SSI Exemption - Brand name of buyer who is not a dealer
... ... ... ... ..... explanation to Notification No. 175/86, the words lsquo KEB rsquo will have to be one as to establish the connection between buyer of the goods and the brand owner. As they are buyers of R.C.C Poles, the link is not established. We are in full agreement with the findings of the ld. Collector (Appeals). As per the explanation, the brand name shall mean a name which is used in relation to the specified goods for the purpose of indicating connection in the course of trade. As rightly pointed out by the Collector (Appeals), the R.C.C. Poles are not sold by KEB. There is no trading and as such the mischief of para 7 of notification is not attracted. In Thio Pharma case, relied upon by the ld. DR, the product medicine was sold by the person in the market and as such affixing his name on the medicine was held to be brand name making the product ineligible for the benefit of SSI exemption. We find no reason to interfere with the impugned order and appeal filed by Revenue is rejected.
... ... ... ... ..... spector Incharge. Therefore, the manufacture of Roshni bakery shortening was within the knowledge of the Department. We also note that the Adjudicating authority has himself held in the impugned order that the appellants were under the impression that their products were classifiable under CET sub-heading 1504.00 and they had filed declaration under Rule 57-O for the purpose of utilisation of money credit for use of minor oils, and therefore, suppression with intent to evade payment of duty cannot be alleged against the appellants so as to warrant the invoking of the extended period of limitation. We, therefore, hold that the demand is barred by limitation and accordingly set aside the same. The penalty of Rs. 50,000/- imposed upon the appellants is also set aside since the Department has not sustained its demand for the longer period. In the result, we set aside the impugned order and allow the appeal on the ground of time bar without pronouncing on the merits of the matter.
Valuation - Appeal - Grounds of appeal - Sale of goods
... ... ... ... ..... conform to the definition of sale in Section 2 (h) of the Act, because there is no transfer of possession of goods from the manufacturer to Polyequip Ltd. This is not a point in the appeal it is nowhere contended that goods were not sent to Polyequip Ltd. Apart from that, sales to it and the goods sold to Polyequip Ltd. were under gate passes in which Polyequip is shown as a consignee. Rule 52A itself provided at the relevant time that the original copy of gate pass was to accompany to the goods to their destination. The contention that the consignee mentioned in the gate passes may not be the destination of the goods is obviously untenable. There would be no requirement to show gate pass the consignee if it was not to conform to this requirement nor are we able to appreciate the contention that the sale or transfer of possession was not in the ordinary course of sale. Such a contention is not raised in the appeal. 6. emsp We therefore decline to interfere. Appeal dismissed.
... ... ... ... ..... In view of the mix-up of appeal nos. as contended by the appellants, the application for restoration of appeal is allowed. 3. emsp Appeal No. E/3217/90-D and E/2339/91-D are fixed for hearing on 10-5-1999.
Offences - Penalty for wrongful withholding of property
... ... ... ... ..... he court to deal with the complaint under section 630. References may also be made to a decision of the Bombay High Court in Chandragupta Gupta v. Padmanabha Subramani 1989 65 Comp. Cas. 190 in which it has been observed that the fact that there is a dispute between the petitioner and the company as to whether the services have been properly terminated, does not in any way affect the continuation of the trial and decision of the criminal case. It therefore, clearly follows that pendency of conciliation proceedings before a conciliation officer cannot arrest or suspend the jurisdiction of the court to deal with the complaint under section 630 of the Companies Act. 8. The Court by the impugned order has exercised the jurisdiction under section 630(2), and, as discussed above, the jurisdiction was not taken away by the pendency of the proceedings before the respondent No. 1. The petition has, therefore, no merit. Accordingly, this petition is dismissed with no order as to costs.
