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Case Laws
Showing 61 to 80 of 308 Records
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1993 (9) TMI 315
Whether the expression "wheat" in section 14(i)(iii) of the Central Sales Tax Act, 1956 (Act) includes flour, maida and "suji"?
Held that:- It is obvious that if Parliament proposes to treat flour, maida and suji also as declared goods, it can always say so, by effecting necessary amendments.
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1993 (9) TMI 309
Section 38 of the Haryana General Sales Tax Act, 1973, and rule 53 of the Haryana General Sales Tax Rules, 1975 struck down as unconstitutional
Held that:- Appeal dismissed. The said section 38 was beyond the purview of the State Legislature. Therefore, the said section 38 must be held to be ultra vires and bad in law. Consequently, all rules and forms in the said Rules related to the said section 38 must also be held to be bad in law.
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1993 (9) TMI 304
Winding up – Company when deemed unable to pay its debts ... ... ... ... ..... ll pay the amount of bills to the petitioners and for such payment he is authorised to act on the certified copy of the minutes of order. In the event of the amount so deposited being insufficient to cover the bills of the petitioners, then the respondent-company shall deposit the difference in the court, within a week from the intimation to that effect from the petitioner s advocate. If the amount so deposited is in excess of the amount of the bills of the petitioners, the prothonotary and senior master to retain the amount in court till further orders, with liberty to the parties to apply. (4)As far as other two creditors are concerned, named above, it is clarified that this order would not affect their independent remedy available. (5)The respondent-company shall pay the costs of this application to the petitioners, in separate sets in each petition. (6)The respondent-company s advocate to get the judge s summons duly registered. (7)Issuance of certified copy is expedited.
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1993 (9) TMI 303
Company Court ... ... ... ... ..... knowing whether it ought to have been evidenced by one witness, we have to fall back on the provisions of rule 17 of Order 5, which does not lay down that if the serving officer does not get the affixation witnessed from any witness then such affixation will be ineffective. On the contrary the word if any used in rule 17 of Order 5 of the Civil Procedure Code, 1908, clearly shows that the Legislature had in mind that circumstances can arise when it will be difficult for the serving officer to find a witness. In such an eventuality, the affixation done without being evidenced by any witness will not be declared ineffective or bad in law. Unless specifically ordered otherwise the service effected by way of affixation on the respondent even without being evidenced by a witness such a service will not be treated as invalid service. Hence, the order passed earlier treating it to be invalid service is hereby revised and it is ordered that the respondents have been properly served.
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1993 (9) TMI 293
Custody of company’s property - Sale to be subject to confirmation by court - Held that:- If the amount was not already deposited in any interest earning deposit or securities, the learned company judge or the official liquidator is free to deposit the amount, till the auction is finalised. In the event of the appellant not becoming the highest bidder, the equities in respect of his deposit regarding interest may be worked out and adjusted by the learned company judge.
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1993 (9) TMI 292
Persons resident outside India, Restrictions on dealings in foreign exchange ... ... ... ... ..... should be reduced in each of the cases to a sum of Rs. 1,000. Thus, the penalty of Rs. 26,500 has to be reduced to Rs. 5,000. In the result, the following order is passed (i)The order of the learned single judge that the notifications issued by the Reserve Bank of India and the Union of India as per annexures H and A are ultra vires and are liable to be quashed, is set aside. (ii)The order of the learned single judge setting aside the levy of penalty is set aside. (iii)The levy of penalty made by the authority is sustained, but nevertheless the quantum is reduced to Rs. 1,000 in each case in all to Rs. 5,000. (iv)The parties are directed to bear their own costs throughout. The appeals are allowed only to the extent indicated above. After the judgment was pronounced a request was made to grant leave to appeal to the Supreme Court. As our judgment is based on well established principles laid down by the Supreme Court we do not find this a fit case to grant leave. Hence refused.
