Addition on differential stock - Whether ITAT was right in law in confirming the addition on account of fittings which has been sold along with the pipes, the value of which has been included in the closing stock of finished goods? - HELD THAT:- Court does not wish to examine this Question any further. The Court has examined the concurrent findings of the AO, CIT(A) and the ITAT in this regard and is of the view that they do not call for interference. Unexplained/non-existent creditors - HELD THAT:- As the Court is satisfied that sufficient opportunity was granted to the Appellant to furnish the evidence to prove the genuineness of such credit balance and the Appellant was unable to avail of such opportunity. Consequently, on Questions (ii) and (iii), this Court answers the Questions in the affirmative i.e. in favour of the Department and....... + More

Adjustment of refund against the outstanding demand - HELD THAT:- Issues involved in this writ petition are covered by an order of this court in Ultra Tech Nathdwara Cement Limited v. Union of India & Ors [2021 (7) TMI 1342 - CALCUTTA HIGH COURT] and also in the case of Murli Industries Limited [2021 (12) TMI 1182 - BOMBAY HIGH COURT] and in the case of The Sirpur Paper Mills Limited & Anr. v. Union of India & Ors. [2022 (1) TMI 977 - TELANGANA, HIGH COURT] is disposed of by directing the respondent concerned to refund the sum of Rs.4,311,640/- subject to factual verification along with statutory interest to be calculated from the date of adjustment dated December 18, 2021 till the date of refund, within eight weeks from the date of communication of this order.

Reopening of assessment u/s 147 - validity of the notice u/s 148A(b) on the ground that there was no information that suggested that income had escaped assessment - HELD THAT:- In the present case, this Court finds that the impugned notice dated 17th March, 2022 as well as the order dated 4th April, 2022 are cryptic as is evident from the fact that information culled out from Petitioner’s own return and records (namely Form 10DB, GST return, Form 26AS) have been used to issue notice u/s 148A(b) of the Act without mentioning as to what is wrong in these transactions, what are the apprehensions of the Assessing Officer and what are the points on which clarification is required. It is not understood as to how expenditure incurred by the Petitioner on salaries, payment of professional fees and purchases can amount to income having escap....... + More

Revision u/s 263 - contention raised by the assessee was that the proceedings are liable to be stayed since the assessee has been admitted for Corporate Insolvency Resolution Process (CIRP) under the Insolvency and Bankruptcy Code, 2016 (IBC) and presently the assessee is under moratorium by orders of the National Company Law Tribunal (NCLT) - HELD THAT:- Firstly, AO after receipt of the reply dated 26th March, 2022 did not hear the assessee on the issue relating to the effect of IBC. The so called hearing by way of exchange of chat messages cannot satisfy the test of fairness or the test embodied in the principles of fair play. That apart AO was so adamant and he even failed to take note of the order passed by the PCIT-II, who had acceded to similar request made on behalf of the assessee for a later assessment year which was pending on t....... + More

Validity of assessment order passed u/s 253 - Draft Assessment Order on two issues i.e., the arm’s length and the Rate - Assessing Officer had opined that the petitioners would be liable to pay capital gains tax at the rate of 20% instead of 10% - DRP has examined the first ground viz. the arm’s length and has issued certain directions which has resulted in the Assessment orders that are impugned in the respective appeals as aforesaid, the DRP has not examined the second ground on the question of its jurisdiction - HELD THAT:- This Court, in the peculiar circumstances of the case, and the fact that the Department does not dispute that the question of the Rate could also be gone into in the pending appeals, is of the considered view that there should be no impediment to the appellate Tribunal to consider the petitioners’ ....... + More

Penalty passed u/s. 271(1 )(c) - defective notice - Non specification of clear charge - HELD THAT:- There is no dispute with regard to the fact that the notice issued u/s 271(1)(c) of the Act does not specify the specific charge. See M/S. SAHARA INDIA LIFE INSURANCE COMPANY, LTD. [2019 (8) TMI 409 - DELHI HIGH COURT] - Decided in favour of assessee.

Deduction u/s.80-IA on its income derived out of its captive power plant denied - as per assessee independent new industrial undertaking at substantial capital outlay, producing power for consumption in its industrial undertaking entitled for deduction u/s 10B is setup and is approved under various sanctions and permissions - Assessee submitted that the issue relating to the entitlement of deduction u/s 80IA(4) in relation to the subsequent years may be kept open and for the Assessment Year under consideration, since the assessee otherwise is entitled to exemption u/s 10B of the Act, therefore, the issue relating to entitlement of the assessee of deduction u/s 80IA(4) will not have any tax implication for this relevant year HELD THAT:- Admission/comment of the assessee should not have any bearing regarding the issue of eligibility of the ....... + More

Validity of reopening of the assessment - Unexplained bank deposits - HELD THAT:- As perused the material on record and gone through the orders of authorities below. There is no dispute with regard to the fact that there were deposits in the bank account of the assessee. The assessee had not offered the amount of commission. Considering the facts of the present case, there is no infirmity in reopening of the assessment of the assessee. Ground nos. 1 & 2 of the assessee’s appeal are dismissed. Adopting the commission income at 0.5% and the direction to this effect issued by CIT(Appeals) to the assessing authority - HELD THAT:- It is clear that the basis of adopting 0.5% as the commission income was on the basis of the statement of the assessee himself. However, this statement was not brought to the notice of the Division Bench of....... + More

Unexplained cash deposits in the bank account of the appellant and brought to tax u/s 69A - onus to believe - HELD THAT:- Despite the fact that Sh.Kartar Singh was present before the ld.CIT(A) he was denied to record his statement in support of the claim of the assessee that Sh. Kartar Singh gave him cash against purchase of car owned by the assessee. It is also not in dispute that in the block of assets the assessee has shown a car Ford Fiesta with Regn. No.HR51AC0551 and written down value of such car as on 01.04.2009. These facts have remained uncontroverted as the assessee claimed depreciation on the car and the same was allowed by the AO. On the basis of the foregoing discussion, reach to a logical conclusion that the assessee submitted all possible evidence under his command to explain the source of cash deposit in his bank account ....... + More

Addition u/s 68 - transaction was accommodation entry arrangement - bogus long term capital gain on the sale of shares - HELD THAT:- As assessee has not furnished any material suggesting that the transaction in question was genuinely in normal course and was not accommodation entry arrangement as held by the authorities below. In the absence of any supporting evidence regarding claim of the assessee we see no reason to interfere with the finding of the learned CIT(Appeals) and the same is hereby upheld. - Decided against assessee.

Scope of scrutiny selected for limited scrutiny - exercise of jurisdiction by the Ld. AO in expanding the scope of scrutiny - Deduction u/s 54F denied - whether AO has fallen in error in passing the assessment order beyond the scope of scrutiny - as submitted reason for selection of the case of assessee under limited scrutiny was first High increase in Annual Letting Value of House Property and second Large deduction claimed u/s 54B, 54C, 54D, 54G, 54GA but the addition was made declining benefit of section 54 - HELD THAT:- Appreciating the matter on record it can be observed that the case of assessee was selected for limited scrutiny but the Ld. Assessing officer has not discussed a word about the original reasons for selection of the case under limited scrutiny and straightway proceeded to examine the disallowance on account of exemptio....... + More

Disallowance of cost of construction - addition for the reason that the assessee was not sure of constructing his own house and hence a sum would not have been available for investment in the construction of the new house - CIT(A) noted that the construction of house involves cash purchases from many people most of whom are in unorganized sector and would not like to appear before authorities - HELD THAT:- As no clarity whether the withdrawals were utilized for construction of building and accordingly, AO was directed to verify the said facts. Pursuant to these directions, the assessee filed confirmation letters wherein it transpired that the money was paid only to close relatives. AO issued summons to the payees, however, none appeared except one who denied having issued any such confirmation. In one case, tiles were found to be purchase....... + More

Late fees u/s. 234E - Scope of enabling clause (c) was inserted in the section 200A w.e.f. 01.06.2015 - whether late filing fee u/s. 234E of the Act has rightly been charged in the intimation issued u/s. 200A/206CB of the Act while processing the TDS returns/statements as the enabling clause (c) having been inserted in the section w.e.f. 01.06.2015 - HELD THAT:- We understand that earlier, there was no enabling provision in the Act u/s. 200A for raising demand in respect of levy of fee u/s. 234E. As such, as per the assessee, in respect of TDS statement filed for a period up to 31.03.2015, no late fee could be levied in the intimation issued u/s. 200A of the Act. On similar facts, the same issue has been adjudicated in the case of SHRI BHASKAR ROY [2021 (12) TMI 784 - ITAT KOLKATA] respectfully following 'Shri Fatehraj Singhvi and Ors....... + More

Bogus LTCG - Addition u/s 68 - addition of amount received by the appellant as share capital from various shareholders - HELD THAT:- It is established principle of law that the pre-requisites of section 68 of the Act, the onus is on the assessee to prima-facie establish the three ingredients for the purposes of the section. Before us also, the ld. AR could not prove the merits of the case. He only relied on the submissions made before the CIT(A) in the first round of appeal where his case was allowed. But that becomes irrelevant now since the order of the ld. CIT(A) in the first round has already been overturned by the Tribunal. Even the case laws placed on record by the ld. AR are substantially different on facts and are not applicable to the facts and circumstances in respect of the present assessee. Admittedly, the assessee has not bee....... + More

Deduction under section 80HHC - Whether provision written back is eligible for deduction under section 80HHC? - HELD THAT:- We note that in the case of Class India Ltd. vs ACIT, [2008 (2) TMI 451 - ITAT DELHI-A] held that provision written back should not be excluded from profits, therefore these are eligible for deduction under section 80HHC. Respectfully following the binding judgment of Hon'ble Jurisdictional High Court of Gujarat in the case of Mistu Ltd.[2010 (6) TMI 668 - GUJARAT HIGH COURT] we direct the Assessing Officer to treat these ‘provisions written back’ as a part of manufacturing profit eligible for deduction under section 80HHC of the Act. Therefore, second issue mentioned in the miscellaneous application is allowed in favour of assessee.

