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Case Laws
Showing 61 to 80 of 240 Records
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1993 (1) TMI 256
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... ... ..... d office of the assessee was carrying on business of manufacturing and selling biscuits, etc., its local branch at Madras also would come within the definition of the term dealer , even assuming it did not carry on business of sale of those biscuits, etc., in Tamil Nadu and it sold, only calendars in Tamil Nadu as stated above. 12.. Therefore, the revision is allowed with costs, the order of the Tribunal, in so far as it relates to the assessment year 1973-74, is set aside and the order of the assessing authority, as confirmed by the Appellate Assistant Commissioner, will stand restored. This petition having been set down on this day, for being mentioned, in the presence of the said advocates, the court delivered the following judgment Originally when the judgment was delivered on October 14, 1992, by oversight counsel fee was not specifically provided. Hence it is posted once again today. In the presence of both the counsel, counsel fee is fixed at Rs. 250. Appeals allowed.
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1993 (1) TMI 255
Whether an authority enjoys immunity from disciplinary proceedings with respect to matters decided by him in exercise of quasi-judicial functions?
Whether the act or omission was committed by the appellant in the course of the discharge of his duties as servant of the Government?
Held that:- Appeal allowed. As for a mere technical violation or merely because the order is wrong and the action not falling under the above enumerated instances, disciplinary action is not warranted. Here, we may utter a word of caution. Each case will depend upon the facts and no absolute rule can be postulated. It is open to the respondent to put forth all defenses open to him in the departmental inquiry which will be considered on its merit.
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1993 (1) TMI 254
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... ... ..... . His tour to U. K. was duly approved by the Board of Directors vide minutes of the meeting dt. 27th Feb., 1984. It is to be further noted that Shri R. L. Kanoria was granted foreign exchange by the Reserve Bank of India by its letter dt. 3rd March, 1984. After conducting his foreign tour Shri R. L. Kanoria even furnished a report to the Reserve Bank of India vide the companys letter dt. 21st June, 1984 giving the entire details as to the parties with whom business meetings were held and talks were conducted. Considering those documents there remains hardly and doubt that the foreign tour undertaken by Shri R. L. Kanoria was not for business purposes. We may mention here that while directing the Assessing Officer to delete the disallowance, the CIT(A) also considered those documents and then only he recorded his order for deletion. On this point, his order appears to be justified. We accordingly confirm it. 55. The appeal is treated as partly allowed for statistical purposes.
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1993 (1) TMI 253
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... ... ..... spondent to deny any part of the agreement and if we have found that the defend ant-appellant is bound by the arbitration clause of the agreement, we have no reason to hold that the plaintiff-respondent is not bound by it. We propose to adopt the direction of the Supreme Court in the case of Union of India v. Prafulla Kumar, , we accordingly direct the appellant to forthwith ensure nomination of an arbitrator by Engineer-in-Chief and the arbitrator nominated by the Engineer-in-chief to issue notice to the parties and to proceed to decide the dispute aforementioned in accordance with law. The appeal is accordingly allowed. The Engineer-in-chief will appoint the arbitrator within a period of two weeks from the date of receipt of a copy of this order, failing which the arbitrator appointed by the learned single Judge shall be deemed to have been appointed arbitrator and proceed accordingly, according to law. There shall be no order as to costs in this appeal. 6. Appeal allowed.
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1993 (1) TMI 252
Demand - Limitation - Classification ... ... ... ... ..... -disclosure of the fact that the predecessors of the appellants were also manufacturing the same product does not amount to suppression. Further since the appellants have disclosed the fact that they have taken on lease of the premises and machinery of M/s. Chandra Industries by enclosing a copy of the lease deed, we feel that it was within the knowledge of the Department that the predecessors of the appellants were also manufacturing the same commodity in the same premises as it was rightly argued by the Counsel for the appellants. Since the appellants have given information about taking lease of the premises and machinery as early as on 20th January, 1982, the Department ought to have made proper enquiry and to take steps to raise the demand within the stipulated time. Since the show cause notice was issued at a later stage on 7-3-1984, we are of the view that demand was clearly barred by time. In the result we set aside the impugned order and appeal is allowed accordingly.
