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Case Laws
Showing 41 to 60 of 231 Records
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1989 (12) TMI 318
EXEMPTION SAME RATE OF TAX ON GOODS WHETHER MANUFACTURED IN THE STATE OR BROUGHT FROM OUTSIDE THE STATE EXEMPTION GIVEN TO SPECIFIC GOODS MANUFACTURED IN THE STATE FOR LIMITED PERIOD AND SUBJECT TO CONDITIONS
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1989 (12) TMI 317
Whether this Court can direct the authorities to revise the assessment or refund the excess tax paid in this writ petition?
Whether the petitioner can recover the said amount by filing a suit?
Held that:- Appeal allowed. In view of the facts and circumstances of the case and especially in view of the fact that in this case there is no controversy or denial by the respondents as to the date when the appellant came to know of the excess payment, this appeal has to be allowed. The judgment and order of the High Court are set aside. It is declared that the appellant is entitled to the refund of the amount subject to setting off of arrears, if any, due from the appellant.
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1989 (12) TMI 306
Whether supply of articles of food and drinks to a customer in a hotel constitute sale of goods invoking a transfer of the property in the goods to the customer?
Held that:- Appeal allowed. Set aside the orders of the appellate authorities declining or confirming, as the case may be, the refusal of the benefit of an order under the said proviso and direct that the appeals filed by the respondents before the first appellate authority be now restored and proceeded with on the merits in accordance with law, subject to the condition that the respondent, in each of the appeals, deposits a sum of ₹ 5,000 towards the assessed tax and furnishes security in respect of the balance of the tax to the satisfaction of the said first appellate authority within two months from today.
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1989 (12) TMI 296
Business expenditure ... ... ... ... ..... sation on the same income and on the same footing in the subsequent year because the valuation of the opening stock was lower. 14. The same argument has been repeated on behalf of the assessee-company before us. We are of the view that there is force in the contentions and the Tribunal was right in upholding the argument of the assessee. In that view of the matter, the question No. 2 raised by the revenue, therefore, is answered in the affirmative and in favour of the assessee. 15. Therefore, the questions raised in this reference are answered in the following manner The question Nos. 1, 2 and 3 are raised at the instance of the assessee are answered in the affirmative and in favour of the revenue. The first question raised at the instance of the revenue is answered in the negative and in favour of the Revenue. The second question raised by the Revenue is answered in the affirmative and in favour of the assessee. 16. There will be no order as to costs. Banerjee, J. - I agree.
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1989 (12) TMI 290
Validity of an amendment to the Schedule to the Andhra Pradesh General Sales Tax Act, 1957 challenged
Held that:- Appeal dismissed. In the instant case the tax is at the same rate and, hence, tax cannot be said to be higher in the case of imported goods. When the rate is applied the resulting tax may be somewhat higher but that does not contravene the equality contemplated by article 304 of the Constitution. In the facts and the circumstances of the case, there is no ground to complain about the breach of article 14 of the Constitution.
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1989 (12) TMI 282
Winding up - Company when deemed unable to pay its debts ... ... ... ... ..... debt but equity is to be rendered between the parties. There is no doubt about it and, even in this case, keeping the aforesaid view in light, equity was done. Since, even after filing of this petition and even before considering winding up, this court, by means of an interim order, directed the company to pay to the petitioner the amount which the company, admittedly, considered to be due and the company has already made that payment. In view of this, it cannot be said that there is any principle as laid down in the aforesaid case which helps the petitioner for ordering winding up in the present case. In view of the aforesaid provision and, on the facts and circumstances of the case, I do not find it to be a fit case for ordering winding up of the aforesaid company as the present petition has not made out a case for winding up of the company. Accordingly, the company petition for winding up is dismissed. However, on the facts and circumstances of the case, costs on parties.
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1989 (12) TMI 273
Winding up Power to summon persons suspected of having property of company, etc. ... ... ... ... ..... tion (1) of section 477 of the Act. In a case of the present nature, private examination by interrogators will not serve the purpose. But, I am of the opinion that so far as non-petitioners Nos. 3 and 4, Chunnilal and Banshid-har Somani, are concerned, looking to their replies which they had filed to the official liquidator, I do not consider it necessary to examine them under sub-section (1) of section 477 of the Act. Consequently, the applications filed on behalf of non-petitioners Nos. 1, 2 and 6 for revocation of the judge s summons for private examination of them is dismissed. They shall make themselves available for private examination on April 20, 1990. But non-petitioners Nos. 3 and 4 need not present themselves for the purpose of private examination. All the four non-petitioners are represented by their counsel. Necessary expenses will be given to them by learned-counsel for the official liquidator and they will appear for their private examination on April 20, 1990.