Penalty u/s.271(1)(c) - defective notice u/s 274 - non specification of clear charge -failure to frame specific charge against the assessee during penalty proceedings - As argued appellant has neither furnished inaccurate particulars of income nor has concealed the particulars of income warranting levy of penalty - addition u/s 68 - HELD THAT:- As relying on MANJUNATHA COTTON AND GINNING FACTORY, MANJUNATH GINNING AND PRESSING, VEERABHADRAPPA SANGAPPA AND CO., V.S. LAD AND SONS, G.M. EXPORT [2013 (7) TMI 620 - KARNATAKA HIGH COURT], M/S SSA'S EMERALD MEADOWS [2016 (8) TMI 1145 - SC ORDER] and MR. MOHD. FARHAN A. SHAIKH [2021 (3) TMI 608 - BOMBAY HIGH COURT] since no specific charge was framed either in the show-cause notice or in the body of penalty order and there was failure on the part of Ld. AO to frame specific charge against the assessee, the penalty would not be sustainable in the eyes of law. By deleting the impugned penalty, we allow the appeal.

TDS u/s 195 - Disallowance u/s 40(a)(i) - non-deduction of tax at source on payment made towards membership/subscription fee - principle of mutuality- amount paid by a member firm to the umbrella association - nature of membership and subscription fee paid to GTIL and whether such payment required withholding of tax at source under section 195 - whether the payment made by the assessee to GTIL falls within the definition of royalty either under the India- UK DTAA or domestic law? - HELD THAT:- As irrespective of the fact whether use of trade mark/brand name is mandatory or voluntary, the nature and character of payment made has to be determined by looking at the terms of the agreement under which payment was made. A reading of the Member Firms Agreement as a whole does not indicate that the payment made was for use of brand name. Member F....... + More

TP Adjustment - MAM - Internal Resale Price Method (RPM) as the most appropriate method for benchmarking the 'Trading segment’ - HELD THAT:- Assessee purchased and sold the same goods without increasing or reducing their inherent value, clearly the most appropriate method for determining the ALP in such a situation is the RPM. In case Pr.CIT vs. Matrix Cellular International Services Pvt. Ltd. [2017 (11) TMI 1655 - DELHI HIGH COURT] has held that where the goods are re-sold without making any value addition, the RPM is the most appropriate method. The contention of the ld. DR that more employee cost was booked in the Trading segment or that there was something amiss in the computation of the ALP under the RPM are irrelevant considerations. The ground before the Bench is against the selection of the most appropriate method and no....... + More

Addition u/s 68 - Penny stock purchases - addition on account of Long Term Capital Gains (LTCG) which the assessee derived from sale of scrip - exemption u/s 10(38) denied - HELD THAT:- D.R. except relying heavily on the orders of the lower authorities could not bring to our attention any material to show that the documents placed before us were sham, bogus or there was any factual infirmity therein. The Ld. D.R. also could not controvert the Ld. A.R’s submissions that the disallowance was made solely on the basis of the report of the Investigation Wing in the shares of M/s GCM. D.R. could not bring to our attention any material or evidence from which one could infer that the transactions in shares of M/s GCM Securities Limited were either manipulated or sham or that any enquiry was conducted either by the Investigation Wing or by t....... + More

Late filing fee payable under section 234E - assessee belatedly filed its quarterly e-TDS statements in Form-26Q - HELD THAT:- Late fee cannot be imposed for the statements of TDS filed before 1st June 2015. Therefore, respectfully following the decision of Fatehraj Singhavi [2016 (9) TMI 964 - KARNATAKA HIGH COURT] and Eurotech Maritime Academy (P.) Ltd [2022 (2) TMI 233 - KERALA HIGH COURT] no late fee can be levied under section 234E of the Act and hence the same cannot be sustained. We also find substance in the arguments of the learned Counsel for the assessee that in assessee's case statements have been filed during the financial year 2013-14 relevant to the assessment year 2014-15 in terms of the provisions of section 200A(1) of the Act and intimation can be passed only within one year from the end of the financial year of fili....... + More

Revision u/s 263 - disallowance of deduction u/s.54B - assessment order passed by the AO is erroneous, insofar as it is prejudicial to the interests of revenue on the issue of assessment of difference in guideline value of property u/s.56(2)(vii)(b) - HELD THAT:- The assessee neither appeared nor filed any details in response to show-cause notice. Therefore, the PCIT has passed order u/s.263 and set aside assessment order passed by the Assessing Officer. We have gone through order passed by the learned PCIT and find that the PCIT has given one opportunity of hearing to the assessee in contravention of settled legal principles, as per which, it is requirement of law that reasonable opportunity of hearing must be given to the assessee before passing an order. Since, the learned Principal CIT has not given sufficient opportunity of hearing t....... + More

Penalty levied u/s. 271G - assessee failure to provide documents maintained by the assessee in support of AE and non-AE segment of its business - TNMM adopted by the assessee, the profit of the international transaction has to be furnished, whereas the assessee has only furnished the entity level margins which consists of overall profits on AE and significant non-AE transactions - failure on the part of the assessee to provide documents maintained by the assessee in support of AE and non-AE segment of its business - CIT- A deleted the addition - HELD THAT:- As decided in own case [2021 (10) TMI 167 - ITAT MUMBAI] assessee failed to furnish the segmental profitability of the AE and non-AE transactions which would be explained by the fact that it was practically difficult to maintain these details considering the nature of assessee’s ....... + More

TP Adjustment - determination of Arms Length Price of specified domestic transactions - expenditure in respect of which payment has been made or is to be made to a person referred to in clause (b) of sub-section (2) of Section 40A - HELD THAT:-. According to the provisions of Section 92BA, the specified domestic transaction, in case of an assessee, covers the transaction of any expenditure in respect of which payment has been made or is to be made to a person referred to in clause (b) of sub-section (2) of Section 40A of the Act. To such transactions, the provisions of Section 92, 92C, 92D and 92B were made applicable. However with effect from 1/4/2017 The Finance Act, 2017 omitted Section 92BA (i) of the act. In view of the above omission, the controversy arose that whether transfer-pricing provisions are applicable to transactions cover....... + More

Order passed following due procedure of law - argument of violation of principles of natural justice - availability of the alternative remedy - petitioner has challenged the impugned show cause notice giving opportunity to the petitioner to file any objection to the draft assessment order before passing final assessment order under Section 143(3) in order to give effect to the order passed by the Commissioner u/s 263 and the petitioner did not avail the said opportunity - also filed a supplementary affidavit challenging the impugned final assessment order under Section 143(3) dated 30th March, 2022 which has been passed during the pendency of the writ petition - HELD THAT:- The impugned assessment order which has been challenged by way of supplementary affidavit is an appealable order before the Commissioner of Income Tax (Appeal). It als....... + More

Reopening of assessment u/s 147 - Validity of order passed by the Respondent under Section 148A(d) - Petitioner states that in the present case notice under Section 148A is not warranted as it is a case of Section 153C of the Act to which proviso (c) of Section 148A applies - HELD THAT:- Since the case of the petitioner is admittedly covered by proviso (c) to Section 148A, this Court is of the view that the impugned order and notice are untenable in law. Accordingly, both the impugned order and notice dated 9th April, 2022 are set aside and the matter is remanded back to the Assessing Officer to pass a fresh reasoned order in accordance with law.

Seeking release of detained goods and vehicle - generation of second E-way bill - HELD THAT:- It is admitted to the parties that the goods in question originated from Panipat and were being transported with valid invoice from Panipat to Nepal but due to restriction imposed on account of COVID-19 pandemic, as specifically mentioned in paragraphs 14, 16, 17, 27 and 28 of the writ petition, the goods were unloaded at Gorakhpur and after the arrangement of another vehicle was made under prevailing situation of COVID-19 pandemic, the goods were transported to Nepal. Since the time gap was much, therefore, a second e-way bill was generated so that the goods may reach to its destination at Nepal. There is absolutely no dispute that the goods in question were dispatched by the petitioner no.1 from Panipat (Haryana) under valid invoice and valid p....... + More

Refund of unutilized balance of input tax credit - nil rate of tax/exempt supply - rejection on ground that levy of Nil Rate of Tax on exported goods, i.e., “Iron Ore Fines” falling within the fold of Code No.26011142 specified under Second Schedule of the Export Tariff appended to the Customs Tariff Act, 1975 does not qualify for refund of GST paid in view of Clause (i) of Proviso to sub-section (3) of Section 54 of the OGST/CGST Act - Section 54 of the Odisha Goods and Services Tax Act, 2017 - period 1st June, 2019 to 31st October, 2019 - HELD THAT:- The export of “Iron Ore Fines” even though attracts Nil Rate of Tax, in view of Second Schedule to the Customs Tariff Act, 1975, the Petitioner would be entitled to refund on such export transactions. In view of Section 16 of the IGST Act read with Section 54(3) of t....... + More

Review of order - Levy of penalty - grounds for review are that the imposition of penalty by the authorities is not automatic and the same can be imposed only when there is a fraud or willful intention to defraud the revenue - HELD THAT:- It is clear that the argument that was advanced at the time of hearing of the Writ Petition was with regard to inclusion of VAT regime for the purpose of deciding the tax to be paid under Section 10(1) of GST Act. In the Review Petition, it is now urged that Section 10 encompasses Section 73 and 74 of GST as well and in the absence of any fraud, the authorities erred in invoking Section 74 of the GST Act and imposing 100% penalty. The averments in the affidavit filed in support of the Writ Petition does not anywhere refer to the plea now taken, though such plea was available at the time of filing of the ....... + More

Classification of services - support services or not - Place of supply - Providing support services for water transport - to be classified under SAC 9985 of Notification No. 11/2017-Central Tax (Rate) dated June 28, 2017 or not - export of services or not - HELD THAT:- The applicants are registered under the Companies Act but not under the GST Act. They have stated that they propose to provide end-to-end services to the shippers located outside the Indian territory with respect to the vessels of such customers, when their vessels calls on the Indian Port. They have stated that the services proposed relates only to the vessel when they call on Indian Ports and not related to the Cargo the vessel carry. The services proposed to be provided by the applicant to their clients are end to end requirements of the vessel when such vessel calls on ....... + More

