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Case Laws
Showing 61 to 80 of 227 Records
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1991 (10) TMI 231
Winding up - Suits stayed on winding-up order ... ... ... ... ..... nal interest. They have to wind up also, along with the winding up of the company. Thus, this court declares the opposite party a defaulter for not paying rent to the official liquidator and further declares him a trespasser and renders him liable to eviction and to be faced with a decree (a) for eviction (b) for rent due as between September 1, 1984, to June 30, 1985 (c) damages thereafter as until the date when possession is delivered to the official liquidator or under execution to the executing agency at the rate of double the amount that represented rent, i.e, instead of Rs. 50, Rs. 100 per month. The decree shall be drawn up by the High Court under section 634 and section 635 of the Companies Act and sent to the District Judge, Faizabad, for execution. The High Court allows this application of the official liquidator under section 446 of the Companies Act, 1956, and section 20 of the U.P. Urban Buildings (Regulation of Letting. Rent and Eviction ) Act, 1972, with costs.
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1991 (10) TMI 230
Enforcement of orders of one court by other courts ... ... ... ... ..... n section 39 of the Civil Procedure Code, and Order 21, rules 4 and 5 of the Civil Procedure Code and get the order first transferred by the court which made it to the court which is to enforce it and then make an application to execute it. Where the order made by the company court is required to be enforced by another court, a mere production of a certified copy of the order is sufficient without getting the order transferred by the court which is required to enforce the order by taking necessary steps in the same manner as if it has been made by itself. The lower court has committed a jurisdictional error in dismissing the execution petition. For the foregoing reason, I am of the view that the impugned order of the lower court is liable to be set aside. The revision petition is allowed, the order of the lower court is set aside and the lower court is directed to take the execution petition on file and take further steps to enforce the order in accordance with law. No costs.
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1991 (10) TMI 229
Charges – Registration of, Certificate of registration ... ... ... ... ..... eeding against the properties of the first respondent. Mr. Bharucha makes a statement that the petitioners shall proceed first only against the property of the first respondent and that they shall proceed against the property of the second respondent only in the event of their not being able to fully recover their dues out of the sale of the properties of the first respondent. In view of this statement, I am not passing any orders in this behalf. Under the circumstances, the petition is made absolute in terms of prayer (a). The petitioners to give to the official liquidator prior intimation of all steps taken for sale of the property and to appropriate only the amounts recovered by them after complying with the provisions of section 529 of the Companies Act. There will be no order as to costs of the petition. All parties are at liberty to bring in bids. Till the claim of the petitioner is fully satisfied, the interim order of attachment dated 8th January, 1975, will continue.
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1991 (10) TMI 228
Winding up - Suits stayed on winding-up order, Overriding preferential payments ... ... ... ... ..... sions, while leave is granted. It may also be stated that in M.K. Ranganathan v. Government of Madras 1955 25 Comp Cas 344 (SC), it has also been held that, if the secured creditor files a suit for the realisation of his security, he is bound to obtain leave of the winding-up court as provided under the Act, although such leave would almost automatically be granted . In the above circumstances, we feel, after having explained the legal position as stated above, that there is no necessity to specifically mention any conditions stipulated by the Act since even without such mentioning of those conditions, they would apply. After all, under section 446 of the Act, leave is sought for by the applicant, for it to proceed with the above suit against the said company. In the result, the order of the learned trial judge is modified so as to grant leave as prayed for, without specifically mentioning any condition for granting the said leave. The appeal is allowed accordingly. No costs.
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1991 (10) TMI 208
Winding up – Fraudulent preference 7553, Winding up – Avoidance of transfer, etc., after commencement of, Avoidance of certain attachments, executions, etc.
