Refund the amount adjusted in excess of 20% of the disputed demand - action of the respondents and the Revenue Authorities is violative of Article 265 of the Constitution of India. - need to pass strictures against the offices - HELD THAT:- As the action of recovery on the part of the respondents was de-hors the statutory provisions specified u/s 220(6), 245 and was without jurisdiction in terms of Sections 222 and 223 of the IT Act. The respondents have also failed to honour the series of judgments, referred to above which for them are merely pieces of papers. They have completely given go-bye to the principles of judicial discipline, majesty of law and even their action is contrary to their own circulars. This high-handed action of the respondents is against Article 14, 19 and 265 of the Constitution of India. In spite of categorical di....... + More

Reopening of assessment u/s 147 - scope of amended procedure u/s 148A - disallowing the loss so computed and reducing the same from the business loss of the assessee entitled to be carried forward under Section 72 for set off in future - HELD THAT:- This Court finds that the Petitioner has not brought on record anything to prove that the impugned notice issued shall be governed by the amended procedure under Section 148A of the Act. This Court is also of the view that Petitioner is basically challenging the impugned order on merits. The Supreme Court in Commissioner of Income Tax and Ors. Vs. Chhabil Das Agarwal [2013 (8) TMI 458 - SUPREME COURT] has held that as the Income Tax Act, 1961 provides complete machinery for assessment/reassessment of tax, assessee is not permitted to abandon that machinery and invoke jurisdiction of High Court....... + More

Compounding of offences under Section 279 - judicial element/function of compounding of offences - HELD THAT:- This Court is of the view that the power of compounding of offences is a quasi-judicial power, as it definitely entails a judicial element/function and the discretion in compounding is not unfettered. Consequently, this Court is of the view that the petitioner is entitled to the benefit of extension of limitation as directed by the Supreme Court in Cognizance for Extension of Limitation Suo Motu Writ Petition . [2020 (5) TMI 418 - SC ORDER] Accordingly, the order passed by the respondents-Revenue is set aside and the CCIT (TDS), Delhi-2 is directed to consider afresh the petitioner’s application for compounding of offences under Section 279 of the Act on merits and communicate to the petitioner a reasoned decision thereon within eight weeks.

Validity of reopening of assessment u/s 147 - requirement of speaking order after raising the objections - Change of opinion - Information about reasons to believe - as submitted without giving any reasons and without disposing the objection of the petitioner for reopening of the assessment impugned order has been passed - HELD THAT:- The petitioner has participated in the proceedings pursuant to a notice issued under Section 148 of the Income Tax Act, 1961 knowing fully well the reasons why the notice was issued for reopening of the assessment. The petitioner in their representation/reply dated 29.10.2019 has traced out the entire history and the circumstances under which the land which originally belonged to Piramal Finance Services Limited (PFSL) was transferred to Harita Finance Limited (HFL) which later named as TVS Finance and Servi....... + More

Revision u/s 263 - Services provided by the petitioner should not be treated as a “consultancy services” and taxed under section 9(1)(vii) - AO has determined the PF of the assessee in India but has not thoroughly examined the applicability of 115JB - case of the petitioner was selected for scrutiny under CASS and a notice under section 143(2) was issued to the petitioner - HELD THAT:- A reading of the Explanation, makes it clear the power of the Principal Commissioner or Commissioner under sub-section extends to such matters as had not been considered and decided in an appeal. The appeal has not been considered and decided. Thus, there is no embargo under Section 263 of the Income Tax Act, 1961 for the 1st respondent to pass order. The scope of appeal before the Appellate Commissioner is confined to tax ability of receipts to....... + More

Reopening of assessment u/s 147 - Transfer Pricing Reference u/s 92CA - Non disclosure of loan extended to its Associated Enterprise [MMG] and there is difference in the petitioner's investment in purchasing MMG's shares as per the respective financials of the petitioner and MMG - HELD THAT:- The first respondent has initiated proceedings for reopening of the assessment for the Assessment Year 2012-13 insofar as the petitioner's loan transaction with MMG on twin grounds; The first respondent has reasoned that the petitioner has not disclosed advance to the Associated Enterprise (MMG) in the Auditors Certificate in Form No.3CEB and because the advance amount is not specifically mentioned in this certificate, the AO could not refer the petitioner's loan transaction with MMG to the TPO. The first respondent has also opined th....... + More

Addition on account of under valuation of stock - valuation of the product sold by the assessee which was sarees - admission of the Director of the assessee in this regard made twice in a gap of about one month - survey operation under Section 133A - ITAT deleted the addition - HELD THAT:- The issue as to whether the said statement could have been made the sole basis for revision of assessment or to conclude that there was under valuation of the stock elaborately discussed by the CIT(A). CIT(A) also took note of the decision in the case of CIT Vs. Khader Khan Son [2007 (7) TMI 182 - MADRAS HIGH COURT] which was affirmed as reported in [2013 (6) TMI 305 - SC ORDER] it has been held that the Department should not insist on making any disclosure and further such disclosure made in the course of survey should not be relied upon and the assess....... + More

Assessment u/s 153C - Period of limitation - Validity of assessment order framed u/s 143(3) - HELD THAT:- As carefully perused the orders of the authorities below. We are of the considered view that in the case of a person other than a “Searched Person”, provisions of section 153C of the Act are applicable and in such a case, the date of search or date of requisition, as referred to in Section 153A of the Act is substituted by the date of handing over of documents by the Assessing Officer of the “Searched Person” to the Assessing Officer of the “Other Person”. Since the date of recording satisfaction is 02.12.2016 which falls in the previous F.Y. 2016-17 relevant to Assessment Year 2017-18, the immediately preceding six years are Assessment Years 2011-12 to 2016-17. Thus, the year under appeal clearly f....... + More

Revision u/s 263 - CIT-A revising the assessment order framed u/s.143(3) r.w.s. 147 - nature of land sold by assessee that being agricultural land or not? - HELD THAT:- Admittedly, the assessee has carried out agricultural activity which is assessee’s family traditional vocation. It is clear that in the sale deed the properties clearly defined as agricultural land in the schedule of property. Even the AO during original assessment proceedings noticed the chitta and adangal i.e., records for the relevant Fasli year and same was accepted by the AO during assessment proceedings. The assessee has cultivated this land and grown paddy from 2001 to 2004 and for this produced a copy of the adangal record for S.No.255 & 256 issued by the Tehsildar office, Solinganallur Taluk, Kancheepuram Dist. The assessee’s land is agricultural l....... + More

Reopening of assessment u/s 147 - Accommodation entries receipt - HELD THAT:- We find sufficient basis for plea of the assessee that even the conditions of 1st proviso to Section 147 is not complied with. It is not shown as to how the assessee has failed to disclose material facts fully and truly in the original statement . The assessee is not expected to ‘disclose’ something which he is not privy to. In the absence of any food grain bills received by the assessee from the suppliers named in the statement, we are unable to understand the basis for alleging any failure on the part of the assessee as perceived in the reasons recorded. In these peculiar facts, we are of the firm opinion that neither the strict condition of main provision of Section 147 is fulfilled nor the additional conditions embedded in 1s t proviso has been c....... + More

Penalty u/s 271G - non furnishing of segmental transaction has hampered the TPO from benchmarking various transactions - HELD THAT:- From the facts of the case, it is evident that the Assessee has furnished the necessary details for determination of the arm’s length price though (ALP) was unable to provide segment-wise profit & loss account of the AE segment and the non AE segment since the Assessee did not maintain separate books of account for AE & non AE segments. As it is noticed that the co-ordinate bench of this Tribunal in Deputy Commissioner of Income Tax 10(1)(2), Mumbai vs Kama Schachter Jewellery (P) Ltd [2021 (2) TMI 1132 - ITAT MUMBAI] has decided this issue with identical facts relating to furnishing of segmental data of Profit & Loss Account of AE and non AE segment has deleted the penalty levied under section 271G. - Decided against revenue.

Penalty proceedings u/s 271(1)(c) - unverifiable selling expenses, Disallowance of EPF & ESIC after due date added u/s 2(24)(x) read with section 36(1)(va), Deemed dividend u/s 2(22)(e), Bogus creditors, Surrender on account of unverifiable creditors - HELD THAT:- As perused the orders passed by the authorities below, specifically the impugned order wherein the Commissioner has observed that the Assessee has not offered any explanation for rebutting the presumption of concealment and even also failed to mention any worthwhile new facts and evidence in order to show the transactions, even if not confirmed by the parties with whom the Assessee has dealt with, were genuine/real. Therefore, virtually in this case no explanation has been offered in the penalty proceedings. Hence, the penalty has been rightly levied u/s 271(1)(c) of the Act....... + More

Disallowance u/s. 80IC - assessee has set up a manufacturing unit for cell phone battery, chargers and other accessories and carried out manufacturing process and fulfils the conditions prescribed u/s. 80IC - AO disallowed claim as articles manufactured by the assessee fall in the 13th Schedule, but not covered in the 14th schedule. Secondly, the assessee is only assembling mobile phone battery etc. and cannot be called as a manufacturer - HELD THAT:- As decided in own case [2018 (11) TMI 1328 - ITAT DELHI] assessee has set up a manufacturing unit for cell phone battery, chargers and other accessories and carried out manufacturing process and fulfils the conditions prescribed u/s. 80IC - Decided against revenue.

Deemed dividend u/s.2(22)(e) - CIT(A) deleting the addition made by AO of treating the loan received from Rajshree Automotive Pvt. Ltd., as deemed dividend - HELD THAT:- As the issue is covered in regard to deemed dividend assessed by AO u/s.2(22)(e) of the Act, as the same land was under consideration by Tribunal in immediate preceding year i.e., assessment year 2013-14 [2019 (9) TMI 1646 - ITAT CHENNAI]hence taking a consistent view and taking the issue as covered in favour of assessee, we confirm the order of CIT(A) and dismiss this issue of Revenue’s appeal. Disallowance u/s 14A r.w.r. 8D - HELD THAT:- We noted that the Tribunal in immediate preceding year [2019 (9) TMI 1646 - ITAT CHENNAI] deleted the addition in regard to disallowance under Rule 8D(2)(ii) but sustained the disallowance under Rule 8D(2)(iii) to the extent of Rs....... + More

MAT computation u/s 115JB - Adjustment of resultant gains / losses of the amalgamation - write off of investments consequent to reduction in capital of the subsidiary, in computing book profits under provisions of section 115JB of the Act - Whether section 115JB is a self-contained code and hence only specified adjustments can be added or excluded from book profits? - HELD THAT:- FFL got merged with the assessee w.e.f. 01.04.2008 and the amalgamation was accounted for by the assessee on ‘Pooling of interest’ method. According to this method, the assets and liabilities are recorded at Book Value. The resultant gains / losses of the amalgamation have been adjusted through Capital Reserves / General Reserves & Surplus and the same have not been routed through Profit & Loss Account. This would show that the transactions we....... + More

TDS u/s 195 - withholding of tax - Income accrued to India - PE in India - payments were made to the consultant which are covered under section 9(1)(vii) - as per AO payments made by the assessee to GBAs were in the nature of fees for technical services (“FTS”) and do not fall within the scope of Article 7 of DTAA and that “make available” clause is applicable to the assessee - AR submitted that the payments made to GBAs are in the nature of commission for sales promotion services rendered by them on which no tax is required to be deducted at source as the same constitutes business income of the payees which is not taxable in India in the absence of PE of the payees in India - whether services rendered by GBAs were in the nature of business support services and not in the nature of managerial or technical or consul....... + More

Rectification of mistake u/s 154 - whether the assessee is eligible for deduction u/s 80P? - interest income received by the assessee society was not from co-operative society but from a co-operative bank, and therefore, not entitled to deduction u/s 80P(2)(d) - HELD THAT:- The powers of the Assessing Authority while processing a return u/s 143(1) is very limited. AO could make only prima facie adjustments which are apparent from the return filed. Only mistakes in law, arithmetic mistakes, incorrect claims apparent on the records, excess loss or disallowances apparent which are not disallowed etc, can be adjusted. The issue whether the assessee is eligible for deduction u/s 80P of the I.T.Act is not a matter that can come within the ambit of prima facie adjustment authorised u/s 143(1) of the I.T.Act. The CIT(A) in the impugned orders hav....... + More

Disallowance of education and secondary and higher secondary cess u/s. 40(a)(ii) - HELD THAT:- D.R. appearing for the Revenue has fairly conceded that this issue is being squarely covered by CBDT Circular No. 91/58/66 - ITJ(19) dated May 18, 1967 operative w.e.f. 1962-63 wherein it is categorically held that “when the matter came up before the Select Committee, it was decided to omit the word “cess” from the clause. The effect of the omission of the word “cess” is that only taxes paid are to be disallowed in the assessments for the years 1962-63 onwards”. Following the above submission of the Ld. D.R. Ground No. 1 is hereby dismissed. Deduction under Section 80IA being profit from power generating unit - Claim rejected as not been made in the original return filed by the assessee, but only in the revise....... + More

Delayed remittance of employees contribution to PF & ESI u/s.36(1)(va) - scope of amendment brought u/s.36(1)(va) - HELD THAT:- We find that an identical issue had been considered by the co-ordinate Bench of ITAT Chennai in the case of M/s.Adyar Ananda Bhavan Sweets India Ltd., [2021 (12) TMI 558 - ITAT CHENNAI] and by considering the amendment to the provisions of Sec.36(1)(va) of the Act, by the Finance Act, 2021, held that amendment brought u/s.36(1)(va) of the Act, is applicable from assessment year 2020-21 onwards and thus, payments made to employees’ contribution to PF & ESI beyond due date specified under the respective Act, but within due date for filing of return of income u/s.139(1) of the Act, is an allowable deduction u/s.36(1)(va). Thus we are of the considered view that payments made to employees’ contrib....... + More

Nature of land sold - Capital asset or agricultural land - assessee reiterated that the land sold in village Bhaniyara is situated beyond 8 km of VMC limit and accordingly does not qualify as a capital asset under section 2(14) - AO invoked section 50C - “competent authority” to measure distance between the land sold and the municipal limits. - HELD THAT:- We are of the considered view, that since there is no prescribed authority to decide upon the distance between the village land and the limit of the closest municipal Corporation, therefore, we are unable to accept the assessee’s argument that the report of Executive Engineer, Vadodara (R and B) division cannot be relied upon for determining the distance between the impugned land at village Bhaniyara and the nearest local municipal Corporation. However, at the same tim....... + More

Revision u/s 263 - admissibility of deduction under section 54F of the Act has been claimed for purchase of four residential house properties - whether the Assessing Officer has conducted sufficient enquiry to examine the correctness of claim of deduction under section 54F? - HELD THAT:- In the light of the provisions of section 263 of the Act and a settled position of law, powers u/s 263 of the Act can be exercised by the Pr. Commissioner/Commissioner on satisfaction of twin conditions, i.e., the assessment order should be erroneous and also prejudicial to the interest of the Revenue. By 'erroneous' is meant contrary to law. Thus, this power cannot be exercised unless the Commissioner is able to establish that the order of the Assessing Officer is erroneous and prejudicial to the interest of the Revenue. Thus, where there are two....... + More

Reopening of assessment u/s 147 - unexplained investment u/s.69 - Eligibility of reasons to believe - reopening within a period of 4 years - HELD THAT:- As per the mandate of law, even where a concluded assessment is sought to be reopened by the A.O within a period of 4 years from the end of the relevant assessment year, it is must that the A.O has fresh material or information with him, that had led to the formation of belief on his part that the income of the assessee chargeable to tax has escaped assessment. Our aforesaid view is fortified by the judgments of NYK Lime (India) Ltd. [2012 (2) TMI 283 - BOMBAY HIGH COURT] and Purity Tech Textile Pvt. Ltd. [2010 (2) TMI 26 - BOMBAY HIGH COURT] We, thus, in the backdrop of our aforesaid observations not being able to persuade ourselves to subscribe to the order passed by the CIT(Appeals) wh....... + More

Disallowance of additional depreciation - proof of manufacturing of an article or thing - as per AO activity of power generation cannot be considered as manufacturing of an article or thing, so as to be entitled for additional depreciation - HELD THAT:- Hon’ble Supreme Court in the ease of CST Vs. M.P. Electricity Board, [1968 (11) TMI 85 - SUPREME COURT] and in the case of State of AP & Ors. Vs. National Thermal Power Corpn. Ltd. and Ors. [2002 (4) TMI 694 - SUPREME COURT] has held that electricity is capable of abstraction, transmission, transfer, delivery, possession, consumption and use like any other movable property and thus qualifies to be ‘goods’. In view of the said decisions of the apex court, the coordinate bench of ITAT Delhi In appellant’s own case for the immediately preceding year [2012 (5) TMI 1....... + More

Addition of agricultural income as unexplained income - Case was selected for scrutiny assessment and notices under section 143(2) and 142(1) were issued - HELD THAT:- No details have been received from the traders to whom sale of agriculture produce is stated to be sold. The assessee also not furnished any proof of purchase of seeds, fertilizer payments etc. Bills produced for sales only stated that payment were deducted on account of off-loading and labour charges for goods sold. It is not possible to have agriculture produce without incurring such expenses. So the claim of the assessee is misleading in the absence of any details of procurement of seeds, fertilisers, water facilities, labour charges, and therefore, no agriculture activities can be said to be done. Further, in the form No. 7/12, there is no details of farming being done ....... + More

Disallowance of deduction u/s 36 (1) (viii) in respect of special reserve created @ 20% of the profits derived from eligible business of providing long-term finance for development of housing - disallowance was made because of the view expressed by the revenue that assessee he has not provided long-term finance to development of housing projects, but provided only to construct or purchase of residential house - HELD THAT:- Axiomatically it means that assessee does provide housing finance for construction of residential purposes. What needs to be established is that the finances provided by assessee is for eligible business as defined under clause (b) to the explanation to section 36 (1) (viii) of the act. Order query being raised by the bench both sides agreed for the issue to be remanded in order to verify the same in accordance with the....... + More

Levy of GST - royalty payable to the Government on mining of minerals - petitioner denies his liability of G.S.T. on royalty - HELD THAT:- Similar issue decided in the case of M/S SILVERLINE AUTOMOBILES VERSUS STATE OF UP AND 3 OTHERS [2022 (3) TMI 1048 - ALLAHABAD HIGH COURT] where it was held that Since in similar matters, interim orders have been passed by this Court in the light of interim orders passed by Hon'ble Supreme Court, therefore, the petitioner is also entitled for interim relief. Considering the facts and circumstances of the case, the petitioner is also entitled to interim order in terms of the aforequoted interim order passed in the case of M/S Silverline Automobiles - application allowed.

Detention of seized goods alongwith the vehicle - prayer has been made for release of the said vehicle stating that the petitioner is suffering losses and is unable to make his both ends meet - HELD THAT:- There are no reason to oppose any move by the petitioner if the provisions of law permit release of the vehicle before or after its confiscation by payment of an appropriate fine which has been determined or may be determined and imposed upon the vehicle in question. In case, any such application is filed, the appropriate authority would consider the same strictly in accordance with the provisions of Section 130 of the CGST within a period of two weeks’ from today. Application disposed off.

Violation of principles of natural justice - fair opportunity of hearing not provided - ex-parte order - excess claim of Input Tax Credit - HELD THAT:- This Court, notwithstanding the statutory remedy, is not precluded from interfering where, ex facie, we form an opinion that the order is bad in law. This we say so, for two reasons- (a) violation of principles of natural justice, i.e. Fair opportunity of hearing. No sufficient time was afforded to the petitioner to represent his case; (b) order passed ex parte in nature, does not assign any reasons sufficient even decipherable from the record, as to how the officer could determine the amount due and payable by the assessee. The order, ex parte in nature, passed in violation of the principles of natural justice, entails civil consequences. We also find the authorities not to have adjudicated the matter on the attending facts and circumstances. Petition disposed off.