CENVAT Credit - substance of the dispute relates to the payment by the assessee of the service tax component pertaining to manpower and the like services received by the assessee partly for the quarter ending March 31, 2017 and partly for the quarter ending June 30, 2017 long after the appointed date of July 1, 2017 and claiming cenvat credit therefor - HELD THAT:- In terms of Section 140(1) of the Act of 2017, a qualified registered person is entitled to take the amount of cenvat credit carried forward in the return relating to the period immediately prior to the appointed date as furnished by such person under the existing law. In other words, the essence of Section 140(1) of the Act of 2017 is that if a matter is reflected in the return for the relevant period, due credit therefor may be taken as long as the return has been filed in ac....... + More

Profiteering - purchase of flats - benefit of reduction in the rate of GST not passed on - contravention of section 171 of CGST Act - penalty - HELD THAT:- The authority finds that the respondent has profiteered by an amount of Rs. 7,23,50,135/-, Rs. 12,94,35,170/- and Rs. 4,91,23,070/- for the projects 'The Camellias','The ultima' respectively during the period of investigation i.e., 01.07.2017 to 30.11.2020. The above amount that has been profiteered by the respondent from his home buyer, in all the three projects shall be refunded by him, alongwith interest @18% thereon, from the date when the above amount was profiteered by him till the date of such payment, in line with the provisions of Rule 133(3)(b) of CGST Rules 2017. It is also evident from the narration of facts that the respondent has denied benefit of ITC to t....... + More

Levy of IGST - Ocean Freight - scope of supply - composite supply or not - time and place of supply - whether an Indian importer can be subject to the levy of IGST on the component of ocean freight paid by the foreign seller to a foreign shipping line, on a reverse charge basis? - Scope and power of state legislature versus GST Council - HELD THAT:- The provisions of composite supply in the CGST Act (and the IGST Act) play a specific role in the levy of GST. The idea of introducing ‘composite supply’ was to ensure that various elements of a transaction are not dissected and the levy is imposed on the bundle of supplies altogether. This finds specific mention in the illustration provided under Section 2(30) of CGST Act, where the principal supply is that of goods. Thus, the intent of the Parliament was that a transaction which ....... + More

Valuation of supply - diesel filled free of cost by the service recipient in the engaged chartered (dedicated) vehicles - would form part of value of supply of service charged by the Appellant or not - levy of on value of diesel filled free of cost by the service recipient or otherwise under GTA service - difference of opinion - HELD THAT:- The issue is not answered and it is deemed that no ruling is issued under Section 101(3) of the CGST/ CG SGST Act, 2017 because of the divergence of opinion between the two members.

Classification of goods - rate of GST - Fans used in Poultry House for the purpose of Air circulation - to be classified under HSN 84145930 or not - HELD THAT:- It is found from the submitted brochure that the applicant supplies Industrial grade fans. From the specifications submitted, it is noted that the electric motor of these fans have an output exceeding 125 W. These fans are Industrial fans, attracting HSN 84145930. With effect from 15-11-17, these industrial fans are liable to CGST at 9% vide Sr no. 317B to Schedule III of Notification 1/2017-CT(R) dated 28-6-17.

Levy of GST - reverse charge mechanism - services of arranging for subscription supplied to the Applicant, by the Managers located in the non-taxable territory - whether the Manager is an intermediary or not - HELD THAT:- AGEL issues Notes which are subscribed by Investors. It is found that the Senior Secondary Notes issued by AGEL are in the nature of securities. The main supply of Notes is between AGEL and investors both acting as Principals and the Manager is supplying ancillary supply of arranging the main supply between the Principals. It is noted that an intermediary includes a person who arranges/ facilitates supply of securities between two or more persons. It is found that Manager has the characteristics of an agent and a broker, performing subsidiary role in arranging the said main supply. We note that Manager’s role is su....... + More

Classification of goods - rate of GST - HSN Tariff - fire safety product assembled on trolley, consisting of engine operated pump, water tank, hose reel, pipe and gun, operated through electric panel on trolley - to be classified as HSN 84241000 as general firefighting equipment or not - HELD THAT:- On reference of description of the Goods which is a water mist firefighting trolley, it is found that it is an assembly of Pump driven through engine, water tank, hose reel, pipe and gun and these assembled parts are kept on trolley. This firefighting goods sprays water in such a way that a small quantity of water is sprayed at high velocity to make very fine disjointed droplets of water covering an exponentially larger area. The high pressure hose reel is fitted with high pressure fog/ jet gun. The gun has a pistol grip nozzle having discharg....... + More

Nature and classification of service - imparting educational training by developing and running Post - graduate fellowship courses & diplomas in the field of critical care medicine and providing basic training in intensive care for non-specialists - Service provided by ISCCM to the delegates - Service provided by ISCCM to the exhibitors - nature of service and classification in accordance with Notification No. 11/2017-CT(R), dated 28.06.17 in respect of brand promotion packages - liability of service tax under Reverse Charge Mechanism - admissibility of Input Tax Credit - Services provided by the hotel including accommodation, food & beverages - Supply of food and beverages by outside caterers - Services provided by event manager like pickup & drop, exhibition stall set-up, tenting, etc. ISCCM supply to delegates - principal s....... + More

Maintainability of Advance Ruling application - rate of GST on e-tender floated for purchasing of tailoring Kits consisting 1 set of Sewing Machine, 1 set of Over lock Machine and 1 PVC moulded Stool - ruling sought on behalf of supplier - seeking Ruling, as a supplier itself - HELD THAT:- Section 103(1) CGST Act stipulates that Advance Ruling shall be binding only on the applicant who had sought it and on the concerned officer/ jurisdictional officer in respect of the applicant. Section 95(a) CGST Act defines advance ruling as a decision provided in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant - GRIMCO has not substantiated its locus standi to file said application as per section 95(a) CGST Act. We hold that GRIMCO’s supplier is not bound by our Ruling as per section 103(1) CGST Act. The Application is hereby rejected as non-maintainable under Section 95(a) CGST Act.

Levy of GST - Valuation - inclusion of re-gasification charges - LNG imported by Customers - Section15 of the CGST Act? - HELD THAT:- In GST law, as per Section 17(5)(h) CGST Act, ITC is blocked for goods lost. However, it cannot be ascertained, by cross referencing with M/s Shells customers if the goods(SUG) as cited by M/s Shell are lost as process loss; since LNG being non GST item, the customers( who are the principal) cannot avail ITC under the GST scheme of law on its LNG in toto, therefore reversal of ITC on process loss concept does not arise at all in this case and thereby the checks and balances framed in GST scheme of law for process loss cannot be verified in this case - Though this is not the matter before us, we do note that as Shells customers are not paying the value portion on the SUG invoices, but paying only the tax amo....... + More

Classification of supply - supply of goods or supply of services - contract with Airbus Defence and Space, S.A.U., Spain (Airbus) for manufacture and supply of MW transport aircraft with associated equipment under its C295 aircraft programme - classification - rate of tax - value to be adopted for the purpose of payment of GST - time of supply for payment of GST - HELD THAT:- The subject Application premature at this stage. Any change in the place of the Orders must be notified to the Purchaser in writing by the Supplier with sufficient prior notice - No such intimation for change in the place of the Orders notified to the Purchaser in writing by TASL, as per said clause 2.2.1 at page number 14 of the said Contract, has been placed/ produced. The Application is rejected as non-maintainable under Section 95(a) CGST Act.

Profiteering - purchase of two flats in Project River View Heights - it is alleged that the Respondent had not passed on the benefit of Input Tax Credit (ITC) by way of commensurate reduction in price - contravention of section 171 of CGST Act - penalty - HELD THAT:- The Respondent had three Phases viz. Phase-I, Phase-II and Phase-III comprising building Nos. A-J-K-L-M, B1-B2-H1-H2-I and C1-C2-D1-D2-E1-E2-F1-F2 respectively in "River View Heights". Out of these three Phases, Phase-I was completed by August 2014, which is well before the implementation of GST and Phase-III had not been started uptil 27.08.2020. Further, in respect of Phase-II, it is on record that, it has already been investigated vide Order No. 51/2019 dated 21.10.2019 passed by this Authority under Rule 133 of the CGST Rules 2017 read with section 171 of the CG....... + More

Profiteering - construction service - Respondent had not passed on the benefit of Input Tax Credit (ITC) to him by way of commensurate reduction in the price - contravention of Section 171 of the CGST Act, 2017 - penalty - HELD THAT:- It is noticed that the Respondent has denied benefit of ITC to the buyers of the flats and the shops being constructed by him in his Project JMD Imperial Suits/Suburbio-67 (Suburbio-1)in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and has committed an offence under Section 171 (3A) of the above Act. Section 171 (3A) of the CGST Act, 2017 has been inserted in the CGST Act, 2017 vide Section 112 of the Finance Act, 2019, and the same became operational w.e.f. 01.01.2020. As the period of investigation was 01.07.2017 to 31.05.2020, therefore, the Respondent is liable for imposition ....... + More

Maintainability of petition - it is alleged that the petitioner did not deposit 20% amount as directed by the High Court within 15 days - workable proposal given by the petitioner was for a period of 5 years - Cancellation of the GST Registration of the petitioner - HELD THAT:- The Division Bench of this Court in M/S RAM SINGH WORK CONTRACTOR THRU PROPRIETOR RAM SINGH VERSUS ADDITIONAL COMMISSIONER GRADE- 2, COMMERCIAL TAX AYODHYA AND ANR. [2022 (1) TMI 1247 - ALLAHABAD HIGH COURT] has already interfered in the matter and admittedly the petitioner has also deposited the amount on 04.02.2022 as was required to be deposited which admittedly has been received by the Department on 19.02.2022 as per the statement given by the learned Additional Chief Standing Counsel on the basis of instructions and the fact that in terms of Section 80 of the ....... + More

Seeking provisional release of goods and conveyance - suspicious transaction involving fake input tax credit - Power and jurisdiction u/s 129 versus u/s 130 - Delinking the two provisions - Whether the respondent authority is entitled to seize and detain the goods in transit and the conveyance, more particularly, when it is accompanied by a lawful e-way bill, invoices and without determining and offering the writ applicant opportunity to deposit tax, if any and penalty, the respondent authority were justified to distinctly proceed for confiscation proceedings by issuing notice under section 130 of the Act, 2017? - HELD THAT:- Both sides have raised substantial legal issues regarding amendment made in various section of the Act, 2017 which is required to be considered after hearing respective parties on length. However, on ensuing summer v....... + More

Cancellation of registration of applicant-company - opportunity of personal hearing not provided - violation of the basic principles of natural justice - powers conferred under Section 107 of the CGST Act, 2017 - HELD THAT:- Having examined the show cause notices as well as the orders impugned in this batch of writ applications, we notice that the show cause notice issued by the respondent authority is bereft of any material particulars. Not only that, no sufficient opportunity has been provided by the respondent authority while adjudicating such show cause notice. We could not overlook the fact that all the show cause notices seeking cancellation of registration in this batch of writ applications are issued during the surge of Covid-19 pandemic i.e. in the month of March, 2021. The reply was placed on record by the writ applicant specifi....... + 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.

