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Case Laws
Showing 81 to 100 of 385 Records
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1991 (1) TMI 364
Winding up – Suits stayed on winding-up order, Enforcement of orders of courts ... ... ... ... ..... s of sub-section (2) of section 446 of the Companies Act are not applicable. No such proposition is considered in the said cases which are under section 446(1) of the Companies Act. Perusal of the said cases shows that the learned company judge in the said cases had refused to grant leave to the plaintiffs in the said suits to file the suits in the courts having jurisdiction to try the same. In appeal, reversing the said orders, the above High Courts have held that where the company is a necessary party to the suit and where there are other defendants, courts should generally grant leave to file or to continue such suits subject to the condition that the decree in such a suit may not be enforced against such company. In the result, the instant appeal fails and is dismissed. However, in the circumstances, there will be no order as to costs. ------------------------- See Deutsche Bank v. S. P. Kala, Official Liquidator of Sea Transportation Pvt. Ltd. 1991 67 Comp Cas 474 (Bom).
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1991 (1) TMI 349
Compromise and arrangement ... ... ... ... ..... company has been prolonging the proceedings of winding-up petitions and the suits. The object behind the scheme being to delay the progress of the various suits and the winding-up petitions, the conduct of the propounders does not call for any discretion being exercised in their favour. In any case, it is not necessary to dilate on the scheme in great detail as, assuming the scheme to be beneficial to the company and its creditors, the meeting of creditors would still be an idle formality on account of opposition by 100 of the secured creditors, namely, the State Bank of India. In view of the aforesaid discussion, C.A. Nos. 4096 and 4097 of 1989 are dismissed with costs and C.A. No. 653 of 1990 is allowed. The order of stay made on August 3, 1989, is hereby vacated. Costs quantified at Rs. 6,000 to be equally shared by the petitioning creditors of C.P. Nos. 30 of 1987, 149 of 1987, C.P. No. 80 of 1986 and the plaintiffs of Suits Nos. 2003 of 1985, 512 of 1988 and 801 of 1985.
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1991 (1) TMI 348
Shares warrants and entries in register of members, Transfer of Shares – Power to refuse registration and appeal against refusal, Powers of Court to rectify register of members
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1991 (1) TMI 347
Winding up – Overriding preferential payments ... ... ... ... ..... tionment is effected. Another aspect to be noticed is this. The State Bank of Travancore has a charge over the movables. The movables are sold and the proceeds of the sale are available for distribution. The workers can legitimately claim pari passu charge with the State Bank of Travancore also. Therefore, the proper method of apportionment of the proceeds of the immovable as well as movable properties has to be fixed. This also cannot be left to the decision of the KFC. Therefore, in the best interest of all concerned, the sale will have to be conducted by the official liquidator under the supervision of this court. The sale will be free of encumbrances and the KFC will get its charge transferred to the proceeds of the sale. The interest of the KFC, the workmen and other creditors can be safeguarded by adopting this method. The liquidator is directed to move this court for directions regarding the sale of the immovable property. C.A. No. 190 of 1990 is accordingly dismissed.
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1991 (1) TMI 346
Accounts - To be kept by company ... ... ... ... ..... tioner wanted that they may be permitted to take xerox copies of the same. We are in agreement with the learned judge of the Gujarat High Court. It may be mentioned that the same is the situation in the present case also. It appears that a very large number of documents would be referred to in evidence as stated by learned counsel at the Bar. Inspection of the same has already been done. In such a situation, in our opinion, interests of justice would be served in case the respondents are permitted to have xerox copies of the documents applied for. As regards the question of prejudice, suffice it to say that when inspection is already over, the question of prejudice does not arise as everything has come to the knowledge of the respondents. If xerox copies are supplied, in our opinion, there can be no prejudice. In the above view of the matter, the order of the learned company judge calls for no interference. In the result, this appeal is hereby dismissed. No order as to costs.
