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Case Laws
Showing 81 to 100 of 268 Records
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1989 (8) TMI 276
Court – Jurisdiction of, Directors vacation of office by ... ... ... ... ..... rendra Bhadra v. Triton Eng. Co. (P.) Ltd. 1975-76 80 CWN 242, which is applicable on all fours. The appellate court has dealt with this aspect quite exhaustively and has, in my view, rightly found that the trial court had no jurisdiction to try the suit. Mr. Madkholkar has referred to R. Prakasam v. Sree Narayana Dharma Paripalana Yogam 1980 50 Comp. Cas. 611 (Ker) and Panipat Woollen and General Mills Co. Ltd. v. R. L. Kaushik 1969 39 Comp. Cas. 249 (P and H), which, in my view, are quite distinguishable and not relevant to the controversy involved in these revisions. Having regard to these facts, Civil Revision Application No. 885 of 1989 filed by the original plaintiff is dismissed and the Civil Revision Application No. 723 of 1989 filed by the original defendants is allowed and the order passed by the Second Joint Civil Judge, Senior Division, Akola, on July 7, 1989, is quashed. The status quo granted by this court on August 28, 1989, to continue till September 11, 1989.
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1989 (8) TMI 275
Winding up – Powers of tribunal on hearing petition ... ... ... ... ..... d, therefore, in exercise of that power, this court may modify the earlier order adjourning the company petition sine die subject to the condition that the premises are handed over to the applicant/landlord. In other words, during the pendency of the company petition, the landlord wants to be a receiver which is expressly prohibited to be done by the court under section 22(1) of the Act. The non-obstante clause employed in sub-section (1) of section 22 of the Act makes it imperative that section 443 of the Companies Act is not available to the court. Learned counsel for the applicant submitted that there is a decision of the Supreme Court to the contrary on identical set of facts. But, he was unable to give the citation nor any reference to such citation. He prayed for an adjournment on that ground. The motion for adjournment is rejected as the matter has been heard at length for quite some time. In that view of the matter, this application is misconceived and it is rejected.
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1989 (8) TMI 274
Powers of court to grant relief in certain cases ... ... ... ... ..... the Companies Act. The unamended section provides that an officer who is in default means any officer who is knowingly guilty of default, non-compliance, failure, refusal or contravention mentioned in the provisions or who knowingly and wilfully authorises or permits such default or non-compliance. In my judgment, it is not possible to determine whether the petitioner knew of the default or wilfully connived with the default in the present proceedings. It is always open to the petitioner to establish that fact in case prosecution is launched by the Registrar of Companies. Shri Tulzapurkar invited my attention to an unreported decision of a single judge delivered-on March 21, 1985, in Company Petition No. 460 of 1984 (since reported as H. Nanjundiah v. V. Govindan, Registrar of Companies 1986 59 Comp. Cas. 356 (Bom.) , but the said judgment has no application to the facts of the present case. Accordingly, the petition fails and is dismissed, but without any Order as to costs.
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1989 (8) TMI 273
Oppression and mismanagement –Power of Tribunal on application under sections 397 and 398, Winding up - Company when deemed unable to pay its debts
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1989 (8) TMI 272
Whether the High Court has erred in law in setting aside the judgments of the courts below in a matter arising under section 630 of the Companies Act in exercise of its powers under section 482 of the Criminal Procedure Code, 1973?
Held that:- Appeal allowed. The power of attorney has been executed just before the complaint was filed and it is stated in the complaint that Mr. Atul Mathur was filing the complaint on behalf of the company and he was duly authorised to do so. The High Court was, therefore, not right in construing the power of attorney as conferring only special powers and not general powers on Mr. Atul Mathur. Thus set aside the judgment of the High Court and restore the judgments of the Additional Chief Metropolitan Magistrate and the Additional Sessions Judge. However, the first respondent is given time till September 30, 1989, to deliver possession of the flat to the company failing which the sentence of imprisonment awarded to him would be enforced.