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1989 (12) TMI 272
Winding up Suits stayed on winding-up order ... ... ... ... ..... oner No. 1. Issue No. 1 is decided in favour of the respondent. In view of my finding under issue No. 1, the petitioners are not entitled to claim any interest as the claim for the same is not sustainable at law. Issue No. 2 is decided against the petitioner and in favour of the respondent. Issue No. 3 In view of my finding under issues Nos. 1 and 2, there is no escape from the conclusion that the petitioners are not entitled to claim any future interest. This issue is decided against the petitioners. Issue No. 5 There is no impediment for the petitioners to maintain the present petition. The official liquidator has been appointed. The company has gone into liquidation. However, the present petition, at the instance of the official liquidator, is maintainable. Issue No. 5 is thus answered in favour of the petitioners and against the respondent. In view of my finding under issue No. 1, this petition fails and is dismissed. However, the parties are left to bear their own costs.
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1989 (12) TMI 271
Certain provisions as to guarantee in respect of debt or other obligation, Contracts in evasion of Act
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1989 (12) TMI 270
Winding up - Company when deemed unable to pay its debts ... ... ... ... ..... rate of interest at the agreed rate of 16 per cent. per annum. The advocate-on-record for the company is directed to make over the pay order for Rs. 3 lakhs, held by him in terms of the order of this court within a period of four days from date. After adjustment of the abovenoted sum of Rs. 3 lakhs, the balance amount together with interest as above be paid by monthly instalment of Rs. 1 lakh each. In the event, however, upon calculation of interest, the last instalment falls short of Rs. 1 lakh, then and in that event the last instalment be paid on actuals then remaining outstanding. The first such instalment be paid by January 15, 1990, and all subsequent instalments by the 15th of each succeeding month. In default of payment of any one of the instalments, however, there shall be an order in terms of prayer (a) of the petition. All parties and the official liquidator, the advocate-on-record of the company are to act on a signed copy of the operative porition of this order.
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1989 (12) TMI 246
Oppression and Mismanagement Right to apply under section 397 and 398 ... ... ... ... ..... ourt on January 29, 1987. The accounts of the company were being audited by Soni, chartered accountant, and approved in the annual general meeting of the company. He admitted that donations were given to schools and hospitals but it was subject to the variations made in the memorandum and articles of association. The petitioners failed to substantiate the allegations made in the petition. On the contrary, the evidence of RW-1 in unequivocal terms proved that the affairs of the company are properly managed, the account books are duly audited by the chartered accountant and all the expenditure was approved in the annual general meeting and in the annual general meeting, members of the managing committee were elected every year. This petition appears to have been filed for some ulterior purpose. It is lacking in good faith and is not maintainable at the instance of the petitioner. For the reasons aforesaid, the petition is dismissed with costs. Counsel fee assessed at Rs. 1,000.
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1989 (12) TMI 245
Oppression and mismanagement Right to apply under section 397 and 398, Company when deemed unable to pay its debts
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1989 (12) TMI 244
Winding up Delivery of property to liquidator ... ... ... ... ..... ave encashment and supervision charges, but when the company went into liquidation, fearing that he may be held personally liable for these irregular payments, he did not accept the suggestion that the payments were made under his authorisation. There is no plea of lack of bona fides on the part of the officers who had received payments or that they were acting against the interests of the company. In these circumstances, I am of the opinion that the petitioners are not entitled to claim refund of the payments on account of leave encashment and supervision charges from the respondents. Resultantly, issue No. 4 is answered against the petitioners and in favour of the respondents. In view of my finding under issue No. 4, the question of payment of interest on the outstanding dues does not arise. Thus, issue No. 5 is also answered against the petitioners and in favour of the respondents. For the reasons stated above, this petition is dismissed, but without any order as to costs.
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1989 (12) TMI 243
Winding up - Company when deemed unable to pay its debts ... ... ... ... ..... at the dispute raised by the company to the claim petition is devoid of bona fides. As has been pointed out above, the respondent-company has not only cleared off its liabilities to the tune of Rs. 3,62,830.49 during the pendency of these proceedings but has even produced a certificate from the Allahabad Bank to say that the bank was willing to pay any amount that may be required to be paid by the company and that it can stand guarantee for the same. I am, therefore, satisfied that the petitioner has miserably failed to show that the respondent-company is commercially insolvent, that is to say, that its assets are such and its existing liabilities are such as to make it reasonably certain that the existing and probable assets would be insufficient to meet the existing liabilities. Further, I am equally of the opinion that the defence raised by the company in disputing the claim of the petitioner cannot be said to be devoid of bona fides. Therefore, this petition is dismissed.
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1989 (12) TMI 216
Set-off of duty - Refund ... ... ... ... ..... ral Excise duty has been paid then the appellants should not be denied benefit of exemption by way of paying refund. We may repeat that the notification was silent on the procedure and procedure that was to be followed, was not clear at the earlier stage . 8. The ld. SDR has contended that the appellants had not paid duty and so they cannot claim refund and he cited the order passed by the Government of India in Re Sri Ram Paper Ltd. - 1982 (10) E.L.T. 728 (G.O.I.). But in view of the position of law, as made clear by the above citations, we are of the opinion that appellants were entitled to claim refund in cash also. So, we allow this appeal and set aside the impugned order, with consequential relief to the appellants. The Assistant Collector shall re-examine the refund claim of the appellants in light of our above order after providing the appellants opportunity of representation/hearing, if need be. No relief is claimed in cross-objections and they also stand disposed of.