Interest on belated deposit of admitted tax in instalment u/s 80 read with Rule 158 - self-assessed returns furnished in terms of section 39 read with section 59 of CGST/OGST Act - HELD THAT:- When the levy of interest emanates as a statutory consequence and such liability is a direct consequence of non-payment of tax, such a levy is different from the levy of interest which is dependent on the discretion of the assessing officer. The default arising out of non-payment of tax on an admitted liability in the case of self-assessment attracts automatic levy of interest, whereas the default in filing incomplete and incorrect return attracts best judgment assessment in which the levy of interest is based on the adjudication by the assessing officer. In equity, interest may be recovered in certain cases where a particular relationship exists be....... + More

Exemption form GST - Nashik Cambridge Pre-School - supply of Pre-school education service to its students against fee - supply of some goods to its Pre-school students, without any consideration - supply of some goods to its Pre-School students for some consideration - supply of transportation service to tits Pre-school students without any consideration - supply of transportation service to its Pre-school students for some consideration - supply of transportation service to its faculty and staff for some consideration - supply of canteen service to its faculty and staff for some consideration - Applicability of Serial No. 66 of the Notification No. 12/2017-CT (Rate) dated 28/06/2017. HELD THAT:- In the subject case, the applicant provides services by way of Pre-School education and as per 2(y) (i) above, the applicant i.e. Nashik Cambrid....... + More

Levy of GST - Revenue Sharing invoices raised by one party on to another party - the outward supply of services is exempt or not - HELD THAT:- Any person registered or desirous of obtaining registration under CGST Act 2017 can seek advance ruling only in relation to the supply of goods or services or both being undertaken or proposed to be undertaken. In the instant case, it is observed that Auriga Research Private Limited, who have filed the application, is not a supplier. Thus the instant application is not admissible and liable for rejection in terms of Section 98(2) of the CGST Act 2017. The application is hereby rejected as “inadmissible”, in terms of Section 98(2) of the CGST Act 2017.

Seeking grant of bail - misuse of ID password of UDIN and OTP - Allegation against the Chartered Accountant - preparation of forged certificates for bogus/nonexistent companies to claim a GST refund - offence under Section 132 (1)(i) read with 132(1)(b)(c)(e)(f) CGST Act 2017 - HELD THAT:- This Court is of the considered view that the allegations levelled against the applicant/accused Sunil Mehlawat are that he shared his ID password of UDIN and OTP with his friend i.e. the co-accused namely Gaurav Dhir and on 16.05.2022, co-accused Garuav Dhir informed him that he had generated some UDIN (as mentioned in the instant application) for CA certificate for filing certain refund claims pertaining to firms which were later on found to be fraud/fake. Hence, applicant/accused Sunil Mehlawat is involved in causing a loss to Government Exchequer to....... + More

Seeking release of detained goods - appealable order or not - Section 129 (1)(b)/129 (3) of CGST Act, 2017 read with IGST Act - HELD THAT:- An order under Section 129 (1)(b)/129 (3) of CGST Act, 2017 read with IGST Act, has been passed on 14.05.2022, pursuant to the impugned notice. The order is appealable under Section 107 of the Act, 2017. The petition is dismissed.

Demand and Recovery u/s 74 - Cross state adjustment of unutilized input tax credit - input service distributor (ISD) - modality in claiming adjustment of unutilized input tax credit is objected to by the Revenue on the premise that such a device to facilitate other units of JSW Steel Ltd. located in other States to claim input tax credit arising in the State of Odisha is contrary to the statutory mandate - HELD THAT:- It is apparent that JSW Steel Ltd., public limited company, has units located in different States including the State of Odisha with its Head Office at Mumbai. The Head Office at Mumbai is registered as ISD bearing GSTIN 27AAACJ4323N2ZF. It is also registered as normal taxpayer being GSTIN 27AAACJ4323N3ZE in the State of Maharashtra. No doubt JSW-Company from its Head Office at Bombay had applied and participated in the tend....... + More

Validity of SCN - Denial of Input Tax Credit - complete mismatch between the supplier and the petitioner - mismatch rectified or not - Section 42(3) of the GST Act - HELD THAT:- After receipt of the show cause notice, if at all the petitioner wants to rectify the mismatch between the petitioner and the supplying dealer, the supporting documents to substantiate that the output tax had been paid by the supplying dealer at their end should have been procured and filed along with the reply submitted by the petitioner, which they failed to do. Therefore, the technical reason that under Section 42(3) it should have been communicated at the earliest point of time and therefore the show cause notice cannot be treated as communication intimating the mismatch between the supplier and the petitioner, cannot be countenanced. Therefore, on that ground....... + More

Maintainability of appeal - condonation of delay in filing appeal - requirement of mandatory pre-deposit - HELD THAT:- Since this Court had directed the Appellate Authority to exclude the period spent by the petitioner in pursuing the litigation in W.P.(C) No.2963 of 2018, and the said judgment became final, the Appellate Authority was bound to abide by it. Failure to abide by the binding directions in the said judgment has rendered the impuned order perverse. Requirement of mandatory pre-deposit - HELD THAT:- As rightly pointed out by the learned counsel for the petitioner, since the bank guarantee furnished by the petitioner is alleged to have been invoked, the said matter ought to have been considered by the Appellate Authority. Once the entire tax and penalty imposed on the petitioner and secured by the Bank Guarantee was fully satisf....... + More

Classification of services - rate of GST - (Training Academy) Fire Prevention & Emergency Training and Awareness Programmes - Serial No.69 of the Notification No. 12/2017-Central Tax (Rate) dated 28th June, 2017 - HELD THAT:- As per entry No. 69 of Notification No. 12/2017, GST is exempt on any services provided by a training partner approved by the National Skill Development corporation or the Sector Skill Council in relation to- (i) the National Skill Development Programme implemented by the National Skill Development Corporation; or (ii) a vocational skill development course under the National Skill Certification and Monetary Reward Scheme; or (iii) any other Scheme implemented by the National Skill Development Corporation. However the applicant has not furnished any information whether they are a training partner approved by the N....... + More

Seeking grant of Bail - input tax credit - non-existent suppliers - non receipt of goods - cognizable and non-bailable or not - offence punishable under Section 132(1)(b)(c) (i)(3)(5) of the CGST Act, 2017 - HELD THAT:- The applicant-accused was arrested on 16.02.2022. The investigation is at a nascent stage. Allegedly, the accused availed input tax credit by creating fake bills and during the transaction no goods were actually supplied. When the chain of suppliers were explored, most of the premises were found either closed or their GST registration cancelled. The accused has no material to show physical movement of goods. As per the complaint, the applicant-accused was the proprietor and the master mind of the alleged crime. It was him who had orchestrated the crime to camouflage the fraud into the nexus of trusted accomplices who acted....... + More

Seeking grant of Bail - availment of input tax credit - floatation of bogus firms and by issuing bogus bills - HELD THAT:- The evidence collected during the course of investigation clearly points towards complicity of the petitioners, who have committed a colossal fraud of about Rs.1.80 crores. Such like huge loss is virtually an attempt to shatter the economy of the country. While noticing that the petitioners are habitual offenders, this Court does not find any ground for grant of bail to the petitioners at this stage. Both the petitions, as such, are dismissed.

Seeking grant of regular bail - availment of fraudulent input tax credit - bogus/fake firms - criminal conspiracy - HELD THAT:- Considering the above background and custody of the petitioners, this Court is of the opinion that the conclusion of trial is likely to consume considerable time, as only two prosecution witnesses have been examined out of total thirty four prosecution witnesses, therefore, further detention of the petitioners may not serve any useful purpose, who are presently confined in judicial custody after their arrest. Apart from it, the material witnesses are police officials and officials of Excise Department and presently, there does not seem to be any possibility of their being won over. Without meaning any expression of opinion on the merits of the case, it is ordered that the petitioners be released on regular bail i....... + More

Classification of goods - second hand or used 'Paintings' - determination of the liability to pay tax - applicability of Rule 32(5) of CGST & MGST Rules, 2017 - HELD THAT:- The provisions of Rule 32(5) of CGST & MSGST Rule, 2017 are applicable to sale of such 'Paintings' and tax shall be paid on the difference between the selling price and the purchase price and where the value of such supply is negative, it shall be ignored. On an application filed by IN RE: M/S. ASTAGURU AUCTION HOUSE PRIVATE LIMITED [2022 (3) TMI 572 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA] has held that Paintings classifiable under Heading 9701 and the applicant was liable to pay GST of 12%. In the said case also, as in the present case, the applicant was dealing amongst other goods, in second hand paintings and it was also held that the pr....... + More

Seeking grant of Bail - wrongful availment of Input Tax Credit - fake invoices - HELD THAT:- This Court is of the considered view that allegations levelled against the applicant/accused are that he issued fake invoices to the tune of Rs. 5.65 crore without the actual supply of goods and all this have been done by the applicant/accused in connivance with the other firms. It is further alleged that there are nearly 56 firms, among whom fake invoices have been exchanged in regard to the amount of Rs. 5.65 crore despite the fact that goods had never been supplied through those invoices. On the basis of said fake invoices tax to the tune of Rs. 5.65 crore has been allegedly evaded by way of claiming the Income Tax Credit. Considering the gravity and the nature of the allegations levelled against the applicant/accused and the fact that the inve....... + More

Refund of IGST - Separate application was not filed - treatment of shipping bill as refund application - export of goods - whether Circular No. 37/018-Cus dated 09.10.2018 is ultra virus the provisions of CGST Act, 2017 or not - Section 16(3)(b) of the IGST Act read with Section 54 of the CGST Act and Rule 96 of the CGST Rules - HELD THAT:- A separate application for refund was not required to be filed. - the shipping bills would operate as a refund application as envisaged under Section 54 of the CGST Act read with Section 16 of the IGST Act, as also Rule 96(1) of the CGST Rules. Interest on Delayed Refund - HELD THAT:- Once the petitioner had taken steps to move the Court and notice was issued in the writ petition, the respondents were, in a sense, forewarned that statutory interest would kick-in - notice in this petition was issued on ....... + More

Validity of SCN - show cause notice challenged on the ground that the mandatory requirement of pre-show cause notice consultation - Rule 142 (1A) of the Central Goods and Service Tax Rules, 2017 - HELD THAT:- The Court ruled that the requirement of pre-show cause notice consultation, as set forth in paragraph 5.0 of the master circular, was mandatory, as it was also in line with an earlier instruction dated 21.12.2015. It is noted that with effect from 15.10.2020 i.e., after the impugned show cause notice was issued, Rule 142(1A) has undergone a change, inasmuch as the word ‘shall’ has been replaced with ‘may’. As to what would be the impact of the amendment need not be considered by us in this case, as admittedly the show cause notice was issued prior to 15.10.2020 i.e., on 21.05.2020 - having regard to the positi....... + More

Refund on the exports made by the petitioner - Prescribed procedure - Mistake in GSTR-3B returns - details itself have not been received from GSTN portal to the designated system of the customs - input tax credit - zero rated supply - It is the specific case of the petitioner that though the petitioner had correctly declared the details in the monthly returns in Form GSTR-1 regarding the exports made by the petitioner on payment of tax by debiting the input tax credit, a mistake was committed by the petitioner in GSTR-3B under Rule 61(5) of the CGST Rules, 2017 - HELD THAT:- The refund of tax/duty paid on exports has been long recognized under the provisions of the Central Excise Act, 1944 r/w Central Excise Rules, 1944 and later under the provisions of the Central Excise Rules, 2002. These Rules have been incorporated under the GST regim....... + More

Issuance of summons - whether from the facts and circumstances, it could be inferred that the Court below has passed the impugned order summoning the petitioners without taking into consideration the material as well as the provisions of the statute - HELD THAT:- As per Section 135(1)(a) of the Act, prosecution can be initiated if the market price of the goods exceeds Rs.1 Crore. It is an admitted fact that in the order dated 4th August 2011 passed by the Commissioner of Customs (Preventive), collective value of all the goods was taken to be Rs.77,16,288/- and it is further admitted that no appeal was preferred against the said order, which therefore, attained finality. It may be observed that in the present case there is nothing to show that the petitioners made any false declaration or prepared false documents and, therefore, he is not ....... + More

Issuance of summons directly to the Managing Director of the petitioner Company without providing the alternative of it being issued to an authorized representative - HELD THAT:- In the instant case, no material is available that there is a reasoned view formed by the Department that the petitioner assessee is not cooperating or that the presence of the Managing Director specific is required for the investigation for any reason. This writ petition is disposed off by directing the departmental authorities issuing the summons under Section 108 of the Act of 1962 not to issue summons directly to the Managing Director of the petitioner Company and on the other hand to issue it to an authorized representative of the Company in terms of the provisions of the Circular dated 10.10.1989 - petition disposed off.

Revocation of customs broker license - Rule 16(1) of CBLR 2018 - HELD THAT:- In the present case continuance of suspension of license without examining the necessity of the same impinges on the fundamental right to work of the applicant. We are not going into the merits of the case and the nature of offence committed as the same needs to be examined when the appeal is heard and not at this stage where only the application of early hearing is being examined. The appeal of the applicant may be listed in the next available Division Bench in Chandigarh. The application is allowed

Levy of parallel penalties on Customs Broker and employees - allegation of abetting the importers - concealment and mis-declaration of goods - main contention raised by the appellant is that there is no allegation in the Show Cause Notice attracting ingredient of Section 112(a) and that the allegation would fall within the purview of the CBLR, 2018 (2013) for which penalty has already been imposed - HELD THAT:- The allegation is in the nature of violations falling under the Customs Brokers Licensing Regulations - it is held that the Department has failed to establish the ingredients under Section 112(a) of the Customs Act, 1962 against the appellant. The penalty imposed under Section 112(a) on the appellant, is not justified and requires to be set aside. Levy of penalty u/s Section 112(a) - appellant falsely introduced himself as the repr....... + More

Refund of SAD - only ground for rejection of refund given by the adjudicating authority is that the amount of SAD paid by the appellant by way of debiting in MEIS scrip and that no declaration was found on the sale invoice regarding non admissibility of cenvat credit of SAD - HELD THAT:- The issue that whether the refund is admissible when an assessee paid the SAD by debiting MEIS has been settled in the judgment of ALLEN DIESELS INDIA PVT. LTD. VERSUS UNION OF INDIA & ORS. [2016 (2) TMI 247 - DELHI HIGH COURT] where it is clear that even if the assessee does not pay the SAD amount in cash but the same is debited in any incentive scrip, in the aforesaid case the same was debited from DEPB, the refund of SAD cannot be denied - The same analogy is applicable in the present case as the amount of SAD was debited in MEIS scrip. Therefore, ....... + More

Seizure of exotic animal - Live Exotic Bird Macaw - summoning the appellant under Section 108 of the Customs Act, 1962 - evidence of production of legal documents - HELD THAT:- In the instant case the respondent no. 3 had seized Exotic Bird of the appellant but admittedly the Central Government has not notified the exotic bird and animals in question under section 11B of the Customs Act or in any of the Schedule of the Wild Life (Protection) Act, 1972 and thus mere surmises or merely on the basis of the statements recorded by the Custom or Wildlife authorities would be contrary to the provisions of the Customs Act, 1962 or even Wild Life Act. The appellant, by virtue of the Advisory had declared the stock of Exotic Live Spices on 15.11.2020 i.e. within six months from the issuance of the Advisory and thus in view of the judgments in DINES....... + More

Seeking release of seized goods - muddamal - base oil - prayer to release base oil has not been considered - offence under Sections 285, 278 and 114 IPC and Section 3, 7 and 11 of the Essential Commodities Act or not - HELD THAT:- Upon perusal of the findings of the Courts below, this court is of view that, it is settled law that, the articles seized by the police, may be released to the person, who in the opinion of the Court, is lawfully entitled to claim, after preparing detailed panchnama of such articles as well as photographs of such articles and security bond. In the facts of the present case, after following procedure, the seized base oil, imported by the petitioner herein and after clearance of the port authority, it was about to reach at the destination. Pursuant to the FIR, samples were taken from the seized oil. The petitioner....... + More

Jurisdiction - power of DRI to issue SCN - Proper Officer or not - Section 28 of the Customs Act 1962 - power of Tribunal to remand the case without deciding the issues raised therein on the ground that jurisdiction of the officer to issue show cause notice is under dispute - HELD THAT:- The issues involved herein have been considered and decided by a Co-ordinate Bench of this Court, in the case of THE COMMISSIONER OF CUSTOMS VERSUS M/S. BOX CORRUGATORS AND OFFSET PRINTERS [2020 (5) TMI 475 - MADRAS HIGH COURT] where it was held that in view of the fact that the learned Tribunal has clearly protected the interest of both the Revenue as well as the Assessee by directing the Assessing Authority to keep the matter pending and maintain status quo till the Hon'ble Supreme Court decides the appeal of the Revenue in the case of UNION OF INDI....... + More

Revocation of Customs Broker License - Forfeiture of security deposit - levy of penalty - Department has alleged that the appellant-Custom Broker has violated various provisions of the CBLR inasmuch as they did not verify the credentials of their client importers - retraction of statements - HELD THAT:- The appellant have not based their argument on as to how they have conformed to the KYC norms while interacting with their customers. They have not submitted any independent reliable documents to prove the genuineness of the where about of the clients. It is not their claim that they have produce so and so documents to defend their position. It is found that the appellants have also not submitted any cogent reasons as to how they permitted persons without “G” or “H” cards to handle the documents on their behalf. The....... + More

Levy of penalty u/s 112 of CA - Smuggling - Gold - cross-examination of witnesses - retraction of statements - HELD THAT:- Admittedly the gold in question was recovered from two Philippines nationals namely S.B. Taha & A.J. Macud, who in their respective statements have admitted the act of smuggling by them, as they have stated that they have brought this gold into India without declaring the same at the Customs check post when they arrived at New Delhi by air. This statement have never been retracted by the two Filipino nationals. Further, they have also not contested the show cause notice. Thus, the two Filipino national have admitted that act of smuggling for gain. So far these appellants are concerned, admittedly, none of them was found to be in possession of the seized gold nor there is any detail of any alleged conspiracy hatche....... + More

Validity of preventive detention order - allegation of smuggling activities - COFEPOSA - impugned Preventive Detention Order is yet to be served on the petitioner - firms alleged to be operated/controlled by the petitioner were placed in Denied Entry List (Blacklist), prior to passing of the detention order - diligent to serve the detention order on the petitioner at the earliest despite being available for service since the detention order was passed on 26.03.2019 and the petitioner had appeared before the Ld. CMM on 28.03.2019 and 05.04.2019 after the passing of the impugned detention order - whether petitioner is absconding or concealing himself to avoid execution of the impugned detention order or not - HELD THAT:- If a person against whom the preventive detention order is passed comes to the court at pre-execution stage and satisfies....... + More

Levy of penalty u/s 112(a) of the Customs Act, 1962 on the Customs Broker - wrongful availment of benefit of exemption under N/N. 69/2011-Cus. dated 29.07.2011, N/N. 46/2011-Cus. dated 01.06.2011 and N/N. 12/2012-Cus. dated 17.03.2013 dated, which was not available to the importer - HELD THAT:- The allegation levelled against this appellant in the Show Cause Notice is clearly the violation of Regulations 13(d) and (e) of the CBLR, no specific act or omission is attributed to this appellant. What is important is the act or omission that leads to the confiscation of improperly imported goods. Section 111 of the Customs Act, 1962 deals with confiscation of improperly imported goods, etc. and Section 112 prescribes penalty for improper importation of goods, etc. It becomes clear that both Section 111 and Section 112 are attracted only when th....... + More

