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Case Laws
Showing 81 to 100 of 454 Records
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2002 (5) TMI 813 - CEGAT, NEW DELHI
Refund - Recovery of erroneous refund ... ... ... ... ..... der agreed with the findings of the lower authorities to the effect that the incidence of excise duty paid by the present appellants was not passed on to any other person. This order passed by the Tribunal was challenged by the Revenue in the Hon rsquo ble Supreme Court and the order of Hon rsquo ble Supreme Court dated 17-4-2002 2002 (143) E.L.T. A75 (S.C.) is reproduced below ldquo What is involved is the assessment of the evidence as to whether or not the assessees had passed on the burden on the excise duty to their customers. There are concurrent findings by the Collector (Appeals) and the Tribunal. No interference is called for. The appeals are dismissed. No order as to costs. rdquo As the issue regarding refund of the amount in question is already settled by the Hon rsquo ble Supreme Court, therefore, the present proceedings initiated by the issue of show cause notice dated 19-2-1996 are not sustainable. Hence, the impugned order is set aside and the appeal is allowed.
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2002 (5) TMI 812 - CEGAT, CHENNAI
Penalty - Non-fulfilment of export obligation ... ... ... ... ..... into consideration. Furthermore the plea that assessments were still provisional and proceedings initiated is not being answered by the Commissioner. Further, the contention that Executive Chairman was not involved in the matter and this fact has not been discussed and no finding has been arrived at on the Executive Chairman should be penalised. In that view of this reason the matter has to go back in so far as imposition of penalty is concerned. The authority shall grant the appellant an opportunity to examine the records to know the date of sale of imported goods having taken place. The Commissioner after verifying the date of sale should grant an opportunity of hearing and reconsider the plea pertaining to non-leviability of scaling down the penalty and other arguments raised before us. The Commissioner shall give a detailed finding and a speaking order after following the principles of natural justice. Thus the appeal is allowed by way of remand to the original authority.
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2002 (5) TMI 811 - CEGAT, MUMBAI
Appeal to Appellate Tribunal - Aggrieved person ... ... ... ... ..... s seen from the clear language of Regulation 23 sub-clause 8. 2. emsp The ld. D.R. contends that any person aggrieved by an order or decision of the Commissioner of Customs or Commissioner (Appeals) can prefer an appeal and the right of appeal is not restricted only to the CHA. 3. emsp On hearing both sides and perusing the CHA Licensing Regulations framed under Section 146 of the Customs Act, I agree with the respondents that the right to prefer an appeal to the Tribunal under Sec. 129A of the Customs Act, 1962 against an order passed under Regulation 21 or 23 is available only to the CHA. I, therefore, uphold the preliminary objection and hence dismiss the Revenue appeal as not maintainable.
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2002 (5) TMI 810 - HIGH COURT OF PUNJAB AND HARYANA
Redemption of irredeemable preference shares ... ... ... ... ..... ects to the attained, as being naturally conducive thereto. Undoubtedly, the memorandum of association had to be read together with the articles of association, where the terms were ambiguous or silent. The articles might explain the memorandum, but could not extend its scope. Where a company did an act which was ultra vires, no legal relationship or effect ensued therefrom. Such as act was absolutely void and could not be ratified even if all the shareholders agreed. The payment made pursuant to the resolution was therefore unauthorised and the trustees acquired no right to the amount paid by the directors to the trust. (p. 1186) 13. In the aforementioned case, the Supreme Court was not called upon to consider a provision, like the non obstante clause contained in section 80A. Therefore, the said decision cannot be applied for entertaining the appellant rsquo s prayer for modification of the order under challenge. 14. For the reasons mentioned above, the appeal is dismissed.
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2002 (5) TMI 809 - HIGH COURT OF GUJARAT
Power to issue directions ... ... ... ... ..... nterpretation of law. If justice became the by-product of an erroneous view of law the High Court is not expected to erase such injustice in the name of correcting the error of law. 16. Therefore, the SEBI, which is an expert body in the field and the appellate authority which is also an expert body on the subject, itself found that in the larger interest of investors and the public, the directions should be issued to the petitioner company to refund the money of public issue which is wrongly retained by the petitioner company by creating false capital market. I am of the view that this Court even otherwise also shall not undertake the judicial review as that of a Court of appeal and when there is fair play in action on the part of the authority there is no reason to set aside the directions issued by the SEBI which is confirmed by the appellate authority. 17. In the result, petition fails and rule is discharged with costs which is quantified at Rs. 10,000. Order accordingly.