... ... ... ... ..... rticle 15 of the Limitation Act. In view of the stipulation contained in the invoices the first respondent could not have filed a civil suit for repossession of the machinery. Therefore, the decisions cited by the learned counsel have no application. 21. In the circumstances, therefore, the order dated 20-5-1988 permitting the first respondent to file the suit needs to be recalled. I order accordingly. However, the first respondent is permitted to file its claim, if not already filed, in terms of the rules as a unsecured creditor before the Official Liquidator. It will be open to the first respondent to prove that the company is indebted to it and in case the claim is proved the first respondent shall be paid out of the amount set apart by order dated 11-7-1989 for payment to the unsecured creditors and for other purposes provided the amount is still available and subject to equitable distribution amongst the unsecured creditors and subject to the orders of the Company Judge.
Winding up - Circumstances in which a company may be wound up
... ... ... ... ..... will not be in a position to effectively represent their case before the income-tax authority. Even if the company is wound up the company is not precluded from contesting the matter and at any rate liberty can always be granted by this Court to the company to represent before the income-tax authority. 8. In so far as appointment of the Official Liquidator as Provisional Liquidator is concerned, the position is the same as of 31-3-1996. There is, therefore, no urgency in appointing a Liquidator for the company. In as much as the assets and liabilities of the company are concerned the company is not carrying on any business, the probability of the assets being dissipated, therefore, will not arise. The assets have been sold and money received invested. Considering the above, I do not find this to be a fit case at this stage based on the material available to appoint a provisional Liquidator. The interim relief, therefore, for appointment of provisional Liquidator is rejected.
... ... ... ... ..... roving or rejecting the scheme of amalgamation. There-fore, apart from the nomenclature there is nothing distinct between the applicant and the other unsecured creditors to treat them as a class by themselves. Proceeding further even in the scheme of arrangement/ compromise it is not provided for dealing differently or distinctly between the applicant and the other unsecured creditors. Therefore, none of the tests which would make the applicant a distinct and different class by themselves which would require a separate meeting of persons like the applicants herein has been satisfied. If that the case the matter would be covered in my opinion with the observations of the Apex Court quoted above in the case of Miheer H. Mafatlal (supra). Calling of a separate meeting of such group of non-banking financial companies is to call a separate meeting of the applicants is rejected. 8. In the light of that the company application rejected. 9. No order as to costs. Application rejected.
... ... ... ... ..... en confirmed and would be again subject to further direction that may be issued. However, what is clear is that the assets of the company are no longer available to the company for carrying on its business in terms of its Articles and Memorandum of Association. In this light of the matter and moreover considering that the business activities of the company has been stopped. I do not think this to be a case where discretion should be exercised in favour of the company and the Company Court will have jurisdiction to decide the Company Petition irrespective of the pendency of the Writ Petition before the Madhya Pradesh High Court. 7. In the light of the above as the company has no defence and as the petitioner has made out a case that the substratum of the company has disappeared, this would be a fit case for winding up the company. In that light of the matter, the following order mdash Petition made absolute in terms of prayer clauses (a) and (b). Drawn up order dispensed with.
... ... ... ... ..... led by the appellant. He has only taken recourse to pray in his appeal to set aside the order dated 9-12-1993 passed by the District Consumer Forum, Pauri Garhwal. Obviously, Shri R.K. Batra, the appellant did not seek any relief as a consumer. He has rather challenged the powers of the Members or the President of the District Forum and pointed out certain irregularities and illegalities. These aspects have also been dealt with sufficiently by the District Consumer Forum in their order dated 9-12-1993. Since the contents of the appeal are absolutely not in the nature of seeking any relief as a consumer and they only seek remedial action against the alleged misconduct of the members of the District Consumer Forum, the appeal certainly does not lie before the State Commission. The remedy lies elsewhere. The appeal is, therefore, not maintainable. The appeal is dismissed as not maintainable and the order of the District Consumer Forum dated 9-12-1993 is upheld. Appeal dismissed.