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1989 (8) TMI 241
Polyester metalised film - Refund - Limitation ... ... ... ... ..... und only the amount of duty differential between the amount of duty levied under T.I. 15A(2) and leviable under Item 68. But, then, even if there is any mistake in calculation, the fact remains that the appellant has filed refund claim and if they are entitled to avail of the benefit of any other provision of law, they should be entitled to claim it. Rule 10 of Customs Excise and Gold (Control) Appellate Tribunal (Procedure Rules), 1982 also empowers the Tribunal to rest its decision on any other grounds other than those urged in the memorandum of appeal. Moreover, once a refund claim is preferred, the claim may be for more or less amount. But, in our view, the requirement is of preferring the claim in the prescribed time limit. Even if the amount is not mentioned, it would not and cannot jeopardise the interest of the appellant. 11. emsp So, we pass the following final order The Appeal is allowed and the impugned order is set aside with consequential relief to the appellant.
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1989 (8) TMI 240
... ...
... ... ..... l of entry and not on the basis of mere suspicion. In this case, the Department has not proved any contemporaneous import. In the absence of any such contemporaneous import, there was no reason to disbelieve certificate appraising the value duly issued by the competent person. Even without clarification, it is generally understood that the value of new machine indicates inclusive of spares and value of the old machine is without spares. Hence, the Department was not justified in determining the value as per guidelines issued by the Board without giving valid reason for rejecting the certificate issued by the Chartered Engineer. In the circumstances, we hold that the certificate issued by the Chartered Engineer is an authenticated document and the value shown therein should be accepted by the Department as the value of the second hand machine without spares. 6. emsp In the result, we set aside the impugned order and allow the appeal with consequential relief to the appellants.
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1989 (8) TMI 239
Inspection and discovery of documents ... ... ... ... ..... which provides for discovery and production of documents. In other words it is a case where the learned JDR is making a request for the production of the relied upon documents by the appellants for the purpose of appreciating the case of the parties to secure the ends of justice. Since the original records are not summoned by the Tribunal as per practice and the appellants have not filed the aforesaid documents which form the part of the impugned order we think it expedient that to prevent abuse of its (Tribunal) process and to secure ends of justice a direction can be issued in terms of Rule 41 of the CEGAT (Procedure) Rules, 1982 to the appellants to produce copies of all these statements relied upon in the Show Cause Notice and supplied to the appellants - a fact which was never disputed by the appellants. 21. Needless to say that in the meanwhile the Department would be at liberty to re-construct the original record, if possible, and produce the same before the Tribunal.
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1989 (8) TMI 238
Appeal by department - Strictures passed against Government ... ... ... ... ..... e part of Department of Law or the Department of Finance who are concerned with the appeal. However, all hopes expressed in the past in this regard have been in vain and over the last 20 years instead of any improvement gross deterioration has been perceived in the litigation conducted on behalf of the Union of India. Appeal to stand dismissed. Parties to bear their own costs. It may be mentioned that counsel for the Union of India did not have one word of remorse for the misconduct of his client. 3. Prothonotary is directed to send a copy of (this order to the Hon rsquo ble Union Minister for law and Hon rsquo ble Union Minister for Finance. We give the above direction because the Government of India claims to be concerned be at the delays in litigation in the Court. One of the principal reasons for the delays and the backlog in the Court dockets (at least in Bombay) is the thoroughly improper and irresponsible manner in which the Union as a litigant conducts its litigation.
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1989 (8) TMI 237
Set-off of duty ... ... ... ... ..... r authorities even while conceding that the ratio of the previous decision would apply to the present case. 6. Having considered the submissions of both sides, we do not find any reason to depart from the previous decision of this Tribunal. In the result, we allow the appeal and remand the matter to the Assistant Collector to work out the relief due to the appellants as set out in the Tribunal rsquo s order reported in 1987 (32) E.L.T. 579 (supra). 7. Shri Lukose submitted that Notification No. 201/79 was no longer in force and the procedures obtaining at present would not permit the availment of the relief due towards payment of duty on the finished excisable goods. While we have no material to express any view on this, we would only say that if the present procedures do not permit credit of the amount of relief due by entry in the personal ledger account or other appropriate account of the appellants, the Department then should pay the amount of relief in cash or by cheque.
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1989 (8) TMI 236
... ...
