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Case Laws
Showing 81 to 100 of 320 Records
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1996 (12) TMI 322 - SUPREME COURT
Whether the power of staying assessment proceedings was quasi-judicial in nature?
Held that:- Appeal allowed. Under the terms of rule 37-A, the Commissioner is required to put in writing the "reasons and circumstances" that necessitate the stay of proceedings. The stay of assessment proceedings has consequences of a civil nature upon an assessee, which the High Court has, as aforesaid, noted. The more the time that elapses the more difficult it is for the assessee to prove his accounts and claim set-off, exemptions and the like. We take the view that, in the circumstances, the power under rule 37-A may not be exercised by the Commissioner without first giving to the assessee notice to show cause why his assessment proceedings should not be stayed for a stated period.
The said order states that notice to show cause why the assessments should not be stayed was given to the appellant. The number of the notice is mentioned and its date is stated to be "Nil". The writ petition averred that no such notice had been served upon the appellant. The affidavit in reply to the writ petition did not counter the averment: it stated that no hearing was necessary. The High Court proceeded upon the basis that the notice had not been served, and it held that a notice was not required. As set out above, we do not agree.
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1996 (12) TMI 316 - HIGH COURT OF GAUHATI
Winding up - Company when deemed unable to pay its debts ... ... ... ... ..... opinion, this only gives a presumption that the company is unable to pay its debts. Even without serving such notice if it can be proved that the company is unable to pay the amount the court cannot ignore the fact that the company was unable to pay the amount. It is the case of the petitioner as well as respondent No. 2 that the company is almost defunct. Therefore, merely because the notice under section 434 was not served it cannot be said that the company is not unable to pay its debts. As there are ample materials before this court that the company is unable to pay its debts of the creditors, therefore, in the interest of all creditors, in my opinion, the company should be wound up. In the result, I order that the respondent-company, namely, Nimodia Plantations and Industries Private Limited, be wound up under the provisions of the Companies Act (1 of 1956) and the Companies (Court) Rules, 1959. The parties shall bear their own costs. Let steps be taken according to law.
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1996 (12) TMI 315 - HIGH COURT OF GUJARAT
Winding up - Suits stayed on winding-up order ... ... ... ... ..... before judgment can be sold only when the claim in the suit becomes a decretal debt and the defendant becomes a judgment-debtor. The sale of the property before that, unless it is a decaying property, is not permissible, nor authorised by law. It appears that the learned authority under the Payment of Wages Act has acted more on whims than within the precincts of law. It appears that his attention was not at all drawn to the provisions under which he was asked to exercise the power, else the impugned order in the form in which it is would not have come into existence. The order on the face of it is not sustainable in the light of the provisions of section 17A and deserves to be quashed. Accordingly, this petition succeeds. The impugned order dated June 3, 1985, exhibits B , is quashed. Rule made absolute. There shall be no order as to costs. However, it is made clear that this will not affect the rights of the workman to make a necessary claim before the official liquidator.
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1996 (12) TMI 314 - HIGH COURT OF CALCUTTA
Reconstruction and amalgamation of companies ... ... ... ... ..... aid decisions are clearly applicable. 52. Considering the facts and circumstances of the case, I do not find any impediment in passing the order sanctioning the scheme. It is, however, made clear that the said scheme is sanctioned on the basis of the submissions made on behalf of the petitioner that the shares to the extent of 2,36,910 held by Brooke Bond Lipton India Ltd. will be sold in accor-dance with law within 31-12-1996. 53. There will, accordingly, be an order in terms of prayers (a), (b), (c ), (d), (e), (f ) and (g) of the petition. The Official Liquidator will file his report within eight weeks from the date of communication of this order. There will also be order in terms of prayers (h), (i) and (j ) of the petition. 54. The petitioner will pay costs assessed at 250 gms. to the Central Government. 55. All parties and the Official Liquidator are to act on a signed copy of the operative part of this judgment and order on the usual undertaking. SCL q JANUARY 20, 1998
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1996 (12) TMI 299 - HIGH COURT OF ANDHRA PRADESH
Amalgamation ... ... ... ... ..... as to the selling value of the shares by the trustee, Mr. Kodandaram, the learned counsel for the transferor company says that the trustee will sell the shares at a fair price after obtaining a valuation report. 10. Accordingly para 8(2) of the scheme shall be modified to the effect that the trustee will sell the shares at a fair price after obtaining the valuation report. With the above modification, the scheme is sanctioned and the petitions are ordered accordingly. Certified copy of the order shall be delivered to the Registrar of Companies within 30 days to take all consequential actions in respect of dissolution of the transferor compa- ny. A copy of the scheme of the amalgamation order shall be attached to this order. The office will draft the order in Form No. 42. Parties to the scheme or any other person interested shall be at liberty to approach this court for any other direction that may be required for carrying out the scheme of amalgamation. S CL q DECEMBER, 1997
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1996 (12) TMI 298 - HIGH COURT OF GUJARAT
Penalty for wrongful with holding of property ... ... ... ... ..... above view of the matter, it is indeed not possible for this court to accede to the request of Mr. Champaneri to take a technical and lenient view in the matter, and thereby to admit and allow this matter. Any way, since December is rushing to an end within three weeks and further since learned counsel Mr. Arun Mehta appearing for the complainant-company was graceful enough not to have any objection if the occupation of the quarters is extended till January 15, 1997, this court subject to this little modification, viz., that the petitioner shall file an undertaking in this regard, granted time to vacate the company premises by January 15, 1997. The petitioner shall file such an undertaking within a week before this court. It is further made clear that in the event of breach of the undertaking the petitioner shall be straightaway liable for contempt of court. With these observations, this criminal revision application fails and the same stands dismissed at the admission stage.