... ... ... ... ..... long line of cases that in such circumstances the majority of the shareholders can sue in the name of the company must apply. . . . (p. 137) 23. There is, therefore, no one to defend the company in the suit. Where the right to defend is an issue, in the light of the law laid down by the Supreme Court in Shah Babulal Khimji rsquo s case (supra) and in Calcutta Chemical Co. rsquo s case (supra), that the order would be an appealable one. The order of dismissal has affected the valuable right of the company to be defended and works serious injustice to the company and its interest. 24. The applicant before the learned Single Judge had the right to defend the suit on the basis of the principles in Dr. Satya Charan Laws rsquo s case (supra). 25. Accordingly, we hold that the impugned order is an appealable one and we allow the appeal by setting aside the order and grant leave to the appellants to conduct the defence of the company in the suit. Appeal allowed. Ansari, J. - I agree.
... ... ... ... ..... ference in gross-weight and net-weight of the seized material. We also note that the silk yarn is not a notified item under the provisions of Customs Act, 1962 and as such, the burden to prove its illegal and smuggled character lies heavily on the Department, which is required to be discharged by it on production of positive evidence, which the Department has failed to do. The appellants cannot, therefore, be held guilty on the basis of conjectures and surmises, especially when the evidence as regards the legal procurement of the yarn and its further supply to the master weaver to Md. Sammi Alam, has been established. 12. emsp As regards the supplies made by M/s. Gemini Silk, there is no discussion by the adjudicating authority on the same. 13. emsp Accordingly, in view of our discussions as above, we hold that the impugned Order is not sustainable in respect of all the appellants and accordingly, we set aside the same and allow the appeals with consequential reliefs to them.
Modvat/Cenvat - Demand - Modvat - Damaged or broken goods
... ... ... ... ..... appellant says that the entire records which were seized are still with the Department and that reference to this would be required to determine the amount of credit actually recoverable. He undertakes to produce before the Assistant Collector a statement showing the details of the credit taken with reference to the document on which the duty paid was taken as credit within three months of seized documents either being returned to it or appellant being allowed access to them for making copies thereof. 10. emsp Accordingly we order that on the appellant being either returned the seized documents or given copies thereof or permitted to make copies and on the date as above being produced within the time specified (or such extended period as the Commissioner may allow) he shall determine afresh the amount actually recoverable, after permitting refund if any permitted by law any amount which he finds paid in excess. 11. emsp Appeal accordingly allowed and impugned order set aside.
Whether certain sales of commodities other than the goods relating to the main business could also be included in the turnover?
Held that:- Appeal dismissed. Port Trust is not involved in any activity of “carrying on business” and that unclaimed and unserviceable goods are sold in discharge of various statutory charges, items, etc., and the sales of these items are also an infinitesimal part of the Port Trust’s main activities or services. No doubt, the sales of goods are in connection with, or incidental or ancillary to the main “non-business” activities, but they cannot be treated as “business” without any plea by the State of Tamil Nadu that the Port Trust had an independent intention to carry on business in the sale of unserviceable/unclaimed goods. That is not the case of the department in the show cause notice. Further from the counter-affidavits filed in the High Court it is clear that it is not the case of the State that there is any separate intention on the part of the Port Trust, to carry on business in the unserviceable and unclaimed goods. Its contention has been that the main activities of the Port Trust amounted to “carrying on business” and that these sales, even if they were incidental, fell within the meaning of the word “business”. The argument fails in view of our finding that the main activity is not one amounting to “carrying on business”.