... ... ..... rification. When this question was posed to the appellants, they had no answer excepting pleading that the department had also not sought for clarification. We, no doubt, agree that the department also could have sought for clarification but the burden is here on the appellants to establish their claim under OGL, especially when they claimed to have taken prior precautions, this fundamental precaution seems to have not been taken. However, taking note of the fact that the item imported does not pass technical/petrological test of true marble on account of which the appellants claimed to have had a bonafide belief that these goods are allowed under OGL, we are inclined to extend some leniency to the extent warranted. 32. While dismissing the appeal and confirming the order of the Collector, we would like to reduce the penalty amount from Rs, 10,00,000/- to Rs. 5,00,000/- (Rupees five lakhs). But for this modification in the quantum of penalty, the appeal is otherwise rejected.
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1989 (8) TMI 235
Compressed air breathing apparatus - Ineligible for importation under OGL unless portable ... ... ... ... ..... ccept that the imported intermittent pressure air breathing apparatus can be passed under Item 5 of Section lsquo B rsquo of the schedule to Notification No. 208/81-Cus . We respectfully follow the ratio and disallow the claim of the appellants. 16. From the record we find that the request of the appellants to redeem the subject goods on payment of a suitable redemption fine in lieu of confiscation was not accepted by both the authorities below. Since we have held as aforesaid that the permission to import the subject goods was accorded to the appellants by the competent authority namely Chief Controller of Explosives, we think it expedient in the interest of justice that the appellants may be given an option to pay the fine in lieu of confiscation. We order accordingly and taking into consideration the value of the goods we give an Option to the appellants to redeem the goods on paym 17. In the result subject to the modification as aforesaid the appeal is otherwise rejected.
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1989 (8) TMI 234
Classification ... ... ... ... ..... 5. When this matter came up for hearing, Shri L.C. Chakraborthy, the learned Departmental Representative appearing for the appellants, produced the copy of the order No. 55/85-D and fairly conceded the position in favour of the respondents and submitted that the ruling in Order No. 55/85-D in respect of the classification of the respondents product has been answered by this Bench. 6. Heard both sides, persued the records and considered the submissions of both the sides. This Bench in Order No. 55/85-D has decided the issue of classification in favour of the respondents by upholding the order-in-appeal filed by the Collector of Central Excise (Appeals) Bombay. The matter is same involving the same items. The facts of the case in Order No. 55/85-D are similar involving the same items manufactured by the respondents. The Order No. 55/85-D pertains to earlier classification of the respondents product. Applying the rulings, this appeal has to be rejected and the same is dismissed.
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1989 (8) TMI 233
Appeal - Condonation of delay ... ... ... ... ..... he affairs of the company, it cannot be justifiably said that the matter of filing the appeal could not be attended to properly. Obviously, this would suggest that there was some negligence on the part of the appellant company. But, as submitted by Shri Gujral, Id. Advocate, all original papers were handed over to the Advocate Shri Sonawale and as they were not traceable. anyhow, appeal could not have been filed. L. Advocate, Shri Sonawale has filed his affidavit and there is no reason to disbelieve it. So it appears that the main reason for the delay caused in filing the appeal is that the papers were misplaced in the office of the Advocate. L-A., Shri Gujral has cited some judgments in support of this application, but then, every case depends upon its facts and Courts have to exercise discretion judiciously. So, it is not necessary to discuss those authorities. So, we allow this application and condone the delay caused in filing this appeal. Appeal shall be heard on merits.
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1989 (8) TMI 232
Duty paid refundable ... ... ... ... ..... d as 3001-4199. In description column of the invoice it has been mentioned 3001-4199 repair kit for FMC pump and packing set for plunger FMC pump (3001-3205) has been mentioned in the invoice. In the part catalogue filed by the respondent, part No. 3001 is there - but 3205 is not there. There is specific mention of the same in the invoice. Apparently the mention of part number in the invoice and the general catalogue also shows that the pump is a part of the system. We do not find any merit in the appellant rsquo s contention that a part of a sub-assembly is not covered by the notification. On the contrary, we agree with the reasoning of the learned Collector (Appeals), C.R. Building, New Delhi. We do not find any error in the order passed by the Collector of Customs (Appeals). We do not find any merit in the appeals, the appeals are dismissed. The present appeals are being allowed keeping in view the peculiar facts of the case, and it will not be a precedent for other cases.
