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Case Laws
Showing 141 to 160 of 531 Records
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2002 (9) TMI 766 - HIGH COURT OF PUNJAB AND HARYANA
Winding-up - Circumstances in which a company may be wound up ... ... ... ... ..... ion. It is, therefore, not possible for this court to arrive at the conclusion that the respondent owes any debt to the petitioner. In the aforesaid view of the matter, I find no merit in the claim of the petitioner for winding up of the respondent-company on account of failure to discharge its financial liability towards the petitioner. 4. We have heard Sri Arun Bansal at considerable length. 5. In our opinion, the finding recorded by the learned company judge that the appellant had failed to prove the factum of advancement of loan of 10,000 pounds (sterling) does not suffer from any legal infirmity and, therefore, the consequential conclusion drawn by him that the appellant had failed to make out a case for winding up of the respondent does not call for interference. 6. For the reasons mentioned above, the appeal is dismissed. However, we give liberty to the appellant to pursue other remedies including by way of civil suit for recovery of the amount given to the respondent.
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2002 (9) TMI 765 - HIGH COURT OF DELHI
Arbitration - Appointment of ... ... ... ... ..... petition under section 11 of the Act. The objection in regard to pecuniary jurisdiction of the Court is untenable. 5. In view of the existence of an arbitration agreement between the parties and the non-appointment of an Arbitrator by the respondent after notice under section 11(4)(a) of the Act, this Court is of the considered view that the petitioner has made out a case for appointment of an Arbitrator under section 11(6) of the Act. In the result the petition is allowed and Shri Niranjan Singh, Supdt. Engineer, Delhi Central Circle-I CPWD, I.P. Bhawan, New Delhi-110002 is appointed an Arbitrator to enter upon the reference and adjudicate the disputes between the parties arising out of the tender document dated 9-11-1995. The fee shall be fixed by the Arbitrator himself keeping in view the number of sittings required but it shall not exceed a sum of Rs. 35,000 in all. 6. The parties are directed to appear before the Arbitrator for further directions on 30-9-2002 at 2.00 PM.
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2002 (9) TMI 764 - HIGH COURT OF DELHI
Arbitrators - Appointment of ... ... ... ... ..... ction 11 of the Act as also the decision in Datar Switchgears Ltd. v. Tata Finance Ltd. 2000 28 SCL 99 (SC). However, the submission is without any merit. The provisions of said section 11(5) and (6) will not be attracted as admittedly Ram Kumar was in position as arbitrator on the date notice dated 23rd March, 2001 demanding appointment of arbitrator was issued by the petitioner. In case Ram Kumar who has been replaced by R.K. Tyagi and again by Ram Narain, had failed to act without undue delay, as alleged, the remedy open to petitioner was to file petition under section 14(1)(a) of the Act for his removal. Further, appointment of Ram Narain as arbitrator on 19th April, 2002 can be assailed by taking resort to challenge procedure as provided in section 13 of the Act alone and not in present petition. Datar Switchgears Ltd. rsquo s case (supra) has no applicability to the facts of this case. 6. Consequently, the petition is dismissed being without merit. No order as to costs.
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2002 (9) TMI 763 - HIGH COURT OF DELHI
Arbitrators - Appointment of ... ... ... ... ..... l for the respondent to the effect that any other retired Judge be appointed from the panel of FICCI, also left it to this Court to appoint anyone from amongst the retired judges who are the panel of FICCI. The appointment of Shri J.P. Gupta is cancelled/revoked. 8. In this view of the matter, no other orders are required in the present case, except to direct that Justice S.B. Wad, Retired Hon rsquo ble Judge of this Court, and who is also one of the empanelled former Judges with the FICCI, shall be the sole arbitrator to adjudicate upon the disputes as contained in the statement of claim of the respondent dated 26-5-1991. The fee of the arbitrator shall be as per the schedule of the fees of FICCI, and will be borne by the parties as per the applicable rules of FICCI. 9. The Ld. arbitrator will make and publish the award as expeditiously as possible and preferably within a period of three months from the date of entering upon the reference. 10. AA 127/2000 stands disposed of.
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2002 (9) TMI 762 - HIGH COURT OF MADRAS
Winding up - Circumstances in which a company may be wound up ... ... ... ... ..... o referred to the specific stand of the respondent that it is only Grundig Electronics India Private Limited who had agreed to make the payment. The fact that the company is unable to pay its debts, does not necessarily entitle the Court to order winding-up of the company as the discretion to pass such an order, even in the case of the inability of a company to pay its debts by section 3, vested in the Court. That being the legal position, the petitioner having resorted to a civil suit for recovery of the debts I hold that the machinery for winding-up will not be allowed merely as a means for realising a debt due from the company. Likewise, I have also held that there is a bona fide dispute about the existence of a debt and triable issues are involved hence the proper remedy for the petitioner would be to establish their claim in the suit. 15. In the light of what is stated above, I do not find any merit in the Company Petition and the same is dismissed. No order as to costs.