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1993 (9) TMI 280
Deficiency - Complainant applied for debentures of respondent-company which were allotted to him vide letter dated 14-8-1984 - Debentures were to be redeemed by respondent at par on expiry of seventh, eighth and ninth year - Respondent did not redeem part of debentures on expiry of the year and showed its inability to do so - A resolution was passed by respondents in their general meeting by which instalments were re-scheduled - It was stated that it was subject to approval of holders of 13.5 secured non-convertible part of debentures, Controller of Capital Issues, Financial Institutions, etc. - It was not shown that approval of resolution had been given by said persons/authorities - Whether said resolution was binding on complainant - Held, no
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1993 (9) TMI 279
Allotment of shares - Prohibition of, in certain cases - District Forum held that collection being far less than 90 per cent of target fixed in consultation with CCI, it was bounden duty of appellant-corporation not to have issued any shares or debentures and instead it should have returned moneys to various applicants within prescribed period with interest - Appellant was, accordingly, directed by District Forum to refund amount received from complainant, together with interest - Whether where convertible debentures were issued to complainant on 15-1-1990, when amended section 69 of Companies Act providing for refund of application money in case of collection being less than 90 per cent of targeted figure fixed with CCI's approval, was not applicable, there was lack of proper application of mind by District Forum while interpreting said provision, and consequently, matter could be remanded for fresh decision - Held, yes
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1993 (9) TMI 278
Winding up – Overriding preferential payments, Company when deemed unable to pay its debts ... ... ... ... ..... t, 1956. (3)A petition for winding up filed against a company shall not be treated as having abated on the ground of initiation of action under sections 16, 17 and 18 or on account of pendency of an appeal under section 25 of the 1985 Act. Such proceedings shall however, be consigned to record and shall not be proceeded with further till the conclusion of the proceedings under the 1985 Act. However, it shall be open to the applicant to continue/revive the proceedings with the permission of the Board. Likewise, it shall be open to the applicant to seek revival after the proceedings under the 1985 Act have concluded. In the result, it is ordered that the proceedings on Company Petition No. 6 of 1991, Union of India v. Krishna Mills Ltd., Beawar, shall remain stayed and shall not proceed further. This petition shall be consigned to record. It shall be taken up for consideration on the basis of any application made by a party in accordance with the observations made herein-above.
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1993 (9) TMI 277
Accounts - Annual account and balance sheet ... ... ... ... ..... Therefore, whatever right chit fund companies enjoy under the Companies Act is not taken away. The period provided under sub-rule (2) of rule 31 is in addition to the period provided under the Companies Act. Therefore, we are of the view that rule 31 also cannot be held to suffer from any infirmity nor is it possible to hold that it is beyond the power of the rule-making authority. We may also point out that these rules are regulatory in nature. They do not in any way take away the right of the foreman nor do those rules impose any unreasonable restrictions in the matter of carrying on trade in chit funds. Therefore, we are of the view that these rules, looked from any point of view, are reasonable and are regulatory. Hence, they are held valid. No other contention is advanced. Accordingly, following the aforesaid decision of the Supreme Court, these writ petitions and writ appeals are dismissed. In the facts and circumstances of the case, there will be no order as to costs.
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1993 (9) TMI 259
Classification ... ... ... ... ..... of Darshan Singh Pavitar Singh - 1988 (34) E.L.T. 631 (P and H) and 1990 (47) E.L.T. 532 (P and H) (D.B.) and the judgment of the Tribunal in the case of Malwa Motor Body Builders reported in 1989 (44) E.L.T. 653. 2. emsp Ld. JDR Shri S.K. Sharma submits that the deptt. has filed an appeal involving the similar issue in the case of Vishal Body Builders - 1998 (98) E.L.T. (A213) 1993 ECR on 5th February wherein the Supreme Court has admitted the SLP, although no stay order has been passed by the Supreme Court suspending the judgment of the Tribunal or of the Punjab and Haryana High Court. Nevertheless he concedes that so far as Tribunal rsquo s judgments are concerned, all have taken a consistent view that the classification of the aforesaid goods would be under Tariff Heading 87.07. 3. emsp Having regard to the aforesaid facts and circumstances and in view of the series of judgments of the Tribunal and the judgment of the Punjab and Haryana High Court, we dismiss the appeals.