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1993 (1) TMI 245
Company – Incorporation of, Membership of, Directors - Power of
... ... ... ... ..... counsel appearing in placing in meticulous and forthright manner relevant facts and law before the court for its consideration. The written submissions submitted have also been of great assistance to the court. In the result, the chamber summons is made absolute in terms of prayers (a) and (c ). So far as prayer (b) is concerned, liberty is granted to the plaintiffs to cure the defects by reverifying the plaint in accordance with the law and provisions of Order 6, rule 15 of the Code of Civil Procedure, 1908, within a period of two weeks failing which the prothonotary and senior master of this court is directed to return the plaint to the learned advocates for the plaintiffs as defective. In the circumstances of the case, there shall be no order as to costs of the chamber summons. Mr. Diwan, learned counsel also appearing for the plaintiffs, applies for stay of operation of this order for a period of two weeks. Since there is no merit in the application, the same is rejected.
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1993 (1) TMI 244
Inspection of books of account, etc., of companies ... ... ... ... ..... the books of account and papers of the company in question. If that is so, it is rather strange for P.Ws.-1 and 2 to expect the first accused/revision petitioner to comply with section 209A of the Act warranting to launch the criminal prosecution against him. As stated above, all the above said legal aspects have been totally overlooked by both the courts below in maintaining the judgment of conviction and sentence, which in my firm view, is clearly an erroneous approach, cannot be sustained and, therefore, the instant case totally warrants the interference of this court to set aside the said judgment of conviction and sentence recorded by both the courts below. In the result, the revision case succeeds and accordingly it is allowed. The conviction and sentence recorded by both the courts below against the revision petitioner are hereby set aside and the accused is set at liberty. The fine amount paid, if any, is directed to be refunded to the revision petitioner immediately.
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1993 (1) TMI 243
Circumstances in which a company may be wound up, Winding up - Company when deemed unable to pay its debts, Restrictions on payments, Contracts in evasion of Act
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1993 (1) TMI 242
Auction sales at higher offer - Held that:- Appeal allowed. Keeping in view the interest of the company and the creditors and the' workmen to whom the sale proceeds would be applied, the company judge was right in exercising her discretion to reopen the auction and directing Mr. Shantilal Malik as well to make a higher offer than what was offered by the appellant. In every case it is not necessary that there should be fraud in conducting the sale, though on its proof the sale gets vitiated and it is one of the grounds to set aside the auction sale. Therefore, the discretion exercised by the learned single judge cannot be said to be unwarranted. Thus the Division Bench of the Calcutta High Court committed manifest illegality in interfering with the order of the learned single judge. The appeal is allowed. The order of the Division Bench is set aside.
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1993 (1) TMI 233
Winding up – Company when deemed unable to pay its debts ... ... ... ... ..... in Shanmugam s case 1991 70 Comp. Cas. 440 . We hold, therefore, that in the facts of this case, the BIFR has no jurisdiction to initiate and entertain the proceedings relating to the company in liquidation. For the reasons aforesaid, we are not inclined to grant any stay of the operation of the order of the learned trial court dated September 7, 1992, and the appellant should comply with the direction contained in the said order and may apply to the trial court for extension of time to make payment of the remaining instalments. This application is, therefore, dismissed. In the facts and circumstances of the case, there will be no order as to costs. Counsel for the appellant submits that in view of the judgment and order made today, nothing remains in the appeal and the appeal need not be kept pending. The appeal is treated as on day s list and the appeal stands dismissed for non-prosecution. We affirm the judgment and order under appeal. Samaresh Banerjea. J. mdash I agree.
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1993 (1) TMI 217
Whether decisions taken at the extraordinary general meeting dated July 24, 1992, and the offer made by the appellant-company in pursuance thereof-are prejudicial to the interest of the shareholders including the financial institutions ?