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2002 (9) TMI 761 - HIGH COURT OF GUJARAT
Amalgamation ... ... ... ... ..... f Amalgamation as proposed by the petitioner-company at Annexure E to the petition is hereby sanctioned subject to the clarification that this sanction shall not affect any proceedings that may be pending or that may be commenced against the petitioner-company in relation to any of its liabilities arising from past activities. 32. The petitioner is disposed of accordingly. 33. The cost of this petition to the extent of Rs. 3,500 he paid to Mrs. P.J. Davawala. Additional Standing Counsel for the Central Government. At this stage, the learned senior advocate Mr. Soparkar appearing on behalf of one of the objectors submits that the judgment may be stayed for a period of four weeks. Mr. M.J. Thakore, learned senior advocate appearing on behalf of the petitioner-company objects to the prayer made on behalf of the objector. Having heard both the sides no good reason exists for staying the operation of the judgment. The request made on behalf of the objector is accordingly rejected.
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2002 (9) TMI 760 - HIGH COURT OF DELHI
Appellate Board ... ... ... ... ..... e not binding on the adjudicating authority or determinative of the matter. Learned counsel for the petitioner nevertheless has rightly urged that this is a factor, which may be taken into account. Considering the submissions and facts, as urged by the counsel for the petitioner as also the submission of the respondent and the findings, as recorded in the impugned order, in my view, no ground is made out for complete waiver of the penalty, as imposed. However, taking into account the petitioner rsquo s acquittal and, in particular, the plea of lack of cash liquidity and financial hardship, the impugned order deserves to be varied. Let the petitioner deposit 50 per cent of the penalty amount, i.e., Rs. 50,000 and furnish security in the form of immovable property or other security to the satisfaction of the respondent for the balance of Rs. 50,000. The penalty of Rs. 50,000 and security be furnished within four weeks from today. The writ petition is disposed of in above terms.
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2002 (9) TMI 759 - HIGH COURT OF DELHI
Arbitrators - Appointment of ... ... ... ... ..... as has been contended by Mr. V.P. Singh, that the mechanism for appointment of an arbitrator came to an end with the change of circumstances. Furthermore, the decision of the Privy Council in Bhagwanji Morarji Goculdas rsquo s case (supra) cannot be said to have any application in the facts and circumstances of this case. In that case, an agreement was made between a company and four named individuals carrying on business under a firm and when all the four members seized to be the members of the firm, it was held that there was no privity between the company and the firm. In the instant case, all the four individuals had not ceased to be the members of the firm inasmuch as the respondent herein was a partner of the said partnership firm and had taken over the continuing business with its assets and liabilities. 18. In this view of the matter, we are of the opinion that there is no merit in this writ petition, which is accordingly dismissed with costs quantified at Rs. 5,000.
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2002 (9) TMI 758 - HIGH COURT OF ANDHRA PRADESH
Foreign awards - Condition for enforcement of ... ... ... ... ..... 36. After the judgment is delivered, the learned counsel for the petitioner - Sri P. Sri Raghuram submitted that during the pendency for both the O.P., as well as these civil revision petitions there was an interim direction to the respondent not to alienate the petition schedule property. This is not disputed by the learned counsel for the respondent. The learned counsel for the petitioner therefore submitted that in view of the judgment pronounced now as the petitioner is entitled to proceed with the execution of the award in the same original petition, which is the subject-matter of the present civil revision petitions the interim orders granted earlier may be continued. 37. Heard the learned counsel for the respondent. Learned counsel for the respondent did not contest the prayer of the petitioner. 38. In the circumstances, there shall be an order directing the respondent not to alienate the petition schedule property pending a final decision in the O.P. No. 437 of 2000.
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2002 (9) TMI 757 - HIGH COURT OF MADHYA PRADESH
Winding up - Circumstances in which a company may be wound up ... ... ... ... ..... the parties and having perused the record of the case, I find no merit in this petition, and in particular, in view of the defence taken by the respondent-company. 6. In my considered opinion, when the BIFR which is a statutory body exercising its power under the provisions of SICA, have come to a conclusion that the respondent is a sick industrial company within the meaning of section 3(1)(o) of the Act and is thus, capable of being revived by formulating a rehabilitation scheme, then in such an event, there does not arise any need to enter into a question whether a case under section 433(e) of the Act is made out or not. It is neither necessary, nor called for in the facts of the case. Needless to observe, whatever outstanding according to the petitioner remains qua respondent, that will be taken care of by the concerned authorities while enacting a scheme of rehabilitation, if law permits. 7. I, thus, do not find any substance in this petition. It fails, and is dismissed.
