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Case Laws
Showing 41 to 60 of 197 Records
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1990 (5) TMI 203
Whether the Mysore Civil Services Rules apply to appellant?
Held that:- Appeal dismissed. The appointment of the appellant is periodical and not up to a maxi- mum age nor it is a whole time service but a part-time one and the appellant was permitted to take up audit of any person, firm, institution, etc., on certain restrictions. A Government servant has to render whole time service. Therefore, considering all these aspects it has been found by the High Court that the Mysore Civil Services Rules, 1958, do not apply to the appellant and as such he is not eligible for superannuation pension. We do not find any infirmity in the judgment of the High Court which is unexceptionable.
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1990 (5) TMI 195
Hearing - Appeal ... ... ... ... ..... n on behalf of Ms. Indu. Malhotra requested for adjournment and the case was adjourned to 26-4-90. On 26-4-90 the case was again adjourned as the learned Counsel wanted to seek instructions regarding the re-export of containers. Now again the said request for adjournment. From this chequered history it gives an impression that the appellant is not interested in prosecuting the appeal and seeks adjournment every time. Very recently, the Hon rsquo ble Supreme Court has observed that such casual approach to the hearing of the appeal causes unnecessary dislocation of the work of the Bench. Before we part, it should be stated that there were no directions by the Bench to file any application or to furnish any information. Instead on 26-4-90, the learned Counsel while making request for adjournment stated that she wants to seek ldquo instructions regarding the re-export of containers rdquo . 3. emsp In view of the above, we are constrained to dismiss the appeal for non-prosecution.
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1990 (5) TMI 187
Compromise and arrangement, Petition for confirming compromise or arrangement ... ... ... ... ..... e decided at the time of considering the confirmation of the scheme of arrangement in Company Petition No. 131 of 1988. The objection, as raised by Mr. Seth, with regard to non-disclosure of the financial position by the applicants, in my view, should be dealt with at the time of deciding the petition under section 391(2) of the Act. The report of the chairman and the other objections shall also be considered at that time. It may be noticed that in Company Petition No. 131 of 1988, notice was directed to be issued to the Central Government and the official liquidator. Under the facts and circumstances of the case, I allow the application, being Company Application No. 2439 of 1988. I direct that the notice be published in the same newspapers, namely, The Hindustan Times and Navbharat Times (Hindi), for July 18, 1990, to the effect that the scheme of arrangement in Company Petition No. 131 of 1988 shall be considered for confirmation. C. A. No. 2439 of 1988 stands disposed of.
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1990 (5) TMI 180
Penalty for wrongful with holding of property ... ... ... ... ..... n view the fact that the object of the criminal proceedings is not frustrated and there is no rigid rule which makes it necessary for the criminal court to adjourn or postpone the hearing of the case before it indefinitely or for an undoubtedly long period when only because some proceedings which may have some bearing on the points raised in the criminal court are pending elsewhere. I need not express any view as to whether the respondent is the actual tenant or licensee or whether the provisions of the Delhi Rent Control Act would become applicable and the provisions of section 630 would be made out or not even if the respondent is held to be a tenant in the premises. These questions can be decided by the criminal court after the parties have led evidence on all aspects. I, hence, hold that impugned orders cannot be sustained and I set aside the impugned orders and direct the criminal court to proceed with the criminal cases in accordance with law. The petitions are allowed.
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1990 (5) TMI 179
Public deposits ... ... ... ... ..... ectors under section 204(1) of the Companies Act, 1956. It has been held that for violation of section 204(1) of the Companies Act, a company or its directors are liable for prosecution under section 629A of the Act. Process should, therefore, have been issued by the learned Chief Metropolitan Magistrate under section 629A read with section 204(1) of the Act. As this was not done, it was held that the learned Chief Metropolitan Magistrate acted mechanically without proper application of his mind and, on this ground, the application was allowed and the impugned proceeding was quashed. The ratio of the decision in that case is clearly applicable to the facts of the present case. The rule is, therefore, made absolute. The impugned order dated December 27, 1984, is set aside and the impugned proceeding is quashed. I, however, make it clear that the quashing of the proceeding will not prevent the opposite party from filing a fresh compliant, if permissible, in accordance with law.