Enhancement of penalty without given a reasonable opportunity of hearing - power of the commissioner of customs (appeals) - Violation of principles of natural justice - violation of Section 128-A of the Customs Act, 1962 - HELD THAT:- The 1st respondent/the Commissioner in appeal has enhanced the penalty imposed by the original authority contrary to the provisions of Section 128-A of the Customs Act, 1962. The impugned order stands quashed and the case is remitted back to the 2nd respondent to pass appropriate orders on merits and in accordance with law afresh, within a period of 3 months from the date of receipt of a copy of this order - Petition allowed by way of remand.

Condonation of delay in filing appeal - writ petition has been filed long after the expiry of limitation - Penalty u/s 114(i) - illegal activities with the tenants - tenant was using the property, which was rented out by the petitioner for storing turtles and tortoises. - smuggling and export of tortoises from India - levy of penalty u/s 114(i) of the Customs Act, 1962 - HELD THAT:- No doubt the petitioner has missed the statutory period of limitation prescribed under Section 128 of the Act. As per Section 128 of the Act, a statutory appeal has to be filed within a period of 60 days from the date of receipt of the order before the Appellate Commissioner. As per the proviso to Section 128(1) of the Act, a further grace period of 30 days is given to an assessee or a person aggrieved by the decision passed under the Act to file such appeal w....... + More

Benefit of exemption under N/N. 21/2002-Cus dated 1.3.2002 on imported goods - Skin Barrier Microporus Surgical Tapes - incorrect understanding of the product name “Wafer” and held that they are not “Skin Barriers Micropore Surgical Tapes” - case of appellant is that there is a punctuation error in the notification giving rise to an interpretation that the exemption is not applicable in the impugned goods - invocation of extended period of limitation - penalty - HELD THAT:- The issue is no longer res integra as being decided by the Bangalore Bench in the case of 3M INDIA LTD, SHRI KULVEEN SING BALI, SHRI M.S. SWAMINATHAN VERSUS COMMISSIONER OF CUSTOMS, BANGALORE-I [2020 (7) TMI 93 - CESTAT BANGALORE]. It has also been brought to our notice that the same has been upheld by the Apex Court. Therefore, the decision of ....... + More

Revocation of Customs Broker Licence of the Appellant - levy of penalty - Shortage in the cargo of silver bars - whether the appellant can be made responsible for any wrong deed happened behind their back? - Advance intimation to CONCOR - High value cargo not shifted to the designated warehouse immediately on arrival - seal verification - time limitation - HELD THAT:- The documentary evidence abundantly establishes the fact that while handing over the container to transporter that is CONCOR in this case at port of import Nhava Sheva, for further transhipment to ICD, Khodiyar shipping line had clearly mentioned description of goods as silver bars on the face of all such documents i.e Both Gate & Local Import General Manifest (IGM), Transhipment Permit and CONCOR’s forwarding note and provided proper information to CONCOR about de....... + More

Benefit Exemption from duty - imported goods “Skin Barriers Micropore Surgical Tapes” or not - denial of benefit on the ground of incorrect understanding of the product name “Wafer” and held that they are not “Skin Barriers Micropore Surgical Tapes” - extended period of limitation - penalty - N/N. 21/2002-Cus dated 1.3.2002 at Sr. No. 363 (A) - HELD THAT:- The issue is no longer res integra as being decided by the Bangalore Bench in the case of 3M INDIA LTD, SHRI KULVEEN SING BALI, SHRI M.S. SWAMINATHAN VERSUS COMMISSIONER OF CUSTOMS, BANGALORE-I [2020 (7) TMI 93 - CESTAT BANGALORE]. It has also been brought to notice that the same has been upheld by the Apex Court. Therefore, the decision of the Bangalore Bench has attained finality and further process by the decision of Tribunal in the case of M/S. SU....... + More

Validity of SCN - Smuggling - seizure of gold bar, silver ingots and fine silver and cash - notice under Section 110 (2) of the Customs Act, 1962 for extending the time for investigation was quashed and subsequent notices/summons issued to the petitioner therein have been held to be without any authority of law - HELD THAT:- Taking into consideration the submission made by learned counsel for the petitioner based on order dated 02.03.2022 passed by the High Court in WPC No.5388 of 2021 whereby the notice under Section 110 (2) of the Act of 1962 was held to be without any authority of law, the notice was quashed, it is directed that respondents shall not proceed any further pursuant to notice dated 23.04.2022 (Annexure P-1) issued under Section 124 of the Act of 1962, till the next date of hearing. List this case after four weeks.

Seeking provisional release of detained of goods - Chinese Knotted Woollen Carpets - recovery of dues towards the container detention charges - HELD THAT:- The writ applicant invited our attention to one order passed by this Court in the case of GREEN GOLD TIMBERS PVT. LTD. THROUGH ITS DIRECTOR AKHILESH MANGLIK VERSUS COMMISSIONER OF CUSTOMS [2022 (1) TMI 816 - GUJARAT HIGH COURT] wherein this Court took the view that the customs cargo service provider as defined in the Regulation No.2(1)(b) of the Regulations is not entitled in law to charge any rent or demurrage on the goods seized or detained or confiscated by the Customs or any other Authority. However, according to Mr. Verma, the order of this Court in the case of Green Gold Timbers Pvt. Ltd. is with respect to ground rent charges and not helpful to the writ applicant. This writ appl....... + More

Seizure of mobile phones - sufficient and reasonable opportunity to the petitioners provided or not - violation of the principles of natural justice - HELD THAT:- In view of the second respondent’s perfunctory dismissal of the explanation offered by the petitioners with the observation that the petitioners’ defence is a melodramatic narration of circumstances surrounding the seizure of the iPhones and a script for a Potboiler, and the repeated reference to the petitioners approaching this Court in W.P. No. 20110/2021 without availing the remedy of revision under Section 129DD of the Customs Act, 1962, this Court must opine that, notwithstanding any other remedy that could be available to the petitioners against the impugned order, the petition must be allowed quashing the impugned order and restoring the appeals to the file of....... + More

Constitutional Validity of N/N. 5/2019-Cus dated 16th February 2019 - Vires of Customs Act 1962 and/or Customs Tariff Act 1975 read with Entry No.83 of List I of Schedule VII to the Constitution of India - seeking to insert tariff item 9806 00 00 in the First Schedule to CTA - goods imported from Pakistan or not - HELD THAT:- Under the impugned Notification if the goods are imported from Pakistan it would carry 200% customs duty. The Petitioner had paid 18% duty. The Respondents have prima facie found the containers and the product therein to be of Pakistan origin. The reasons for the belief has been set out by the Respondent Authorities. At this prima facie stage, the writ Court would not sit in an appeal over the said prima facie observations of the Authorities. The request is to allow the re-export of the goods. Prima facie, it does no....... + More

Power of DRI officials to seize goods though found outside SEZ area - property is in SEZ zone or not - Maintainability of the Writ Petition - availability of alternative remedy of appeal - HELD THAT:- It is not in dispute that a remedy of appeal is available, but here is a case where jurisdiction of the authority in issuing the Show Cause Notice is questioned. The Hon’ble Supreme Court in M/S RADHA KRISHAN INDUSTRIES VERSUS STATE OF HIMACHAL PRADESH & ORS. [2021 (4) TMI 837 - SUPREME COURT] has laid down certain guidelines as to when a Writ Petition would lie before the Court though there is a remedy of appeal - From the judgment of the Hon’ble Supreme Court, it is very much clear that a Writ Petition can be entertained by this Court though an alternate remedy is available when the authority issuing the Show Cause Notice h....... + More

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.

Sanction of Scheme of Arrangement - section 230-232 of Companies Act - HELD THAT:- Various directions with regard to holding, convening and dispensing with various meetings issued - directions with regard to issuance of SCN also issued The scheme is approved - application allowed.

Seeking sanction of Scheme of Amalgamation - 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 with regard to holding, convening and dispensing with various meetings issued - directions with regard to issuance of various notices also issued. The scheme is approved - application allowed.

Seeking for extension time by 60 days, to comply with the orders - seeking condonation of delay of 451 days in complying with the said orders - by the said order the amalgamation scheme was approved and direction regarding completion of post merger activities was issued - HELD THAT:- The Applicant's Counsel put forth the reasons for not being able to comply with the orders which were stated in the application and contended that there is no willful default on the part of the Applicant in not complying with the orders dated 25.09.2019 and 20.07.2020. From the events narrated by the Applicant it can be understood that the Applicant was prevented from complying with the order by valid reasons which are not within his control and hence, the Applicationis allowed and the reliefs granted as sought for. Delay of 451 days is condoned and time for complying with the order extended by 60 days starting from 21.04.2022 and ending by 19.06.2022 - Application allowed.

Sanction of Scheme of Arrangement by way of Amalgamation - 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 with regard to holding, convening and dispensing with various meetings issued - directions with regard to issuance of various notices issued. The scheme is approved - application allowed.