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1991 (1) TMI 323
Appeal by Department - Classification of goods ... ... ... ... ..... o. E/1438/96-C - M/s. Reliance Cellulose Products v. Collector of Central Excise, Hyderabad, Appeal No. E/1632/83-C - M/s. Kalpana Chemicals P. Ltd v. Collector of Central Excise, Hyderabad, Appeal No. E/1631/83-C - M/s. Sridevi Chemicals v. Collector of Central Excise, Hyderabad and Appeal No. E/131/85-C - M/s. MCA Chemicals v. Collector of Central Excise, Hyderabad are rejected. 21. emsp Before parting with the mater, we recall one of the submissions made on behalf of the appellants/licensees, represented by Shri Joggaya Sharma. During the course of his arguments he pleaded that in the event of the appeals (argued by him) not finding favour with us, the appellants may be granted the benefit of concessional notifications pertaining to Small Scale Industries. We direct that the appellants in these matters, if they so desire may make an application before the Collector concerned. The Collector should then examine the applications and pass orders on them in accordance with law.
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1991 (1) TMI 319
... ...
... ... ..... ped items, though it was for Rs. 3 lakhs, covering the other 4 items. It is an accepted legal proposition that duty on the same item should not be charged twice and so long as there are evidence to show this position, benefit of refund should be given. Taking into account the totality of all these factors, we are of the view that the appellants claim and the evidences produced cannot be dismissed as not inspiring evidence or of a mala fide nature. Taking into account the original duty payment covering various items of import of a complete machinery and the claim being restricted to only 3 short shipped items, which is also duly supported by the suppliers confirmation and the Chartered Engineer s certificate we are inclined to hold that the benefit should be extended to the appellants in respect of these three short shipped items (subsequently cleared on payment of duty again), provided their original refund claim is within time limit. Appeal is disposed of in the above terms.
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1991 (1) TMI 315
Classification ... ... ... ... ..... claim for refund under the Notification No. 55/86-Cus. will be admissible. The main Heading No. 4810.11 or 4810.12 indicates weightage not more than 150 g/m2 weighing more than 150 g/m2 respectively. Even by the grammage indicated in the tariff heading and grammage indicated in bill of entry, the goods will not be disentitled for the exemption. There is no dispute with regard to grammage in these appeals. Therefore the claim for refund is admissible in respect of 8 bills of entry as indicated in the order-in-original which are pertaining to the period March, April and May, 1986. The appellant is also entitled for refund pertaining to the 9th Bill of entry dated 17-5-1988 as the grammage indicated in the Bill of entry is 140 gms. The Notification No. 291 /87 dated 11-8-1987 restricts up to 180 gms. Therefore, this 9th Bill of entry will also be covered by the said notification. The appeal is allowed in respect of refund of all the nine bills of entry with consequential relief.
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1991 (1) TMI 314
... ...
... ... ..... g charges. The interpretation of law has to be a practical one. Taken as a whole, neither the Government nor the importers stand to lose or gain. We see no reason, therefore, to upset the existing procedure and thereby add enormous amount of infructuous work for the customs houses as well as for lakhs of importers. 3. This view was followed by the Tribunal in a recent decision in the case of Collector of Customs v. Hindustan Zinc (Order Nos. 1590 to 1609/90-A, dated 15-11-1990). From the above, it is obvious that there is no prohibition on inclusion of landing charges at actuals for determining the assessable value. 4. In these cases, the bills of entry have only been provisionally assessed and have yet to be taken up for final assessment. In these circumstances, we direct that the bills of entry should be finally assessed including actual landing charges for determining the assessable value. For the reasons set out above, we uphold the impugned order and dismiss the appeals.
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1991 (1) TMI 313
C.P. 3 coating used in manufacture of layer flat ... ... ... ... ..... ty and the unrebutted evidence brought on record by the respondents rsquo learned advocate. No doubt is left that the C.P. 3 coating manufactured by the respondents is clearly a chemical formulation and, therefore the Toluol has been rightly extended the benefit of Notification No. 276/67-C.E. The Test Report relied upon by the appellant-Collector is not categorical. The Report only says that the product bears similarity to paint. It does not say that it is paint. Merely because the mode of manufacture and the application of the product is as that of a paint, it does not mean that the product is a paint by itself. Paint is normally applied to surfaces for the purpose of protection and decoration. It has nowhere been brought on record that these are the two purposes of the product in question. On the other hand, it is clear that the C.P. 3 coating is carbonaceous coating used in the manufacture of layer flat cells. 6. In view of the above discussion, the appeals are dismissed.