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1993 (9) TMI 252
Classification ... ... ... ... ..... ubber and, therefore, would not fall under item 16A of CET. The following exposition of the concept of sub silentio in Salmond on Jurisprudence at pages 153 to 156 is relevant ldquo A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the Court should not have decided in favour of the particular party unless it also decided point B in his favour but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio. rdquo The appeal filed by the Department is, accordingly, allowed.
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1993 (9) TMI 245
Appeal - Limitation ... ... ... ... ..... been filed as the time was running out and cited the case reported in 1988 (38) E.L.T. 739 (S.C.). 5. emsp We have considered the submissions. The impugned Order-in-Appeal was communicated to the Collector on 16-9-1992 and the appeal was received in the Registry of this Tribunal on 8-1-1993. Thus there was a delay of 41 days as the period of limitation prescribed for such appeal is three months from the date of communications. 6. emsp The grounds put forth as above for condoning the delay are supported by the Certificate of Addl. District Magistrate, Meerut and the Date Sheet for the period for 4-1-1993 to 28-1-1993. Thus we are satisfied that there was sufficient cause for delay. Needless to say that the judicial notice can also be taken of the fact that even after the lifting of the curfew, the effected part of the country which includes Meerut also remained tense for substantial period on account of the demolition of the structure. In the result the application is allowed.
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1993 (9) TMI 244
Demand - Show cause notice - Valuation ... ... ... ... ..... aid discount in determination of the assessable value were and are fully satisfied. He, therefore, submits that a special discount passed on by the appellants to the customers should be allowed. 2.20 emsp Opposing the contentions of the learned advocate, learned JDR submits that the sample invoices at pages 87, 88 and 90 of the Paper Book No. III reflect no policy of the appellants regarding giving of such discounts because different discounts are given for different reasons. He, therefore, prays for disallowing the same. 2.21 emsp We have considered the submissions of both sides on this issue. The allowance and nature of discount is clearly known at the time of removal or prior to the removal of the goods. Special discount claimed by the appellants, therefore, fully satisfies the ruling given by the Supreme Court in its clarificatory order of 14th November, 1983 1984 (17) E.L.T. 329 (S.C.) 1983 ECR 2233-D . Therefore the special discount claimed by the appellants is allowed.
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1993 (9) TMI 243
Classification ... ... ... ... ..... C.C. construction. 6. It is, therefore, difficult to take a view that LYMPO rsquo from its actual usage is not a type of cement. Even the major raw materials used are similar viz. LIME STONE and GYPSUM, though their proportions vary. 7. The ultimate test of classification is how the product is known in the trade parlance. LYMPO is put to practically all the uses to which cement is put - except for RCC construction work. Considering all the facts and circumstances, it appears to be an inferior type of Cement like Sagol rsquo and Asmoh rsquo as held by the Collector - though described as a Cement substitute. When the substitute is so much like the real thing, it is difficult not to hold it as the same. 8. Tariff Item 23 includes all varieties of Cement including products like SAGOL rsquo and ASMOH rsquo . We, therefore, uphold the Order of the Collector of Central Excise, Shillong which is correct in law and is based on facts and circumstances of the case and reject the appeal.
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1993 (9) TMI 242
Modvat credit ... ... ... ... ..... ing that the Modvat credit should not be denied on the above ground. 4. Learned JDR reiterated the order in appeal. 5. emsp Considered. The issue involved is covered by the Board rsquo s Circular (supra). Both the orders of lower authorities were passed prior to the issue of said circular, in the interest of justice the matter is remanded to the Assistant Collector for de novo consideration inter alia in the light of the said circular after following the principles of natural justice after considering gate passes and other documents that may be produced. 6. emsp The appeal is therefore allowed by way of remand.
