shri Gowri Shankar, had relinquished charge on 17-4-1990. The Tribunal noted that the draft order was signed on 16-4-1990, but the final order communicated to the appellants was dated 2-7-1990 and was not signed by the Collector but merely attested by another officer. The Tribunal concluded that no final order in the eye of law was passed by Shri Gowri Shankar, and the impugned order suffered from a lack of jurisdiction and required to be set aside.
  
  2. Discrepancies Between the Draft Order and the Final Order:
  The Tribunal observed several discrepancies between the draft order signed on 16-4-1990 and the final order dated 2-7-1990. The draft order contained figures supplied by the appellants in response to a letter dated 25-4-1990, which could not have been available before that date. Additionally, there were material differences in the sub-paragraphs and corrections made in different inks without proper initialing. These discrepancies led the Tribunal to question the authenticity and validity of the final order.
  
  3. Procedural Irregularities in Issuing the Order:
  The Tribunal found that the draft order signed by the Collector on 16-4-1990 did not have any direction on the note-sheet for issuing the order. The notes in the file ended abruptly on 15-3-1990, with a fresh note recorded on 4-6-1990. Pages 245/c to 314/c were missing, indicating procedural irregularities in the handling of the file. The Tribunal concluded that the purported order communicated to the appellants was not a valid adjudication order as it was unsigned by the adjudicating Collector and differed materially from the draft order.
  
  4. Contempt Proceedings Against the Adjudicating Officer:
  The Tribunal took a serious view of Shri Gowri Shankar's failure to appear before the Tribunal to explain the discrepancies despite multiple notices. The Tribunal directed the Registry to issue a notice to Shri Gowri Shankar to show cause why proceedings for contempt of court should not be initiated against him. However, these proceedings were stayed by the Delhi High Court.
  
  5. Remand for De Novo Adjudication:
  Given the procedural irregularities and discrepancies, the Tribunal decided to set aside the impugned order and remand the matter for de novo adjudication. The Tribunal referred to similar cases where orders were set aside and remanded for fresh adjudication. The majority opinion concurred that the purported orders received by the appellants were non est in the eyes of law and required fresh adjudication by the Collector of Central Excise, Chandigarh.
  
  Final Order:
  In view of the majority opinion, the purported orders received by the appellants were set aside, and the matters were remanded for de novo adjudication to the Collector of Central Excise, Chandigarh, for passing fresh orders in accordance with the law.
  
  Dated: 11-9-1993
  Sd/- (Jyoti Balasundaram) Member (J)
  Sd/- (S.K. Bhatnagar) Vice President

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• 1994 (8) TMI 157
  
  Issues Involved:
  1. Whether the letter dated 6-8-1993 from the Ministry of Mines constitutes valid clearance from the Committee of Secretaries as per the Supreme Court's directions in ONGC v. CCE, Vadodara.
  2. Whether the Tribunal can proceed with the case based on the letter from the Ministry of Mines without a certified copy of the order from the Committee of Secretaries.
  
  Issue-wise Detailed Analysis:
  
  1. Validity of the Letter from the Ministry of Mines as Clearance:
  
  The Tribunal had to determine if the letter dated 6-8-1993 from the Ministry of Mines constituted valid clearance from the Committee of Secretaries as required by the Supreme Court's directions in ONGC v. CCE, Vadodara. The letter conveyed the decision of the Committee of Secretaries allowing the appellant company to file an appeal before CEGAT against the order of the Collector of Central Excise, Bhubaneswar.
  
  The Tribunal noted that the letter, on a plain reading, did not explicitly state it was a clearance from the Committee of Secretaries. The Tribunal emphasized the need for a clear communication from the Committee of Secretaries as mandated by the Supreme Court, which required a clearance from the Committee to be placed before the Tribunal for proceeding with the matter.
  
  2. Requirement of Certified Copy of the Order from the Committee of Secretaries:
  
  The Tribunal examined whether the appellant needed to produce a certified copy of the order from the Committee of Secretaries or a certified copy of the letter issued by the delegate of the Cabinet Secretary. The Tribunal referred to the Supreme Court's direction that every court and tribunal must demand a clearance from the Committee of Secretaries and, in its absence, should not proceed with the matter.
  