Levy of penalty u/s 114(i) of the Customs Act, 1962 on Customs Broker - goods are not confiscated, as there is no such proposal in the Show Cause Notice - it is claimed that the question of imposing penalty under sec. 114(i) does not arise as the provision of section 114 will be invocable only when section 113 of the Customs Act, 1962 has been invoked - HELD THAT:- It is seen from the facts that the appellant had only filed the shipping bill and had not got registered or filed any KYC documents along with it to proceed with the export of the goods. It is submitted by the learned counsel that after filing the shipping bill, as they had not got documents from the exporter, they did not pursue the matter so as to get the shipping bill registered. On perusal of the records, there are no evidence established against the appellant to show that ....... + More

Classification of imported goods - Hexane Liquid Chemical - utilized for Industrial purpose as well as for Food Grade purpose or not - it is claimed that what has been imported in the name of Hexane Liquid Chemical, to be utilized for Industrial purpose, is actually Hexane Liquid Chemical for Food Grade purpose - HELD THAT:- First of all, it is needed to be understood whether these two products are different or distinct or is it the case that the Hexane Liquid Chemical can be used for Industrial purpose also as well as for Food Grade purpose. If this chemical can be used for both the purpose as aforesaid then the writ applicants undertake that they will use it only for the Industrial purpose - It is to be understood further on what basis the CRCL has said that the samples analyzed are not Hexane Liquid Chemical meant for Industrial purpos....... + More

MEIS scheme - denial of benefit of section 149 of the Customs Act, 1962 - non-complisance with the mandatory requirement of specifically mentioning the intention to avail benefit under the MEIS Scheme as per the Foreign Trade Policy - whether amendment sought was in nature of change which may require evidence to prove or not? - correctness of amendment in shipping bills after a period of about 2-3 years from the export of the concerned goods - HELD THAT:- The Tribunal took the view that the amendment claimed in the shipping bills cannot be said to be in the nature of changing the shipping bills, for which evidence may have to be led. According to the Tribunal, the assessee is not intending to change the description of the goods or quantity of the goods. The argument on behalf of the Revenue is that once the goods are exported, it is very ....... + More

Advance Authorization Scheme - import of duty-free goods (Raw Cashew Nuts) by the appellants under Advance Authorization licenses, diverted to other units which were not authorized by DGFT - sale of substantial quantity of processed cashew kernels - violation of condition of the Notification No. 18/2015-Cus. dated 1.4.2015 - jurisdiction to issue SCN - HELD THAT:- It has to be stated that the learned counsel for appellant did not put forward any arguments on the issue as to whether DRI is the proper officer to issue Show Cause Notice. Though the judgment of the Hon'ble Supreme Court in the case of M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT] was brought to his notice, he submitted that he does not wish to contest on the said issue before the Tribunal or before any other forum. Wheth....... + More

Revocation of Customs Broker License - forefeiture of security deposit - levy of penalty - applicability of Regulation 14 of the CBLR, 2018 - allegation of fraud by availing export finance by submission of export bills without making exports - HELD THAT:- It is an admitted fact that the appellant has issued the checklists to the exporters. Even investigation report recorded that ABCCPL owned and controlled by Shri Ashish Jobanputra was exporting cotton since the year 2009 mainly to China under Letter of Credit. Since ABCCPL was a regular exporter exporting goods since 2009, they did not find any difficulty in getting the export documents for availing the fraudulent export credits from the Banks. These documents have been issued by M/s. RSS Shipping Pvt. Ltd. who was operating the CHA licence in the name of M/s. Ramesh Transport Co. (the a....... + More

Classification of goods - mill processed non-allow ferrous waste metal goods wound in a coil - goods has been treated as waste material under the Tariff item 72044900 of the First Schedule to the Customs Tariff Act, 1975 or not - Section 28 KA of the Customs Act, 1962 - HELD THAT:- The appellant being an importer intends to import mill processed non-alloy ferrous waste metal goods wound in coil from South Africa and placed a purchase order for a supply of 200 MT of the product in an 8x20 feet container. According to the appellant, it is a ''RE-ROLLABLE WASTE'' unavoidably obtained as a result of the manufacturing of '' Cold Rolled Coils'' from '' Hot Rolled Coils''. Such a coil which is neither a Hot rolled nor a cold-rolled is having multiple thicknesses, tensile strength etc. These coils a....... + More

Interpretation of statute - smuggling of Gold - Whether Section 15(1)(a)(iiia) of the UA(P)A, which was inserted in the year 2012, was meant to include the smuggling of gold in the category of ‘other material’ as mentioned in Section 15(1)(a)(iiia) of the UA(P)A or not? - HELD THAT:- Single Bench of MOHAMMED ASLAM SON OF ABDUL RASHID VERSUS UNION OF INDIA, NATIONAL INVESTIGATION AGENCY [2021 (2) TMI 124 - RAJASTHAN HIGH COURT] held that gold is a valuable material, smuggling of which can be done with intent to threaten or likely to threaten the economic security of the country and was thus considered to be a ‘terrorist act’. However, in MOHAMMED SHAFI P., JALAL A.M., RABINS KARIKKANAKUDIYIL HAMEED, RAMEES K.T., SARITH. P.S., SWAPNA PRABHA SURESH, SHARAFUDEEN K.T., MOHAMMED ALI VERSUS NATIONAL INVESTIGATION AGENCY, ....... + More

Seeking release of consignment - Hexane Liquid Chemical - argument is that once the Hexane Liquid Chemical is imported for Industrial purpose, it shall be utilized for Industrial purpose only - HELD THAT:- An interim order is passed for release of the consignment subject to the certain terms and conditions - The writ applicants shall ensure that the Hexane, which they have imported shall be used only for the industrial purpose. The writ applicants shall undertake to allow the Customs Department to inspect the books and records as well as the actual use of the Hexane as and when required. The respondents Nos.2 and 3 respectively are directed to assess the bills of entry for import of Hexane and permit clearance for home consumption of Hexane or for warehousing, as the case may be, subject to the aforesaid terms and conditions. It goes without saying that this interim arrangement shall be subject to the final outcome of the writ applications - Post this matter on 03.08.2022.

Sanction of Scheme of Amalgamation - Section 230(6) read with Section 232(3) of the Companies Act, 2013 - HELD THAT:- Various directions with regard to holding, convening and dispensing with various meetings issued - direction with regard to issuance of various notices also issued. The scheme is approved - application allowed.

Seeking grant of anticipatory bail - Conspiracy - tracing of money trail - recovery of cheated amount - HELD THAT:- Undoubtedly, the State has verified the factum of the applicant having undergone targeted Chemotherapy on 20.01.2021 with he having been diagnosed with Prostate Cancer, Stage-4 in March 2019, as per the synopsis filed on 26.02.2021 by the State and the applicant he has been taking medicines for the said Chemotherapy and undergoing Chemotherapy sessions since 2019. The documents of the Action Cancer Hospital that the applicant has placed on record indicates that as on 20.01.2021, the applicant had been admitted for Chemotherapy and was scheduled for Chemotherapy on 21.01.2021. The said document annexed to the written submissions of the applicant dated 08.02.2021 also indicates that the applicant was being discharged in a stab....... + More

Seeking restoration of the name of the company - Section 252 of Companies Act - HELD THAT:- On perusing the material and submissions of the Appellant and the Respondent made available on record, it would be just and equitable to revive the name of the company BIH Technologies Private Limited in the statutory register as being maintained by the Registrar of Companies, Guwahati. In exercise of the powers conferred on the Tribunal under section 252(3) of the Companies Act,2013, the present appeal is partly and conditionally allowed.

Sanction of scheme of amalgamation - Sections 230-232 of the Companies Act, 2013 - HELD THAT:- On perusal of the Scheme and the proceedings, it appears that the requirements of the provisions of section 230 and 232 are satisfied by the petitioner company. The proposed Scheme of Amalgamation is bona fide and in the interest of the shareholders and creditors. The scheme is sanctioned - application allowed.

Restoration of name of the struck off company in the Registrar of Companies, West Bengal - Section 252(3) of the Companies Act, 2013 - HELD THAT:- The Registrar of Companies, West Bengal has submitted its report. It has been stated in the report that only after complying with the provisions of Section 248 of the Companies Act, 2013, Registrar of Companies, West Bengal has struck off the name of the Company with effect from the Register maintained by the Registrar of Companies, West Bengal. In the Report, the RoC, West Bengal has not objected to this application for restoration of the name of he company. On perusal of the application, it is satisfying that the name of the company should be restored to the register - Accordingly, in exercise of the powers conferred on the Tribunal under Section 252 of the Companies Act, 2013, the petition is allowed.

Breach of interim order or not - IL&FS default case - Whether IL&FS has any claim whatsoever on the receivables which are the subject matter of an Assignment Agreement in favour of the Lender deposited in the Escrow Account? - Whether by debiting the money so assigned from the Escrow Account even after 15.10.2018, can Lender and Escrow Bank be said to have violated the order dated 15.10.2018? - HELD THAT:- A perusal of the relevant conditions of transaction documents, makes it clear that a facility of Rs.400 Crores was advanced by the lender to the borrower payable in 96 months with tentative repayment schedule. The amount of interest component and principal component payable on each month has been provided in Schedule 2 of the Agreement. The immovable property of the borrower i.e. ‘IL&FS Financial Centre, Plot-No. 22, G....... + More

Oppression and Mismanagement - validity of Board Meetings - validity of withdrawal of resignation from the post of Directorship - Invocation of jurisdiction of this Bench under Section 397/398 and other provisions of the Companies Act, 1956 - requisite qualification as contemplated under Section 399 of the Companies Act, 1956 - any case has been made out even under Section 111­A of the Companies Act, 1956 or not - validity of Board Meetings - transmission of Equity Shares - validity of AGM conducted - failure to adhere to the request of the petitioner regarding furnishing the documents and inspection of bock s and accounts of the R 1 Company - HELD THAT:- There is no doubt that on 06.04.2013, G.V. Rao addressed a letter to the Board resigning from the post of Directorship. The letter explicitly indicated that his resignation should be....... + More

Restoration of name of the Company in the Register of Companies - Section 252 of the Companies Act, 2013 - HELD THAT:- After perusal of material document on record, the report of the Respondent and after going through the provisions of Section 252(3) of the Act, 2013, this Tribunal is of the view that the Applicant Company was in existence and it is a going concern and name of the Company is to be restored in the Register of Companies as maintained by the Respondent. The application is allowed.

Sanction of Scheme of Amalgamation - Sections 230 - 232 of the Companies Act, 2013 and other applicable provisions of the Act and read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Various directions with regard to holding, convening and dispensing with various meetings issued - various directions with regard to issuance of various notices also issued. The scheme is approved - application allowed.

Sanction of Scheme of Arrangement by way of Demerger - section 230-232 of Companies Act, 2013, and other applicable provisions of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Various directions are issued forthwith in respect to convening/holding or dispensing with the meetings of the Shareholders, Secured and Unsecured Creditors as well as issue of notices including by way of paper publication - application allowed.

Seeking approval of the Scheme of Merger - section 230-232 of the Companies Act, 2013 r/w Companies (Compromises, Arrangements And Amalgamations) Rules, 2016 - HELD THAT:- The meeting of the Equity shareholders, optionally convertible redeemable non-cumulative Preference shareholder, non-convertible redeemable non-cumulative preference shareholder, Secured and Unsecured Creditors of the Applicant Company are dispensed with - Application allowed.

Oppression and Mismanagement - Violation of the Status quo order - seeking direction to the Respondents therein (Appellants herein) to pass a direction to the Respondents therein to maintain status quo in all aspects while managing the affairs of the Company, and revoke all Approvals, Resolutions etc. with respect to raising of any additional debt - HELD THAT:- The Respondents 1 to 4 herein have filed the Company Petition bearing No. CP 02 of 2020 before the National Company Law Tribunal, Kochi Bench under various provisions of the Companies Act, 2013 including alleging oppression and mismanagement in the affairs of the Appellant No.1 Company and sought various main and interim reliefs in the CP. It is contended that relief viii of the interim reliefs in the main CP, inter alia the Respondents herein have sought a direction restraining th....... + More

Illegal transfer of shares - consideration for transfer of shares in the name of petitioner or not - questions with regard to genuineness of the documents can be decided by this Tribunal or not? - HELD THAT:- There is an admission on the part of the Respondents that the Petitioner has paid an amount of Rs. 10 Lakhs as part consideration for 40% shares, the total consideration being Rs. 20 Lakhs. The contention of the Respondents is that the Petitioner promised to pay the same later, but however the Respondents would handover blank transfer deeds as an assurance for transferring 40% shares and submitted that the Respondents handed over the original share certificates on payment of the balance consideration. Believing the Petitioner, blindly they handed over the blank transfer deeds as early as 2011, though share certificates were not hande....... + More

Sanction of the Scheme of Amalgamation - Sections 230 to 232 of the Companies Act, 2013 and other applicable provisions of the Companies Act, 2013 R/w Companies (CAA) Rules, 2016 - HELD THAT:- Various directions with regard to holding, convening and dispensation with various meetings issued - directions with regard to issuance with various notices also issued. The scheme is approved - application allowed.

Cancellation of allotment of shares - seeking return of amount granted by the appellant/applicant as Loan to the Respondent No. 1 company - HELD THAT:- In this case, though there is no written agreement as regard to the grant of loan, nor any other document has been brought on record, but it is also evident by the conduct of all the respondents that they are not in a position to controvert the claims made by the appellant as regard to the nature of the transaction. If the respondents were in a position to controvert the claims made by the appellant, they could have produced the letter of request or any other document signed by the appellant for purchase of shares of a Private Limited Company which are not freely transferable. Further, they could also produce that the shares, minutes and other share certificate showing the compliance to th....... + More

Sanction of Scheme of Arrangement - Sections 230 to 232 and other applicable provisions of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- There appears to be no reservation to grant sanction to the Scheme and the sanction of the present Scheme is not against public policy, nor it would be prejudicial to the public interest at large. In addition to above, all the statutory compliance seems to have been complied with by the Petitioner Companies, therefore, the present Company Petition deserves to be allowed in terms of its Prayer clause. The scheme is sanctioned - application allowed.

Seeking restoration of name of the company in the Register of Companies being maintained by the Registrar of Companies, Guwahati, Assam - section 252 of Companies Act, 2013 - HELD THAT:- On perusing the materials made available on record along with the report of the ROC, it is opined that it would be just and equitable to revive the name of the company Well Will Infrastructures Private Limited in the statutory register as being maintained by the Registrar of Companies, Guwahati. In exercise of the powers conferred on the Tribunal under section 252(3) of the Companies Act, 2013, the present Petition is partly and conditionally allowed with directions and subject to the compliance of conditions issued - application allowed.

Maintainability of petition - legality of removal of the Petitioners from the Directorship - applicability of Section 241-242 of the Companies Act - Whether the Petitioners are eligible to maintain this Petition under Section 241-242? - HELD THAT:- It is seen from the records that the 1st Petitioner was holding 44.33% fully paid-up share in the 1st Respondent Company and he has filed the affidavit on behalf of the 2nd Petitioner who was having 5.75% of fully paid-up shares in the 1st Respondent Company. Hence, the affidavit submitted by the 1st Petitioner holding 44.33% for filing a petition is sufficient and the same can be accepted in order to accept a petition under Sections 241-242 of the Companies Act, 2013. Given the facts, the Petitioners are eligible to file a Company Petition under Section 241-242 of the Companies Act, 2013. Whet....... + More

Seeking for the sanction of Scheme of Arrangement - Sections 230 and 232 of the Companies Act, 2013 and in terms of Rule 15 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- It is concluded that the objections/observations to the Scheme received from RD, RoC, have been adequately replied by the Petitioner Companies and hence there is no impediment in approval of the Scheme. The Scheme in question as annexed at Annexure-15 is approved and it is hereby declared that the same is to be binding on all the shareholders and creditors of the Demerged Company as well as Resulting Company. While approving the Scheme, it is clarified that this order should not be construed as an order in anyway granting exemption from payment of any stamp duty, taxes, or any other charges, if any, and payment in accordance with law or in respect of any permission/compliance with any other requirement which may be specifically required under any law. Application allowed.

Sanction of the Scheme of Amalgamation - section 230(6) read with section 232(3) of the Companies Act, 2013 - HELD THAT:- Various directions with regard to holding, convening and dispensing with various meetings issued - directions with regard to issuance of various notices also issued. The scheme is sanctioned - application allowed.

CIRP - Recovery of electricity dues - Whether the Respondent No.1, the Successful Auction Purchaser in the liquidation proceeding of the Corporate Debtor, is liable to pay electricity dues due on the Corporate Debtor both pre-CIRP and during the CIRP? - HELD THAT:- The IBC provides for detailed procedure and provisions for dealing with the claims of the creditors which are against the Corporate Debtor who is facing insolvency/ liquidation. Under Section 35 of the Code, the Liquidator is obliged to verify the claims of all the creditors. Section 36 deals with liquidation estate. Under Section 38, Liquidator has to receive/ collate the claims of creditor within 30 days from the date of commencement of the liquidation process. In the present case, the Appellant themselves has filed their claim before the Liquidator. In the reply filed by the....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- It is noted that as per the arrangement between the operational creditor and the corporate debtor dated 20.03.2015, operational creditor has provided mobile telecom services to the customers of corporate debtor while such customers travel in U.K. For this purpose, operational creditor provided mobile sim cards to the corporate debtor which the corporate debtor sold to its customers in India. It is also noted that certain financial targets were to be achieved over a two-year period of the contract. This application complies with the basic requirements of Section 8/9 of IBC, 2016 and rules and regulations made thereunder. The crux of the matter is that whethe....... + More

Interpretation of Statute - IBBI (Liquidation Process), Regulations, Schedule I, Clause 12 as amended on 25th July, 2019. Schedule I of the IBBI (Liquidation Process), Regulations contains heading ‘Mode of Sale’ which is in reference to Regulation 33 of the IBBI (Liquidation Process) Regulations, 2016 - Confirmation of Auction Sale - seeking direction to Liquidator to issue fresh e-Auction Sale Notice - HELD THAT:- In the present case, the Auction in which the Appellant were declared highest bidders were closed on 26th February, 2021 and e-Auction Notice was issued for the said Auction on 23rd January, 2021. Even the earlier e-Auction Notice which were issued by the Liquidator, for the first time on 19th November, 2019 i.e. subsequent to the amended Regulations dated 25th July, 2019. In the Schedule I, Clause 12, there is no i....... + More

Initiation of CIRP - Period of Limitation - Exclusion of certain period - NCLT rejected the application - period during which winding up petition filed by the Appellant in the High Court of Delhi remained pending, deserves to be excluded under Section 14 of the Limitation Act, 1963 - exclusion for period during which winding up Petition remained pending in High Court of Delhi - HELD THAT:- Winding up petition stood dismissed, since the real entity, that is, Times Internet Ltd., with whom the Times Business Solutions Ltd. was merged from 26.09.2014 was neither noticed nor impleaded in winding up petition. No statutory notice having been sent to the Times Internet Ltd., the winding up petition was dismissed. Thus, the winding up petition stood dismissed due to defect of procedure as noticed in paragraph 6 of the judgment of the High Court o....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- An amount of Rs. 3,89,265/- were due against the respondent which was not paid. Although, the contention has been raised by the Ld. Counsel for the respondent that different amounts has been mentioned at different conjuncture but as discussed, it is clear that the principle amount of Rs. 1,78,992/- were due whereas, an amount of Rs. 2,10,273/- were due as interest. Therefore, the said amount has not been paid by the respondent. Despite the fact that the demand notice was raised by the applicant on 03.12.2019. Hence the applicant succeeded in proving the fact that the above said amount was due against the C.R. Strips which were sold by the applicant to the r....... + More