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 - directions with regard to issuance of various notices also issued. The scheme is approved - application allowed.

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:- There being clear stipulation that on any of the default Bank reserve its right to cancel the compromise settlement and will be entitle to exercise against the borrowers/ guarantors all rights and remedies available prior to the compromise settlement as per applicable law. The ‘Default Clause’ clothe the Financial Creditor the right to file Application under Section 7 which was done after 30.06.2020 when default was committed. The Appellant submitted that there was no cancellation of the compromise OTS dated 28.05.2020, hence, it cannot be said that there was any debt due on the Corporate Debtor - said submission cannot be accepted in view of the ....... + More

Seeking to give directions to appropriate authorities to investigate into the affairs of the corporate debtor - Section 210(2) and 213(b) of the Companies Act, 2013 - HELD THAT:- As per the scheme of 213(b) of the Companies Act, 2013, there are three instances in which this Tribunal can refer the matter to Central Government for investigation into the matter of affairs of the company. The instances on the basis of which the applicant wants this Tribunal to refer the matter for investigation, are carefully perused. The applicant has failed to prove that prima-facie the business of the corporate debtor is being conducted with an intent to defraud its creditors, members or any other person or otherwise for a fraudulent or unlawful purpose, or in a manner oppressive to any of its members or that the company was formed for any fraudulent or un....... + 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 applicant has submitted that Balance Sheet of the Corporate Debtor for the financial year 2018-19 at Annexure P22 (pages 195-287) shows acknowledgement of debt by the Corporate Debtor. On perusal of the same it is seen that at page 230 it is stated that the company has default in the repayment of dues of banks and the banks have filed suit before DRT for following dues including inter alia due of Rs. 34,82,63,123 to PNB, the Financial Creditor - Further the Financial Creditor has filed certificate alongwith Bank Statement under Section 2A of the Bankers' Books Evidence Act 1891 and containing the transactions relating to the account of Corporate Debto....... + 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 - Service of demand notice - HELD THAT:- The Respondent fabricated the documents later on just to make out a defence that it has intimated to Mr. Vivek Goel that the articles were defective in nature. From the above said facts and circumstances, it is established that there was no genuine pre-existence dispute between the Operational Creditor and the Corporate Debtor. Service of demand notice - HELD THAT:- It is apparent that there is a email sent on 26.11.2018 by Karin Palmetshofer to Mr. Vivek Goel and copy to Christoph Merkens, whereby Mr. Abhishek Anand, Advocate was authorized to issue demand notice to Franco Leone Limited. Merely, that the General Power of Attorney....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors or Operational Creditors - existence of debt and dispute or not - whether the decree holder M/s Prashant Electricals Ltd who holds a decree against the Corporate Debtor M/s VETPharma Ltd qualifies as a Financial Creditor or an Operational Creditor? - Section 8 and 9 of Insolvency and Bankruptcy Code read with Rule 6 of Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 - HELD THAT:- The Hon’ble Supreme Court of India in the matter of SUBHANKAR BHOWMIK VERSUS UNION OF INDIA & ANR. [2022 (5) TMI 893 - SC ORDER] have held that decree holder as a class of Creditors are separate from Financial Creditors and Operational Creditors. The conclusion, therefore, is that IBC treats de....... + More

CIRP in progress - moratorium in effect - recovery of dues from NPA - It is claimed that since the moratorium under Section 14 of the IBC has ceased to subsist after the order directing liquidation was passed under Section 52 of the IBC, the secured creditors were allowed to realise their security interest - HELD THAT:- After the CIRP is initiated, there is moratorium for any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the SARFAESI Act. It is clear that once the CIRP is commenced, there is complete prohibition for any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property. The words “including any action under the SARFAESI Act” are significant. The legislative....... + More

Pecuniary Jurisdiction - TDS amount come within the pecuniary jurisdiction of this Adjudicating Authority or not - whether non-payment of TDS amount is debt or not - HELD THAT:- In non-payment of the TDS amount by the Corporate Debtor there was no occasion for admitting Section 9 Application by the Adjudicating Authority. The Adjudicating Authority committed serious error in admitting Section 9 Application on the aforesaid submission of the Operational Creditor that non-payment of the TDS amounts is default. The consequences of non-payment of TDS are provided under Income Tax Act, 1961 and income tax authorities have ample powers to take appropriate action. Learned counsel for the Appellant submits that both the TDS amounts has already been made, which is disputed by learned counsel for the Respondent. Regarding non-payment of TDS, we are....... + More

Initiation of CIRP - Application filed by the Appellants/Applicants rejected on the ground that the Appellants were ‘Related Parties’ and cannot be treated as ‘Financial Creditors’ within the meaning of Section 5(7) of the Code - HELD THAT:- It is an undisputed fact that the Appellants together hold about 48% of the shareholding of the Company. It is the main contention of the Appellants that the Master Data of the ‘Corporate Debtor’ was not updated in the Ministry of Corporate Affairs ‘MCA’ Website and that they were never Directors of the Company and were only Additional Directors, which designation, also ceased as the Annual General Meeting contemplated under Section 161(1) of the Act was never conducted inducting them as Directors. A brief perusal of the Master Data of the ‘Corpora....... + More

Initiation of CIRP - NCLT rejected the application on the ground of pre-existing dispute - the six ADMs received by the Operational Creditor, which had made flight bookings on behalf of the Respondent, but the requisite payments were not made by the Corporate Debtor - HELD THAT:- On perusal of the Respondent’s reply to Section 9 notice, it is found that the Respondent had communicated to the Operational Creditor vide email dated 10.01.2018 (reproduced at pg. 297 of the appeal paper book) stating very clearly that ‘they would be in a position to make any payment against ADM only with respect of the same’. The details of the ADMs, as sought by the Corporate Debtor vide email dated 10.01.2018, were supplied to the Corporate Debtor vide email dated 19.01.2018 sent by Sunita Nair of Tek Travels Pvt. Ltd. to Meera Kashyap with....... + More

Initiation of CIRP - NCLT admitted the application - Operational Creditors - pre-existing disputes with respect to the price of the equipment supplied or not - HELD THAT:- The issue whether the ‘dispute’ raised is an assertion of fact has to be decided on the touchstone of the ratio laid down by the Hon’ble Apex Court in MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT] where it was held that Going by the test of “existence of a dispute”, it is clear that without going into the merits of the dispute, the appellant has raised a plausible contention requiring further investigation which is not a patently feeble legal argument or an assertion of facts unsupported by evidence. The defense is not spurious, mere bluster, plainly frivolous or vexatious. A ....... + 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:- In the instant case there is an operational debt and there has been a default in repayment of the same and that this Adjudicating Authority is satisfied that the Operational Creditor has proved its case by placing evidence that default has occurred for which the Corporate Debtor was liable to pay. Hence, the contentions of the Corporate Debtor are overruled - the Operational Creditor has fulfilled all the stipulations as required under the provisions of the IB Code, 2016 for the purpose of initiating Corporate Insolvency Resolution Process. In these circumstances, having satisfied with the submissions made by the Petitioner/Operational Creditor, this Adjudicating Authority is inclined to admit the instant Application. Petition admitted - moratorium declared.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - only contention of the Corporate Debtor is that the Application herein has not accounted for the amounts received by way of sale of various assets of the Corporate Debtor and therefore the Application lacks merit - HELD THAT:- In the instant case there is a 'financial debt' and there has been a default' in repayment of the same and the said default is far more than Rs. 1 Crore. Thus, this Adjudicating Authority is satisfied that the Financial Creditor has proved its case by placing evidence that default has occurred for which the Corporate Debtor was liable to pay. Hence, the contentions of the Corporate Debtor are overruled - Further the Financial Creditor h....... + More

Seeking to stay the further proceedings and to declare the 3rd E-auction process initiated under invitation for expression of interest to submit bid in respect of sale of IVRCL Ltd. under liquidation as going concern - relation of the Auction purchaser herein with that of the Corporate Debtor - auction purchaser is a related party or not - 2nd Respondent herein accepting the bid of Sri Ponguleti Prasad Reddy, Promoter of M/s. Raghava Water and Raghava Constructions and directing him to deposit the balance of bid amount is arbitrary, illegal, and violative of Section 29(A) of Insolvency and Bankruptcy Code, 2016 or not - seeking to direct the 2nd Respondent to issue a fresh e-auction process taking all steps germane for the purpose of perfect competition in the bidding process - HELD THAT:- It is seen that Sri Ponguleti Prasad Reddy does n....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of dispute between the parties prior to the issuance of the Demand Notice or not - Whether the applicant is an Operational Creditor and the debt is Operational Debt? - HELD THAT:- The Hon'ble Supreme Court while interpreting the definitions of Operational Creditor and Operational Debt, in the case of SWISS RIBBONS PVT. LTD. AND ANR. VERSUS UNION OF INDIA AND ORS. [2019 (1) TMI 1508 - SUPREME COURT] has held that "Operational Creditors are relatable to supply of goods and services in the operation of business". Thus, it is manifestly clear that the Applicant had supplied goods to the Corporate Debtor in terms of the Seller's Contract and therefore, the Applicant is an Operational ....... + 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 the Corporate Debtor has taken the building for lease and had defaulted in paying the rents as per the agreement entered between them - a demand notice was issued to the Corporate Debtor and the same was delivered to the registered office of Corporate Debtor and Corporate Debtor has come up for clearing dues and underwent an MOU, but failed to pay the debt in spite of receipt of demand notice and no dispute was raised - the Adjudicating Authority directed the operational creditor to issue notice to the corporate debtor on 16.02.2022 and 01.03.2022. The notice which was sent to the respondent got returned twice with endorsement "Address....... + More

Liquidation of the Corporate Debtor - Section 33(2) of I & B Code, 2016 - HELD THAT:- The Applicant/RP has complied Compliance Certificate in Form-H with all the mandatory requirements of CIRP of the Corporate Debtor as provided under the I & B Code, 2016 and its allied Regulations, 2016. The Corporate Debtor is ordered to be liquidated - application allowed.