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1993 (9) TMI 241
Valuation - Inspection charges whether includible ... ... ... ... ..... below - ldquo Inspection/Testing Charges not includible - The Supreme Court Bench comprising Hon rsquo ble Chief Justice of India and Hon rsquo ble Mr. Justice N.P. Singh on 27-7-1992 dismissed Civil Appeal No. 2465 of 1992 filed by the Collector of Central Excise against CEGAT Order No. 796/91-A dated 2-12-1991 reported in 1992 (59) E.L.T. 462 (Tribunal) (Shree Pipes Ltd. v. Collector of C.E.) - The Appellate Tribunal in its order in question had held that when inspection and testing are conducted by DGS and D at the request of specific customers, the inspection charges and additional testing charges are not includible in the assessable value rdquo . 4. emsp In view of the above discussion and the reasons given above, we do not find any reason why the appellants should not get the benefit of the earlier judgment of the Tribunal. Accordingly, we set aside the impugned order and allow the appeals. Revenue authorities are directed to give consequential relief to the appellants.
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1993 (9) TMI 240
Stay/Dispensation of pre-deposit - Demand for duty ... ... ... ... ..... ntrol/levy. This is also confirmed by the Circular issued by the CBEC, under their letter No. 83/12/89, dated 18-9-1989, wherein the Board takes note of the dispute since long and directed the authorities not to enforce the demand, till the matter is finally decided by the Supreme Court. In the circumstances, the allegation that the manufacturing activity was kept away from the scrutiny of the Departmental authorities deliberately does not prima facie appeal to us. This is the prima facie view we have taken in a few other cases, where the demands of duty on industrial alcohol was raised. Hence following the same approach, we direct the applicants to furnish a personal bond covering the duty amounts, within a period of four weeks from the date of communication of this order and report compliance within five weeks failing which their appeals are liable to be rejected. On compliance, there shall be stay and waiver of deposit of the duty amounts, till the disposal of the appeals.
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1993 (9) TMI 239
Modvat - Reversal of credit ... ... ... ... ..... en. The specific description of the said item as has been shown in the declaration filed under Rule 57G did appear on the Gate Passes but the chapter heading given was not tallying with the declaration by the appellants. On this ground only, the reversal of the modvat credit has been ordered. Merely because there is some discrepancy in the gate passes by way of mentioning different chapter heading, which are prepared by the third party, on which the manufacturer has no control, that would not be taken as a ground for denial of credit, when the rest of the description tally. The credit in the instant case is denied on that ground. The approach of the authority below under the circumstances cannot be sustained, and has to be set aside. The order passed by the authority below is, therefore, set aside. When the appellants had not contravened any provisions of law, imposition of penalty is also not justified. The order of penalty is also set aside. The appeal is therefore allowed.
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1993 (9) TMI 238
Adjudication under Gold (Control) Act - Jurisdiction ... ... ... ... ..... s. 21. emsp We could have ignored the technical error in the order in designating the adjudicating officer as ldquo Collector of Central Excise (Adjudication) rdquo when he was really a Director of Publications provided a Notification issued by the Central Government under Section 4 of Gold (Control) Act appointing such Director rsquo s as Gold Control Officer was shown to us, but no such Notifications has been produced or even cited. Therefore, the Department rsquo s contention regarding jurisdiction remains unsubstantiated. In these circumstances, we need not enter into the merits of the case and it is sufficient to observe on our part that the impugned ldquo order rdquo passed by Shri B.P. Verma, Director of Publications, in view of Board rsquo s Notification and orders cited (supra) was without jurisdiction and did not amount to an order passed by the proper officer competent to decide such cases under the Gold (Control) Act, 1968. 22. The case is disposed of accordingly.
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