Seeking dissolution of Company - section 59(7) of the Insolvency and Bankruptcy Code, 2016 (Code) read with Insolvency and Bankruptcy Board of India (Voluntary Liquidation Process) Regulations, 2017 (IBBI Regulations) - HELD THAT:- In view of the steps taken and the satisfaction accorded by the liquidator by way of the present application, there is no legal impediment in allowing the prayer of the applicant. Accordingly, as per the section 59(8) of the IBC, 2016, the Prayer of Liquidator to dissolve the Company U/s. 59(7) of IBC is allowed and the said company is hereby dissolved and is voluntarily wound up with effect from the date of the present order. Application allowed.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - Proper service of notice - HELD THAT:- The demand notice was received as per the tracking report mentioned at Annexure P-2 of the main petition. In view of the same, it is held that the demand notice has been duly served. Whether the operational debt was disputed by the corporate debtor? - HELD THAT:- It is pleaded by the petitioner that no notice has been received to the demand notice dated 09.01.2020 from the corporate debtor. It is also pleaded that there is no dispute of unpaid operational debt pending between the parties in any court of law or any other authority. The same has been inferred from the affidavit in terms of Section 9(3)(b) of I&B Code, 2016. The ....... + More

Initiation of CIRP - Period of limitation - Article 137 of the Limitation Act, 1963 - NCLT rejected the application - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- It is well settled that the Limitation Act is applicable in IBC Proceedings and IBC does not exclude the application of Sections 6 to 14 or 18 and any provision of the Limitation Act - The question to be considered in the present case is as to whether Appellant can take benefit of Article 1 of the Limitation Act, 1963. Hon’ble Supreme Court in the matter of B.K. EDUCATIONAL SERVICES PRIVATE LIMITED VERSUS PARAG GUPTA AND ASSOCIATES [2018 (10) TMI 777 - SUPREME COURT] after considering the provisions of IBC and the Limitation Act had laid down that for filing application under Section 7 an....... + More

Liquidation of Corporate Debtor - Section 33(2) read with Section 34 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The primary object of the Code is resolution and liquidation is the last resort. At the same time keeping the timelines prescribed under the Code is paramount, lest asset value is deteriorated. Therefore, taking into consideration of the provisions of law as well as the documents on record, this Adjudicating Authority is of the view that as there is no viable resolution plans received for the Corporate Debtor and the time period for the completion of CIRP process, the only option left under the circumstances being early liquidation process, hence this application directing the liquidation for the Corporate Debtor is allowed. This Adjudicating Authority hereby orders liquidation of the Corporate Debtor, i.e., Anjal....... + More

Seeking enforcement of order - section 60(5) of the Insolvency and Bankruptcy Code 2016 - HELD THAT:- The fact that Respondent No. 2 has filed an appeal against the impugned order does not have any bearing on the obligation of the Respondent No. 1 to obey the impugned order and as on date there is also no stay from any superior court against the impugned order. Accordingly, the said order is fully enforceable as against it (Respondent No. 1) as on date. Application as filed by the Applicant/Resolution Professional stands allowed with the directions to Respondent No. 1 to make full compliance of this Tribunal order dated 23.8.2021 within two weeks' time, failing which the Applicant shall be at liberty to move appropriate application seeking further orders/directions as per law. Petition disposed off.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Personal Guarantors to Corporate Debtors - existence of debt and dispute or not - Section 94 read with section 122 of the Insolvency and Bankruptcy Code, 2016 under rule 7 of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors), Rules, 2019 - HELD THAT:- In the present matter the respondents has already demonstrated that the recovery proceedings are already under process against the corporate debtor, applicant and other guarantors, even notice to arrest has already been issued against the applicant. In these circumstances, the applicant has filed present application with the ulterior motive to stall the recovery proceedings, which will ....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- The evidence placed by the financial creditor is sufficient to ascertain the existence of a default on the part of the Corporate Debtor as the Corporate Debtor has failed to honour the terms of the agreement, further, the Cheque provided by the corporate debtor towards principal amount also bounced. The Financial Creditor has fulfilled all the requirements of law. Accordingly, this Adjudicating Authority is inclined to admit this application and initiate the process of CIRP of the Corporate Debtor. The financial Creditor has also proposed the name of the Resolution Professional for appointment of IRP. Application admitted - moratorium declared.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- There is a clear admission of the corporate debtor in its reply that the default has occurred and it is unable to make payments due to lack of funds. Therefore, it is most appropriate that CIRP must be initiated and the management of the company shall be vested in the hands of a professional agency. The Scheme of the code is to ensure that when a default takes place, in the sense that a debt becomes due and is not paid, the insolvency resolution process begins. Apparently, since there is no dispute raised by the Corporate Debtor, in fact the corporate debtor has clearly admitted that a default has occurred. This bench is of the view that the prayer of the a....... + More

Maintainability of CIRP - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- An application under Section 7 of the Code is maintainable if the debt is proved to be due and there is default. In view of the Section 4 of the Code, the moment a default is of Rupees One Crore or more, an application to trigger Corporate Insolvency Resolution Process under the Code is maintainable. The applicant clearly comes within the definition of Financial Creditor. The material placed on record as stated in the paras above further confirms that respondent has debt due and has committed default in repayment of the outstanding financial debt. On a perusal of Form - I filed under Section 7 of the Code read with Rule 4 of the Rules shows that the form is complete....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- It is clear from the pleadings that the Operational Creditor has supplied the goods to the Corporate Debtor as evident from invoices annexed, furthermore, admittedly there is no dispute raised by the corporate debtor before the filing of reply to the present petition, which cannot be taken into consideration at this time. Moreover, the production rejection report is also doubtful as evident from the instances brought to our knowledge by the counsel of Operational Creditor as discussed in the preceding paragraph. Also there is an amount outstanding which corporate debtor has defaulted in payment as evident from the ledger account. It is also pertinent to men....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- To prove the existence of debt and its default by the Corporate Debtor, the Corporate Debtor, the Operational Creditor relied on certificate of debt and its default issued (from information utility, Annex.-"L") All relevant invoices are produced at Annex.-K. A copy of demand notice served under Section 8 of IBC is also annexed at Annex.-"F". It has been delivered to the Corporate Debtor by post. The postal track report is also on record as Annex-"G" - It is not in dispute the Corporate Debtor did not reply the demand notice. Although, the Corporate Debtor submitted and contended that nothing is due and payable but the record re....... + More

Dissolution of Corporate Debtor - Section 54 of the Insolvency and Bankruptcy Code, 2016 read with Regulation 14 of the Insolvency & Bankruptcy Board of India (Liquidation Process) Regulations, 2016 - HELD THAT:- It is declared that not only it is just and equitable but as all the assets of the Corporate Debtor is sold and disposed of, no asset is available for the purpose of ‘Liquidation’ as reported by Learned Liquidator, this is a fit case of a Corporate Debtor to be dissolved as prescribed under Section 54 of The Insolvency and Bankruptcy Code, 2016. Ordered accordingly, stood ‘Dissolved’ from the date of this Order. Since the Debtor Company stood Dissolved vide this order and no proceedings are now pending, therefore the Registry is directed that the case file be consigned to records. Application allowed.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- It is pertinent to note that the Operational Creditor has placed on record the demand notice along with invoices, with its Application. Once the debt is shown as due, it is for the Corporate Debtor to prove that there are no outstanding dues to be paid to the Operational Creditor. Also, no such payment has been made by the Corporate Debtor - The Applicant has filed an affidavit in compliance of Section 9(3)(b) of the Code, stating that no notice of dispute has been received by it. The present application is complete and the Operational Creditor is entitled to claim its dues, establishing the default in payment of the operational debt beyond doubt, and fulfillment of requirements under section 9(5) of the Code. Hence, the present application is admitted - application admitted - moratorium declared.

Approval of Resolution plan - Abatement, extinguishment, discharge and settlement of claims raised by original respondents - Section 31(1) of the Insolvency & Bankruptcy Code, 2016 read with the Resolution Plan - HELD THAT:- Undisputedly the applicant herein i.e. ArcelorMittal Nippon Steel India Ltd., formerly known as Essar Steel India Ltd., (ESIL) submitted a Resolution Plan which came to be approved by the CoC on 25.10.2018 and, thereafter, by the Hon’ble Supreme Court in Committee of Creditors of Essar Steel India Ltd., vs. Satish Kumar Gupta and others, [2019 (11) TMI 731 - SUPREME COURT] Upon approval of the said Resolution Plan all the claims RP by the creditors were settled or discharged by appropriate assignment of value. The Resolution Plan provides that all the claims of ESIL whether contingent or crystallized, known ....... + More

Impact of Section 60(6) of the IBC - Exclusion of moratorium period for initiation of proceedings of suit - whether the provision of Section 60(6) gives rise to a new lease of life to a proceeding at the instance of the corporate debtor on the basis of a moratorium which is put in place by virtue of the order passed under section 14 of the IBC? - whether corporate debtor can take advantage of the same to bring the application in this case filed under Section 11(6) of the Arbitration and Conciliation Act, 1996? HELD THAT:- The principles of interpretation of statutes have been invoked in the varying contexts and are to be applied on the basis of the facts of the case, the nature of the law and a host of principles. Undoubtedly, the golden rule of interpretation is the interpretation which thrives on the ordinary meaning of the words as the....... + More

Money Laundering - renewal of passport - Section 6 of the Delhi Special Police Establishment Act, 1946 - HELD THAT:- There are no doubt that there is absolutely nothing to interfere with the order under challenge. It is true that a complaint has already been laid against the petitioner and others. It is pending as S.C. No. 533/2018 before the Special Court. Meanwhile, Enforcement Directorate has undertaken a further investigation, on the basis of the subsequent revelations that large sum of money was laundered by the petitioner. The estimation of the first respondent is that he is guilty of laundering Rs. 910 crores including sum of Rs. 258.52 crores for which three provisional attachment orders were issued. Now the further investigation by the Enforcement Directorate is in progress. As part of the further investigation, summons dated 23........ + More

Nature of transaction - sale and purchase of land or merely investment in the property - scheduled/predicate offence or not - HELD THAT:- This Court find force in the arguments of learned senior counsel for the petitioners that the petitioners through their companies have only made investment of money and purchased the land, in a legalized manner through registered sale deeds from November, 2004 to November, 2005 and later on in the year 2006, the said 03 land owning companies were purchased by Atul Bansal of M/s. A.B.W. Group, therefore, there is no evidence on record either of applying for licence for the purpose of setting-up of some township for earning profit nor there is any evidence collected by the Enforcement Directorate regarding any conspiracy of the petitioners with other co-accused, much less at the cost of repetition, it is ....... + More

Service of notice - Eviction notice - direction to vacate the premises - owner of property - HELD THAT:- This Court has gone through the materials on record. It is an admitted fact that the petitioner is not the owner of the property. The property in question was in the name of the wife of the petitioner who has sold the property to one Pawan Kumar Singh in the year 2005. Pawan Kumar Singh was the accused in ECIR/02/PAT./2012 and he was the owner of M/s Classic Coal Construction Pvt. Ltd. and with regard to that coal company, Pawan Kumar Singh was facing the money laundering case. Thus, it is an admitted that the property in question was in the name of Pawan Kumar Singh, however, the petitioner was continuing and living in the property in question. It is section 5 of the said Act, which provides for procedure for attachment of the propert....... + More

Jurisdiction - power to initiate proceedings as against the Petitioner under the provisions of Prevention of Money Laundering Act - possession of proceeds of crime - predicate offence or not - provisional attachment of properties - alleged offences under Section 4(d) and 4(f) of the Lotteries Regulation Act and Rule 4(5) of the Lotteries Regulation Rules - HELD THAT:- The petitioner wanted to say that by virtue of the order of discharge passed by the Chief Judicial Magistrate, the substratum of the case has been lost and that he is not in possession of any proceeds of crime within the meaning of Section 2(u) of the PML Act. He wanted to make this Court believe that on account of the order of discharge, charge of generation of proceeds of crime is totally eliminated and he is not liable to be proceeded against - But after having gone throu....... + More

Money Laundering - proceeds of crime - schedule offence - obtaining/acquiring huge properties and made bank transactions in the Jharkhand and other states by involving in process and activities connected with the proceeds of the crime of the schedule offences - framing of charges - HELD THAT:- The facts of the case of DSP Chennai Vs. K. Inbasagaran [2005 (12) TMI 50 - SUPREME COURT] and the case of REKHA NAMBIAR, BHOJRAJ TELI VERSUS CENTRAL BUREAU OF INVESTIGATION [2015 (11) TMI 1862 - DELHI HIGH COURT] (are entirely different from the facts of this case as the case of DSP Chennai Vs. K. Inbasagaran is a case where the appeal was considered by the Hon’ble Supreme Court of India where the trial court did not consider the defence evidence in its proper perspective but it is settled principle of law that at the stage of framing of char....... + More

Money Laundering - schedule offence - proceeds of crime - Section 44(1) of PMLA - HELD THAT:- It is clear that the I.T. Department made search in the official/commercial premises of the appellant and other connected persons. Later, I.T. Department vide communication dated 16.5.2019 which was issued in response to the letter of the appellant dated 1.5.2019 and also of I.T. Department dated 13.5.2019 was satisfied that the cash which was recovered from the officials/commercial premises of the appellant is explained and tax was paid in the selfassessment for the Financial Year 2016-17 - Therefore, the proceedings started on the basis of intriguing recovery of cash and other items in fact, does not exist and the I.T. Department itself was satisfied with the recovery after investigation in the year 2019. Therefore, the finding recorded in the ....... + More

Money Laundering - conspiracy to obtain loan - fake documents - siphoning off the funds for personal use - scheduled offence - proceeds of crime - maintainability of criminal prosecution that has been launched by the Enforcement Directorate under Section 3 r/w 4 of PMLA - HELD THAT:- In this case, there is no shred of material to show that A8 to A15 had committed any criminal activity at all. A8 had purchased lands for his business from A4, A6 and A7 through their power agent Ayyappan and thereafter, he sold those lands to A9 to A15 for a valuable consideration. In this case, 166 acres of land is not the subject matter of crime. The subject matter of the criminal activity is obtaining the loan of ₹ 15 crores from GTFL by submitting forged documents. Therefore, the proceeds of the crime is ₹ 15 crores. A fraction of the sum of ....... + More

Money Laundering - provisional attachment of land - creation of first encumbrance on the subject land - proceeds of crime - offences under Sections 3 and 4 of the PML Act - HELD THAT:- The ingredients for fastening criminal liability u/s.3 r/w 4 of the PML Act against Naidu Amrutesh Reddy are absent in the impugned complaint. To recapitulate the facts, even according to the Enforcement Directorate, Naidu Amrutesh Reddy had paid ₹ 4.33 crores to Suruli Andavar, who was not the actual owner, for purchasing the subject land and had the sale registered as Document No.6266/2011. It is not the case of the Enforcement Directorate that Naidu Amrutesh Reddy sold the said subject land to someone, knowing full well that he has no title to it, obtained the sale consideration of ₹ 4.33 crores via the said criminal activity and projected the amount as an untainted. Petition allowed.

Seeking grant of regular bail - bail is sought on medical grounds - stand of Revenue is that there is a possibility that the petitioner may flee from the country, as he has been granted the permission to travel abroad - HELD THAT:- After hearing learned counsel for the parties and going through the medical record of the petitioner, which is based on a report of Medical Board comprising of seven doctors, constituted by Civil Surgeon, Ambala, it is found that case of the petitioner would be covered under proviso to Section 45(i) of PMLA as he is a sick person requiring urgent medical treatment, especially in view of the fact that while in custody for a period of about 03 months, he was repeatedly advised medical care, as noticed in earlier part of this order. Petition allowed.

Smuggling - gold jewellery - Constitutional Validity of Section 45 of the PMLA - Section 135 of the Customs Act, Section 12 of the Passport Act and also under the penal provision of Prevention of Money Laundering Act - HELD THAT:- It is needless to say that for registration of a crime under the PMLA, the only prerequisite is registration of a predicate/scheduled offence as prescribed in various paragraphs of the schedule appended to the Act nothing more than it. In other words, for initiating or setting the criminal law in motion under the PMLA, it is only that requirement of having a predicate/scheduled crime registered prior to it. Once an offence under the PMLA is registered on the basis of a scheduled offence, then it stands on its own and it thereafter does not require support of predicate/scheduled offence. It further does not depen....... + More

Provisional attachment order - Smuggling - proceeds of crime - failure to discharge the burden as required under Section 24 of the PML Act - HELD THAT:- The PML Act, 2002 gives wide powers to the authorities to attach properties suspected to be involved in money laundering. Section 5 of the PML Act authorizes to attach property and the same is to be exercised if the authority has reason to believe, on the basis of material in their possession that, any person is in possession of any proceeds of crime and such proceed of crime are likely to be concealed, transferred, or dealt with in any manner, which may result in frustrating any proceedings relating to confiscation of such proceeds of crime - It is statutory duty on the part of the authority to file a complaint, stating the facts of attachment before the adjudicating authority after prov....... + More

Money Laundering - Ponzy Scheme - scheduled offence - issuance of general or special authorization for Officers on deputation to be Deputy Director in the office of the Directorate of Enforcement, under the PML Act - Directorate of Enforcement could have bestowed powers on such an Officer to be an Officer as provided under Section 48 of the PML Act or not - validity of registration of ECIR by an Officer acting as Deputy Director the PML Act, in the absence of general or special authorization - provisional attachment order - Section 45(1A) of the PML Act - HELD THAT:- It is the specific case of the petitioner that Central Government did not issue any special authorization for the officer on deputation to be worked as deputy director and Assistant Director in the office of the Directorate of Enforcement and PML Act. As such, no powers confe....... + More

Seeking grant of anticipatory bail - provisional attachment order - schedule offence - proceeds of crime - Sections 44 and 45 of PMLA 2002 - HELD THAT:- The PML Act, 2002 deals with the offence of money laundering and Parliament enacted this law to deal and curb the activities of money laundering. Being a special enactment it has overriding effect on general law. Section 71 of PML Act specially provides that provisions of PML Act shall have overriding effect on any other law time being in force. Thus, it is very clear that provisions of Code of Criminal Procedure will not be applicable until there is no specific provision given in PML Act, 2002. Money Laundering being an offence is economic threat to national interest and it is committed by the white collar offenders who are deeply rooted in society and cannot be traced out easily. These ....... + More

Seeking grant of regular bail - money laundering - proceeds of crime - forged documents - diversion/siphoning off of the funds - twin test laid down under Section 45 of PML Act satisfied or not - HELD THAT:- Section 45(1) of the PML Act imposed two conditions before bail could be granted to a person accused of an offence punishable for a term of imprisonment for more than three years under Part A of the Schedule attached to the PML Act. As per these conditions, before grant of bail, the Public Prosecutor was required to be given an opportunity to oppose the plea for bail and that where the Public Prosecutor opposed such plea, the Court could order release of the accused on bail only after recording a satisfaction that there were reasonable grounds to believe that the person to be released was not guilty of the offence he was accused of an....... + More

Grant of anticipatory bail - possession of huge cash and jewelleries - Creation of shell companies - constitutional validity of Section 45 of PMLA Act 2002 - HELD THAT:- It is well settled that law framed by legislature is having presumption of its constitutionality, unless and until Constitutional Courts declared such law to be unconstitutional, it will have its force and therefore in the opinion of this Court, as twin conditions are still there in the Statute book after amendment in Section 45 of the Act of 2002, underlined principle and rigor of Section 45 of the Act of 2002 may get triggered once prayer for anticipatory bail is made in connection with offence under the Act of 2002. Merely because case is registered on complaint and cognizance of complaint is taken by Court after about two years, will in itself is not a ground consider....... + More

Seeking suspension of LOC issued against the Petitioner - seeking permission to travel to Dubai and Italy - HELD THAT:- During the pendency of the writ petition till November 22, 2021 no compliant under Section 45 of the PMLA was filed by the respondent No.1 before the Special Court. It was in the reply filed on December 28, 2021 to CM APPL. 47740/2021, the respondents for the first time stated that a second supplementary prosecution complaint has been filed before Special Court, PMLA, Rouse Avenue Courts, New Delhi on December 22, 2021 against the petitioner and others in Complaint Case No.75/2019 in ECIR/07/DZCR/2019 for the offence of money laundering as defined under Section 3 of the PMLA and the Special Court has taken cognizance of the complaint and issued summoning order, and accordingly, the writ petition is liable to be dismissed....... + More

Money Laundering - proceeds of crime - predicate/scheduled offence - registration of the subject ECIR, sustainable or not - Criminal liability or not - HELD THAT:- The trial of money laundering offence is independent trial and it is governed by its own provisions and it need not get interfered with the trial of scheduled offence. The PMLA, being a special enactment, contemplates a distinct procedure at the initial stage and thereafter provides for initiation of prosecution, in order to achieve the special purpose envisaged under the Act and as such, it cannot be construed that proceedings under the PMLA are to be equated with prosecution initiated under the criminal proceedings for predicate/scheduled offences. Thus, initiation of action under the PMLA cannot have any implication or impact in respect of registration of other cases, either....... + More

Issuance of summons - validity of issue of summons to appear before the Respondent No.1 and make a statement and disclose information despite the Petitioners being accused which is the subject matter of investigation - HELD THAT:- The writ petitioner No.2 has appeared before the Enforcement Directorate and therefore, in the considered opinion of this Court, no further orders are required to be passed in W.A.No.198 of 2016 and all the issues are left open. Learned counsel for the appellants has informed this Court that the appellant No.2 has already appeared pursuant to the aforesaid summons issued by the Enforcement Directorate and therefore, in the considered opinion of this Court, no further orders are required to be passed in W.A. No. 199 of 2016 also and all the legal issues are left open - Application disposed off.