Seeking revision of timeline for completion of the works of dismantling, removing and lifting of the plant and machinery from Block B of the Lanco Babandh Power Limited - effective and peaceful possession of the site without any hindrances - HELD THAT:- In view of the averments made both by the Applicant and the Learned Liquidator, it is observed that due to unruly incidents of trespass and assault on the security personnel deployed at the power plant premises of the Corporate Debtor, the Applicant has not been able to avail peaceful possession of the Plant and Machinery purchased through public auction conducted by the Liquidator, until the issue was resolved with the help of the officers of the District Administration and the Police authorities on the basis of our order in IA 600/2021. It is admitted by the Liquidator that the matter wa....... + More

Seeking winding up of the Respondent/Corporate Debtor - Section 433(e) and Section 433(f) r/w. Section 434 of the Companies Act, 1956 - HELD THAT:- It is seen from the records that already a Settlement Agreement was entered into between the parties on 25.07.2017 in and by which the Corporate Debtor is liable to pay a sum of 65,000,000 JPY on or before September 2018. There is no dispute in relation to the same. However, it is seen from the record of proceedings that the Corporate Debtor has violated the terms of the said settlement Agreement and seeking time to settle the matter. Hence, the 'debt' and 'default' on the part of the Corporate Debtor is proved beyond reasonable doubt and under the said circumstances, there are no other option available, than to initiate Corporate Insolvency Resolution Process as against the Co....... + 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, before issuance of SCN or not - HELD THAT:- On perusal of the records it is found that the corporate debtor has brought on record letters dated 08.05.2015, 15.10.2016, 16.01.2017, 24.07.2018 and email dated 09.12.2016 sent to the applicant - right from the year 2015 the corporate debtor has been complaining about the poor quality of goods supplied by the applicant. The corporate debtor has brought on record documents to substantiate its arguments that before issuance of demand notice dated 24.02.2020, there were genuine disputes with regard to quality and quantity of the goods supplied by the applicant. Hon'ble Supreme Court in the matter of MOBILOX INNOVATIONS PRIV....... + More

Rejection of the simultaneous claim by the Resolution Professional of the Corporate Debtor - Claim filed by the Applicant with respect to the corporate guarantee given by the Corporate Debtor - whether a simultaneous claim can be submitted by the financial creditor in the CIRP initiated against the Corporate Debtor as well as against the Corporate Guarantor? - HELD THAT:- Section 60(2) of the IBC, 2016 empowers the Financial Creditor to initiate the CIRP against the Corporate Debtor as well as the corporate guarantor of the Corporate Debtor. If, the financial creditor is entitled to initiate a CIRP against the Guarantor during the pendency of CIRP or liquidation proceeding pending against the Corporate Debtor. Thereby, the claim can not be rejected merely on the ground that the claim has already been admitted in CIRP of M/s. Sitex. Moreov....... + 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

Seeking grant of Regular Bail - payment of bribes through middlemen Guido Ralph Haschke - HELD THAT:- It is noted that the applicant is stated to be the key accused. He is accused of having played a pivotal role in the entire case, being a middleman engaged by M/s AgustaWestland for obtaining confidential information regarding the procurement process of VVIP helicopters by the Government of India. As per the allegations, one J.B. Subramanian was engaged by the applicant for typing and sending dispatches/reports in relation to developments in the procurement process to co-accused persons. He is further accused of having facilitated payment of kickbacks/bribes to IAF personnel, bureaucrats and politicians in India in order to influence the outcome of the procurement process with the end goal to benefit AWIL. From a perusal of the material p....... + More

Seeking an extension of interim/temporary bail for a period of six months - serious ill-health of the applicant - applicant admitted himself without any reference to the hospital with an intention to avoid surrendering in Court after being discharged from the Hospital on 10.01.2022 - HELD THAT:- The application for extension of interim /temporary bail granted by the order dated 28.09.2021, is not allowed. Bail application dismissed.

Maintainability of petition - availability of alternate remedy to the petitioner before Adjudicating Authority - Seeking to defreeze petitioner's attached Bank accounts - respondent No.2 has not summoned the petitioner company or any or its officers - proceeds of crime or not - Section 8(2) of the PMLA - HELD THAT:- Reliance placed upon the judgment of the Supreme Court in case of M/S. KAUSHALYA INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED VERSUS UNION OF INDIA & ANR. [2022 (3) TMI 497 - SC ORDER], wherein it was held that the proceedings before the Adjudicating Authority under Section 8 of the PMLA shall have no bearing on the challenge to the Provisional Attachment Order under Section 5 of the PMLA, which can be decided/adjudicated independently irrespective of the remedy available under Section 8 of PMLA. Whether the bank acc....... + 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

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

Juristic person - separate identity - mutuality of services - sharing of profit - whether a Partner in the Firm can be said to be rendering services to the Partnership Firm so as to fall within the ambit of services as per the Finance Act, 1994? - HELD THAT:- For the period prior to 01.07.2012, there is no definition of a ‘person’ in the Finance Act, 1994 - the term ‘person’ was defined for the first time with effect from 1.7.2012 vide Section 65B (37) of the Finance Act. The period of dispute in all these appeals is prior to 01.07.2012 - Prior to 01.07.2012, there was no definition of the term “person” in the Finance Act, 1994. Only with effect from 01.07.2012, vide Section 65B (37) of the Finance Act, 1994, a ‘person’ was defined for the first time. This definition, inter alia, included a ....... + More

Short payment of service tax - outdoor catering service - abatment of 30% (for goods component), as per notification no. 30/2012-ST - HELD THAT:- There was no dispute with regard to the gross bill raised by the appellant-assessee, as proposed in the SCN. The Appellant had taken a point of law that being eligible under the notification, they have availed abatement of 30% with respect to outdoor catering services under Notification no. 30/2012-ST, which has not been found to be wrong. Accordingly, this demand is set aside and the ground is allowed in favour of the appellant-assessee. Short payment of service tax - renting of immovable property - availment of abatement of 40% erroneously - HELD THAT:- The mistake is bona fide as it is not the case that appellant have collected more tax but have deposited less tax. The learned Counsel admits ....... + More

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - it is alleged that the petitioner could not deposit within the prescribed timeframe the “amount declared” in the scheme - HELD THAT:- Ordinarily no direction can be issued by the Court for extending the timeframe provided under the Scheme as this would be the prerogative of the respondents having regard to the ground realities - However, given the circumstances that have been put forth by Mr. Mankotia on behalf of the petitioner, in particular, the fact that the petitioner claims that she is afflicted with cancer, the designated committee or any other appropriate authority will treat the writ petition as a representation and dispose of the same. Petition disposed off.

Voluntary Compliance Encouragement Scheme - classification of services - works contract or construction of road under civil construction services? - factual errors in the computation of the demand or not - eligibility for cum-duty benefit - eligibility for exemption on the service rendered for construction of a road - Penalty. Whether there is a calculation error in the demand confirmed? - HELD THAT:- The Commissioner arrived at the differential duty payable by way of a Chart and finds that:“I also hold that the differential amount of Rs.1,29,744/- is recoverable from the declarant under section 73 of the Finance Act, 1994 read with Section 111 of Finance Act, 2013.” However, he has confirmed an amount of Rs.3,64,587/-. The appellant has given a calculation sheet to show the differential duty payable for different years from 2....... + More

Refund of service tax paid - rejection on the ground that some services were not identified as specified services by the Approval Committee - interest on delayed refund - HELD THAT:- In the appellant’s own case M/S. INTAS PHARMA LIMITED VERSUS COMMISSIONER OF SERVICE TAX AHMEDABAD [2013 (7) TMI 703 - CESTAT AHMEDABAD], the benefit of refund has been allowed in respect of services not listed as a specified services approved by the approval committee - thus, the appellants are entitle to refund in respect of services received by them for the authorized operations even if, such services are not listed as a specified services in the list approved by the Approval Committee. Interest on delay in payment of refund in terms of Section 11BB - HELD THAT:- There is no specific mechanism provided for notification No. 12/2013-ST. Consequently, a....... + More

Condonation of delay of almost 10 months in filing appeal - sufficient reasons for delay or not - due to medical emergency prevailing in the family of the Chartered Accountant, could not take steps in time - HELD THAT:- The delay has been cogently explained by the Appellant/ assessee in filing their appeal before the Commissioner (Appeals). Accordingly, in the interest of justice, the delay in filing Appeal before the Commissioner (Appeals) is condoned, and this Appeal is allowed by way of remand to the learned Commissioner (Appeals), to decide the Appeal on merits after hearing the Appellant and giving opportunity of making his pleading and filing evidence in support of their contentions. The Appellant is directed to appear before the Commissioner (Appeals) with a copy of this order within a period of 60 days from the date of receipt of ....... + More

Refund claim - time limitation - refund claimed within a period of twelve months from 21.09.2017 being the date of filing of revised return, or not - HELD THAT:- There is no controversy regarding the quantum of amount refundable. Further, there is no allegation nor any finding by the Court below with regard to unjust enrichment. Further, in the facts and circumstances, it is found that there is no scope to transfer any service tax liability as the credit has been taken after the appointed day and also filing of Form TRAN-1. Further it is held that no time limit is prescribed under the transition provision of Section 142(9)(b) of the CGST Act, for claim and grant of refund. The appellant is entitled to refund of the said amount of Rs. 1,18,237/-. The Adjudicating Authority is directed to disburse the refund of the said amount within a peri....... + More

Refund claim - time limitation - Whether the statutory time prescribed under section 11B shall be applicable to the amount erroneously deposited by the appellant despite having no liability to deposit the same? - reverse charge mechanism - HELD THAT:- From the bare reading of the section 11B, it is clear that the provision refers to the claim of refund of duty of excise only, it does not refer to any other amount collected without authority of law - In the case on hand, admittedly, the amount sought for as refund was the amount paid under mistaken notion which even according to the Department / Adjudicating Authority was not the liability of the appellant due to the prevalent exemption during the relevant period for the impugned services received by the appellant (payment was made under reverse charge mechanism). There is lack of authorit....... + More