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2002 (9) TMI 756 - HIGH COURT OF HIMACHAL PRADESH
Winding up - Circumstances in which a company may be wound up ... ... ... ... ..... re exists a bona fide dispute and the debt claimed in the company petition is not due and outstanding. We have gone into the facts and law in this appeal, as both sides had argued the matter at length and had invited decision on both. In our considered view, learned Company Judge while directing the respondent to pay Rs. 30 lakhs on or before 31-12-2002 ought not to have said anything further except for postponing the advertisement of the company petition on the failure of the respondent to do the needful. Accordingly, the aforesaid underlined portion of the order passed by the learned Company Judge in his order dated 16-4-2002 is hereby quashed and set aside and to this extent appeal is allowed. The matter is ordered to be listed before the learned Company Judge in the first week of January 2003 for proceeding further in the light of what has been said hereinabove for determination of the fact thereafter as per law whether there exists any bona fide dispute or not. No costs.
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2002 (9) TMI 755 - CEGAT, NEW DELHI
Modvat/Cenvat ... ... ... ... ..... ate accounts) or sub-rule (3) i.e. paying 8 of total price of exempted goods, other than exceptions specified in Clause (a) then in terms of sub-rule (1) the assessee shall not be allowed credit on such quantity which is used in the manufacture of exempted goods. Consequently, where the assessee has not paid the amount the availment of corresponding credit on inputs is incorrect. The recovery of such credit taken incorrectly is squarely covered by the provisions of Rule 12 (erstwhile Rule 57-I). Necessary action may be taken accordingly. rdquo 6. emsp This Circular was not before the Adjudicating Authority for consideration. Therefore, the impugned Order is set aside and the matter is remanded to the Adjudicating Authority for deciding afresh after taking into consideration the above mentioned Circular as amended. The Adjudicating Authority will decide the matter after affording a reasonable opportunity of hearing to the Appellants. The Appeal is disposed of by way of remand.
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2002 (9) TMI 754 - CEGAT, NEW DELHI
Appeal by Department - Grounds - Cenvat/Modvat - Deemed credit - Duty paid character ... ... ... ... ..... n a view that, once the Central Government declared in para 2 of the Notification that the duty of excise shall be deemed to have been paid on the inputs supplied directly by the manufacturer thereof working under the Compounded Levy Scheme, there is hardly any need to make a rowing expedition into the question whether the input-manufacturers had in fact discharged duty liability on the inputs. It has been held, in that case, that the condition in para 4 of the Notification is virtually of no significance in the light of the Central Government rsquo s declaration contained in para 2 of the notification. I have no information, nor does the DR, that the operation of the decision in Delhi Steel Industries (supra) has been stayed. I, therefore, would to follow the view taken in Delhi Steel Industries (supra). 7. emsp For the reasons already recorded, I do not find any infirmity in the order passed by the Commissioner (Appeals). The appeals of the Revenue are, therefore, rejected.
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2002 (9) TMI 753 - CEGAT, NEW DELHI
... ...
... ... ..... s appeal against the finding of the lower appellate authority that the goods returned by M/s. Hind Lamps Ltd. were not scrap but only defective glass shells. After examining the record of evidence in this case, I find that the finding of the lower appellate authority is well-founded. In the case of Vanagaram Refractory Works (supra), the Tribunal was seized of a similar question. The Tribunal observed that, if every defective goods received back were to be viewed as scrap, Rule 173L would be rendered otiose. I follow the view taken by the Tribunal in Vanagaram Refractory Works (supra) and hold that the goods returned by M/s. Hind Lamps Ltd. to the respondents were defective glass shells and not scrap and further that the assessee was entitled to refund, under Rule 173L, of the duty of excise they had paid at the time of original clearance of the goods to M/s. Hind Lamps Ltd. The order passed by the Commissioner (Appeals) is affirmed and the Revenue rsquo s appeal is rejected.
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2002 (9) TMI 752 - CEGAT, NEW DELHI
Clandestine removal ... ... ... ... ..... e assessee and their evidence also did not find corroboration from any other evidence. That order of the Tribunal had been even upheld by the Punjab and Haryana High Court when it was challenged in appeal before that Court, as reported in 2002 (144) E.L.T. 265 (P and H) 2002 (82) ECC 613 (P and H) CCE, Commissionerate-I, Chandigarh v. Takshila Spinners and Another . 6. emsp For want of any reliable tangible evidence, neither the allegations against the appellants No. 1, of having cleared the cotton yarn in the form of cones in the guise of cotton yarn in plain reel hanks without payment of duty nor against the other appellants of having received such yarn with full knowledge that no duty had been paid thereon, stands proved. Therefore, the impugned order of the Commissioner cannot be sustained and the same is set aside against all the appellants. 7. emsp Consequently, all the appeals of the appellants stand allowed with consequential relief, if any, permissible under the law.