Money Laundering - proceeds of crime - petitioner could not produce purchase/sale orders in respect of the transactions - effect of the amendment in question in sub-section (1) of Section 45 of the Act - twin conditions of section 45 of the PMLA Act satisfied or not - HELD THAT:- The twin conditions of section 45 of the PMLA Act still remain in the Statute Book, in that eventuality also the observations of the Supreme Court do not get obliterated. The Schedules attached to the PMLA Act still continue. The insertion of the words “under this Act” by deleting “offence punishable for a term of imprisonment of more than three years under Part A of the Schedule” only makes an ostensible change. The offence of money laundering as stipulated under Section 3 of the PMLA Act stems out of the offences prescribed in the Schedu....... + More

Smuggling - illegal excavation and theft of coal was taking place in the leasehold areas of Eastern Coalfield Ltd. - HELD THAT:- From a bare reading of the various provisions along with the scheme of the PMLA, it is clear that sections of CrPC would apply only if the field is not covered, in any manner, by the provisions of the special enactment by way of the PMLA. The CrPC by way of Section 4 & Section 5 itself provides that in case a special law exists, such law will apply over and above the CrPC. Section 65 read with Section 71 of the PMLA further provides that while certain provisions of the CrPC may apply in case there exists no provision in the PMLA, in case of any inconsistency, contradiction or confusion arises, the provisions of the PMLA will prevail and override the provisions of the CrPC. It is otherwise also settled law th....... + More

Pledge of shares - Pawnor and the pawnee’s right to sue for recovery and sell the pawned goods - Accretion on pawned goods - Pledge or hypothecation of securities held in a depository - legal jurisprudence relating to law of pledge - rights of depository Participant - right of redemption given to the pawnor vide Section 177 of the Contract Act - whether the Depositories Act, 1996 read with the Regulation 58 of the Securities and Exchange Board of India (Depositories and Participants) Regulations, 1996, For short, ‘1996 Regulations’ has the legal effect of overwriting the provisions relating to the contracts of pledge under the Indian Contract Act, 1872 - Relevant provisions of the Contract Act - HELD THAT:- We do not find any derogation or conflict between Section 176 of the Contract Act and sub-regulations (8) and (9) o....... + More

Fraudulent and Unfair Trade Practices relating to Securities Market - Transaction violative of Regulation 3 and 4 of the PFUTP Regulations - HELD THAT:- ‘Specified proceedings’ has been defined under Section 2(f) of the Settlement Regulations, 2018, namely, the proceedings that have been initiated by SEBI under the SEBI Act, Securities Contracts (Regulation) Act, 1956 or Depositories Act, 1996 as the case may be. 14,000 odd cases have been initiated under the illiquid stock option matters wherein similar kind of transaction have been executed and similar violation is proposed against all these noticees under Regulation 3 and 4 of the PFUTP Regulations. These 14,000 entities form a class of persons and are involved for similar defaults. Therefore, in our opinion, the Board can specify a procedure and terms of settlement for the....... + More

Insider trading - information relating to the financial results was an Unpublished Price Sensitive Information (“UPSI”) - confirmatory order confirming the ex-parte ad-interim order whereby the appellant was restrained from buying or selling any securities, either directly or indirectly, till further orders - appellant was a Senior Corporate Counsel of Infosys and, being an officer/employee of Infosys, was reasonably expected to have access to the UPSI and, on a preponderance of probability basis, the appellant was in possession of UPSI and thus, was an insider under Regulation 2(1)(g) of the PIT Regulations - HELD THAT:- As in the absence of any direct or indirect evidence coming forth at this stage and the fact that the investigation is still continuing which may take time for issuance of a show cause notice, we are of the o....... + More

Related party transaction - Company proposed to enter into a transaction with one Neelkanth Realtors Private Limited for purchase of 40,000 sq. ft. of residential space - Extra-Ordinary General Meeting was convened for rescinding the resolution in which, the related parties also voted - violation of Regulation 23 of the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015 - HELD THAT:- The Securities Appellate Tribunal has not approved this order passed by the Adjudicating Officer and has allowed the appeal filed by the present respondents while, inter alia, holding that the bar of voting as per Section 188 of the Companies Act, 2013 on related parties operated only at the time of entering into a contract or arrangement, i.e., when the resolution dated 15.07.2014 was passed; and therei....... + More

Insider trading - Whether existed a close relationship/immediate relation between the appellants? - circumstantial evidence (trading pattern and timing of trading) - HELD THAT:- In the present case, as rightly argued by the learned counsel of the appellant, the foundational facts were not proved which could raise the alleged presumption. SEBI failed to place on record any material to prove that the appellants were “connected persons” to Balram Garg as required by Regulation 2(1)(d)(ii)(a) read with Regulation 2(1)(f) of the PIT Regulations as none of the appellants were financially dependent on Balram Garg or even alleged to have consulted Balram Garg in any decision related to trading in securities. In light of the above principles of law laid down by this Court, it was imperative on the Respondent/SEBI to place on record rel....... + More

Release of the mutual funds in favour of the applicant/Respondent No.5, which are of the value of about 350 crores - Earlier, by order this Court had given the option to applicant/Respondent No.5 to get mutual funds converted/encashed and the amount was to be deposited in a fixed deposit account of a nationalized bank - HELD THAT:- The subsequent supplementary chargesheet submitted by the EOW, and relied upon by the learned counsel for the petitioner, ought not to be ignored while considering this matter. In its earlier orders, this Court has clearly found that the securities need to be released in favour of the applicant/Respondent No.5. The only question is with regard to the mode and manner of the securities to be furnished by the applicant/Respondent No.5. It is not disputed that the petitioner has, in terms of the order dated 16.03.2....... + More

Violation of provisions of the Act and the PFUTP Regulations - What is the scope and ambit of statutory appeal to the Supreme Court under Section 15Z of the Act against an order passed by the Securities Appellate Tribunal? - HELD THAT:- Supreme Court will exercise jurisdiction only when there is a question of law arising for consideration from the decision of the Tribunal. A question of law may arise when there is an erroneous construction of the legal provisions of the statute or the general principles of law. In such cases, the Supreme Court in exercise of its jurisdiction of Section 15Z may substitute its decision on any question of law that it considers appropriate. Not every interpretation of the law would amount to a question of law warranting exercise of jurisdiction under Section 15Z. The Tribunal while exercising jurisdiction und....... + More

SEBI Circular applicability - whether or not SEBI would qualify as “Any person aggrieved”? - Retrospective applicability of circular - Standardisation of procedure to be followed by Debenture Trustee(s) in case of ‘Default’ by Issuers of listed debt securities” - Plaint came to be amended now seeking an injunction restraining RCFL and BoB from acting upon, implementing or taking any steps for diluting, extinguishing or creating third party rights in respect of the security provided under the DTD - HELD THAT:- In our view, if SEBI has a statutory right to file an Appeal, such right cannot be divested by virtue of certain remarks passed by the Ld. Single Judge in the Impugned Orders to the effect that the order would not constitute a precedent against SEBI. There is no mention whatsoever in the SEBI Circular su....... + More

Violation of “PFUTP Regulations”- Duty to Disclose Investigative Material - Exceptions to the Duty to Disclose - whether an investigation report under Regulation 9 of the PFUTP Regulations must be disclosed to the person to whom a notice to show cause is issued? - HELD THAT:- The findings of the investigation report are relevant for the Board to arrive at the satisfaction on whether the Regulations have been violated. Even if it is assumed that the report is an inter-departmental communication, as held in Krishna Chandra Tandon [1974 (4) TMI 103 - SUPREME COURT] there is a duty to disclose such report if it is relevant for the satisfaction of the enforcement authority for the determination of the alleged violation. In Natwar Singh [2010 (10) TMI 156 - SUPREME COURT] it was held that material which is relevant to the subject-ma....... + More

Related party transaction - Company proposed to enter into a transaction with one Neelkanth Realtors Private Limited for purchase of 40,000 sq. ft. of residential space - Extra-Ordinary General Meeting was convened for rescinding the resolution in which, the related parties also voted - violation of Regulation 23 of the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015 - whether the appellants were justified in voting for rescinding the resolution dated 15th July, 2014 inspite of being related party entities? - HELD THAT:- From a perusal of Section 188 of the Companies Act it is apparently clear that no member of the Company shall vote on such resolution to approve any contract or arrangement which may be entered into by the Company, if such member is a related party. Admittedly, in....... + More

Confidentiality of the settlement and/or compromise and/or arrangement arrived - HELD THAT:- Advocates appearing for Respondent Nos.1 to 10, 11 and 12 have submitted that the Order dated 28th October, 2021, is passed by consent. In fact, Advocate Khandeparkar representing Respondent Nos.1 to 10 states that SEBI was not only represented during the hearing of the matter but SEBI was also present during the settlement talks held on six occasions. Senior Advocate appearing for SEBI states on instructions, that save and except the fact that SEBI was represented before the Learned Single Judge at the time of hearing, SEBI disputes all the other statements/ submissions made on behalf of Respondent Nos. 1 to 10, 11 and 12. In view of the above, before we proceed further, we allow SEBI to seek a clarification from the Learned Single Judge qua the ....... + More

Principles of natural justice - Action under SEBI Act - Attachment and freezing the bank accounts both, savings and term deposits - appellant would contend that no notice was issued to the appellant before issuing the order of attachment of the bank accounts - availability of alternative remedy of appeal to petitioner - HELD THAT:- The appellant seeks to bring his case within the ambit of the exception which has been drawn by the Hon'ble Supreme Court in WHIRLPOOL CORPORATION VERSUS REGISTRAR OF TRADE MARKS, MUMBAI & ORS. [1998 (10) TMI 510 - SUPREME COURT] to show that the order of attachment is in violation of principles of natural justice and this argument is sought to be buttressed by referring to Section 226(3)(iii) of the IT Act. Be it noted that Section 226 of the IT Act deals with other modes of recovery. Sub-Section (1) o....... + More

SEBI circular applicability - Clarification seeked in directions that the meeting that is to be held should be in deviation from the terms of the Debenture Trust Deed - Scope of submissions on the basis of any later or Supplementary Trust Deed - HELD THAT:- Obviously, the Supplementary Trust Deed will have to be read with the previous three Trust Deeds in a coherent and consistent manner. A mere reference to SEBI circulars will not and cannot override the express terms of any of the Trust Deeds. The 30 day period will commence from today in view of this clarification.

Collective investment scheme without registration and in violation of the SEBI (Collective Investment Schemes) Regulations 1999 - recovery proceedings - Attachment orders - HELD THAT:- Attachment notice which has been issued by SEBI on 1 March 2021 was in order to implement the directions which have been issued by this Court under Article 142 of the Constitution. SEBI in that sense, as an expert statutory body, is exercising powers in pursuance of the mandate of this Court in order to protect the interests of the investors. This Court has created a mechanism by virtue of which, third parties who have objections, including to orders of restraint or attachment are facilitated in having their objections heard through the auspices of an officer appointed by this Court. Shri R S Virk, former District Judge, has been entrusted with the task. Re....... + More

Collective Investment Schemes - Petitioners seeking quashing of the show cause notices issued to the petitioners calling upon them to adduce evidence and clarifications in support of their contentions - HELD THAT:- SAT condemned the conduct of the petitioners on several grounds. It was observed that the petitioners have made misleading statements in the information memorandum only to lure the small time investors to remain invested in the Scheme and the petitioners continue to operate its Collective Investment Schemes even after the SAT passing the interim order. The petitioners successfully dragged the matter regarding the submission of the information memorandum from 2006 to 2014. The contention that Annexures-H and H1 are the show cause notices deserve no merit on the apparent reading of those documents. After receiving Annexures-H and....... + More

Insider trading - violation of SEBI (Prohibition of Insider Trading) Regulations - Family arrangement - case of the appellants that family settlements means family estrangement - family arrangements within the family on two occasions there was no estrangement, as can be seen from the facts highlighted by Ld. WTM - appellants were restrained from accessing the securities market, in any manner, for a period of one year - allegations against the appellant Ms. Shivani Gupta and other appellants is that they being insider to two Unpublished Price Sensitive Informations (“UPSI‟ for short) regarding the buy-back of it‟s share by the Company and had traded in the shares while holding theses informations - WTM recorded a finding that the nature of relationship between the parties, their residence at the same address, financial tr....... + More

Approval of resolution plan - Settlement, compromise or arrangement before the Debenture Holders seeking their assent in terms of the respective Debenture Trust Deeds - negotiations between the Plaintiffs, debenture holders, the company and the resolution applicant/their advisors - 3rd Defendant, the Debenture Trustee, points out that the Debenture Trust Deeds require a meeting to be called in a certain manner - HELD THAT:- Debenture Trust Deed is a contract between the parties to it. They must know the terms of the contract at the time when the execute it. Those terms cannot be later altered except with their consent. The submission by SEBI would amount to saying that a critical term of the contract is always unknown and always liable to change or modification at any given time, conceivably upsetting the entire structure. SEBI’s re....... + More

Simulatnaous Adjudication proceedings and criminal Prosecution - exoneration in adjudication proceedings is on technical ground and not on merit - Applicants have been exonerated in the adjudication proceedings on the allegations for which, they have been prosecuted by the SEBI - HELD THAT:- In the case of K.C. Builders (2004 (1) TMI 7 - SUPREME COURT)the Hon’ble Apex Court had taken a view that when there is categorical finding in the adjudication proceedings exonerating the person, it is binding and conclusive and thus, the Prosecution cannot be allowed to stand. In case in hand, the Applicants have been exonerated in the adjudication proceedings on merits and not on technical ground, and therefore the Prosecution for identical violation shall continue, if the order passed by Securities Appellate Tribunal is quashed and set aside ....... + More

Fraud under SEBI Act - penalty imposed - as contended that the applicant/Dalmia has suffered because of the fraud committed by respondent no.1/IL & FS Securities Services Ltd as well as respondent no.4/Allied Services Pvt. Ltd. - HELD THAT:- Keeping in view the findings recorded by the SEBI about the degree of involvement of the applicant/Dalmia in the said transactions, as revealed in records before us, as well as the involvement of respondent no.4 and tentative findings of fraud by respondent no.4, and also keeping in view that by a separate order penalty has also been imposed on respondents no.1 and 4 by the SEBI (without there being any finding of fraud against respondent no.1), we modify the order dated 16.03.2021 to the following extent: That instead of bank guarantee for a sum of ₹ 344.07 crore, which has been furnished b....... + More

Recovery proceedings - Offence under SEBI Act - Denial of natural justice - whether the recovery notice is sustainable in law? - HELD THAT:- The order does not fix any particular liability to be discharged by the writ-applicants. If upon such order recovery is sought to be undertaken of an amount then it was expected of the concerned authority to at least issue a notice to the writ-applicants and give an opportunity of hearing before arriving at a particular figure. The impugned recovery notice is hereby quashed and set aside. The matter is remitted to the respondent No.2. The respondent No.2 shall issue notice to the writ-applicants and fix a particular date so as to give an opportunity of hearing to the writ-applicants and thereafter determine a particular amount to be paid by the writ-applicants to the depositors in accordance with law.