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1996 (12) TMI 296 - HIGH COURT OF RAJASTHAN
Share certificates - Issue of, ... ... ... ... ..... t relief to the aggrieved persons can be granted only at the place where the office of the company is located. Such an approach would frustrate the very purpose of the relevant provisions in the Act and in the other allied Acts. The objection raised is overruled. 6. In view of the discussion made hereinabove, I find no force in this petition. It is dismissed as such as the impugned order neither amounts to abuse of the process of the Magistrate s Court nor perpetuates injustice. It is, however, made clear that the petitioner would be entitled to raise and argue all such objections (save the objection against the order of taking cognizance of the case under section 113 and jurisdiction of the Magis-trate s Court) as have been raised in this petition at the time of final arguments by the trial court in the case and the trial court would decide such objections on their own merits. The delay caused in the trial of the case is attributed to the accused-petitioner. SCL q JUNE, 1997
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1996 (12) TMI 294 - SUPREME COURT
Whether the respondent has committed any breach of the terms and conditions of the agreement?
Held that:- Any scheme which the Board may frame under the said Act will be subject to this undertaking given by the appellant to set apart the amounts realised under the bank guarantees in question for meeting any validly adjudicated claims of the respondent against the appellant under or arising from the said contract. If any scheme is required to be framed, the Board shall take into account this undertaking while framing the scheme.
As both sides are agreed that for a speedy resolution of their disputes they are willing to refer all their disputes under or arising from the said contract to the sole arbitration of Justice R.M. Sahai, a retired judge of this court. We accordingly refer all disputes between the parties under or arising from the contract to the sole arbitration of Justice R.M. Sahai (Retd.). The arbitrator may fix his remuneration in consultation with the parties. The parties shall obtain appropriate directions from the learned arbitrator in connection with the filing of claims, replies, etc., in accor-dance with law.
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1996 (12) TMI 280 - CEGAT, CHENNAI
... ...
... ... ..... that in terms of the above decision, the above element is not includible in the assessable value. 3. emsp The learned DR fairly concedes that the issue involved in this appeal is squarely covered by the above said decision of the Tribunal against the revenue. 4. emsp We have considered the submissions made by both sides. It is now seen that the Larger Bench of the Tribunal had held in the above cited case that Modvat credit taken by the appellant on the raw materials which are in turn used for the manufacture of the final product is not to be included in the assessable value of the final products in question. Respectfully following the above said decision, we allow the appeal with consequential reliefs.
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1996 (12) TMI 279 - CEGAT, MUMBAI
Demand - Clandestine removal ... ... ... ... ..... g that they are the makers of the goods in which context the claim of outside purchase becomes questionable. In the circumstance on an overall consideration evidence of record the reasons given in the impugned order is sustainable for demanding the duty. However, we find that the penalty imposed on the firm which is a proprietory concern as well as on the proprietor Shri Tarachand Agarwal is bad in law. Therefore, we set aside the penalty on the firm M/s. Agarwal Electricals in the above said reason. As regards the appellant on the Tarachand Agarwal the Proprietor and Shri Subhash Agarwal the incharge, we find that having regard to the amount of duty involved it would be reasonable to sustain a lower penalty on them. Accordingly we reduce the penalty from Rs. 1.00 lakh each to Rs. 50,000/- each. The appeal of M/s. Agarwal Electricals in Appeal No. E/226/89-Bom., of Tarachand Sitaram Agarwal E/533/89-Bom. and of S.T. Agarwal in E/534/89-Bom. are disposed of in the above terms.