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1989 (8) TMI 231
Stay/Dispensation of prior deposit ... ... ... ... ..... em 68 and the rulings also disclose that similar items are classifiable under Item 68. Prima-facie, the applicants have argued that by drilling holes in the nuts, which are fixed on the burner parts there is no change in the product and do not assume a new character and there is no manufacture and that the applicants have not suppressed any information. Further, they have submitted that they are also a small scale industry. The second show cause notice appears to be time-barred. However, the first show cause notice appears to be in time. 7. Considering the materials before us, we are of the opinion that it is a fit case for stay. However, the applicants should deposit the amount called for in the first show cause notice Rs. 7,247.21 P. within four weeks of the receipt of this order. On the applicants depositing this amount, the amount demanded in the second show cause notice of Rs. 1,03,834.01 P. shall be dispensed with and recovery thereof stayed till disposal of the appeal.
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1989 (8) TMI 230
... ...
... ... ..... paid under Notification 138/86 is wrong payment of duty or excess payment of duty. Therefore, there being no excess payment of duty, refund cannot be sanctioned, because Section 11B does not provide refund of duty which is correctly said. rdquo At this stage the learned Consultant submitted that Notification 260/86, dated 24-4-86 precluded one from claiming the benefit of Notification 175/86 if one had availed of Notification 138/86 and this prohibition having come into force on and from 24-4-86, so it should be presumed that it is open to a person to change his stand and claim the benefit of a different notification, though not specifically claimed in the classification. I do not find any force in the submission of the learned Consultant in the context of this case because it is nobody rsquo s case that the appellant claimed the benefit of Notification 175/86 at any time prior to 6-5-86. I do not, therefore, find any merit in the appeal and the same is accordingly rejected.
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1989 (8) TMI 223
Confiscation and penalty ... ... ... ... ..... in the circumstances of the case. Thus relying upon the ratio of the judgment rendered in the case of M/s. Kailash Jewellery House, supra, and in subsequent decisions as stated above to the fact that where the transaction had been duly established it would not be a fit case for confiscation of the ornaments and a penalty of proper nature would met the ends of justice, we set aside the confiscation of the gold ornaments in question. For the same reasons we also feel that the penalty imposed is excessive and a penalty of proper nature be imposed upon the appellants to keep them careful and vigilant in future. Accordingly, we reduce the penalty to Rs. 15,000/- (Rupees fifteen thousand only). 9. In the result, we partly allow the appeal, set aside the order with regard to the confiscation of the ornaments, but uphold the imposition of penalty which is however reduced to Rs. 15,000/- for the reasons stated above. The impugned order of the Collector is modified to the above extent.
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1989 (8) TMI 221
Clandestine removal ... ... ... ... ..... ds were awaiting gradation and afterwards entry in the RG-1. But the fact remains that when the visiting Officers came, these cases were packed and not entered in the RG-1. Accordingly we uphold the confiscation of 4 bundles of 3rd grade sheets and one bundle of top skin. We also hold that the redemption fine imposed by the Collector on this quantity was not excessive. 29. In view of the findings given by us on various issues in the preceding paragraphs we feel that that there is no case for imposing a penalty of Rs. 1 lakh on the appellants, nor is there any case for confiscating the land, building, plant, machinery, etc. We set aside the confiscation of the land, building, plant and machinery as also the redemption fine imposed thereon by the Collector. Having held that about 82 Kgs of polyurethene foam and 13.6 Kgs. of top skin were liable for confiscation and liable for redemption fine of Rs. 500/- we reduce the penalty to Rs. 500/-. The appeal is disposed of accordingly.
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1989 (8) TMI 220
Assessment - Refund ... ... ... ... ..... a finality on the date and time of passing of the assessment order on the RT12 in terms of Rule 173I. 60. I also agree with my learned Brother that the contention of the learned SDR to the effect that the date of payment to the Government by adjustment or debit in PLA is the relevant date for the purpose of calculating the time-bar under SectionllB inasmuch as there is no provision to this effect under Section 11B. 61. Since the claim is not one of refund but one of assessment, I may like to add that Rule 173I applies to this case. No doubt, under Section-llB the authorities are bound by the time limit prescribed, which is six months from the date of payment of duty, but in the facts and circumstances of this case, Section 11B of the Central Excises and Salt Act, 1944 is not attracted and on this ground, I entirely agree with my learned Brother rsquo s view that this case is covered under Rule 173I. 62. In the result, the impugned order is set aside by accepting this Appeal.
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