Offence under FEMA - prejudice on account of infraction of the procedure - main ground of challenge was that the impugned notice was issued without complying with the Rule 4(1) and Rule 4(2) of the Rules of 2000 - HELD THAT:- The adjudicating authority is required to give the notice under sub-rule (1) to the concerned person requiring him to show cause as to why inquiry should not be held against him indicating the nature of contravention alleged to have been committed by him. After considering the cause, if any shown, and on forming an opinion that an inquiry should be held, the adjudicating authority is required to issue notice under sub-rule (3) fixing the date of appearance. In the present case, undisputedly no notice in terms of sub-rule (1) and (2) of Rule 4 has been given and straight away notice under sub-rule (3) of Rule 4 has be....... + More

Offence under FEMA - Petitioner argued that the adjudicating authority did not follow the procedure prescribed in Rule 4(1) and 4(2) of the Adjudication Rules of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000 - petitioner has been seriously prejudiced by refusal and failure to supply documents relied upon by the complainant Assistant Director - HELD THAT:- In the instant case, failure to bring back export proceeds to the extent of seven thousand crores arose out of loan transactions between the petitioner and his entities and about 23 banks. It is now well settled that every infraction of the principles of natural justice or procedure stipulated for adjudication would not vitiate a proceeding. The petitioner has to demonstrate actual and real prejudice The two tier procedure under Rule 4 which warrants a....... + More

Offence under FEMA - maintainability of writ petition before this Court - HELD THAT:- This Court finds that the writ petition filed at Jaipur Bench, Jaipur for challenging the order dated 26.04.2019 passed by the Additional Director, is not maintainable as no cause of action has arisen in the territory of State of Rajasthan. The submission of the petitioner that initially a complaint was filed by the Additional Director and further direction to deposit the penalty amount in Jaipur Office, cannot be termed as a part of cause of action. This Court finds that the complaint which was filed against the petitioner, has resulted into issuance of show cause notice to the petitioner and thereafter, adjudication has to take place and as such the petitioners cannot be allowed to state that part of cause of action, has arisen in the territory of Stat....... + More

Legality and validity of the seizure orders - HELD THAT:- The facts of the case reveal that before the learned Single Judge, though a prayer for quashment of seizure orders dated 26.08.2021, 30.09.2021 and 15.12.2021 was made, an interlocutory application was preferred for release of ₹ 15,35,45,317/- and the learned Single Judge has allowed the application. The writ petition itself has been disposed of by the impugned order dated 11.02.2022. In the considered opinion of this Court, once the seizure orders were not set aside and no statutory provision was brought to the notice of the learned Single Judge for release of such amount and the seizure orders have been affirmed by the competent authority under Section 37A(2) of the Act, no such provisional release could have been ordered by disposing of the writ petition itself. Learned co....... + More

Seizure orders - respondent No.2 has seized an amount of approximately 270 crores and has transferred a substantial portion of the said amount to its own bank account - HELD THAT:- Several circumstances are narrated with regard to the hardship which the petitioner Company would face, if an amount of ₹ 15,35,45,317/- is not ordered to be released. Under these circumstances, in order to keep the petitioner Company alive and to enable it to meet its day to day expenses like payment of salaries to its employees, payment of taxes, statutory dues and operational expenses etc., this Court, in the interest of justice, deems it appropriate to direct the respondent No.2 to release an amount of ₹ 15,35,45,317/- (Rupees fifteen crores thirty five lakhs fourty five thousand three hundred and seventeen only), which is commensurate with the ....... + More

Offence under FEMA - enquiry contemplated under Section 16(3) of the Foreign Exchange Management Act, 1999 on the basis of complaint by an Authorized officer as provided for under the said sub-section - As argued show-cause notices are not in compliance with the procedure prescribed under Rule 4 of 2000 Rules - HELD THAT:- We are of the view that no indulgence is warranted in the matter of issuance of impugned show-cause notice dated 08.04.2021 and the notice for personal hearing dated 28.06.2021. Adjudicating Authority is yet to hold an enquiry and thereafter take a decision to initiate proceedings for imposition of penalty under Section 13 of the FEMA. Thereafter, the petitioner has a remedy of filing appeals viz. (1) under Section 17 to the Special Director (Appeals) against the orders of the Adjudicating Authorities, being an Assistan....... + More

Violation of provisions of FCRA, 2010 - Suspension of certificate - suspension u/s 13(1) of the FCRA, 2010 - HELD THAT:- This Court, in the facts of that case had set aside the suspension order on two grounds, firstly, no reasons have been spelt out in the suspension order and secondly, the respondents have neither issued Show Cause notice nor initiated an inquiry by the time the suspension order was passed. Insofar as, stating the reasons for suspension is concerned, as concluded above, the reasons have been given in the impugned order. To that extent, the judgment has no applicability. Insofar as the conclusion of the Court by the time the suspension order was passed neither an inquiry was initiated nor any Show Cause notice was issued is concerned, it is my conclusion that the process of inquiry was started in the year 2017. So, it is ....... + More

Proceedings in terms of section 16(1) r/w sec. 13 of the Foreign Exchange Management Act, 1999 - contravention of the provisions of sections 3(b), 5, 6(2)(a) & 10(6) of FEMA r/w. Regulations 3 & 4(a) of the Foreign Exchange Management (Permissible Capital Account Transactions) Regulation 2000 in relation to a foreign exchange - HELD THAT:- After service of notice, the respondents having entered appearance through the Central Govt. Counsel vehemently oppose the petitions making submission in justification of the impugned notice & the complaint and in support of the reasons on which they have been constructed. As these Writ Petitions being devoid of merits, are liable to be dismissed and accordingly, they are, all contentions having been kept open. Petitioners are granted a period of four weeks for submitting their reply to the ....... + More

Extension of tenure of Director of Enforcement - extension of tenure granted to persons holding the post of Director of Enforcement after attaining the age of superannuation - fixing the tenure for a minimum period of two years - procedure prescribed under Section 25 of the Central Vigilance Commission Act, 2003 (‘CVC Act’) - Whether there can be extension of tenure of a person who has been appointed as a Director of Enforcement for a period of two years and who has attained the age of superannuation in the interregnum i.e. before the expiry of two years? - HELD THAT:- Government servant shall retire on attaining the age of 60 years. Posts for which there can be extension beyond 60 years have been specifically mentioned in the Rule and there is no dispute that the post of Director of Enforcement is not mentioned in the Rule fo....... + More

Revival of abated proceedings - matter travelled before the Settlement Commission, but due to lack of Coram, the Settlement Commission, could not decide the case within the time frame prescribed under Sub-section (6) of Section 32F and stood abated - HELD THAT:- The Settlement Commission, could not have adjudicate upon the issue referred to or sought to be referred to by the petitioner, by an order dated 5th March, 2020, passed by this Court, admittedly, it stood abated and consequent to which, the impugned order of 2nd March, 2022, has been passed, whereby, it had been observed, that as per the implications of Section 83 of the Finance Act, 1994, and as an effect of abatement under Section 32F (6), the proceedings are to be relegated back to be decided by the Adjudicating Authority. The Adjudicating Authority, who has been conferred with....... + More

Construction for the purpose of Commerce and Industry or not - Hut Bazaar as was constructed by the appellant for Nagar Palika Parishad, Dhamtari - Whether Hut Bazaar was intended as Nagar Palika Parishad, Dhamtari to be used for any commercial gains instead that of the welfare use thereof? - HELD THAT:- Clause No. 14 (d) of the Mega Exemption Notification further clarifies that any infrastructure provided for the agricultural produce, the services of construction thereof shall be exempted from the tax liability. The department has not produced any document to show that the stalls of ‘Hut Bazaar’ were rented out or auctioned to the farmers. Though the show cause notices alleges the amount proposed to be recovered as a liability towards an amount received after auction of ‘Hut Bazaar’ but there is no single document....... + More

Refund claim filed by legal heir of the proprietress - seeking refund tof amount paid by the proprietary concern after the expiry of proprietress, in respect of the amount due in terms of VCES introduced by the “Chapter VI: Service Tax Voluntary Compliance Encouragement Scheme, 2013” vide Section 104 to 114 of the Finance Act, 2013 - HELD THAT:- The decision of SHABINA ABRAHAM AND OTHERS VERSUS COLLECTOR OF CENTRAL EXCISE & CUSTOMS [2015 (7) TMI 1036 - SUPREME COURT] was rendered taking note of the absence of machinery provisions for continuance of proceedings under Section 11A, etc after the expiry of the proprietor. Same is not the case as no such proceeding is there but refund claim has been made in respect of the amounts deposited in terms of the VCES, and as per Section 109 of the Finance Act, 2019 no refund of the amounts paid under the said scheme will be refunded under any circumstances. Appeal dismissed.

CENVAT Credit - Input Service Distribution - excess availment of Cenvat credit of more than 20% of credit - Rule 7 of the CCR, 2004 - levy of interest and penalty on the amount of Cenvat credit availed by it on Capital Goods to the full extent in the first year of purchase instead of 50% - HELD THAT:- The issue regarding availment of ISD credit by the Tirupati unit for materials used in other units, the Appellant has submitted that there was no restriction in availment of Cenvat credit as distributed by the ISD unit under Rule 7 of the CCR, 2004. The issue is settled by the judgment of the Hon’ble Karnataka High Court in the case of COMMISSIONER OF C. EX., BANGALORE-I VERSUS ECOF INDUSTRIES PVT. LTD. [2011 (2) TMI 1130 - KARNATAKA HIGH COURT] wherein it was held by the Court that Merely because the input service tax is paid at a par....... + More

Rejection of rebate claim - export of service or not - rejection on the ground that the same does not qualify as export of service as well as on the ground of unjust enrichment - period from January 2010 to November 2010 - HELD THAT:- This Tribunal in a similar matter pertaining to MRAS services in M/S MEDALLION CONSULTING PRIVATE LIMITED VERSUS CST, DELHI [2017 (4) TMI 96 - CESTAT NEW DELHI] has held that Part performance of service outside India shall be treated as performed outside India. In the instant case, on perusal of the invoices issued by the Appellant to various overseas customers, it is clear that the benefit of these services are accruing to the customer located outside India. Thus, there is no doubt that the services will qualify to be export of services under the provisions of the Export of Service Rules, 2005. Unjust enric....... + More

Non-discharge of tax liability - Petitioner neither got service tax registration nor paid any service tax on the taxable consideration received - demand alongwith interest and penalty - HELD THAT:- It transpires that adjudication with reference to evidence on record is required to be made as to whether the conduct of the Petitioner by not discharging its Service Tax liability is a pointer for invocation of jurisdiction under Section 73 of the Finance Act. It is also necessary for the appropriate authority on the basis of pleadings and material particulars available on record to decide whether there was justification in subjecting the assessee-petitioner to adjudication in view of existence of the circumstances spelt out in proviso to Section 73 of Chapter V of the Finance Act, 1994 so that extended period of limitation is attracted. In th....... + More

Levy of Service Tax - Cargo Handling Services - Storage and Warehousing services - benefit of cum Duty price - invocation of extended period of limitation - Circular No.18/2009-Customs dated 08 June, 2009 - HELD THAT:- The facts of the case are that the appellant’s are container freight station. The appellant’s are providing services on the basis of a tariff card. There are standard packages which involved the complete service of container freight station (including storage for a specified limited time) at a particular rate. All the appellant’s are paying service tax on such services in case of import of goods. All CFS are not paying service tax on such services in respect of export of goods being net covered in service tax net - All appellant’s are charging a “Storage and Warehousing” fees only in case....... + More

CENVAT Credit - duty paying invoices - whether availment of CENVAT Credit by the appellant on the basis of a debit note availed by M/s IGSSTPL without receiving any service is admissible as per law? - HELD THAT:- As per the agreement, under sub-clause (xxii) of definition under clause (1), the obligation of the Development Manager shall include repayment of loan to Yes Bank together with all cost of services thereof; repayment of Development Manager loan together with all cost of services thereof and repayment of all third party capital together with all cost of services thereof. To appreciate the factual position of the impugned case, it is found appropriate to go through the relevant clauses of the agreement between the appellant and M/s IGSSTPL. On going through the various clauses of the agreement, it is found that the appellants have....... + More

CENVAT Credit - input services - Construction/ Works Contract Service for re-carpeting of road in their industrial estate - credit denied on the ground that it is a new construction of road under works contract service which is excluded in the definition of Input Service under Rule 2(l) of Cenvat Credit Rules, 2004 - HELD THAT:- The fact is not under dispute that the industrial estate already existed and for moving around the Industrial Estate the tar roads were also existing. The works contract/ construction was executed for the purpose of re-carpeting of existing road. Therefore, the said services are for the purpose of repair and renovation of the exiting industrial estate. It is observed from the notes of the Board meeting for the purpose of re-carpeting of the road that it is for re-carpeting and not for new construction of road. The....... + More

Clubbing of clearances - Clearing & Forwarding Agent Services - transportation of goods by road with issuance of consignment note for Ultratech - Whether the Revenue is correct in clubbing the two services, which are provided under different agreements as a composite service of C&F agency and demand tax? - Scope of SCN - extended period of limitation - HELD THAT:- Admittedly the demand in the show cause notice was proposed under the head- cargo handling service, whereas in the impugned order-in-original, the demand have been confirmed under the head C & F Agency Service. Thus evidently, the adjudicating authority have travelled beyond the scope of show cause notice. Thus, the impugned order is bad on this score alone. This agreement is entered into between Ultratech Cement Ltd and M/s S S Enterprises (proprietor Gunesh India p....... + More

Validity of Demand-cum-Show-Cause Notice - seeking direction that the respondent authorities should provide an opportunity of pre-show cause notice consultation to the petitioner - whether the Circular dated 11.11.2021 is clarificatory in nature thereby clarifying the Master Circular dated 10.03.2017? - Suppression of facts or not - HELD THAT:- A Perusal of the said Circular dated 11.11.2021 stipulates that the concept of pre-show cause notice consultation in Central Excise and Service Tax was introduced vide the Board’s instructions dated 21.12.2015 as a trade facilitation measure. Thereupon in para 5 of the Master Circular No.1053/02/2017-CX dated 10.03.2017, the said principle of pre-show cause notice consultation was reiterated. Subsequent thereto, a reference was received from the DGGI to clarify whether the DGGI formation fell....... + More

Rejection of the application filed under the Service Tax Voluntary Compliance Encouragement Scheme (VCES), 2013 - time limitation - construction of residential complex - rejection on the ground of pendency of enquiry initiated against it before 01.03.2013 that suffered an adjudication process and gone on appeal to the Commissioner of CGST & Central Excise (Appeals-II), Mumbai - period from October, 2007 to December, 2012 - HELD THAT:- It can be noticed that there is a stipulation under Section 106(2) that if any enquiry, investigation or audit is pending on 01.01.2013, VCES declaration shall be rejected. However, no such documentary evidence/proof of such pending enquiry as define in Section 2(g) of the CrPC or investigation under Section 2(h) of the CrPC was found to be available in its true sense that would empower invocation of jur....... + More

Levy of service tax - scheme of levy under section 66B of Finance Act, 1994 imposed on all ‘services’, as defined in section 65B (44) of Finance Act, 1994, that were either not excluded by section 66D of Finance Act, 1994 (negative list) or not exempted by notification issued under section 93 of Finance Act, 1944 - composite engagement to deliver goods outside the country, for which consideration was received from the recipient of services located outside India - services performed outside the ‘taxable territory’ - Place of Provision of Services Rules - HELD THAT:- It would appear that there is no demand for the pre - ‘negative list’ period and that it was only the inevitable passage of ‘export goods’ through India at commencement of outward journey till loading on ‘foreign going&rsquo....... + More

Refund claim - claim is hit by limitation when filed after the introduction of GST, or not - overriding effect of section 142(8)(b) of CGST Act, 2017 - rejection on the ground of unjust enrichment - HELD THAT:- The Tribunal in the case of Jai Mateshwaari Steels Pvt. Ltd. [2022 (3) TMI 49 - CESTAT NEW DELHI] where it was held that in the facts of the present case, no limitation is applicable as provided under Section 11B (one year from the relevant date), due to overriding effect of CGST Act. Accordingly, I find that the appellant is entitled to refund under the provisions of Section 142(3) r/w 142(8) (b) of the CGST Act r/w the erstwhile provisions of Central Excise Act and the Cenvat Credit Rules. The rejection of refund claim on the ground of limitation is not justified - Appeal allowed - decided in favor of appellant.

Levy of service tax - Reverse Charge (RCM) - taxability of the cross charge, which is primarily based on who should be reckoned as an employer of the secondee - Manpower Recruitment Agency Service - employees who were seconded to the assessee by the foreign group companies - CESTAT set aside the demand - Extended period of limitation - HELD THAT:- During the arrangement, the secondees work under the control and supervision of the Indian company and in relation to the work responsibilities of the Indian affiliate. Social security laws of the home country (of the secondees) and business considerations result in payroll retention and salary payment by the foreign entity, which is claimed as reimbursement from the host entity. The crux of the issue is the taxability of the cross charge, which is primarily based on who should be reckoned as an....... + More

Classification of services - Man Power Recruitment or Supply Agency Service or not - contracts with various persons for supply of man power for utilizing such man power in their factory - period involved from April 2008 to March 2013 - penalty - HELD THAT:- The Tribunal in similar cases, wherein contactors had provided services to TAFE and income was received on piece rate, had observed that the contractors were liable to execute the work for TAFE and are responsible for the defect, if any. It was held that the activity would not fall within the definition of “Man Power Recruitment or Supply Agency Services” - In similar matters in G. RAMAKRISHNAN, K. BALAKRISHNAN, P. KANNUSAMY, M. ARULPRAKASAM, R. ATHINARAYANAN, S. SUBBURAYALU VERSUS CCE & ST MADURAI [2019 (3) TMI 42 - CESTAT CHENNAI] where the period involved is prior to....... + More

Refund of service tax paid - payment of tax due to mistake in facts or of law - period of limitation - whether the amount of Rs.4,78,222/- as was deposited by the appellant on 14.3.2016 was the amount of duty/tax? - HELD THAT:- Apparently and admittedly the said amount was deposited under the wrong impression of appellant being the liable to Service Tax for providing the construction service to M P Police Housing Corpn. Ltd. There is no denial to the fact that these services were exempted from the tax liability till March 2015 under Notification No. 06/2015 dated 1.3.2015. There is also no denial to the fact that the exemption was removed only for the period of one year i.e. from March 2015 to March 2016. From the notification No. 06/2015 vide Notification No. 9/2016 dated 1.3.2016, the retrospective exemption for the construction service....... + More

Refund claim of unutilized CENVAT Credit - Input services or not - partial refund also denied on the ground of nexus between the services received and the services exported - HELD THAT:- From the orders of the lower authorities, it is found that there are no objection was taken when the said input services were consumed, but only when it came to the granting of refund did the Revenue raise the objection that the services did not qualify as input service and that there was no nexus between the services received and services exported. This defeats the very purpose of the CENVAT scheme. The rejection of the refund claims is not sustainable - Appeal allowed.

Taxability - business auxiliary service - submission is that the agencies of the state government are ‘clients’ of the appellant on whose behalf maintenance of roads is undertaken appears to have overlooked the underlying scheme of the tender which brought the appellant in to the transaction - HELD THAT:- ‘Toll’ is a constitutionally authorized levy assigned to governments of constituent states of the Union and, unarguably, to be collected under the authority of the state government. It is not the case of the service tax officers that the mechanism erected for such collection compromises the characteristic of the levy into two - ‘toll’ and other - but that denomination of the latter as ‘commission’ in the contract constitutes two activities of which only one was taxable. Concatenating the de....... + More

Refund claim - credit of additional duty of customs (CVD) on inputs imported - credit of service tax on certain input services like renting of immovable property, of ITSS Services and Consulting Engineering services procured locally and Air passenger transport services - Reverse Charge Mechanism - Refund of services locally procured but billed in US Dollars is not admissible - Refund on defective invoices - rejection on the issue that there is no nexus of the input services with the services exported - HELD THAT:- As far as the issue of nexus is concerned, the same stands covered by various decisions which have been delivered subsequent to the passing of the impugned orders - In the case of TEXAS INSTRUMENTS (INDIA) PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX [2014 (9) TMI 1135 - CESTAT, BANGALORE], it was direc....... + More

Constitutional validity of amendment in the Area Based exemption - Denial of benefit of exemption - exclusion of a particular khasra in the Excise Notification - Benefit of N/N. 50/2003 CE dated 10.06.2003 - waiver of pre-deposit - HELD THAT:- It is apparent from the record that the Court has proceeded to take a view that, even if there is a mistake in not including certain khasra numbers, the Court would be encroaching on the policy matters, if it was to be persuaded to issue a direction to include specified khasra numbers. It is apparent from the prayer clause of the writ petition that the petitioner says that exclusion of a particular khasra in the Excise Notification No. 50/2003-CE dated 10.06.2003 is merely procedural, still, it touches upon the policy of the State Government and, hence, should not be rightly interfered by the Court exercising review jurisdiction under Article 226 of the Constitution of India. The writ petition stands dismissed.