  The Tribunal found that the letter from the Ministry of Mines did not fulfill the Supreme Court's direction as it was not a direct communication from the Committee of Secretaries or its delegate. The Tribunal directed the appellants to produce such a communication before proceeding with the appeal.
  
  Separate Judgments:
  
  Member (T):
  The Member (T) held that the appellants must produce a communication from the delegate of the Cabinet Secretary giving clearance from the Committee of Secretaries. The Tribunal could not proceed with the matter based on the letter from the Ministry of Mines alone.
  
  Member (J):
  The Member (J) disagreed, stating that the letter from the Ministry of Mines was sufficient compliance with the Supreme Court's directions. The Member (J) emphasized that the purpose of the Committee of Secretaries was to ensure conciliation before litigation and that the letter indicated such clearance had been granted. The Member (J) argued that insisting on a certified copy would cause undue delay and hardship.
  
  Third Member:
  The Third Member noted that the issue had become academic since both parties admitted that the Committee of Secretaries had given clearance to pursue the appeal. The Third Member stated that the letter from the Ministry of Mines, read with the respondents' confirmation, was sufficient compliance for proceeding with the case.
  
  Final Order:
  In terms of the majority order, the Tribunal concluded that the letter dated 6-8-1993 from the Ministry of Mines was sufficient compliance for proceeding with the case. The case was to be listed for regular hearing by the Registry.

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• 1994 (8) TMI 156
  
  Issues Involved:
  1. Allegation of clandestine removal of 1308 vehicles without payment of duty.
  2. Discrepancy in accounting and inventory records.
  3. Compliance with procedural requirements for vehicle clearance.
  4. Financial condition of the appellant and its impact on pre-deposit requirements.
  
  Detailed Analysis:
  
  1. Allegation of Clandestine Removal of 1308 Vehicles:
  The primary issue revolves around the allegation that the appellants cleared 1308 vehicles without payment of duty, resulting in a demand of Rs. 3,46,95,525.32. The appellants contended that the figures in the balance sheet included duty-paid vehicles in transit, stock-yards, or on display, and that recalculating based on their records would show no excess clearances. They submitted a Chartered Accountant's certificate and detailed statements to support their claims. The Department, however, argued that the appellants admitted non-accounting of some vehicles and that the discrepancy in balance sheet figures indicated clandestine removal.
  
  2. Discrepancy in Accounting and Inventory Records:
  The Department's case was based on discrepancies between the number of vehicles shown in the balance sheet and those accounted for in the RG 1 Register and RT 12 returns. The appellants argued that the closing balance in the balance sheet included vehicles both within and outside the factory, and that the Department should only consider vehicles within the factory for determining clearances. They provided detailed charts and a Chartered Accountant's certificate to substantiate their position. The Department maintained that the appellants failed to maintain proper records and admitted lapses in accounting for some vehicles.
  
  3. Compliance with Procedural Requirements for Vehicle Clearance:
  The Department highlighted procedural lapses, including the use of the same gate passes for clearing vehicles twice, and failure to follow prescribed procedures for damaged vehicles. Statements from company officials admitted these procedural violations. The appellants countered that these issues pertained to specific vehicles (251 and 70 vehicles) and not the 1308 vehicles in question. The Department argued that these procedural lapses indicated a broader pattern of non-compliance and clandestine removal.
  
  4. Financial Condition of the Appellant and Its Impact on Pre-Deposit Requirements:
  The Department argued that the appellants had a sound financial position with continuous profits and liquidity, justifying the demand for pre-deposit. The appellants sought waiver of pre-deposit, contending that the demand was based on erroneous calculations and that they had already paid a significant portion of the duty demanded. The Tribunal considered the financial condition of the appellants and the prima facie strength of the Department's case in deciding on the pre-deposit requirement.
  
  Separate Judgments:
  The Vice President and Member (Judicial) delivered separate judgments. The Vice President rejected the stay application, emphasizing the Department's strong case and the appellants' financial capability. The Member (Judicial) disagreed, finding prima facie merit in the appellants' arguments and proposing waiver of pre-deposit. The matter was referred to a third Member (Technical), who concurred with the Member (Judicial), leading to the final order granting waiver of pre-deposit and staying recovery during the appeal.
  
  Final Order:
  In view of the majority opinion, the pre-deposit of the duty in question is waived, and its recovery is stayed during the pendency of the appeal.
  
  Dated: 16-8-1994

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