Held that:- Grievance made by Sri Govinda Mukhoty, learned counsel for Sri Ashok Singh complained that this court should not pass orders even before his client had an opportunity of filing a counter to S.L.P. No. 148 of 1993 unable to see any substance in the said grievance. Firstly, the order under appeal was an ex parte order made without hearing the appellant-company. Secondly, we are not taking into account any other facts than those on record in the appeal (arising from S.L.P. No. 148 of 1993). We have also heard Sri Mukhoty at length who placed all the aspects before us. At the same time, we cannot but observe that Mr. Mukhoty's client chose to rush to the court even without approaching the financial institutions beforehand. It is not as if he first approached them and tried to convince them of the inadvisability of responding to the said offer. The presumption is that every person (including a public financial institution) knows his interest best and until the contrary is established, whether at interlocutory or final stage, orders of restraint may not be advisable.
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1993 (1) TMI 216
Amalgamation ... ... ... ... ..... s Representation aforesaid inviting the non-allottees of shares of Spring Steels Limited who have not yet got refund, to make applications in that regard and within three months refund to the applicants shall be made accordingly out of the funds separately invested in a bank account as contemplated in clause (c) above. (e)The transferor company, Spring Steels Limited, Gwalior, shall continue for the time being with undissolved status and it shall not be wound up for a period of one year as represented by the Central Government to allow the Registrar of Companies or the Central Government to take necessary action against the said company in regard to violations complained of sections 67 and 68 of the Companies Act, if so advised. (f)The amalgamation shall be effective subject to the above conditions being satisfied and not from the date of this order. Let steps be taken now by the Registry to issue the order in the statutory form incorporating therein the conditions aforesaid.
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1993 (1) TMI 202
Winding up – Liability for fraudulent conduct of business, Power of court to assess damages against delinquent, directors, etc.
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1993 (1) TMI 194
Confiscation and penalty - Telephone instruments ... ... ... ... ..... ms Act, 1962 are not attracted against the bank. The case law cited by the learned Counsel is distinguishable on facts. In the case of Bank of Madura v. Collector of Customs, Madras reported in 1987 (28) E.L.T. 396 the Bank of Madura did not file the bill of entry. In the case of Prem Rattan and Shadi Lal v. Collector of Customs reported in 1990 (50) E.L.T. 265, the financier did not file any bill of entry for the import of the goods. However, in view of our finding that M/s. J and K Bank was not guilty of any act of commission or omission in relation to the import, we set aside the penalty imposed thereon. 18. emsp In the result we hold as follows (a) The imported goods are confiscated with an option to redeem the same on payment of a fine of Rs. 5 lakhs. (b) The personal penalty imposed on M/s. Suneel Communications is reduced to Rs. 75,000/- (c) The penalty of Rs. 50,000/- imposed upon M/s. J and K Bank is set aside. 19. emsp The appeals are disposed of in the above terms.
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1993 (1) TMI 185
Return of duty paid goods for sorting, repacking and pre-folding ... ... ... ... ..... I find this objection not sustainable. The object of Rule 173L is to avert double payment of duty on the same goods. No doubt Rule 173H is also meant for this purpose. However, the distinction is that in the case of goods which are to be reprocessed and re-made and manufactured, Rule 173L could be easily pressed into service, whereas in the case of Rule 173H normally the goods are taken out in the same condition as they were brought. The distinction in both the rules contemplated is averting payment of duty on the same goods twice. If this principle is kept in view, the objection raised by the Department may have to be over-ruled. Moreover, Rule 173L itself indicates not only remaking and reconditioning but also extends to other similar processes. In that view, even repacking and prefolding could be brought in within the purview of Rule 173L. In view of this, I find no reason to interfere with the order of the Collector (Appeals). Hence, I reject the appeal from the Revenue.