Condonation of delay in filing appeal - Amount billed gross shown in ST-3 return arising suppression of material facts - extended period of limitation - HELD THAT:- The respondent/assessee is a cooperative society and was issued with show cause notice alleging contravention of the provisions of Sections 66, 67 and 68 of the Finance Act, 1994 read with Rules 5 and 6 of the Service Tax Rules, 1994 on the ground that they have failed to pay service tax on the amount indicated on the value of the taxable services under the category of “Man Power Recruitment or Supply Agency Service” classifiable under sub Section 105(k) of Section 65 of the Finance Act. The show cause notice was not issued solely at the instance of the department but the department was directed to issue the notice on account of audit objection which has been raise....... + More

Validity of revival notices - revival notices challenged on the ground that after issuance of original show cause notices, no intimation whatsoever was given to them regarding the status thereof or that the same had been consigned to the Call Book - HELD THAT:- It is an admitted position that the original show cause notices were issued to the petitioners between the years 2007 and 2012. There is no denial on part of the respondents that the decision to send assessment proceedings sought to be taken under these show cause notices to the Call Book was never communicated to the petitioners. The revival notices were issued out of the blue in the years 2020 and 2021. Immediately on receiving the revival notices, the petitioners forwarded letters to the respondent Assistant Commissioner, CGST seeking reasons for sending the cases to the Call Bo....... + More

CENVAT Credit - inputs/input services - capital goods - outward goods transport service performed beyond place of removal - HELD THAT:- Perusing the entire records, it is observed that delivery of goods in the present case from the manufacturer’s/appellant’s premises is on the FOR basis. The copy of insurance policy is sufficient to hold that till the goods are delivered by the manufacturer to its customers place, the title therein remains vested with the manufacturer/the appellant. The same fact has been certified as correct even by the Statutory Auditors of the appellant in the form of the Chartered Accountants Certificate. There is no document on record produced by the department to falsify both these documents. The property in the goods continued to remain with the appellant/the manufacturer till those goods were delivered....... + More

Valuation of excisable goods - genuine factory gate price can be considered as normal price under Section 4(1)(a) of the Act or not? - is the price only in respect of any particular buyer or particular class of buyers as per proviso (i) to Section 4(1)(a) or not? - applicability of section 4(1)(a) of the Act to all buyers, has the value been correctly determined as per Section 4(1)(b) with respect to allowing all the eligible abatements from the depot price - extended period of limitation - penalty. HELD THAT:-Section 4(1) of the Act as applicable during the relevant period does not levy excise duty on the price but on the value and such value shall be a deemed value. If there is a normal price as per Section 4(1)(a), it shall be the deemed value, else it shall be the value determined as per 4(1)(b). Thus, as long as there is price under ....... + More

Payment of duty availing the benefit of Concessional rate of duty instead of full exemption - Reversal of Cenvat Credit - payment of Central Excise duty on the final product by the appellant during the disputed period was objected to by the Department on the ground that the appellant should have self-assessed at ‘NIL” rate of duty under Sl. No.90 of notification dated 01.03.2006, as amended - HELD THAT:- Section 5A of the Central Excise Act, 1944 recognizes two categorizes of exemption notification. The first category being that of an “absolute” exemption, where there was no condition attached to the exemption entry and the other one is a “conditional” exemption, which was subject to fulfilment of the conditions attached to the exemption entry - In the present case, the exemption entry at Sl. No.90 of N....... + More

CENVAT Credit - availment of Credit of duty paid under yarn and fabrics before sending the same to job worker of the processor following the procedure containing Rule 4(5)(a) of CENVAT Credit Rule 2004 - eligibility for credit even after revocation of Rule 12B of Central Excise Rules with effect from 9.7.2004 - credit denied on the ground that the appellant had no facility to manufacture the dyed and printed fabrics and hence they are not the manufacturers - bogus invoices - period 09.07.2004 to 30.06.2005 - Invocation of extended period of limitation. Whether the appellants are eligible to CENVAT Credit even after revocation of Rule 12B of Central Excise Rules with effect from 9.7.2004? - HELD THAT:- The issue of applicability of CENVAT Credit to the appellants is no longer res integra. Tribunal in the case of MAHARASHTRA DYEING & PR....... + More

CENVAT Credit - input services - credit denied on the ground that input services were not received at the factory of Appellant but at External Warehouse having separate First Stage Dealer registration certificate - period from October, 2013 to October, 2014 - HELD THAT:- Basing on the decision in VAKO SEALS PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, MUMBAI-V [2015 (7) TMI 544 - CESTAT MUMBAI] had allowed the appeal filed by the present appellant before him for the period from November, 2014 to November, 2016, where it was held that It is kept in mind that service is not tangible unlike inputs or capital goods. Scope of service is not limited within the four corner of factory, even if same services are received by the appellant at any place directly or indirectly related to manufacture of activity or related to business activity of the....... + More

Availing CENVAT credit while availing the benefit of exemption N/N. 30/04-CE denied - major input i.e. yarn used for manufacture of exempted and duty paid goods - manufacture of Terry Towels - suppression of material facts or not - invocation of extended period of limitation - HELD THAT:- The issue is squarely covered by the decision of this Tribunal in the case of M/S MANGAL TEXTILE PVT. LTD. VERSUS CCE AHMEDABAD-I [2010 (12) TMI 318 - CESTAT, AHMEDABAD] where it was held that appellant having reversed the major part of the credit and having offered to reverse the balance credit, entitled to benefit of Notification No.30/94. There are no hesitation in allowing the appeal filed by the appellant in this case also - appeal allowed - decided in favor of appellant.

Clandestine removal - prints out taken from the Hard Disk recovered in the premises of the alleged secret office (claimed to be a third party premises or godown) - admissible evidence or not - reliability on statements - third party evidences - quantification of duty evaded - levy of penalty - violation of procedure laid down under Section 100(3) Cr PC. - HELD THAT:- There were some procedural irregularities in the conduct of the Panchnama proceedings. The investigating agency was required to use panchas whose credentials cannot be questioned. Repeated use of the same Panch witnesses all around different places by the same agency, give scope for avoidable allegations while casting doubts on the proceedings initiated by using them. The Panchnama drawn at the premises of Cadbury / bournvita also suffers from the infirmities that none of the....... + More

Condonation of delay of 411 days in filing appeal - HELD THAT:- The delay ought to be condoned, as the appeal cannot be subjected to a different treatment - the delay is condoned.

Clandestine manufacture and removal of tobacco/gutkha without payment of central excise duty and education cess - HELD THAT:- A coordinate bench of this Court in PRABHAT ZARDA FACTORY CO., K.N. MEHROTRA, PURUSHOTTAM KUMAR ARYA VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI [2018 (5) TMI 1670 - DELHI HIGH COURT] where it was held that In the present case, the impugned order on all aspects and contentions merely reproduces the order-in-original, without specifically and independently examining and dealing with diverse contentions. Reference and independent and exhaustive elucidation of the factual contentions raised by the appellants and consideration of legal issues based upon the said contentions is conspicuously lacking and missing. The impugned order suffers on this account. The substantial questions of law are answered in favour of the appellants and against the respondent with an order of remand to the Tribunal for fresh decision - appeal allowed.

Refund of CENVAT Credit - education cess and secondary higher education cess paid on total custom duty when both the duty were exempted against the CVD - only ground for claim of refund of the appellant is that the period of taking credit as beyond the normal period - N/N. 13/2012-Cus and 14/2012-Cus dated 17.03.2012 - HELD THAT:- In the present case it is not a case of demand but the appellant have paid the amount of cenvat credit accepting their mistake that the cenvat credit in respect of CVD of the custom duty is not admissible. This issue was raised by the audit and consequently the appellant have paid the amount. It is pertinent to note that the issue of non availability of the cenvat credit has been decided by this Tribunal in the case of NIRMA LIMITED, SAURASHTRA CHEMICALS DIVISION OF NIRMA LTD, MAC PAPER MILLS, ACULIFE HEALTHCARE....... + More

Compounded levy scheme - Re-determination of Annual Capacity of Production and monthly duty liability - Pan Masala Packing (Capacity Determination & Collection of Duty) Rules, 2008 read with Notification No 30/2008 of the CE(NT) dated 01.07.2008 and Notification No. 42/2008-CE(NT) dated 01.07.2008 - HELD THAT:- The scheme of the Pan Masala Packing Machines (Capacity Determination And Collection of Duty) Rules, 2008, has been well explained in the impugned order and the during the course of arguments by the appellants. In terms of the said rules the appellant are required to make the declaration in terms of Rule 6 of the said rules, declaring the number of installed packing machines in their factory and the retail sale price of the pouches to be produced by them. On the basis of the declaration made and after causing the verification o....... + More

CENVAT Credit - input services - Hotel Accommodation Service - Air Travel Agent Service - HELD THAT:- Hotel Accommodation Service and Air Travel Agent Service are admissible input services. Reliance can be placed in the case of M/S. UNIQUE CHEMICALS VERSUS C.C.E. & S.T., VADODRA-II [2019 (9) TMI 1137 - CESTAT AHMEDABAD] and INOX INDIA PVT LTD VERSUS C.C.E. & S.T. -VADODARA-II [2021 (7) TMI 551 - CESTAT AHMEDABAD] where it was held that Hotel Accommodation Service was used by the appellant for hotel stay of staff of the appellants who travelled outside for business purpose - As regard Mandap Keeper service, the same is used for arranging the business conference which is a necessity for running the business. Therefore, both the services are directly used for conducting the business of the appellant. The issue is no longer res-Integra as the same has been decided in the favour of the appellant - Appeal allowed - decided in favor of appellant.

Area Bases Exemption - fixation of special rate representing the actual value addition - Recovery of refund / reversal of credit received by the petitioner as per the interim order - Later Hon'ble SC has upheld the validity of withdrawal of area based exemption - principles of promissory estoppel - effect of judgment of the Supreme Court in the case of V.V. F. Ltd. [2020 (4) TMI 669 - SUPREME COURT] and its effect of the said judgment on the amendment made by the Notification No. 38/2008-CE dated 10/6/2008 - HELD THAT:- In the instant judgment, this Court had explained the scope and ambit of Paragraph 3(1) as was inserted by the Notification No. 38/2008-CE. In terms with the said provision, the manufacturer shall have the option not to avail the rates specified in the table and apply to the Commissioner of Central Excise or the Commis....... + More

Permission for withdrawal of appeal - Input Tax Credit - GTA Services - applicability of case of COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 - SUPREME COURT] without verifying the fact that the sale are made on FOR basis - place of removal - HELD THAT:- When the matters were taken up for consideration, the learned counsel appearing for the appellant sought permission of this Court to withdraw these civil miscellaneous appeals and also made an endorsement to that effect. In view of submission and endorsement made by the learned counsel for the appellant, these civil miscellaneous appeals are dismissed as withdrawn.

Entitlement to interest on the amount of refund of pre-deposit under section 35F of the Central Excise Act, 1944 from the date of the deposit till the date of sanction of the amount - section 35FF of Central Excise Act - HELD THAT:- It is not in dispute that the amount towards pre-deposit under secton 35F of the Excise Act was deposited by the appellant on 30.08.2012, which date is prior to 06.08.2014 on which date section 35FF of the Excise Act was amended. The proviso to section 35FF of the Excise Act, as it stood after amendment on 06.08.2014, clearly stipulates that the amount deposited under section 35F of the Excise Act prior to 06.08.2014 shall continue to be governed by the provisions of section 35FF of the Excise Act as it stood before 06.08.2014. Thus, the appellant would not be entitled to claim interest on the pre-deposit amou....... + More

CENVAT Credit - input services - construction services - fee for architectural structural works for factory plant building - group Medi-claim Insurance - Group personal accident insurance - insurance, motor car/vehicle insurance - labour charges for installation - testing & commissioning of components of VRV System (Centrally AC system) in the office building etc. - HELD THAT:- Right from beginning the appellant is taking a stand that construction and architectural services are used for repair and renovation of factory. This submission of the appellant was not effectively rebutted by the Revenue and the Cenvat credit was denied by the lower authorities on the ground that construction service is excluded and appearing in the exclusion clause which were brought in the statute vide Notification No. 3/2011-CE (NT) dated 01.03.2011. On thi....... + More

CENVAT Credit - duty paying invoices - case of the department is that the service recipient is M/s. Valia Industries Association therefore credit cannot be allowed to M/s. Gujarat Guardian Limited who is not a service recipient - Club or association services - difference between the Association and its Members - mutuality of services - HELD THAT:- The appellant as per Industries Association namely M/s. Valia Industries Association is only an association which includes the appellant also as its member. As per the Deed of Association dated 30.06.2008, the association was founded in the name of M/s. Valia Industries Association for operating water supply for the common benefit of all the members. The association engaged Shree Rang Services to handle the said water supply project. Shri Rang Services issued invoices for handling the water supp....... + More

Claim of interest Refund of VAT - delay in furnishing the declaration i.e. C-Forms to be factored in while calculating interest - Section 38(3)(a)(ii) of the DVAT Act. - HELD THAT:- The respondent/revenue has carried the matter in appeal to the Supreme Court. The Supreme Court, via order dated 01.02.2017, passed in VIZIEN ORGANICS, M/S MUNSHI RAM RAM PARKASH, MANGLA ENTERPRISES, DHANJAL ENGG. WORKS, M/S GOEL OIL COMPANY, M/S ARUN ELECTRONICS, POWER INDUSTRIES PROPRIETO SH. TARUN BANSAL, M/S. LUDHIANA AUTO SUPPLY CO., VERSUS COMMISSIONER, TRADE & TAXES & ANR. [2017 (1) TMI 1168 - DELHI HIGH COURT] has stayed the operation of the aforementioned judgment rendered by the coordinate bench. The present writ petition is disposed off, with the caveat that the petitioner’s claim concerning the remaining interest would be processed and shall be paid, in case the respondent/revenue was to fail in the aforementioned SLP.

Exemption from Sales Tax - Whether the carpets dealt with by the Petitioner on which 1st point sales tax has been paid to the selling dealer, are exempted from sales tax at the last point of sale? - HELD THAT:- The taxing provision in the OST Act is Section 5 (1) which prescribes the rate of tax. The point of levy of tax on different goods are in accordance with Section 8 of the OST Act. Therefore, the reference to entry 23 of the rate of tax for determining amenability to tax is not relevant. The schedule of taxable goods under List- ‘C’ not only covers the goods notified as 1st point tax paid items but all other residual items unless the goods were notified as tax free - There is merit in the contention of the Petitioner that pile carpets are also known as carpets. In common parlance, pile carpets are also understood as carp....... + More

Exemption from Sale Tax - sale of finished products manufactured by the industrial unit under the diversification scheme - order of enhancement of assessment passed by the Ld. Tribunal without compliance of the provisions of Rule-50 (3) of the Orissa Sales Tax Rules is lawful and valid or not - error of jurisdiction or is error in law while deciding issues which are not before him in the appeal filed by the Petitioner in absence of cross objection filed by the State - HELD THAT:- According to the Tribunal, the production and sale under the diversification scheme could not be construed to be increased commercial production over and above the installed capacity of the Unit and that the Petitioner had violated the stipulation laid down in the Finance Department Notification vide entry No.26-FF and 30-FFF (ii) of the Tax Free Schedule of the ....... + More

Benefit of sales tax exemption - excess production and sale of cement of a quantity of 1670 MT - HELD THAT:- The industrial unit was to avail tax exemption in terms of I.P.R.1989. The installed capacity of the unit is that which stands certified under Annexure-2 and 3 and it cannot be changed or modified unless there is expansion/modernization/diversification. In other words, the installed capacity can be altered subject to the justification by amending the registration certificate. In the instant case, the claim of the Petitioner’s case is not based on any such expansion etc. Of course, no bar lies for excess production which may be accomplished with more than one shift but the exemption which the Petitioner is entitled would stand restricted to 15000 MT and cannot cover the excess production. Admittedly, no expansion has been unde....... + More

Jurisdiction - whether D.I.C. has authority in law to issue the eligibility certificate for expansion and or modernization with retrospective effect - HELD THAT:- The period in question is the same i.e. 1994- 95 but the gross turnover (GTO) is noted in the said order of suo moto revision order dated 6th December, 2006 is different. In the order dated 30th May, 2002 of the STO, Dhenkanal Circle the GTO was noted as Rs.11,25,000/- which had escaped turnover and the Petitioner's exemption was disallowed insofar As it pertained to the excess production. On the other hand, the order dated 6th December, 2006 of the CTO appears to deal with supplies made to the Railways - it is plain that the Assessee claimed exemption on the strength of an earlier DIC certificate which did not authorise production beyond 2,70,187 cft. There is no power in t....... + More

Violation of principles of natural justice - non-affording of reasonable and adequate opportunity to represent before the Commissioner - HELD THAT:- This Court is satisfied that the Petitioner has been diligently pursuing its matter (apparent from documents act Annexure-8 series. It was given short notice for appearing before the Commissioner of Sales Tax in connection with hearing and the nonappearance was on account of non-availability of his lawyer in the station, which fact remained uncontroverted at the time of hearing of present petition. The Petitioner is directed to appear before the Commissioner of Sales Tax on 31st May, 2022 along with the certified copy of this order. The Commissioner of Sales Tax may hear the matter on the said date or adjourn the matter to any other date for hearing - Petition disposed off.

Levy of Sales Tax - sale of Gudakhu - Gudakhu being tobacco covered under Additional Duties of excise (Goods of Special importance) Act (ADE Act) is exempted from sales tax under Entry 38 of the exempted list or not - Orissa Sales Tax Act, 1947 (OST Act) - HELD THAT:- Entry-38 of the Exempted List A of the OST Act clearly includes Tobacco as described in column 3 of the first schedule to the ADE Act. If one turns to the ADE Act in the first schedule under Chapter Heading 2404.99 the Entry is “Tobacco used for smoking through hookah or chillum commonly known as hookah tobacco or Gudakhu’. It is therefore, plain that for the purpose of ADE Act Gudakhu is also recognized as a tobacco product - It may be noted here that even in subsequent amendments to the OST Act, there is an express recognition of Gudakhu being a tobacco product....... + More

Levy of Sales Tax - hire charges collected by the Assessee for letting out on lease its aircraft would amount to sales and the amenable to the sales tax under the Orissa Sales Tax Act, 1947 or not - HELD THAT:- Whether in the present case the transaction in question is a sale, it is seen that in the present case there is no actual transfer of the possession of the aircraft in question to the user of the aircraft. The aircraft is at all times in control of the Pilot who is an employee of the Assessee. Even the maintenance of the aircraft is undertaken by the Assessee as are the statutory compliances in terms of the permit granted to the Assessee. Therefore, there is no real transfer of the right to use the aircraft in the manner as envisaged in 20TH CENTURY FINANCE CORPN. LTD. AND ANOTHER VERSUS STATE OF MAHARSHTRA [2000 (5) TMI 980 - SUPR....... + More

Requirement of pre-deposit - Whether the revisional authority-Commissioner of Sales Tax is legally justified in sustaining the orders rejecting appeals summarily by the appellate authority-Joint Commissioner of Sales Tax for want of deposit of 10% of the amount of tax in dispute under the OVAT Act and 20% of the amount of tax under the OET Act? - HELD THAT:- In JINDAL STAINLESS LTD. VERSUS STATE OF ORISSA AND OTHERS [2014 (9) TMI 372 - ORISSA HIGH COURT] this Court delved into the question as to whether the condition precedent for pre-deposit of 20% [reduced to 10% vide OVAT (Amendment) Act, 2017] of tax or interest or both in dispute in addition to payment of admitted tax for entertaining an appeal as provided under Section 77(4) of the OVAT Act read with proviso to Rule 87 of the OVAT Rules is unreasonable, oppressive, violative and ult....... + More

Validity of assessment order - failure to file return - Revenue issued notice twice, despite that, no reply had been given by the petitioner - HELD THAT:- Every month return has to be filed, knowing well with that position, the petitioner dealer has not come forward to file the return and pay the tax. Therefore, notice was issued twice, despite that, no reply has been given and thereafter, assessment order has been passed, the tax component as well as the interest and penalty having been quantified was imposed against the petitioner, which the petitioner had paid only in January 2020 except the penalty. Penalty - HELD THAT:- Section 73 of the Act since has been invoked for imposing penalty that is a wrong invocation and if at all the petitioner case is to be considered and it should be considered only under Section 61 of the Act and in th....... + More

Restoration of application which was dismissed for default - HELD THAT:- The present application is allowed. The order dated 13th September 2019 is recalled and STREV No.41 of 2002 is restored to its original file.