Transfer of shares - Power to refuse registration and appeal against refusal
... ... ... ... ..... whether the cases come within the scope of rectification or not, keeping in view the above observations made by me and in particular in the light of the law laid down by the Apex Court in the case of Ammonia Supplies Corpn. (P.) Ltd. ( supra), after giving reasonable opportunity to the parties to the appeals and after perusing the relevant records. In case the CLB comes to the conclusion that the cases come under section 111, then, it should treat the affidavits on record as examination-in-chief of the deponents and such deponents may be sum-moned for the purpose of cross-examination. Assistance of hand writing expert may also be taken to decide whether the signatures on the documents in question are genuine or not. Because the matter is pending since 1991, it is appropriate to direct the CLB to decide the matter expeditiously. The appeals are thus partly allowed and the cases are remanded to the CLB for decision afresh according to law. Costs as incurred. SCL q JUNE 5, 1999
... ... ... ... ..... prior to 10-11-1998. The very fact that he has tried to club his interest with the interest of other members of his family shows that all the members of his family including, the petitioner and his father are hand in glove and the present petition has been filed only with a view to obstruct raising of further capital as proposed by the Board of Directors as per notice dated 16-12-1998 in view of the decision taken at a joint meeting of the managing director of the B.S.F.C. the Director of Industries, Government of Bihar, and others on 3-12-1998 for consideration of the rehabilitation package in terms of the order of the BIFR Annexure E. According to this decision, the company was required to raise the equity worth Rs. 5 lakhs each year out of which equity worth Rs. 1.25 lakh was to be raised during the current financial year ending in March, 1999. 10. In the result, this company petition is dismissed and interim stay granted on 2-2-1999 stands vacated. SCL q SEPTEMBER 5, 1999
... ... ... ... ..... uarantee which is disputed. It will have to be proved. Xerox copy of Gulf News tendered in evidence is rejected at this stage as no case is made out that the primary evidence is not available and that the copy produced falls within secondary evidence. From the pleadings in the plaint, documents produced in support thereof, finding that there is agreement between the parties and also failure by the defendant No. 1 to oppose Summons for Judgment, Suit decreed against defendant No. 1. In the light of that following order (i)Suit decreed against the defendant No. 1 in terms of prayer (a). (ii)The defendant Nos. 2 and 3 are given unconditional leave to defend the suit. The defendant Nos. 2 and 3 are granted 12 weeks time from today to file written statement. Parties will file affidavits of document within 8 weeks from today. Thereafter inspection and discovery will be completed within 8 weeks thereafter. Suit is transferred to the list of Commercial Causes. SCL q SEPTEMBER 5, 1999
... ... ... ... ..... n. Therefore, the creditors have a locus standi in the matter of exercise of powers by the liquidator. 15. True that while granting leave to I.C.I.C.I. in C.A. 54 of 1992 and C.A. 55 of 1992 and to LD.B.I. in C.A. 280 of 1992 and C.A. 281 of 1992 on 7-8-1998 vide Clause (6) contained in Para 17 of the impugned order, the applicants were ordered to undertake to deposit the workmen dues quantified at Rs. 3,83,96,973.50 as per the provisions of section 529-A of the 1956 Act, but it cannot be said that the workmen dues as quantified by the Official Liquidator were confirmed by this Court because the question as to whether the impugned proceedings of the Official Liquidator were correct or not, was neither questioned nor considered in those applications. 16. in the result, the preliminary objection that the petitioner-bank has no locus standi and, therefore, the application is not maintainable, is rejected and it is held that the application is maintainable. SCL q OCTOBER 20, 1999
Whether interim award final to the extent it goes or has effect till the final award is delivered will depend upon the form of the award?
Held that:- Appeal allowed. The view taken by the Trial Court that the earlier award made and written though signed was not pronounced but nevertheless had become complete and final, therefore, should be made the rule of the Court appears to us to be correct with regard to item No. 1 inasmuch as the claim in relation to item No. 1 could not have been adjudicated by the arbitrator again and it has been rightly excluded from the second award made by the arbitrator on 28-1-1994. Thus, the view taken by the Trial Court on this aspect also appear to us to be correct. Therefore, the Trial Court has rightly ordered the award dated 28-1-1994 to be the rule of the Court except for item No. 1 and in respect of which the award dated 26-11-1992 was ordered to be the rule of the Court.