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1990 (5) TMI 165
Appeal - Evidence ... ... ... ... ..... into all these documents, as the order of this Tribunal admitting them as evidence has become final as the same was not challenged by the Department. We are also directing the Adjudicating Authority that he should hear the appellant with respect to the binding nature of the judgments of the Criminal Court and then decide the matter in accordance with law. We hereby make it clear that the Adjudicating Authority is free to come to one conclusion or the other by taking into consideration several case laws cited by the appellant or the case laws relied on by the Authority itself in this behalf. We also hereby make it clear that the Adjudicating Authority should discuss all the points that may be raised on behalf of the appellant and should give a clear finding with respect to those points and should give a speaking order in this behalf. With these observations, the appeal is allowed and the matter is remanded back to the Adjudicating Authority for disposal in accordance with law.
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1990 (5) TMI 164
Refund - Limitation ... ... ... ... ..... four corners of the Act and the authorities functioning under the Act are bound by the provisions of the Act. Hence as observed by the Supreme Court in 1987 (30) E.L.T. 641 (SC) 1985 ECR 289 (Miles India Ltd. v. Assistant Collector of Customs), if really the payment was by mistake of law the party might seek such recourse to such alternative remedy. Hence the appellants have a remedy to move the High Court under Article 226 of the Constitution. But the authorities functioning under the Act are bound by the limitation prescribed under the Act and these observations of the Supreme Court are binding on us. 22. In this case the appellants could not prove that the payment was made under protest as they could not produce any evidence to show that the letter dated 20th May, 1964 by way of protest was handed over to the Central Excise Authorities. 23. In such circumstances, we are of the opinion, that there is no infirmity in the impugned order. Hence this appeal is hereby dismissed.
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1990 (5) TMI 163
Revision by Collector ... ... ... ... ..... Collector that such picture tubes were allowed clearance by the Custom House in the past which was the basis for imposing the redemption fine, was not at all considered by the learned Collector of Customs. He only considered that the normal practice was to impose a higher redemption fine. But for deviating from the normal practice the learned Deputy Collector has given a reasoning that there was a past practice of allowing such consignments. That was not dealt with by the learned Collector in the impugned order. In such circumstance, we are of the opinion that the learned Collector should decide the matter afresh in the light of the reasoning given by the Deputy Collector and then to proceed to pass appropriate orders in this regard. Accordingly, the appeal is allowed by way of remand to the learned Collector of Customs and Central Excise (Appeals) for hearing the appellants in this regard and to pass appropriate orders in the light of the observations mentioned above by us.
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1990 (5) TMI 162
Confiscation - Confiscation if set aside ... ... ... ... ..... oint No. IV is answered accordingly. 53. Point No. V In view of our above discussions, we come to the conclusion that the appellant is entitled for the value of the catch of fish and shrimps etc., which were in the trawler. Accordingly, we hereby order the respondent to pay a sum of Rs. 5 lakhs (Rupees five lakhs) only to the appellant towards the value of the catch of fish, shrimps etc. found in the trawler within a period of two months from the date of receipt of this order. The claim of the appellant for the value of the trawler in a sum of Rs. 50 lakhs (Rupees fifty lakhs) is hereby dismissed. The claim of the appellant for the return of Rs. 4 lakhs (Rupees four lakhs), which was deposited with the Department towards the redemption fine is also hereby dismissed. So also the claim of the appellant for damages towards the non-plying of the trawler and also the cost of the litigation are also hereby dismissed. Accordingly, the appeal is allowed partly as per the above terms.
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1990 (5) TMI 161
Adjudication ... ... ... ... ..... oms, Jaipur relinquished the charge on 27-5-1988 whereas the impugned order is dated 15-6-1988. 3. In reply it was the contention of the learned SDK that as per the record and the communication received from the Additional Collector, Jaipur, it appears that the draft was approved during the tenure of Shri B.C. Rastogi, but was issued subsequently. 4. We have considered the submissions. From the copy of the impugned order supplied to the appellant, we find that it bears Order-in-Original No. 4/88-Customs dated ldquo THE 15-6-1988 . It does not say that it was issued on 15-6-1988. At the end Shri B.C. Rastogi has signed the impugned order as Collector but had not put the date on which he has signed. Thus, we give the benefit of doubt to the appellant and remand the case to the Collector concerned. 5. In the result the impugned order is set aside and the case is remanded to the Collector of Central Excise and Customs, Jaipur for passing a fresh order after hearing the appellant.