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2002 (9) TMI 751 - CEGAT, NEW DELHI
Clandestine removal - Proof ... ... ... ... ..... factory was closed the grey fabrics were returned to the supplier without coating. On the records we do not find any evidence to prove that other raw material required for coating the grey fabrics were procured. Further, there was no evidence to prove that the grey fabric after coating were clandestinely removed without payment of duty. 10. emsp We also note that the Commissioner has himself found that there was no direct evidence of clandestine removal. If there was no direct evidence, we do not see any indirect evidence placed on record to prove clandestine removal. 11. emsp We also note that similar issue came up before the Tribunal in the case of Punjab Fibres Ltd. and the findings of the Tribunal in para 15 cited above are relevant. 12. emsp Looking to the above facts, we find that the case has not been established by the department. In these circumstances, the appeal is allowed. Consequential relief, if any, shall be admissible to the appellants in accordance with law.
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2002 (9) TMI 750 - CEGAT, NEW DELHI
... ...
... ... ..... wed. 3. emsp Shri P.N. Kaul, learned Advocate has appeared on behalf of the respondent and he submitted that goods were sent back by M/s. Hind Lamp Ltd. under their invoice on 28-5-99 that the quality of goods was not satisfactory and also not as per specifications that Adjudicating Authority has passed an order in violation of principles of natural justice. 4. emsp After hearing rival submissions and perusal of the records I find that respondent has not annexed any annexure as mentioned in the cross objections and besides this there is no documentary evidence to show as to what defects were found in the goods in question that in the absence of any documentary evidence to show that goods were returned for being remade, refined, reconditioned or subject to any other similar process in the factory, there is no compliance of the provision as contained in Rule 173L. I, therefore, allow the appeal filed by the Revenue and the cross objections filed by the respondent are dismissed.
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2002 (9) TMI 749 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit - EXIM ... ... ... ... ..... of their non-fulfilment of the export obligation as a 100 EOU. They have also not indicated as to how much duty they are liable to pay as per their own admission in terms of the above extracted provisions of the exemption notification. Though there is a plea of financial hardship on their part but they have also not filed any up to date financial statements in support of their contention. In this view of the matter we are of the view that the appellants have not made out a prima facie case in their favour for the waiver of the entire amount of duty, penalty and interest imposed on them. We, therefore, direct them to make pre-deposit of Rs. 10 lakhs within eight weeks from today. On making such deposit the balance amount of the duty, penalty and interest shall stand waived and its recovery stayed till the disposal of the appeal. Failure to make this deposit will entail automatic dismissal of the appeal. The matter will be called for reporting compliance on 28th November, 2002.
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2002 (9) TMI 748 - CEGAT, NEW DELHI
Cenvat/Modvat - Residual Fuel Oil (RFO), Credit restriction ... ... ... ... ..... in India to the extent of excise duty calculated at the rate of 10 ad valorem, we do not find any legal infirmity in the impugned Order of the Commissioner (Appeals) and as such the same is upheld. rdquo Similar views were expressed by the Tribunal in the case of Camphor and Allied Products case wherein it was also observed by the Tribunal that Sub-heading 2713.30 makes it clear that Sub-heading s coverage includes Heavy Petroleum stock, Low Sulphur Heavy Stock and other Residual fuel oil and not merely to the inputs named in Notification No. 14/97. Chapter Heading 2713.30 is of wider amplitude, while restriction placed under notification No. 14/97 is narrower in scope. The Tribunal, therefore, held that there was no merit in the contention of the Revenue that the restriction regarding input credit imposed under Notification No. 14/97 applies to the RFO received by the Appellants. Following the ratio of these two decisions I set aside the impugned Order and allow the appeal.
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2002 (9) TMI 747 - CEGAT, MUMBAI
... ...
... ... ..... perintendent a copy of which was not given to the assessees. 7. emsp When these shortcomings had been brought to the notice of the Commissioner (Appeals) it was necessary that he summon the appellant before him and permit them to illustrate their case. He did not do so nor did he direct them to appear before him before disposal of their appeal. In these circumstances in a number of judgments the Tribunal had held that there was denial of natural justice and have remanded the proceedings back to the Commissioner (Appeals) for de novo considerations. 8. emsp In this case it is even more important that the Commissioner (Appeals) hears the assessees in view of the infirmities in the show cause notice and also in the proceedings before the adjudicating authority. This appeal is allowed. The proceedings are remanded back to the jurisdictional Commissioner (Appeals) who shall hear the appellants on merits without insisting on any pre-deposit. 9. emsp The appeal is allowed by remand.
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