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1993 (1) TMI 184
Non-alcoholic beverages - Confiscation of goods - Redemption fine and penalty ... ... ... ... ..... months in the present case. 20. As regards the imposition of redemption fine on the seized goods viz. 3893 Cartons of Soya Product, it has been argued by the learned Advocate that the imposition of fine is not justified as there is no mens rea on their part to evade the duty. In this context the learned SDR has stated that there is no need to place proof of mensrea as the product was dutiable in the seizure and imposition of redemption fine is justified in the peculiar facts of the present case. We find that this imposition of redemption fine is not justified as the party were clearing the goods after only having filed the Classification List and they have not done any act with a view to evade payment of duty intentionally. We are not inclined to confirm the imposition of penalty of Rs. 10,000/- and we are strengthen in our view by the observations made by the Supreme Court in the case of Hindustan Steels Ltd. (Supra). In the result, the appeal is allowed in the above terms.
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1993 (1) TMI 183
Modvat Credit ... ... ... ... ..... p After hearing both the sides, I find that as per the Board rsquo s stipulation, gate pass is to be endorsed in favour of the assessee, who takes modvat credit. Only such endorsed gate pass is recognised as duty payment document for purpose of the credit in terms of Rule 57G of the Central Excise Rules. However, mere non-endorsement cannot deny the modvat credit since it is a remediable defect. Hence, I would deem it proper to direct the appellants to get the Gate Pass endorsed or to produce a certificate from M/s. Sanghvi Steel, Bombay to the effect that the entire consignment covered by the aforesaid Gate Pass has been transferred to the appellants and no modvat benefit was availed of in respect of the said consignment by any one else. On the basis of such endorsement on the Gate Pass, the Department may cause such enquiry as necessary and allow the modvat credit if the said gate pass has not been utilised for modvat benefit elsewhere. Appeal is allowed in the above terms.
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1993 (1) TMI 182
Refund of duty on returned goods ... ... ... ... ..... erating under Rule 173L. If it were the general application of Rule 173L, the Collector would not have restricted this permission only for a period of six months. Moreover, when the Collector gave the permission, obviously he has taken into account that the goods do not go into market stream and hence the question of ascertaining the market value in the facts and circumstances of the case would not arise. In view of this, when the rejected goods, on inspection carried out in their own premises, are returned back, there is no requirement for ascertaining the market value of these goods, especially when the admitted position is that these goods have never entered into the market stream. In view of this and going by the Collector rsquo s permission granted, I find that the objection taken at a later stage on the ground of market value, is not sustainable. I, therefore, see no reason to interfere with the order of the Collector (Appeals). The appeal from the revenue is dismissed.
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1993 (1) TMI 181
Demand - Limitation ... ... ... ... ..... f quantity, penal provisions would have been normally involved. Moreover, there is no dispute that 12 MTs. were accounted for on 11-9-1981 and cleared on payment of duty subsequently. There are no evidences to show that the excess production of 12 MTs. alleged to have been not accounted in RG 1 on 7-9-1981 have been cleared and the subsequent accountal of 12 MTs. on 11-9-1981 is a fresh production. No discussions are available on this aspect. The appellants have explained that only after stitching of the bags, they used to account for in RG 1 and hence after stitching the bags, they have accounted for 12 MTs. on 11-9-1981. This explanation has to be accep- ted in the absence of any evidence to the contrary. Moreover, this is a solitary case and not a series of wrong entries in RG 1 and the possibility of error in production report of the quantity nor bagged and stitched cannot be ruled out. In any case, benefit of doubt is required to be given. I, therefore, allow the appeal.
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1993 (1) TMI 180
Refund on return of damaged goods for re-processing ... ... ... ... ..... ry at Induri without taking any permission from the Department, then the position may be somewhat different. Here they have approached the Collectors at Bombay as well as at Pune and obtained permission for transferring the defective goods received in Thane factory to their Induri factory for re-processing subject to certain conditions. Hence the factory in which the defective goods could be deemed to have been received for re-processing as approved by the Department in this case is the factory at Induri, when reprocessing has been done within six months from the date of re-entry of the goods at Induri factory, that should be deemed to be the compliance of the requirement of sub-rule (3) of Rule 173L. There is no allegation that no re-processing has been done within six months of re-entry of the goods in their Induri factory and accountal of re-processing not rendered within six months from the date of entry of the goods in Induri factory. In view of this, I allow the appeal.
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