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1996 (12) TMI 264 - CEGAT, NEW DELHI
Appeal to Appellate Tribunal - Additional ground - Yarn - Clandestine Removal - Show cause notice
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1996 (12) TMI 256 - CEGAT, NEW DELHI
Demand - Limitation - Show cause notice, grounds of - Valuation ... ... ... ... ..... iscount is also inadmissible inasmuch as the appellants had failed to comply with the mandatory provisions of Rule 226. Such claim can be considered only when they are included in the price list approved by the Department. 21. emsp Having regard to the discussion above we find no infirmity in the order of the Collector (Appeals) dated 21-9-1990. The said order is upheld in its entirety and BAB rsquo s Appeal No. E/3472/90-C is rejected. Department rsquo s cross objection No. E/CO/432/90-C in the said appeal is disposed of in the above terms. 22. emsp As regards the Revenue Appeal No. 4390/92-C and the cross objection No. E/CO/387/94-C filed by M/s. Baidyanath Ayurved Bhavan, in the light of our finding that M/s. Baidyanath Ayurved Bhavan is not eligible for the exemption Notification No. 179/77, we allow Department rsquo s appeal and set aside Order No. 112-C.E./Alld/92 of Collector (Appeals), Allahabad. BAB rsquo s cross objection in the said appeal is accordingly dismissed.
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1996 (12) TMI 251 - CEGAT, NEW DELHI
Classification of goods - Demand - Limitation ... ... ... ... ..... us matter for developed countries like ours and the purposes with which small scale exemption had been provided for meeting our socio-economic objectives, cannot be allowed to be defeated on the plea that only the normal period of limitation should have been applied in a situation as in the present case. The adjudicating authority had held that ldquo the declarations claiming exemption from licensing control etc. are mis-declarations. rdquo In the case of Priya Corporation v. CCE - 1990 (48) E.L.T. 26 (Tribunal) the Tribunal had held that when the main unit is fragmented into two units to wrongfully avail exemption, extended period of limitation was applicable. rdquo 14. emsp Thus both on merits and on the issue of time bar, we find that the order of the Additional Collector does not sustain. We set aside the impugned order and remand the matter to the appropriate adjudicating authority for passing an appropriate order for de novo proceedings keeping in mind our observations.
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1996 (12) TMI 247 - CEGAT, MUMBAI
... ...
... ... ..... ore, considering that there is no one to one relationship between input and output in the Modvat scheme, and also having regard to the fact that in the factual situation of the case the credit earned on the inputs have been utilised actually in paying duty on the stearing gear assembly which is the declared final product of the appellants, there is at best in such a situation a technical lapse on the part of the appellants, for which the penalty imposed by the Additional Collector would be sufficient. In this context, it is also noted that for a subsequent period, the Commissioner (Appeals) has held in their favour by an Order No. A-162/91, dated 23-10-1991. There is no information as to whether that order has been challenged by the Department. Therefore it is held that there is no irregularity in their availment of Modvat credit in this case by the appellant except a technical lapse for which the penalty imposed on them is sustained. Appeal is disposed of in the above terms.
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1996 (12) TMI 246 - CEGAT, MUMBAI
Modvat on capital goods ... ... ... ... ..... not operate. Therefore, even if the cranes or wires and cables themselves did not bring about any change, the finished product could not be manufactured without these. This rationale would apply to the present case too. Paper pulp itself cannot be processed or changed to paper unless it is transported by the pumps in question from stage to stage in the appellant rsquo s plant. Further Rule 57Q includes in its definition of capital goods, components of the plant of the assessee. Now, the assessee rsquo s plant is one for making paper, out of the raw materials normally used to make paper. Pulp is either a raw material or an intermediate product in the manufacture of paper. It is, in fact, the penultimate product. Therefore the pumps used to transport the pulp within the plant would be components of that plant and would be entitled to Modvat credit as such components. Appellant was entitled to credit of the duty paid on goods. 5. emsp Appeal allowed. Consequential relief if any.