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1991 (10) TMI 207
Official liquidator’s right to summon any person ... ... ... ... ..... ompanies (Court) Rules which this permits the High Court, if it thinks fit to direct that the hearing of any part or any of the matters before it shall be in its chambers. Thus, without prejudice to the powers of the official liquidator under rule 160 which may not be misunderstood as having been waived, as a special case, on the request of standing counsel, the High Court permits the Collector to appear before the High Court on Saturday, November 23, 1991 (which incidentally is a working day), for proceedings in its chambers. Learned standing counsel has suggested this date as, before that, he submits, the Collector may be busy with the on coming bye-elections. The Collector may be accompanied by the Sub-Divisional Magistrate who is otherwise also familiar with the proceedings along with the entire relevant records regarding lands in question. List in chambers on November 23, 1991, at 11 a.m. A copy of this order be issued to the parties on being applied for within 48 hours.
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1991 (10) TMI 206
Remuneration of directors ... ... ... ... ..... ofessional services. The decisions in Stup Consultants Ltd. v. Union of India 1987 61 Comp Cas 784 (Delhi), Ruby Mills Ltd. v. Union of India 1985 57 Comp Cas 193 (Bom) and R.Gac Electrodes Ltd. v. Union of India 1982 52 Comp Cas 288 (Ker), on which learned counsel relied, support the submission made by him that the Central Government acted beyond its powers in fixing an upper limit of Rs. 7,000 per annum on the fee payable to a professional for services of a professional nature rendered by a director, while expressing its opinion that the director concerned possesses the requisite qualifications for the practice of the profession. This petition, therefore, succeeds. In the result, I make the following order (i)Rule made absolute. (ii)That part of the impugned communication certificate dated July 2, 1984, annexure D, which restricts the remuneration payable to the second petitioner for rendering professional services to the first petitioner-company, is quashed. (iii)No costs.
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1991 (10) TMI 205
Inter-corporate investment ... ... ... ... ..... to be the principal business of the company. While so, the company is an investment company within the proviso to section 372(10). It could also be stated that, even in the directory for the year 1985 made by the Directory of Joint Stock Companies in India, published by the Research and Statistics Division of the Department of Company Affairs, Ministry of Industry, Department of Company Affairs, this company has been classified as an investment company. In the 1980 Directory also, the same classification is made. The trial court, therefore, had rightly held that the company is an investment company and as such is entitled to the benefit of the exemption. Finding both the grounds of acquittal to be legally and factually sustainable, this appeal against the acquittal is to be dismissed. In the result, this appeal, in so far as it relates to respondents Nos. 4 and 5, is dismissed as the charge having abated and, in so far as it relates to the other respondents, it is dismissed.
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1991 (10) TMI 204
Circumstances in which a company may be wound up, Winding up - Company when deemed unable to pay its debts
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1991 (10) TMI 180
Classification ... ... ... ... ..... milar and were imported almost at the same time. The Tribunal in Para 2 in Order Nos. 455 to 462/88-B2, dated 27-10-88 had observed as under - ldquo On consideration of the entire material before us, we are of the view that the ratio of the decisions relied upon by the learned Consultant for the appellants and referred to supra is applicable to all fours to the issue that arises for determination in the present appeals before us. Following the ratio of the aforesaid rulings, we hold that the appellants would be entitled to the benefit of Notification No. 172/77-Cus. cited supra in respect of the goods in question. In this view of the matter the appeals are allowed. rdquo 4. emsp In view of the earlier decision we set aside the impugned order and hold that the appellants would be entitled to the benefit of the notification No. 172/77-Cus., dated 8th August, 77. In the result the appeal is allowed. The revenue authorities are directed to give consequential effect to this order.
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1991 (10) TMI 172
Export - Illegal export - Evidence ... ... ... ... ..... offending goods referred to supra, which also on verification was found to be not correct. Purchase of the goods has been established by a bill which also has been found to be true on verification at Bangalore. 6. emsp The plea in regard to want of jurisdiction has no substance in law. It is a well settled proposition of law that want of territorial jurisdiction would not ipso facto vitiate the order unless plea relating to jurisdiction has been taken at the earliest opportunity. I find that the lower appellate authority has found that during the period from 13-1-1988 to 15-2-1989, the original authority was holding the additional charge of Central Excise Nagapattinam Division when he adjudicated the case. Therefore, taking into consideration, the entire evidence on record, I find that there is no merit in the appeal and, therefore, I dismiss the same. 7. Since the cross-objections filed are in the nature of counter to the appeals, these are dismissed as misconceived in law.