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1990 (5) TMI 160
Undervaluation ... ... ... ... ..... invoices of the imports and the invoice price of earlier import found that ldquo the invoices quoted by the Department of National Native Produces and Animal By-products Imports and Exports Corpn. and import by P.R.B. Exports which is also broken No. 2 quality as the goods under import rdquo . In other words the finding is that the imports under dispute are of the same quality as the imports relied upon by the respondent. Therefore, the contention of the appellants that the imports in question are of lsquo broken quality rsquo and the invoices relied upon by the deptt. relate to lsquo whole quality rsquo is without any basis. It is true that there is a gap of 4 months between the disputed import and the invoices relied on by the deptt., however in the absence of evidence that there is a drastic fall in the prices the differences of 4 months is not that relevant criteria to discard the said prices. 6. We, therefore, see no merit in the appeal and accordingly dismiss the same.
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1990 (5) TMI 159
Adjudication - Confiscation ... ... ... ... ..... uck could not be present at two places at the same time and so in his opinion, the party might be using two trucks separately for the transportation of his products under one and the same registration No. This is a very serious allegation and based upon surmise only. No transporter can operate two trucks under one registration No. and it cannot be done without connivance of State Transport Authority. It does not appear from the record that the Central Excise authorities had made any enquiry with the State Transport Authority. So, such conclusion cannot be drawn without any basis. In the circumstances the explanation advanced by the appellant is quite plausible and possible. 9. In the light of above discussion, we are satisfied that findings are based more upon surmise than any valid evidence. So, the appeal requires to be allowed. So, we pass the following final order The appeal is allowed and the impugned order is set aside with consequential relief to the appellant, if any.
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1990 (5) TMI 158
... ...
... ... ..... as handicrafts only if the product acquires its essential character in the finished form by use of hand. The use of machine in the manufacture of a product does not preclude an article from the category of handicraft when essential character of that product is shaped by use of hand. rdquo 16. In that case, the product was T.V. cabinet, but the principle laid down, as excerpted above, can well be followed in the present case also. Moreover, as rightly pointed out by L.A., Sh. Lakshmikumaran, even though the process was not discussed in Mysore Agarbathi Works (supra), as can be seen from the adjudication order, the process followed by the manufacturer in the present case is the same that was being followed by Mysore Agarbathi Works (supra) and both were using the raw-materials, which were pulverised with the aid of power. 17. So, we are satisfied that the Revenue has failed to make out any case or to point out any infirmity in the impugned order. 18. So, we dismiss the appeal.
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1990 (5) TMI 157
Penalty - Conscious possession of contraband goods ... ... ... ... ..... artment had made to find out the whereabouts of Promotosh Bhowmik of Belonia. The appellant is not expected to know the houses of all his customers. The department could have taken the permission of the Magistrate to take the appellant along with them to Belonia and to make an enquiry in his presence as the appellant had stated that he can identify him if shown. In such circumstances the fact that appellant had not produced Promotosh Bhowmik is not a factor which goes against him. In short, we are convinced that from the facts and circumstances of this case, there is only a strong suspicion against the appellant and the probabilities in this case are not in favour of the department, that the appellant was in conscious possession of the contraband gold and pencils found in the briefcase. 23. Accordingly, we extend the benefit of doubt to the appellant in the above two cases. These two appeals are accordingly allowed, and the appellant is entitled for the consequential reliefs.
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1990 (5) TMI 156
Refund - Duty paid under protest ... ... ... ... ..... ourt further observed as under ldquo We do not see any good reason to preclude such decisions on matters in controversy in writ proceedings under Arts. 226 or 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest. We therefore, hold that, on the general principle of res judicata, the decision of the High Court on a writ petition under Art. 226 on the merits on a matter after contest will operate as res judicata in a subsequent regular suit between the same parties with respect to the same matter. 11. It is also well-settled that the principles res judicata and constructive res judicata are applicable in quasi-judicial proceedings. 12. Therefore, I am of the view that there is no merit in the appeal and the same has to be dismissed and I respectfully agree with the finding of my learned Brother.