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1996 (12) TMI 245 - CEGAT, MUMBAI
Modvat - Deemed credit ... ... ... ... ..... ble material would be in the form of either broken down or worn out material and would not therefore reach the assessees directly. Further the intake of small scale manufacturers not being very considerable they would often resort to buying such goods from intermediaries such as dealers and not directly from manufacturers. Therefore the factors which no doubt led to issue of the order would continue to be in operation where such manufacturers are concerned irrespective of the value of the clearance. It would therefore be illogical to grant it that flexibility up to a particular point and withdraw it thereafter without that being any change in the scenario. It would thus follow the term ldquo re-rollers availing of the exemption under Notification 1/93 would have to be interpreted to be those re-rollers which were entitled for exemption and did so. This is what the Southern Bench had done and we find no reason for disagreement. 4. emsp Appeal allowed. Impugned order set aside.
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1996 (12) TMI 244 - CEGAT, MADRAS
... ...
... ... ..... aid in the impugned order for enhancing the value from US 300 to US 700 per M.T. Accordingly, we hold that valuation as made by the appellant has to be accepted and we order accordingly. We make it clear that it is open to the department to take such other action as permissible under law if such evidence of other contemporaneous import is available. 8. emsp The next question for consideration is whether the redemption fine of Rs. 1 lac and penalty of Rs. 25,000/- are legal or proper. In this connection we observe that we have already reduced the value with respect to these two imports. In determining the redemption fine, the Commissioner has taken note of the facts of the appellants are incurring heavy demurrage. In the circumstances we reduce the redemption fine to Rs. 75,000/- (Rupees Seventy five thousand). So far as penalty is concerned, we are of the view that Rs. 25,000/- is reasonable and no further reduction is required. The appeals are disposed of in the above terms.
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1996 (12) TMI 243 - CEGAT, MADRAS
Confiscation of conveyance - Smuggling - Penalty ... ... ... ... ..... in view of the fact that it was used for conveyance of the smuggled goods, then the same has to be confiscated. The fact that the bank has to recover the dues from M/s. Hari Om Enterprises will not come in the way of confiscating the boat in question in view of the provisions of sec. 115 of the Act. It is for them to proceed against the firm in the best possible manner in which they deem fit. When they advanced the loan, it was for them to have asked for sufficient security and if they have taken such security it is for them to proceed. That has no consideration as far as the confiscation of the boat in question is concerned. Therefore, this plea made on behalf of the bank has no force. However, the Collector has rightly exonerated the bank from the penal action in view of the fact that the bank has no connection whatsoever with the smuggling activity. The plea of the learned Counsel is disposed of in the above terms. 26. emsp These appeals are disposed of in the above terms.
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1996 (12) TMI 242 - CEGAT, NEW DELHI
Demand - Limitation ... ... ... ... ..... is that where the clearances were under physical control, the facts could not be said to be not within the knowledge of the Department. The Department, while approving the classification list, had time and again dwelt on the physical aspects of the goods. As was observed by the Madhya Pradesh High Court in the case of Panama Chemical Works v. Union of India reported in 1992 (62) E.L.T. 241 (M.P.), the extended period in this situation was not available to the Department. 17. emsp Thus, we find that the orders of confirmation of the demand do not sustain on the point of limitation also. 18. emsp As regards the penalty, since we have held that there was no mis-declaration or suppression of any facts by the appellants with the intent to evade duty, we find no warrant of upholding the ld. Commissioner rsquo s order in this regard. 19. emsp In the result, the appeal succeeds on both counts. The orders of the Commissioner are set aside and consequential relief, if any, is ordered.
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1996 (12) TMI 241 - CEGAT, NEW DELHI
Confiscation - Valuation - Redemption fine refundable on re-export ... ... ... ... ..... , cannot co-exist together. The Tribunal accordingly directed refund of the fine payable by the appellant. 5. emsp In the Peejay Maya Exports case, the Tribunal observed that the practice of allowing re-export has grown up in the Customs House even in the absence of specific provisions of law, possibly on the ground that the importer cannot be blamed for the import and when the adjudicating authority is satisfied that the importer has not committed any offence or violated any provisions, there will be no justification for imposing fine while permitting re-export of the goods. The meaning of the observation is that when permission for re-export is granted it could only be on the basis that the importer was not at fault though there could be taken a technical violation of law. 6. emsp Following the above decisions, we set aside the order of confiscation and stipulation for payment of redemption fine. If any redemption fine has been paid, it shall be refunded. Appeal is allowed.
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