Concessional rate of tax - issuance of C form, which are required for procurement of Extra Neutral Alcohol (ENA) and Malt Spirit utilized for manufacturing of Indian Made Foreign Liquor (IMFL) used for human consumption - HELD THAT:- The ENA and the Malt Spirit in its original form are not the alcoholic liquor fit for human consumption and would therefore, not come within the amended definition of clause(d) of Section 2 of the CST Act and the respondent authorities have, therefore, rightly refused to issue the “C” Form, as claimed by the petitioner herein. Based upon the principles laid down by the Constitutional Bench of the Supreme Court in the matter of SYNTHETICS & CHEMICALS LTD., ETC. VERSUS STATE OF UP. [1989 (10) TMI 214 - SUPREME COURT], the ENA and Malt Spirit are not the alcoholic liquor, which is fit for human c....... + More

Seeking permission for reassessment - power to grant permission for reassessment - Whether section 56(1) of the Act permits the Assessing Officer to refer the case to the Commissioner or Joint Commissioner for assessment/re-assessment? - HELD THAT:- Section 31 of the Act provides rectification of the order on an application of any interested person; whereas, section 29 of the Act empowers on the reason recorded by the assessing authority or the Commissioner on its own after being satisfied that it is just and expedient to do so to grant permission of the closed assessment for reassessment, where the turnover of a dealer for any assessment year or part thereof has escaped assessment to tax or has been under-assessed or has been assessed, but taxed at a lower rate than what at which it is assessable under the Act or any deduction or exempti....... + More

Denial of concessional rate of tax - D-Forms not accepted - ‘D’ Forms disallowed on the ground that the said dealer is a Government concern and not a Government and, as such, ‘D’ Forms, issued by it cannot be accepted and by further on the ground that a Govt. concern being a registered dealer could not issue ‘D’ Forms - HELD THAT:- The provision as laid down under Section 8 (1) (a) is applicable in case of inter-state sale made to Government whether registered or not being registered and in case of Government not being a registered dealer, the selling dealer has to furnish certificate in Form D as referred to in Rule 12 (1) of the CST (Registration & Turnover) Rules, 1959. A selling dealer is not required to furnish any certificate or declaration if the sale is made to Government being a registered ....... + More

Principles of natural justice - principal grievance of the petitioner is that the objections filed in the matter to the notice of default assessment of tax, interest and penalty issued under Section 32 of the Delhi Value Added Tax Act, 2004 - HELD THAT:- There is complete sloth and procrastination on the part of the respondents/revenue - the spirit of the law has, certainly, not been adhered to. Given the fact that the physical interaction often, for various reasons, is not possible with the Commissioner, the respondents/revenue are directed to create a portal/online mechanism for intimation of notices issued under subsection (8) of Section 74 of the Act, read with Rule 56 of the 2005 Rules. The writ petition is, accordingly, disposed of with a direction to the respondents/revenue to dispose of the objections filed by the petitioner, within 15 days of receipt of a copy of the judgment passed today.

Preferential payments of state claim over workmen and other creditors - Seeking priority and preference over other creditors and to release the amount said to be due in favour of the applicant-department - preferential treatment or priority to be accorded to the State claim/crown’s debt vis-a-vis the claim of workmen and other secured creditors - HELD THAT:- The issue of priority of secured creditor’s debt over that of the State Government, commonly known as crown’s debt, has been examined by different High Courts and the Hon’ble Supreme Court. This Court deems it proper to narrate the facts and law, with respect to different High Courts, as how the priority issue has been dealt with by them. The Gujarat High Court in the case of BANK OF INDIA VERSUS STATE OF GUJARAT & 3 OTHER (S) [2020 (1) TMI 1197 - GUJARAT H....... + More

Concessional Rate of Tax - Seeking appropriate direction, commanding the Respondent Authorities to issue “C” Form to the petitioner - seeking to consider the application filed by the petitioner for issuance of “C” Form - Manufacture of foreign liquor-9 - HELD THAT:- Supreme Court in the matter of SYNTHETICS & CHEMICALS LTD., ETC. VERSUS STATE OF UP. [1989 (10) TMI 214 - SUPREME COURT], wherein it has been held that the Rectified Spirit and the ENA are not the alcoholic liquor for human consumption - thus, the ENA and the Malt Spirit in its original form are not the alcoholic liquor fit for human consumption and would therefore, not come within the amended definition of clause(d) of Section 2 of the CST Act and in view thereof, the petitioner would not be entitled to get the “C” Form, as claimed by t....... + More

Classification of goods - rate of Trade Tax under the U. P. Trade Tax Act - Nitrogen component in the Chemical Fertilizer DAP (Di Ammonium Phosphate) - relevant date for enhancement of rates of DAP with effect from 29/01/1999 - Whether the revision in the rate of Nitrogen content in DAP would be applicable from the date of enhancement of the rate of DAP by the Government of India with effect from 29 January, 1999 or from 26 February, 2000 when the same was notified by the State Government? HELD THAT:- There is no dispute with regard to facts in issue inasmuch as vide notification dated 27th May, 1998 the value of Nitrogen component in DAP was fixed at ₹1381.30. Subsequently the value1381.30. Subsequently the value of DAP was enhanced by the Union of India on 29/1/1999. The notification of the Commissioner, Trade Tax dated 26/02/2000....... + More

Validity of assessment order - production of sufficient documents or not - HELD THAT:- After the remand order passed by this Court, two times opportunity was given to the petitioner and twice notices were given and both times the responses have been given by the petitioner dealer - First time, the documents sought for by the Revenue had been given. When further time was sought for especially to substantiate the movement of goods from seller to buyer, those transport documents were sought for and the same were not filed by the petitioner by stating the reason that, both buyer and seller are located in the same campus ie., sister concern and hence there was no separate movement or transportation and no separate charges had been incurred by the seller dealer or by the petitioner in transporting the goods - Only based on this stand taken by t....... + More

Refund claim - case of petitioner is that refund has not been effected except for one assessment year and that large amounts are still remaining due from the respondents - entitlement of interest on for delay in payment of interest under Section 44 of the KGST Act - HELD THAT:- If any refund is due to the petitioner, the same is liable to be processed and refunded without further delay. To enable such consideration of the quantum of refund due to the petitioner including the interest due, the 1st respondent is directed to take a decision upon Ext.P7, Ext.P7(a), Ext.P7(b) and Ext.P7(c), as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. Considering the long delay, that has ensued from the filing of Ext.P7 till date, petitioner will be at liberty to file a fresh representation also seeking refund of the amounts due, pointing out the details along with a copy of this writ petition - Petition disposed off.

Dishonor of cheque - acquittal of the accused - complainant under Section 256(1) of the Code of Criminal Procedure - HELD THAT:- It is ascertained that acquittal of the accused on the absence of the complainant under Section 256(1) of the Code of Criminal Procedure is not automatic. The court must apply its judicial discretion to the facts and circumstances of the case where it is expedient for the court to acquit the accused under Section 256(1) of the Code. Having gone through the impugned order, the approach of the learned court was clearly erroneous and not in accordance with law. On the date of passing of the impugned order the accused was represented under Section 205 of the Code and he was physically absent. The learned Magistrate passed the order of dismissal of the case without forming any opinion that there is no good reason to ....... + More

Dishonor of cheque - legal presumptions arising before dismissing the suit by reversing the well considered reasonings of the trial Court - scope of Section 118 of the Negotiable Instruments Act - suit promissory notes under Section 20 of the Negotiable Instruments Act - holder is authorized to fill up the blanks and to negotiate the instrument for a certain amount or not? - defendant has categorically admitted the “execution” and “issuance” of Ex.A1 to Ex.A3 in his written statement and in evidence before the Court - HELD THAT:- On perusal of the evidence of PW1 and PW2 and the written statement filed by the defendant and the oral evidence of PW1, it is found that the execution and issuance of the pro-notes, viz., Ex.A1 to Ex.A3 are not in dispute. In fact, the defendant has categorically admitted the same in the ....... + More

Appointment of Arbitrator - condition stipulated under Clause 51 of the Arbitration Agreement dated 12.03.1987 - Section 11(6)(C) of the Act, 1996 - HELD THAT:- The admitted fact, as would appear from the material available on record that the petitioner/applicant has entered into an agreement on 12.03.1987 for construction of Officer's Bungalows at Jubilee Park site and Adityapur Site, Jamshedpur, presently in Jharkhand State - The petitioner/applicant has concluded the work but certain claim pertaining to disbursement of amount has been crept up, as such, recourse available under the contract has been resorted to by making request before the concerned competent authority of the State of Jharkhand for appointment of sole Arbitrator. The Hon'ble Apex Court further in the case of PROJECT DIRECTOR, NATIONAL HIGHWAYS NO. 45 E AND 220 ....... + More

Maintainability of writ petition - availability of alternative remedy of appeal - Grant of benefit of Moratorium - Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - HELD THAT:- In case of M/s Balaji Enterprises and other connected matters [2022 (2) TMI 1235 - RAJASTHAN HIGH COURT] involving identical controversy, a co-ordinate Bench of this Court has dismissed the writ petitions on account of availability of remedy to the petitioners under the SARFAESI Act - the issue of availability of an alternative statutory remedy is no more res integra and stands decided against the petitioner. In the backdrop of judgments of the Hon’ble Apex Court of India in the cases of M.D. Frozen Foods Exports Pvt. Ltd. [2017 (9) TMI 1266 - SUPREME COURT] and Indiabulls Housing Finance ....... + More

Dishonor of Cheque - complaint has been lodged beyond the statutory period under section 142 (a) of the Negotiable Instrument Act or not - whether the order passed by learned Magistrate, supposed to have taken cognizance of the offence is tenable under the provisions of section 138 and 142 of the Negotiable Instrument Act? - section 138 of N.I. Act - HELD THAT:- It may be gathered from the impugned order dated 25.7.2013 that two cheques of Rs.1,50,000/- and as Rs.2,20,000/- were drawn by the petitioner on 2.5.2012 in favour of opposite party no.2. The cheques were presented for encashment but were dishonoured due to insufficiency of fund. On the ground of illness the complainant issued notice to the accused petitioner only on 12.11.2012 demanding payment of the cheque amounts. The complaint was lodged on 15.1.2013. This case was filed aft....... + More

Dishonor of Cheque - pre-summons mediation - Negotiable Instruments Act, 1881 - HELD THAT:- In respect of pre-summons mediation, National Portal for summons and the scheme for establishment of special courts for cases under the NI Act, the Union of India, the High Courts and the State Governments are directed to submit their suggestions within a period of two weeks from today. In so far as constitution of special courts is concerned, the learned Amicus Curiae has, for the purposes of constitution of special courts under the NI Act, identified states of Maharashtra, Delhi, Gujarat, Uttar Pradesh and Rajasthan on the ground that the number of cases pending in these states are higher than the other states. The suggestion made by the learned Amicus Curiae is that five districts in each of the above States, where cases under the NI Act are hig....... + More

Offence punishable under Section 63 of the Copyright Act - whether the offence under Section 63 of the Copyright Act is a cognizable offence as considered by the Trial Court or a noncognizable offence as observed and held by the High Court? - HELD THAT:- For the offence under Section 63 of the Copyright Act, the punishment provided is imprisonment for a term which shall not be less than six months but which may extend to three years and with fine. Therefore, the maximum punishment which can be imposed would be three years. Therefore, the learned Magistrate may sentence the accused for a period of three years also. In that view of the matter considering Part II of the First Schedule of the Cr.P.C., if the offence is punishable with imprisonment for three years and onwards but not more than seven years the offence is a cognizable offence. O....... + More

Dishonor of Cheque - conduct of trials of complaints under Section 138 of the Negotiable Instruments Act - HELD THAT:- The Court directs that the pilot study shall be conducted in the manner indicated. The Secretary General of this Court shall ensure that a copy of the present order is directly communicated to the Registrar Generals of the said five High Courts, who shall place it before the Hon’ble Chief Justice for immediate action. To report progress and compliance, each of the said five High Courts shall file an affidavit on or before 21.07.2022. List on 26.07.2022 to review the further proceeding.

Interpretation of statute - whether the "sum" awarded under Clause (a) of Sub-section (7) of Section 31 of the Arbitration and Conciliation Act, 1996 would include the interest pendente lite or not? - HELD THAT:- As per Article 29.8 of the Concession Agreement, the Termination Payment would become due and payable to the Concessionaire by DMRC within thirty days of a demand being made by the Concessionaire. It further provides that if the DMRC fails to disburse the full Termination Payment within 30 days, the amount remaining unpaid shall be disbursed along with interest at an annualized rate of SBI PLR plus two per cent for the period of delay on such amount. It can thus clearly be seen that Article 29.8 of the Concession Agreement deals with payment of interest on Termination Payment amount. It is thus clear that the Arbitral T....... + More

Dishonor of Cheque - private complaint invoking Section 200 of the Cr.P.C. alleging cheating under Section 420 of the IPC on the part of the Company and its Directors - invocation of jurisdiction of the competent criminal Court by filing a complaint alleging offence punishable under Section 138 of the Act - HELD THAT:- Issuance of cheques, they getting dishonoured and all other factual narration are not required to be reiterated. The issue with regard to registration of criminal case for offence punishable under the IPC notwithstanding registration of case under the Act need not detain this Court for long as the Apex Court in the case of SANGEETABEN MAHENDRABHAI VERSUS STATE OF GUJARAT & ANR. [2012 (4) TMI 728 - SUPREME COURT] where the Apex Court considers the very issue of whether a petition under Section 420 of the IPC would be mai....... + More

Termination of proceedings under Section 25(a) of the Arbitration and Conciliation Act, 1996 - HELD THAT:- The Arbitrator has failed to exercise the jurisdiction vested in her, inasmuch as she has passed no order on the applications filed by the Union for recall of the orders dated 19.02.2021. The factual position pleaded in these petitions, to the effect that the applications were taken up for hearing before the Arbitrator on 08.03.2021 and returned without any order been passed thereupon, has not been controverted by the respondent. There is an additional factual circumstance which also persuades me that the impugned orders of the Arbitrator in the present cases, suffer from perversity of approach. As noted, prior to the impugned orders, the last order of the Arbitrator was passed on 06.01.2021. By that order, the case was fixed for hea....... + More

Dishonor of Cheque - Insufficient Funds - It is submitted that the respondent was not able to establish the status and role in the accused Company or in what capacity he issued the cheques in question - who was the drawer of the cheque in question? - HELD THAT:- Although the cheque was the signed by the respondent, the cheque issued to the petitioner bore the name of the accused Company as the account holder, being a separate entity from its members, and not of the respondent. Moreover, as a requirement under Section 138 of the NI Act, the holder of the cheque that is dishonoured has to make a demand for the payment of the contested amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. It is an admitte....... + More

Conspiracy - collection of money from individuals by misrepresenting that they would be given a job at the Company - opening of salary account with the Federal Bank without authorization and in conspiracy with the detenu collected an amount of Rs 85 lakhs from 450 job aspirants - HELD THAT:- In BANKA SNEHA SHEELA VERSUS THE STATE OF TELANGANA & ORS. [2021 (8) TMI 1303 - SUPREME COURT], a two-judge Bench of this Court examined a similar factual situation of an alleged offence of cheating gullible persons as a ground for preventive detention under the Telangana Act of 1986. The Court held that while such an apprehension may be a ground for considering the cancellation of bail to an accused, it cannot meet the standards prescribed for preventive detention unless there is a demonstrable threat to the maintenance of public order. A mere ap....... + More

Maintainability of petition - appropriate forum - whether, against the order passed by the National Commission in an appeal under Section 58 (1)(a)(iii) of the 2019 Act, a writ petition before the concerned High Court under Article 227 of the Constitution of India would be maintainable? - HELD THAT:- It is not in dispute that in the present case, the appeal before the National Commission was against the order passed by the State Commission under Section 47(1)(a) of the 2019 Act. Therefore, against the order passed by the State Commission passed in a complaint in exercise of its powers conferred under Section 47(1)(a) of the 2019 Act, an appeal to the National Commission was maintainable, as provided under Section 58(1)(a)(iii) of the 2019 Act. As per Section 67 of the 2019 Act, any person, aggrieved by an order made by the National Commis....... + More

Seeking grant of Bail - framing of charges - Appellant who is an undertrial prisoner, has already undergone a long period of incarceration - offences punishable Under Sections 10, 13, 15, 16, 17, 18, 18A, 18B, 19, 20, 23 and 38 of the Unlawful Activities (Prevention) Act, 1967 - HELD THAT:- The fact remains that the Appellant has been in custody as an undertrial prisoner for a period of nearly 8 years already. The Appellant, it may be noted, is charged with offences, some of which are punishable with a minimum punishment of 10 years and the sentence may extend to imprisonment for life. Learned Counsel for the Appellant also points out that one of the co-Accused namely Shri Aadil Ansari has been released on bail on 30.09.2020 by this Court. No doubt, in this regard, we keep in mind the submission of the State that the role attributed to th....... + More

Dishonor of Cheque - Bank has been made as party - Liability of bank in case of dishonor of cheque - Vicarious liability of the partner - Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 - HELD THAT:- What can be observed is that for an offence under Section 138 to be made out a cheque has to be issued by the account holder under his name and signature. It is clear that only the holder of the account on which the cheque is drawn can be made liable and such culpability cannot be extended to others except as provided under Section 141 N.I. Act which deals with offences by and on behalf of the company or partnership, where the signatory to the cheque may be a Director of the company or a Partner of a partnership firm. In the present case, the petitioner/HDFC Bank has been made a party by the complainant/respondent No....... + More

Recovery proceedings - symbolic possession of the mortgaged property under section 13(4) of the SARFAESI Act or not - HELD THAT:- First of all, we deprecate the conduct on the part of respondent No. 1 in withdrawing the Letters Patent Appeal despite the fact that this Court was seized of matter in which the exparte adinterim order dated 25.01.2022 passed by the Division Bench was under challenge and in which respondent No. 1 was appearing before this Court. He ought not to have withdrawn the Letters Patent Appeal and made the proceedings before this Court infructuous. As observed hereinabove, such act of withdrawal of the Letters Patent Appeal on the part of respondent No. 1 - original appellant and thereby making the proceedings before this Court infructuous so as to avoid adjudication on the correctness of the impugned order after order....... + More

Scope and power of the Commissioner / Panch appointed by the court - Reference of subject matter of the suit or a part thereof to arbitration under Section 21 of the Arbitration Act, 1940 - HELD THAT:- In the present case, the application dated 23rd December 1994 was moved by the plaintiff and it was not signed by the defendant. As per the heading, the application was for the appointment of a commissioner/arbitrator to conduct an ‘enquiry’ in respect of the accounts by a competent Chartered Accountant who shall act as a panch/Commissioner and submit a report after conducting an audit of the accounts. It was stated that the transactions between the parties are fairly large in number and, therefore, it is necessary to handover the aforesaid task to a Chartered Accountant. The application also states that for the enquiry regardin....... + More

Interpretation of statute - whether Non Banking Financial Companies (NBFC) regulated by the Reserve Bank of India, in terms of the provisions of Chapter IIIB of the Reserve Bank of India Act, 1934 (RBI Act) could also be regulated by State enactments such as Kerala Money Lenders Act, 1958 (Kerala Act) and Gujarat Money Lenders Act, 2011 (Gujarat Act)? HELD THAT:- Section 45Q confers overriding effect upon Chapter IIIB, over other laws. Therefore, the States of Gujarat and Kerala cannot contend that the laws made by them are in addition to the provisions of Chapter IIIB. Though it was contended by the learned counsel appearing for the State of Gujarat that the Gujarat Act exempts NBFCs registered under the RBI Act from seeking registration under the Gujarat Act, we do not think that the same would go to the rescue of State of Gujarat. Unde....... + More

Dishonor of Cheque - requirement of deposit 20% of the amount of fine or compensation - scope of amendment to section 148 of NI Act - retrospective or prospective - It is submitted that the newly added Sections 148 and 143A of the NI Act came into force on 1st September, 2018, whereas the appeal had been filed on 4th April, 2018, that is, before the said amendment, hence, the matter did not fall in the ambit of the same and the application under Section 148 of the NI Act in itself was not maintainable? - HELD THAT:- The language of the provision is silent on the point that at which stage the application under Section 148 of the NI Act can be filed in an appeal against conviction under Section 138 of the NI Act, whether it may be filed at the first instance at the stage of initiation of the proceedings or at any stage during the pendency o....... + More