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1989 (12) TMI 215
Rectification of mistake ... ... ... ... ..... n an amendment of the former. On the contrary, they applied to different products al together - the first to corrugated paper made exclusively out of kraft paper and the second to corrugated paper made out of any other variety of paper falling under Item 17 of the 1st Schedule to the Act, provided that it is a single sheet of fluted paper. rdquo 4. It is difficult to hold that in view of the circumstances that this error did not go to the root of the matter or that it did not influence the outcome of the judgment. We, therefore, hold that the view taken on Notification No. 264/67 as recorded in the impugned order is an error apparent on the record. 5. In this view we do not find it necessary to go into the other alleged errors on which arguments were heard. In the interests of justice we recall the impugned order and direct that it be placed before the appropriate Bench for fresh consideration and orders. 6. This order disposes of all the three applications for rectification.
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1989 (12) TMI 214
Meaning of - Excisable goods ... ... ... ... ..... classification list. However, on re-examining the declaration filed by them along with the C. List, it was observed that they had not taken into consideration the value of clearance of exempted goods falling under T.I. 68 of the C. Ex. which is non-specified item, for computing Rs. 20 lakhs. rdquo So, as rightly argued by the Learned Advocate Shri Aneja the appellants were labouring under a genuine belief that it was not necessary for them to include clearance of the goods in question in their declaration but the authorities concerned all along knew about the appellants manufacturing these products. So there was no suppression on the part of the appellants. On perusal of the records we were satisfied about these facts. So, there was no justification, in our view, to invoke the extended period of limitation. So, any demand raised for the period beyond six months from the date of the notice was time-barred. 10. For the above reasons, we have passed the order as excerpted above.
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1989 (12) TMI 213
... ...
... ... ..... sion ldquo 7 frac12 rdquo , referred to in Notification No. 431/76-Cus., dated 1-11-1976 against serial number 13 relating to cloves, means 7 frac12 ad valorem. The Tribunal has come to the conclusion after referring to the origin of margin of 7 /2 in the erstwhile Imperial Preferences and relying on the National List of Concessions of India annexed to the Bangkok Agreement and the General Explanatory Notes to the Schedule to the Customs Tariff Act. 21. I see no reason to differ from the earlier decision of the Tribunal. In fact, this order of the Tribunal has been relied upon in Order Nos. 384 to 386/89-D dated 29-9-1989 in the case of CC, Madras v. Dhirish Enterprises to which one of us, Member (Judicial) Shri S.L. Peeran was also a party. 22. In the circumstances, following the decision of the Tribunal reported in 1986 (23) E.L.T. 435, I find no merit in the present appeal which is hereby dismissed. FINAL ORDER 23. In view of the majority decision, the appeal is dismissed.
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1989 (12) TMI 212
Modvat credit ... ... ... ... ..... Modvat credit if the inputs had been received prior to the filing of the declaration. Therefore, following the ratio of the Bench of the Tribunal cited by the learned Counsel and referred to above, we hold that inasmuch as the appellant had taken credit in the RG 23A (Pt. II) only on 18-12-1986 and had filed the relevant necessary declaration in terms of Rule 57G on 16-12-1986 itself, we are of the view that the appellant would be entitled to take Modvat credit in respect of the inputs in question. But from the records we are not able to find that any verification was made by the authorities below with reference to the nature of the input and the credit taken and other relevant particulars and such facts will have to be verified by the original authority with reference to the various documents. Therefore, in the light of the principles we have enunciated above, we set aside the impugned order appealed against and remit the matter for reconsideration by the original authority.
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1989 (12) TMI 211
Refund - Limitation ... ... ... ... ..... deemed to be for all purposes validly and effectively taken or done as if the provisions had been in force at all material times. In view of this provision, the action taken by the Department in terms of the notification under 110/75 was required to be considered as correct notwithstanding any Court judgment or order. Hence, the ld. Counsel rsquo s reliance on Delhi High Court rsquo s judgment was of no avail. 21. In so far as Notification No. 78/82 was concerned, I note that this notification was not in existence during the material time i.e. May to Dec., 1975. It came into existence and superseded Notification No. 110/75 only in Feb., 1982 and was thus not relevant. 22. In any eventuality, as mentioned by ld. Member (Judicial) the law is finally settled by the decision of the Supreme Court in the case of Union of India v. Modi Rubber reported in 1986 (25) E.L.T. 849.I, therefore, agree with my ld. Colleague as mentioned above. 23. Consequently, the appeal stands dismissed.
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