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1991 (10) TMI 171
Modvat credit - Short credit taken by mistake ... ... ... ... ..... ional credit cannot be denied. The differential amount has been taken within four days in this case soon after they realised the mistake. After perusing Rule 57B of the Rules, I find that there is no specific bar in availing of higher notional credit entitled to them merely because the credit was taken at a subsequent date. In any case, in a case like this, where the initial credit was found to be taken wrongly and the mistake is sought to be rectified within a matter of four days, the higher notional credit cannot be denied to them. I also note the citation made by the Ld. Advocate in the case of Collector of Central Excise v. Mysore Lac and Paint Works Ltd. - 1991 (52) E.L.T. 590 (Tribunal), wherein the South Regional Bench of CEGAT has held that MODVAT Credit once taken does not disentitle the assessee to take additional credit, if it is found that credit taken was short at a later date. In view of this, I allow this appeal and set aside the order of the authorities below.
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1991 (10) TMI 170
Demand - Deficiency detected during stock verification ... ... ... ... ..... e major portion of the shortage in question. The de novo adjudication order is again non-speaking on the alleged shortage of about 2.825 M.T. The explanation tendered in this regard that about 1.6 tonnes represents the production of 9-1-1986 which was lying in the factory had not been taken into account and 1.221 tonnes shortage represented the loss between 20-5-1984 to 10-1-1986 due to evaporation, handling and rounding off of quantity has not been considered in the order and needs to be examined. Hence, I remand the matter to the adjudicating authority for de novo adjudication of the matter on the limited question of alleged shortage of this 2.825 Metric Tonnes. As the appeal has been allowed in so far as the major portion of the shortage of 37.868 Metric Tonnes is concerned, the appellants would be entitled to the consequent reliefs as they had deposited the total duty and cess demanded before the hearing of their first appeal. 11. The appeal is allowed on the above terms.
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1991 (10) TMI 169
Stay/Dispensation of pre-deposit ... ... ... ... ..... other hand, pleaded that the applicants could send the inputs directly to the job workers only after 20-6-1986. Even for that, the prescribed procedure is there. Even this procedure has not been followed. Credit cannot be taken merely on the basis of duty paying documents. Demand has been issued only under Rule 57-I and not under Section 11A. 4. After hearing both the sides, we find prima facie that the Department, having accepted the order of the Collector (Appeals) treating the notice as under Section 11A and holding such a notice as ab initio void and issued without jurisdiction, ought to have issued a fresh notice for adjudication. The applicant seems to be having an arguable case on merits. In the circumstances, we direct the applicants should be give an undertaking to keep balance in RG 23A an amount of Rs. 86.00 lacs, till the disposal of the appeal and on compliance with this requirement, there shall be stay and waiver of recovery of both the duty and penalty amounts.
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1991 (10) TMI 168
Exemption to SSI Units ... ... ... ... ..... ns who owned the brand name ldquo CINNI rdquo which was being used by the appellants on their products were not engaged in any manufacturing activity, on the ratio of the Tribunal rsquo s decision quoted above we hold that they were not eligible for exemption under Notification No. 175/86 and for this reason in terms of Para 7 of the Notification the exemption under the notification could also not be availed by the appellants. 10. On a plain reading of Notification No. 175/86 we find that eligibility of a manufacturer who affixes the specified goods with a brand name or trade name of another person, to the exemption under the notification has to be decided only in terms of Para 7 and Explanation VIII. In our view, for this purpose, the provisions of paras 3 and 4 and also Explanation IV of the notification to which the Ld. Counsel had referred in his submissions are not relevant. 10. In view of the above discussion, we confirm the order appealed against and reject the appeal.