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1991 (1) TMI 312
Appeal - Condonation of delay ... ... ... ... ..... ch decision would be applicable in the present case. Considering the method of working or non-working of the Government machinery, the time taken for this exercise cannot be said to be excessive or unnecessary. In the circumstances, we condone the delay of 19 days in filing the appeal and admit the appeal. As, however, the respondents have been pressing that their legitimate refund claim is held up by the Department for unduly long time, we would like to hear the appeal early so that the correct position of law agitated by both sides could emerge. Accordingly, we post the appeal as well as the cross-objection for hearing on 22-3-1991. Before the matter comes up for hearing the appellant Collector should arrange to submit copies of the order-in-appeal relating to M/s. Udyog Co. Pvt. Limited referred to by the Collector (Appeals) in Para 3 of his order, as he has observed therein that the dispute in the present matter is identical to the issue decided by him in the said appeal.
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1991 (1) TMI 311
Remission of duty ... ... ... ... ..... n this case as held by the Additional Collector. Moreover, in the order extracted above the Additional Collector has also indicated that after redemption, the goods may be abandoned by the appellants. This part of the order sounds rather strange because of the fact that the appellants are not interested in clearing the goods and they have indicated that they desired to abandon the goods. Hence the question of permitting redemption does not arise. If the goods have been absolutely confiscated and the Additional Collector thought it to be a case of mala fide import, he could have considered imposition of penalty. However, I am not suggesting that this case warrants imposition of such a penalty. Having regard to the facts and circumstances as discussed above, there is no question of allowing redemption and thereafter asking the appellants to abandon the goods. In this view of the matter also, the order is not sustainable. I, therefore, allow the appeal with consequential relief.
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1991 (1) TMI 310
Appeal - Delayed plea for dispensation of the pre-deposit ... ... ... ... ..... , no stay petition had been filed, even though the matter of stay was argued on the merits of the assessment. When, however, the request was made to be permitted to file a stay petition on the question of financial hardship which factor had not been raised by them earlier, the same should have been allowed. The Collector (Appeals) erred in deciding the appeal without giving them the opportunity prayed for by them to submit their stay petitions and argue them from the stand point of financial hardship. For the foregoing reasons we set aside the impugned order and allow the appeals by way of remand to the Collector of Customs (Appeals), Calcutta for de novo decision after hearing the Stay Petitions to be filed by the appellants. They should file the petitions to the Collector (Appeals) within a period of three weeks from the date of receipt of this order. The grant of stay and allowing the appeals by remand was announced in the open court on 15-1-1991 when the matter was heard.
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1991 (1) TMI 309
Exemption Notification ... ... ... ... ..... fication or rule cannot be denied to him simply on the ground that at the earlier stage of the proceedings no claim was made in this behalf. In any event, we are not expressing any definite views on the eligibility and, if eligible, the quantum of relief due. We would leave this to the Additional Collector for determination. However, if the claim is established, it shall not be denied on the ground that it was not made during the initial adjudication proceedings. On the Tribunal rsquo s decision referred to above, Shri Jayaraman rsquo s submission is that the question there was one of jurisdiction which is not so in the present case. This distinction again is, in our view, not of significance. What is significant is the principle laid down that an additional ground can be raised before the Tribunal if relief on that ground can be granted to the party. 8. The appeal is disposed of in the above terms. The matter is remanded to the Additional Collector with the above directions.
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1991 (1) TMI 308
Marketability - Molten caprolactum recycled from nylon polymer waste not marketable ... ... ... ... ..... e certificate issued by the Gujarat State Fertiliser Corporation who is the sole manufacturer of caprolactum in India to show that caprolactum in molten form is not marketable. In this case also, the test of marketability which is essential for determining excisability has not been satisfied. Even though the appellants have not produced a similar certificate, the certificate issued by the GSFC although to another manufacturer would hold good for the appellants herein also as GSFC is the only manufacturer of caprolactum in India. We are of the view that the process of depolymerisation of nylon polymer waste to obtain caprolactum amounts to recycling and therefore, caprolactum recovered by such process is entitled to benefit of exemption Notification 18/84 dated 1-3-1984 and Notification 36/85 dated 17-3-1985. Following the ratio of the decision in the case of Jagatjit Cotton Textile Mills Limited, we set aside, the impugned order and allow the appeal with consequential relief.