Sabka Viswas (Legacy Dispute Resolution) Scheme, 2019 - quantification of tax payable - opportunity of hearing - it is alleged that the declaration of the Petitioner was rejected without hearing the Petitioner and the reason given for the rejection is “Amount not quantified before 30.06.2019” - Circular dated 27.08.2019 - HELD THAT:- The term ‘quantification’ was subject matter of interpretation in various judgments of this court. The quantification of the duty, demand or duty liability has to be on or before 30.06.2019 to avail the benefit of SLVDRS. In the present matter, the Petitioners have given a statement about the service tax liability. Even in the affidavit in reply, the Respondents have averred that the assessee was summoned and that one Mr. Kothari in his statement dated 16.05.2019 voluntarily stated tha....... + More

Sabka Vishwas (Legacy Dispute Resolution) Scheme 2019 - levy of service tax on Renting of Immovable Property Services - Circular No.1073/06/2019.CX dated 29th October 2019 - HELD THAT:- The circular clarifies that the Retailer Association of India has represented that the department has initiated proceedings against lessors for non-payment of service tax on rent over immovable property rented by the members - It is further clarified in the aforesaid circular that such members are allowed to file declaration under the Scheme and avail the benefits. The petitioner/lessor has filed appeal before the Apex Court. The said circular is clarificatory in nature. Needless to state that the petitioner is required to comply with all the conditions under the Scheme for availing the benefit of the said scheme. Respondents shall reconsider the declaration of the petitioner and shall not reject it on the ground upon which impugned order is passed. Writ petition is disposed of.

Rectification of Mistake - relevancy of statements relied upon - primary challenge made in the original proceedings as well as the proceedings under rectification of mistake is to the fact that statements of various witnesses have been relied without the said statement being tested for relevance under Section 9D of the Central Excise Act, 1944 - HELD THAT:- Since there is some documentary evidence available on record and there are various statements which the appellant claims have been obtained under duress reliance on the said statements cannot be placed in absence of the same being tested under Section 9D of the Central Excise Act, 1944. There are no option but to remand the matter to the original adjudicating authority to examine the relevance of the statements under Section 9D of the Central Excise Act and only thereafter, relied on the said statement - appeal allowed by way of remand.

Demand of differential duty - Similar Goods - export of goods to DTA exceeding the limit of 50% of on board value of exports - benefit of N/N. 51/96-Cus. dated 23.07.1996 denied - clearance of the goods not similar to goods exported, denying benefit of N/N. 23/2003-CE. - full rate of duty on sale is to be paid when Customs Exemption Notifications - requirement to pay second time in respect of DTA clearance the Education Cess and Secondary higher Education Cess - non-submission of certificate signed by an authority not belong the rank of Deputy Secretary to the Govt. of India under Customs Notification No.21/2002 (as amended by Customs Notification No.20/2007) and Customs Notification No.12/2012 - HELD THAT:- In the present case, the appellants contend that the goods exported by them as well as cleared to DTA are precision optical componen....... + More

Levy of penalty - appellant had paid the duty with interest even prior to issuance of the Show Cause Notice - suppression of facts or not - intent to evade duty or not - HELD THAT:- The appellant paid the duty with interest even prior to issuance of Show Cause Notice. If that is so, the authorities had no jurisdiction to initiate proceedings at all and consequently the question of payment of penalty would not arise at all. The Ld.Commissioner(Appeals)’s observation that had the department not pointed out the discrepancy the deficit amount would not have been paid, is an inference not supported by allegation in the notice nor any evidence leading to the conclusion that the Appellant had suppressed the facts. In these circumstances the penalty imposed under Section 11AC of the Central Excise Act, 1944 read with Rule 25 of Central Exci....... + More

Failure to pay Central Excise duty while availing the benefit of CENVAT Credit - molasses - Rule 4(2) of Central Excise Rules read with Rule 8(1) of the Rules - period October 2012, December 2012 and February 2013 - levy of interest and penalty - HELD THAT:- Undisputed fact is that appellant had received molasses from three khandsari units and in terms of Rule 4 (2) read with Rule 5 of the Central Excise Rules, 2002 was required to pay the Central Excise Duty due on the said goods treating them as if the said goods have been manufactured by them. Rule 4 (2) and Rule 5, creates the liability to pay the Central Excise Duty on the recipient of the goods by treating them as “deemed manufacturer” of the impugned goods. These rules do not provide for the manner of payment of the duty in respect of these goods. To reject the contenti....... + More

CENVAT Credit - input services - freight charges for the outward transportation of finished products upto the buyers’ premises as well as the dealers - place of removal - HELD THAT:- From the definition of input service, it can be seen that prior to 1.4.2008, in sub-clause (ii) any service used by the manufacturer whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products from the place of removal, will fall within the definition of input service - After 1.4.2008, the definition has been amended so that any service used for clearance of final products upto the place of removal will fall within the definition of input service. The department has taken a view that outward transportation of the goods is a post-sale expenditure and thus is an activity after manufacture. That th....... + More

Interest on delayed refund - relevant time for calculation of interest - entitlement to interest from the date of expiry of three months till the date of refund of said amount from the date of communication of the order or not - HELD THAT:- It is observed that the concept of three months has come under section 11BB of Central Excise Act which talks about the interest on delayed refunds. The pending amount of said provisions makes it clear that section 11B is applicable for such amount which was the amount of duty but was subsequently ordered to be refund. Commissioner (Appeals) himself has admitted the applicability of section 35FF, for the amount paid to be refunded being the amount of pre-deposit. However has invoked the pre-amended provision as was in existence prior to August 06, 2014. However the admitted fact of the present case is ....... + More

Levy of penalty under Rule 12 (6) of Central Excise Rules - late filing of Returns (ER-1) for the period July, 2017 to February, 2018 - ex-parte order - violation of principles of natural justice - case of appellant is that it was filing their returns under the GST provisions w.e.f. 01/07/2017, they were under bona fide belief that they are no longer required to file returns under the erstwhile Central Excise Act - HELD THAT:- This cogent explanation was given before the learned Commissioner (Appeals), but the Commissioner (Appeals) failed to record any findings on the said contention. It is further found that the Court below have passed the order with reference to Section 174 of the CGST Act, which provides for repeal and savings. There is no saving Clause in the said Section, for initiating and imposing penalty for none filing of the re....... + More

Job-Work - benefit of SSI Exemption by Notification No. 1/93-C.E., if manufactured on job work basis - demand based upon the loose papers/ despatch bills recovered from the factory of the appellant - Whether the substantial condition for the exemption notification No. 83/94-CE dated 11.4.1994 has been complied with by the appellant with respect to the raw material supplied by Shri Mohan Lal Barfa? - Extended period of limitation - HELD THAT:- There are no infirmity in the conclusion arrived at by the Commissioner (Appeals) that Shri Mohan Lal Barfa had sent scrap to the appellant and received back lead powder manufactured on the job work basis which has been sold to his brother Shri Laxman Barfa and other traders. Learned Counsel for the appellant could not produce any such documents which may prove that job work goods had been sent to th....... + More

Condonation of delay of 1433 days in filing appeal before the tribunal - Tribunal condoned the delay in revenue appeal - error of law - error apparent on the face of record or not - Revenue submitted that no error not to speak of any error of law could be said to have been committed by the Tribunal in passing the impugned order condoning the delay of 1433 days - HELD THAT:- In the case of Nagendra Nath Bora v. Commissioner of Hills Division and Appeals, Assam [1958 (2) TMI 37 - SUPREME COURT], the Supreme Court laid down what the expression "error apparent on the face of the record" connotes. The jurisdiction of the High Court on certiorari may be invoked if it is only an error of law apparent on the face of the record and not every error either of law or fact which can be corrected by a superior court in the exercise of its sta....... + More

Valuation of goods - method of valuation - sale of goods from depot / customer care center - excisable goods cleared/stock transferred to their Unit No. 2/Customer Care Centre from where the goods are sold to unrelated buyers without carrying out any manufacturing activity - applicability of Rule 11 read with Rule 7 or Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000? - invocation of extended period of limitation - penalty - HELD THAT:- Issue whether the process of packing the excisable goods manufactured by the appellant along with the other bought out items in a carton and sold as “Cable Jointing Kit” was considered in case of XI TELECOM LIMITED VERSUS SUPERINTENDENT OF C. EX., HYDERABAD [1998 (2) TMI 137 - HIGH COURT OF JUDICATURE FOR ANDHRA PRADESH AT HYD] where it ws held that....... + More

Non-appointment ‘Member’ in the various Benches of the Settlement Commission - Section 32 of the Central Excise Act, 1944 - HELD THAT:- The process of appointment of Chairman and one Member for the Principal Bench at Delhi and appointment of Vice-Chairman and one Member for the Additional Bench at Mumbai be completed within six weeks. The respondents are directed to examine the aspect of appointment of Vice-Chairman and other Members for the Benches at Chennai and Kolkata. We hope and expect the respondent/Government to act in time so that, at the end of one year, we are not faced with the same situation again, when the tenure of the new Appointees expires in terms of the decision communicated vide letter dated 29.04.2022 taken note of. List on 20th July, 2022.