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2002 (5) TMI 808 - HIGH COURT OF DELHI
Arbitral Tribunal- Termination of mandate and substitution of arbitrator ... ... ... ... ..... was appointed as an Arbitrator in place of Shri S.M. Johri much prior to the service of notice of the petition on respondent No. 1. The substitute Arbitrator was appointed within a reasonable time. The provisions of section 11(5) or 11(6) of the Act do not apply in the case of substitution or replacement of an already appointed Arbitrator. In any case the petitioner has neither alleged any bias against Shri Tilak Raj Takulia, nor there is any challenge to his qualifications. Thus, keeping in view the facts of this case and keeping in mind that a Fellow of Indian Institute of Architects was to be appointed and that the appointment of Shri Tilak Raj Takulia as an Arbitrator in place of Shri S.M. Johri by respondent No. 1 has already been made within a reasonable time, no further directions are required to be given to the respondents. The Arbitrator so substituted by the respondents would be the Arbitrator in place of Shri S.M. Johri. 5. The petition is accordingly disposed of.
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2002 (5) TMI 807 - HIGH COURT OF DELHI
Arbitrators - Appointment of ... ... ... ... ..... an be no doubt in the light of the facts and circumstances of the present case that this Court shall not have territorial jurisdiction to try and decide the subject-matter of the present petition and the territorial jurisdiction would be that of the Court at Allahabad. In view of the aforesaid conclusions arrived at by me. I hold that this petition is not maintainable in this Court. This petition shall be returned to the petitioner so as to enable the petitioner to file the same in an appropriate Court. 16. It is also contended by the counsel appearing for the respondents that the disputes raised herein are not referable to arbitration as they are excepted matters. It is made clear that since it is held that the present petition is not maintainable in this Court, there is no scope for entering into the aforesaid issue raised by the respondents and the same is kept open to be decided by the appropriate Court. 17. The petition stands disposed of in terms of the aforesaid order.
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2002 (5) TMI 806 - GAUHATI HIGH COURT
Writ jurisdiction - Alternative remedy - Review - Quasi-judicial authority - Interpretation of Statutes - Exemption notification - Exemption - North-Eastern Region Industrial Policy - Strictures against Department - Order - Industrial policy - Industrial licence - Job work - Relationship of principal to principal basis
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2002 (5) TMI 805 - HIGH COURT OF PUNJAB AND HARYANA
Winding up - Overriding preferential payments ... ... ... ... ..... ution of the sale proceeds of the property of the company in liquidation amongst its creditors. 7. In view of the above, respondents Nos. 2 to 11 are directed to pay the rent of the godown through the official liquidator to the landlord with effect from January, 2002. The official liquidator is also directed to execute a fresh lease deed for the same premises known as Industrial Shed, 14/4, Mathura Road, Faridabad, for the purposes of storing the goods of the company under liquidation. The expenses incurred by the liquidators as rent shall be reimbursed by respondents Nos. 2 to 11 on a pro rata basis. 8. The adjudication of the claim of Rs. 4,69,398 made by the applicant shall be considered and paid by the official liquidator along with case of the secured creditors at the first instance. The amount spent by the secured creditors on account of rent shall also be paid in the first instance at the time payments are made to the creditors as per section 529A of the Companies Act.
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2002 (5) TMI 804 - HIGH COURT OF ALLAHABAD
Winding up - Circumstances in which a company may be wound up ... ... ... ... ..... rectors of the Century Consultants Ltd. and its Directors Joharis and others. In regard to paragraph 15 he has admitted that he could not carry on any business after its incorporation since 27-6-1984 and that he has no objection to the winding up or dissolution of the company. 8. From the aforesaid facts, the investigation made by the CBI and notices given by the Department of Company Affairs through Director (NR), the notices published to which no objection has been filed, and, upon hearing Sri Subodh Kumar for Registrar of Companies U.P. and Uttaranchal, Kanur, the petitioner, I am satisfied that respondent company is liable to be wound up under section 433(b), (c) and (f ). 9. The company petition is accordingly allowed, and the respondent company is directed to be wound up. The official liquidator who was appointed as provisional liquidator of the respondent company vide order of this Court dated 24-11-2001, is appointed as the Liquidator of the Company under section 449.