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1990 (5) TMI 155
Import - OGL ... ... ... ... ..... act dated 18-12-1986 were made from time to time in respect of price, period of shipment and the last date of opening the letter of credit. The contract was, therefore, not a firm contact. 29. I agree with the finding of Ms. Maruthi that the rate of duty applicable in this case would be the rate prevailing on the date of filing the Bill of Entry and that the benefit of Notification No. 250/88 dated 16-9-1988 was not admissible. 30. In the circumstances, I also dismiss the appeal. Assent per V.P. Gulati, Member (T) . - 31. I agree with the findings of the learned Members that the contract dated 18-12-1986 cannot be held to be firm contract and, therefore, the goods could not be imported under OGL (Appendix 6 of the Import Policy 1985-88) for the reasons recorded by the learned Members. I also agree with the findings above that benefit of Notification No. 250/88 dated 16-9-1988 was not admissible for the reasons set out in the order recorded by learned Member Miss S.V. Maruthi.
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1990 (5) TMI 154
Drugs - Countervailing duty ... ... ... ... ..... cal conforming to Pharmacopoeial standards. As we have seen above, Cimetidine does conform to Pharmacopoeial standards. The Explanation also indicates that it should be used for treatment, mitigation or prevention of diseases in human beings. The literature cited above also indicates that it is so used. The appellants have explained that they used Cimetidine as single ingredient formulation in the manufacture of Cimetidine tablet and injection. In view of such an evidence put forth by the appellants, the mere fact that it was included in the Indian Pharmacopoeia only on 1-1-1985 could not be sufficient ground to hold that before that date it was not a bulk drug especially when the Explanation-I to the notification does not indicate that what is required is chemical conforming to Indian Pharmacopoeial standards. In this view of the matter, we hold that the Cimetidine imported is eligible for exemption for CVD purposes in terms of Notfn. 234/82 and accordingly allow the appeal.
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1990 (5) TMI 153
... ...
... ... ..... 73Q(1) of the Rules only and the Show Cause Notice is not issued indicating the provisions of Rule 209 of the Rules. The order of confiscation, therefore, cannot be sustained and has to be set aside. 14. The question that, however, requires to be considered is whether the quantum of personal penalty of Rs. 5,00,000/- is justified. 15. There is admittedly no allegation of clandestine removal, or evasion of duty. The duty amount has already been paid. It is also found from the records that the local officer, for some reasons or the other, though aware of the irregularity, winked at the same and permitted that to continue. Thus there was also some contribution from the local departmental officers in this regard. In our view, therefore, some leniency is called for. Considering the same, we hold that the penalty amount be reduced to Rs. 50,000/-. 16. With modifications as above, the order appealed against is confirmed and the appeal is disposed of. Consequential reliefs to follow.
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1990 (5) TMI 152
Electronic goods ... ... ... ... ..... he same concessional rate of duty. It would be interesting to note that there is a decision of the Bombay High Court in 1989 (44) E.L.T. 420 (Bom.) - Vishal Electronics Pvt. Ltd v. Union of India, wherein it has been held as under ldquo Exemption mdash Interpretation of mdash Exemption to TV Camera does not mean exemption photographic lenses mdash Customs Tariff mdash Notification No. 172/77-Cus. dated 8-8-1977 mdash Exemption to goods under Heading No. 85.15.1 - Exemption notification not construable to apply to goods not specified therein mdash Hence, benefit of notification to Television Cameras under Heading No. 85.15.1 not extendable to lenses covered under Heading No. 90.02 on presumption of Central Government intendment to extend benefit of instruments to components mdash Section 25 (1) of the Customs Act, 1962. rdquo Applying the above ratio, what is applicable to a main machine cannot be extended to a part. As such, therefore, the appeal having no merits is rejected.
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1990 (5) TMI 151
... ...
... ... ..... of Appx. 3. We are, therefore, of the considered view that spare parts which are chilled cast iron roll imported by the appellants comes within the purview of Appx. 10(4) and it is not included either in Appendices 4,6,7 and 8 or Appendices 3,4,15 and 30. Therefore, the importation was not hit by Appx. 3, Sl. No. 446, as contended by the Department. In such circumstances, we are of the considered opinion that the order of the Collector upholding the order of the Ld. Deputy Collector of the Customs passed on 30-7-1984 by upholding that the goods under clearance which is chilled cast iron roll appeared in Appx. 3, Sl. No. 446 and that the same did not fall within the purview of Sl. No. 4 of Appx. 10, is not correct and accordingly, the same is set aside and the appeals are accepted. In view of this finding on point Nos. 2 and 3, point No. 4 does not survive and the appeals are accordingly accepted. It is hereby ordered that the spares in question be returned to the appellants.
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