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1991 (1) TMI 307
Goods chargeable to concessional rate of duty ... ... ... ... ..... on and Coding System, it is, in our opinion, permissible to refer to the distinction between low density and high density polyethylene in that nomenclature, since that also is a nomenclature pertaining to International trade and commerce and has since been adopted in India as well. This nomenclature does not use the words lsquo low rsquo , lsquo medium rsquo or lsquo high rsquo density in the relevant headings. However, from the Explanatory Notes, it is clear that polyethylene having specific gravity of less than 0.940 is considered as Low Density Polyethylene and that having specific gravity of 0.94 or more as high density polyethylene. In the absence of any definition of lsquo LDPE rsquo in the Customs Tariff heading or in the Notification 235/85-Cus., we think it is reasonable to adopt the definition given in the Harmonised Commodity Description and Coding System Explanatory Notes. Accordingly, we set aside the impugned order and allow the appeal with consequential relief.
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1991 (1) TMI 306
Classification ... ... ... ... ..... well as in the BTN Explanatory Notes under Chapter 29 will not disqualify the impugned goods from the classification under sub-heading (13) of Heading 29.01/45 of Customs Tariff. The situation would have been otherwise, if the Gallic Acid NF not conforming to pharmaceutical standards had been imported by the appellants and on that basis, claimed the classification as pharmacopoeial chemicals. The reasoning and grounds made out by the appellants are quite sound and they have shown that the imported goods are being utilised for manufacture of drugs which are used for prevention of diseases in human beings or animals qualifying for exemption under Notification No. 234/82-Cus., dated 1-11-1982. Rule 3(a) of Rules of Interpretation of Customs Tariff is applicable to the facts of the case as it is more specific to cover the goods in the instant case. Reasoning given by the Collector is not sustainable and they are liable to be set aside by allowing the appeal. Ordered accordingly.
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1991 (1) TMI 305
Notifications ... ... ... ... ..... subjected to quality control or inspection after consulting the Council. It was contended that if the inclusion of commodities are after consulting the Council, then its exclusion also must be only after consulting the Council, and in the present case notifications were issued without consulting the Council. The submission is devoid of any merit. In the first instance the return clearly points out that notifications were issued only after consulting the Council. Secondly, we are unable to find any merit in the contention that exclusion cannot be without consultation of the Council. Section 16A nowhere provides that powers can be exercised only after consultation with the Council and it is not permissible for the Court to read such restriction while interpreting the statutory provisions. In our judgment, the challenge to the notification is without any substance and both the petitions must fail. 5. Accordingly, both the petitions fail and rule in each is discharged with costs.
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1991 (1) TMI 304
Baggage - Declaration by lady tourist that she had no dutiable goods ... ... ... ... ..... nable in law. The appellant should be allowed the benefit in respect of these goods as permitted under the Tourist Baggage Rules. The appeal is allowed in the above terms. 10. Applying the above reasonings of the Tribunal to the facts of this case, it is seen that there is no plea from the department that in spite of having been asked to give a declaration of the baggage carried by her, she failed to declare the jewelleries in her hand-bag. She merely stated that there was no dutiable goods. In such circumstances, the above said decision squarely applies to the facts of this case. In view of the fact that no list as contemplated under Rule 7(2) was prepared by the officer concerned and in the circumstances of this case, we are of the opinion that the confiscation of the jewelleries and the imposition of the fine are not in accordance with law and, accordingly, the same is set aside. The appeal is accordingly allowed and the appellant is entitled for the consequential reliefs.
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1991 (1) TMI 303
Confiscation and penalty ... ... ... ... ..... e fact that the cavity found was undisputed. 5. For the purpose of proving the contravention under Section 115(l)(a) of the Customs Act, it has to be proved that there existed a cavity which was not usually found in the fishing vessel and the same was designed for the purpose of concealment and the use of the vessel in smuggling the goods. The allegations levelled not duly supported by expert evidence in this regard, would give rise to a reasonable doubt that the cavity may not be of the type, which is contemplated under Section 115(l)(a). A specific defence raised, that this is the cavity which is usual in fishing vessel, has not been controverted. Under the circumstances, the benefit of doubt has to go to the appellant and considering the same, I hold that the order of confiscation and imposition of personal penalty under Section 117 of the Customs Act is not called for. The appeal is allowed and the order of the authority below is set aside. Consequential relief to follow.
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