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2002 (5) TMI 803 - HIGH COURT OF DELHI
Oppression and mismanagement ... ... ... ... ..... mission to acquire shares of UPSIDC, the plaintiff will not only get absolved from the terms of the MOU but also will have exclusive control and management of the company resulting in destablising the status quo, the permission to the plaintiff to purchase shares of UPSIDC is granted subject to the condition that payment will be made by the plaintiff towards 50 per cent shares of UPSIDC on behalf of defendant No. 2 and this payment shall only be confined to making purchase of shares of UPSIDC and will not be deemed as payment made to the defendant No. 2 for discharging his liabilities to the banks and financial institutions. This order is being made in order to save the company from going into the hands of strangers and to maintain the order of the Supreme Court that control and management of Chemical Division by Mr. K.K. Modi and Fibre Division by Mr. M.K. Modi defendant No. 2 shall not be destabilised. The application is allowed in the aforesaid terms. Application allowed.
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2002 (5) TMI 802 - HIGH COURT OF CALCUTTA
Winding up - Provision as to application for ... ... ... ... ..... in the absence of any evidence to that extent. The only document that was produced in support of such claim of interest was a statement annexed to the winding up petition, which was unsigned, and without any authentication. Such being the state of affairs before the learned company judge we do not find any reason to hold otherwise as we find that the document annexed to the winding up petition was not at all a signed and authenticated document and, therefore, the learned company judge was fully justified in not relying on the said document and thereby refused to grant interest. 8. No other point was raised by learned counsel for the parties. For the reasons aforesaid, there is no merit in this appeal and we affirm the impugned order of the learned company judge. Appeal is thus dismissed. In view of the order passed by us today in the appeal, the application has become infructuous. Accordingly the application is disposed of as infructuous. 9. There will be no order as to cost.
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2002 (5) TMI 801 - HIGH COURT OF DELHI
Arbitrators - Appointment of ... ... ... ... ..... hese to the nominated arbitrator, in my view, amounts to the respondents rsquo failure to act as required under the appointment procedure and, therefore, the applicant is justified in approaching this Court under section 11(6) of the Act. 16. However, since Col. B.B. Bali has already been appointed as the sole arbitrator, he is competent to decide as to which of the disputes are not arbitrable in terms of the agreement between the parties. Withholding of any claim by the persona designata from the domain of the nominated arbitrator, being in excess of his authority, the applicant would be at liberty to raise the aforenoted claims before the nominated arbitrator namely, Col. B.B. Bali. Without prejudice, it will be open to the respondents to raise all objections, with respect to the claims made by the applicant before the arbitrator, including the objection that the same are beyond the scope of arbitration being excepted matters. 17. The application is disposed of accordingly.
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2002 (5) TMI 800 - CEGAT, CHENNAI
Compressed oxygen and liquor oxygen - Exemption under Notification No. 198/76-C.E. - Refund - Limitation
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2002 (5) TMI 799 - CEGAT, CHENNAI
Demand - Limitation - Extended period - Departmental clarification - Date of effect ... ... ... ... ..... Bench presided over by Justice K. Sreedharan, Ex-President has held that if the goods are cleared pursuant to approval of the classification list it is not open to the department to justify demand of duty invoking the longer period of limitation in terms of Section 11A. 19. emsp In view of the above discussion, I agree with the view taken by learned Member (T) Shri S.S. Sekhon that the appeal is required to be remanded for re-determination of the classification issue and the demand of duty has to be restricted to six months period only. 20. emsp The file may now be placed before the original Bench for passing final order. Sd/- (Jeet Ram Kait) Member (T) MAJORITY ORDER In terms of majority order, the appeal is allowed by remand for re-determination of classification issue and the demand of duty has to be restricted only to six months period only as held by both learned Members (Technical) in their respective orders. Sd/- (S.S. Sekhon) Member (T) Sd/- (S.L. Peeran) Member (J)
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2002 (5) TMI 798 - CEGAT, MUMBAI
Customs House Agent Licence - Restoration of ... ... ... ... ..... matter to be remanded. 3. emsp The custom house agent had filed a representation to the Commissioner against the suspension order under Regulation 21(2) of the Regulation of its licence. The Commissioner, as we have noted, has ordered termination of the suspension. The order of suspension of a licence is an interim order so also the order of the Commissioner revoking such suspension is in the nature of interim order. It cannot determine rights and liabilities which are in issue. The observation that the Commissioner has made with regard to the conduct of the appellant must be considered to be prima facie expression of view supporting his conclusion that suspension was not called for. It was, and still is, open to the department to proceed, if it considered it appropriate to initiate proceedings against the Custom House Agent under the Regulations. Such proceedings are to be conducted and concluded in accordance with law. 4. emsp With these observations, we dismiss the appeal.