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1991 (10) TMI 167
Remission of duty ... ... ... ... ..... even before examination of the goods. Delay in payment of duty cannot take away the benefit under Sec. 13 or Sec. 23 of the Customs Act. Because the importer has to pay for the demurrages for the period of delay and is also exposed to the risk of losing the goods if the custodian chooses to resort to auction of the goods under Sec. 48 of the Customs Act. Hence, so long as the conditions laid down under Sec. 13 or 23 of the Customs Act are satisfied and there are evidences to show non-delivery of the goods to the appellants, it has to be construed as a loss in the custody of the custodian and duty remission is to be given. Accordingly, we order that on the appellants furnishing an undertaking that they would pay back the refund amount to the Customs Department, in case the custodian traces the goods at a later date and restores the same to the appellants, refund is to be granted, if it has been claimed within the time limit laid down. Appeal is disposed of in the above terms.
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1991 (10) TMI 166
Adjudication - Demand and penalty ... ... ... ... ..... with intent to evade duty. But no such facts are established in this case as was discussed by us above. Learned Advocate, Shri Bagaria in this connection, relied on the decision of the Supreme Court in the case of Collector of Central Excise v. Chemphar Drugs and Liniments, reported in 1989 (40) E.L.T. 276 (SC) and in the case of Padmini Products v. Collector of Central Excise, reported, in 1989 (43) E.L.T. 195 (SC). The contention of the learned SDK that there was wilful suppression of facts and wilful mis-statement of the facts on the ground that the appellants have removed Venus brand plywood by declaring them as superply III is not established on the circumstances which were relied on by the Department. That being so, the demand is also barred by limitation on this ground also - the demand is not sustainable. In view of the above discussions, this appeal is allowed and the impugned Order confirming the demand and imposing the penalty on the appellant is hereby set aside.
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1991 (10) TMI 165
Classification List ... ... ... ... ..... fore, in view of the decision given by Division Bench, Jaipur, I direct that the petitioner shall appear before the Assistant Collector, Central Excise to decide the classification of the petitioner after hearing him without prejudice to the observations made by the Supdt., Central Excise and Customs. Petitioner shall appear before him on 11-2-1991 and the Assistant Collector, Customs shall decide the matter in accordance with law within a period of 10 days, thereafter. rdquo 10. Therefore, respectfully following the ratio of the above rulings, we set aside the impugned order and remand the matter to the Assistant Collector for de novo consideration of all the pleas of the assessee and follow the procedure laid down under Rule 9B and Rule 173B read with Rule 233B of Central Excise Rules regarding approval of the classification list of the impugned product and pass a reasoned order thereon, after affording full opportunity to the appellants, expeditiously. Ordered accordingly.
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1991 (10) TMI 164
Penalty - Delayed payment of duty ... ... ... ... ..... demand or enquiry from the Department. The show cause notice also does not allege or attribute any mala fides or intention to evade duty against the appellants. Keeping all these factors in mind, I hold that non-payment of duty at the proper time though not permissible under law would not call for a punitive treatment of the kind which would be called for in other cases where goods are cleared without payment of duty. No doubt, the Special Bench of the Delhi Tribunal has in the facts of that case held that imposition of penalty was not called for and that is in appreciation of the evidence in that case. Therefore, keeping all the relevant facts in mind, I am of the view that a nominal penalty for procedural infractions would meet the ends of justice, since the appellant was not actuated by any mala fides or intention to evade payment of duty. In this view, I reduce the penalty to Rs. 5,000 (Rs. Five thousand). But for the above modification the appeal is otherwise dismissed.
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1991 (10) TMI 163
Import - REP licence ... ... ... ... ..... that well before the adjudication, the amendment of the Policy 1988-91 has been made and the licences produced also relate to Import Policy 1988-91. Hence in terms of the amended Policy, when the clubbing is permitted at the time of adjudication by the Collector, even if technically the goods are held liable to confiscation, imposition of heavy redemption fine and penalty are, in our view, not called for. Moreover, there are no grounds for imposing personal penalty, because of the fact that the appellants seem to have taken care to refer to the licensing authority before getting the REP licences transferred for import of ship. Hence no mala fides can be alleged. In any case, when the clubbing facility is made available in respect of the licences issued under 1988-91 Policy, the benefit should have been extended even if at the time of import, these amendments were not in force. Only in this view of the matter, we remit the redemption fine and penalty imposed by the Collector.
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