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2002 (5) TMI 797 - CEGAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... ation vide Condition No. 74 of the list of conditions in the notification which provides that the goods in question for which exemption is being claimed should be imported by a person who has been awarded a contract for the construction of roads in India by or on behalf of the Ministry of Surface Transport, by the National Highway Authority of India or by Public Works Department of a State Government. It is the finding of the authorities below that the contract with the MSRDC cannot be treated to be equivalent to the contract with the PWD of the State Government. 3. emsp We have heard both sides and perused the conditions of the contract and are satisfied that a prima facie case for waiver has been made out as prima facie, the contract has been entered into by the Government of Maharashtra who has set up an agency for the purpose of entering into contracts for construction of roads. We, therefore, waive the pre-deposit of the duty and stay recovery thereof pending the appeal.
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2002 (5) TMI 796 - CEGAT, NEW DELHI
Demand - Limitation - Suppression ... ... ... ... ..... 84.31) while the actual supply is for the system chargeable under Conveyor Systems (84.28) 5 0.25 . We request you to kindly accord us permission to charge uniform duty on conveyor system whether it is supplied in one lot or more than one lot. rdquo 7. emsp It is thus apparent that the position was clearly made known to the Department. In view of this it cannot be now alleged by the Revenue that the Appellants have suppressed any information from Department with an intent to evade payment of duty. Accordingly the demand of duty is barred by time limit as specified in Section 11A(1) of the Central Excise Act. The demand of duty confirmed against them is, therefore, set aside. Consequently the penalty imposed and interest demanded are also set aside. As the demand is being held to be time barred and it has been mentioned that there is no dispute for the subsequent period, we are not considering the issue of classification. The appeal is thus allowed on the aspect of time limit.
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2002 (5) TMI 795 - CEGAT, MUMBAI
Modvat/Cenvat - Modvat on input - Demand - Penalty - Account records - Order ... ... ... ... ..... would be incorrect maintenance of accounting records punishable under Rule 226. An incorrect entry and corrections can be effected and should be effected by the assessee under the procedure of Rule 226. If that rule was not followed, corresponding penalty under that rule would follow. Therefore, I see no infringement in correcting the debit entry made on behest of audit, without the supporting demand. If procedure of Rule 226 was not followed a penalty under that rule was called for not a demand as arrived at in these proceedings by the lower authorities. (c) The order of both authorities have barreled beyond the Show Cause Notice and on bad on that account and should be set aside. (d) When I find that credit was eligible and entry of reversal of impermissible debit entry Should be made I find no reason to uphold the orders of the Lower Authorities. The same are set aside. 7. emsp In view of my finding, the orders are set aside, the appeals allowed with consequential relief.
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2002 (5) TMI 794 - CEGAT, NEW DELHI
Adjudication - Non-speaking order ... ... ... ... ..... e of law. The cross-examination of the same witnesses in some other proceedings in which the present appellants are not one of the party would not extinguish their right of cross-examination of the witnesses who have implicated them. In the result, the present orders against the appellants cannot be sustained. The appellants are therefore granted the stay, the impugned order of Commissioner (Appeals) is set aside and the matter is remanded to the original Authority for de novo proceedings. The appellants should be provided with the copies of the statements of Shri Sunil Kejriwal and Shri K.C. Kejriwal relied upon by the Revenue in the show cause notice and any other documents on which the reliance is placed by the department in the show cause notice. If asked for, the department shall also afford a reasonable opportunity of cross-examination of the witnesses who have implicated the appellants. 6. emsp The Stay Petition and the Appeal - both are disposed of in the above terms.
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