CENVAT Credit - inputs - capital goods - input services - main ground for denying the credit is that the Appellant failed to furnish sufficient documentary evidence that the impugned items were used in fabrication of capital goods/accessories/parts/components - HELD THAT:- The first and foremost point is when the Chartered Engineer’s Certificate was produced before the Adjudicating authority, it was incumbent on the authorities to either contradict the Chartered Engineer’s Certificate or accept the same. In the absence of any contradictory Certificates on record holding otherwise that the inputs were used for fabrication of machinery, the non-consideration of the Certificate issued by the Chartered Engineer by the Adjudicating authority seems to be not in consonance with law. Further, receipt of goods and thereafter use for fa....... + More

Imposition of penalty under Rule 12 (6) of Central Excise Rules - late filing of Returns (ER-1) - period July, 2017 to April, 2018 - HELD THAT:- It is not disputed that the appellant have filed the returns uptil the period ended 30/06/2017 under the repealed Act. They further stated that as the appellant was filing their returns under the GST provisions w.e.f. 01/07/2017, they were under bona fide belief that they are no longer required to file returns under the erstwhile Central Excise Act. I find that this cogent explanation was given before the learned Commissioner (Appeals), but the Commissioner (Appeals) failed to record any findings on the said contention. The Court below have passed the order with reference to Section 174 of the CGST Act, which provides for repeal and savings. There is no saving Clause in the said Section, for init....... + More

Refund alongwith interest - relevant date for calculation of interest - the entitlement of claiming the said amount along with the interest shall reckon from the date of said Final Order or from the date of deposit? - HELD THAT:- It is observed that admittedly the amount, the refund whereof was claimed, was deposited at the time when audit of the appellant was got conducted by the department. Admittedly, even the show cause notice was not issued to the appellant. The impugned Final order has discussed the findings of Hon’ble Delhi High Court in the case of DIGIPRO IMPORT & EXPORT PVT. LTD. VERSUS UNION OF INDIA & ORS. [2017 (5) TMI 759 - DELHI HIGH COURT] wherein the conduct of audit team to collect duty at the initial stage is not authorised by any law in force and hence is held illegal. The appellant is entitled for the re....... + More

Refund claim - deposit/amount paid under protest - unjust enrichment - presumption could be drawn against an appellant or not - HELD THAT:- The reasons attributed for rejecting the refund are not sustainable since, as held by the Hon’ble Bombay High Court in the case of THE COMMISSIONER OF CENTRAL EXCISE, PUNE­1 COMMISSIONERATE VERSUS M/S SANDVIK ASIA LTD. [2015 (10) TMI 719 - BOMBAY HIGH COURT], the entries in the Books of Accounts are immaterial and irrelevant and no presumption could be drawn against an appellant if it is shown on the expense side. It is the well settled position of law that unless the Revenue has any documentary evidence, the statute does not permit any action to be taken based only on assumptions and presumptions. Moreover, the appellant has filed a certificate issued by a Chartered Accountant to the effect....... + More

Refund of accumulated CENVAT Credit - accumulated credit at the time of closure of unit of the assessee - HELD THAT:- In SHRI VITTHALSAI SSK LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, NAGPUR [2019 (12) TMI 390 - CESTAT MUMBAI], the Tribunal had also rejected such claim for refund of credit that had accumulated in an undertaking taken over by the assessee themselves in the past. Refund cannot be granted - there is no merit in the grounds set out by the appellant for setting aside the order of the first appellate authority. Accordingly, the appeals are dismissed.

Levy of interest and penalty - invocation of extended period of limitation - business of interior designing and furnishing - turnover of small scale exemption limit of Rs.30,00,000/- exceeded - manufacturing of various types of furniture without obtaining Central Excise registration - HELD THAT:- As could be noticed from the order passed by this Tribunal in respect of the present Assessee-Appellant on dated 14.01.2009 [2009 (1) TMI 935 - CESTAT MUMBAI], penalty and interest for the extended period was set aside by observing that learned Commissioner therein had correctly assessed that the liability of duty had occurred on point of law and there existed reasonable basis for doubt in discharge of duty liability - However, in the present appeals both invocation of extended period and imposition of penalty and interest are being confirmed by ....... + More

Maintainability of appeal - monetary amount involved in the appeal - CENVAT Credit - input services or not - sales commission paid to one M/s. Supreme Packaging with whom, agreement is entered upon, to appoint them as ‘Del Credere Agent’ for effective proper guarantee of solvency of customers and effective recovery of money - post clearance services or not - HELD THAT: In fact the amount of duty involved in the present appeal is Rs.1,46,148/- which is less than the prescribed limit of Rs.2 lakhs and the appeal can be dismissed as non-maintainable, in view of the low amount involved and as per proviso to Section 35 B (1) of the Central Excise Act, 1944 the Tribunal could refuse to admit appeal involving such low amount. Admissibility of CENVAT Credit in respect of “Del Credere Agent Services”, received by Appellants....... + More

Denial of interest on refund granted to the appellant - refund of the credit of SED taken by them paid on inputs received from EOU - whether refund was granted within the three months when it was decided, or not - HELD THAT:- Irrespective of the disputes that arise after the filing of refund claim, the appellant became entitled to interest from after three months of filing of original refund claim. Reliance placed in the case of RANBAXY LABORATORIES LTD. VERSUS UNION OF INDIA AND ORS. [2011 (10) TMI 16 - SUPREME COURT] where it was held that the only interpretation of Section 11BB that can be arrived at is that interest under the said Section becomes payable on the expiry of a period of three months from the date of receipt of the application under sub-section (1) of Section 11B of the Act and that the said Explanation does not have any bearing or connection with the date from which interest under Section 11BB of the Act becomes payable. Appeal allowed - decided in favor of appellant.

Confiscation of the goods lying outside the factory premises - old and used Moulds supplied by some other manufacturers - demand on C.I. Moulds manufactured on job work basis from the old and used moulds supplied by the principal supplier under Notification No.214/86 dated 25.03.1986 - Whether demand of duty on the coal stored outside the factory premises on which no Cenvat credit was taken is liable for confiscation and whether the Cenvat credit can be denied on such coal? - time limitation - suppression of facts or not. Goods allegedly lying outside the factory premises whether liable for confiscation or not - HELD THAT:- As per the facts of the case which is not under dispute that the appellant have applied for extension of ground plan for inclusion of the premises where the goods were lying well in advance and subsequently, the ground....... + 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.

Remand of the case for fresh consideration - HELD THAT:- Learned counsel appearing for the parties submit that they are not ready with the case today and this Court may fix another date for the purpose of disposal of these appeals. They submit that the matters may be listed on 16.06.2022. Registry is directed to list these appeals in List-I on 16.06.2022.

Validity of notice issued - 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, have not been adjudicated upon, up until now - HELD THAT:- While Mr Satyakam may have a talking point as to the mechanics set forth in the Act for service of notice under sub-section (8) of Section 74 of the Act, there is certainly an unpardonable delay on the part of the respondents in dealing with the objections; eight years is too long a time for the respondents to not have moved the matter. 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 sub-section (8) of Section 74 of the Act, read with Rule 56 of the 2005 Rules. Petition disposed off.

Levy of Tax - Inter-State sales - whether Gold Bullian Bars send by the revisionist bank to its Branch at Jaipur was not a stock transfer as such was an Inter-State sales, without recording any finding of its own? - HELD THAT:- Admittedly, the revisionist is a nationalized bank of Government of India, which has to adhere to the policy so framed by Reserve Bank of India. It has specifically been mentioned in the grounds of appeal that the T.T. gold bars, on receipt, if not sold within ten days, the intimation has to be sent to the Head Office at Delhi for further instructions. Upon receiving the instructions, the goods were sent to Jaipur Branch. The said transfer was treated as central sales under the Central Sales Tax Act. On submission of Form-F, the assessing authority has treated the stock transfer as inter-State sale, on perusal of t....... + More

Violation of principles of natural justice - reversal of proceedings concluded and order of assessment passed, under which, the input tax credit claimed or availed by the petitioner - HELD THAT:- Even though the notice dated 10.01.2020, prior to the impugned order, is claimed to have been sent by ordinary post, it cannot be simply presumed that, automatically that would have been served on the petitioner when the petitioner stoutly deny such service of notice - Though the post office is the agent of the addressee, when these kind of matters, where, statutory notice is a must to be issued before passing the assessment order as that will have a financial and civil consequences on the noticee, strict compliance is to be expected. Therefore, the notice claimed to have been sent on 10.01.2020 by ordinary post cannot be treated as a proper service of notice in view of the specific denial made in this regard by the petitioner. Writ petition disposed off.

Validity of Provisional attachment of accounts of the petitioner in the respondents 6 and 7 banks - formation of opinion or subjective satisfaction or not - whether as on the date of the orders of provisional attachment, there were no proceedings pending under Section 67 of the Act nor any proceedings have been initiated either under Section 73 or 74 of the Act? - HELD THAT:- A perusal of the impugned orders of provisional attachment shows that the fourth respondent herein stated in the said orders that, as per the information available with the Department and in order to protect the interest of the Government revenue, in exercise of the powers conferred under Section 83 of the Act, the account is provisionally attached - it may be appropriate to refer to the provisions of Rule 159 of the Sales Tax Rules. According to sub-Rule (5) of Rule....... + More

Search and Seizure - failure in filing regular monthly returns/statements as required to be filed in respect of the consignment of taxable goods transported by it - only ground of the challenge is that the respondent no. 5 was not a member of the vigilance group or wing on the date when the search and seizure was made - HELD THAT:- In the present proceedings, the departmental authority, upon information received, proceeded to examine the books of accounts and registers maintained by the petitioner No. 1, who is a transporter. This search was admittedly made in the place of business of the petitioners. Pursuant to the seizure of books of accounts and registers, notices were issued to the petitioner No. 1 to appear before the Assessing Officer and to explain the books of accounts and/or the registers seized - In order to recover the outstan....... + More

Levy of advertisement tax - MSOs - conduct of business thereby transmitting signals of various channels belonging to different broadcasters to LCOs and includes broadcasting of private and local advertisements - demand of fine and penalty as well - HELD THAT:- It is trite that a taxing statute has to be strictly construed. No tax can be levied except in accordance with law. Reading the provisions, it is manifest that the advertisement tax is levied on advertisement at any place of entertainment where the advertisement is exhibited for payment. The MSOs, it appears, only transmit the signals of various TV channels belonging to different broadcasters to LCOs who, in turn, retransmit signals for viewership by their own viewers. If the Petitioners are only transmitting the signals, then, in such an event, they cannot be made liable to pay adv....... + More

Levy and collection of Entry tax - Cigarette - applicability of provisions of Section 28-A to goods which are exempt under Section 4 of U.P. Trade Tax Act, 1948 - Whether the provisions of Section 6 of the U.P. Tax on Entry of Goods Act, 2000 cast an obligation on an Importer to carry Form- 31 in case of goods which are exempt under clause (a) of Section 4 of the U.P. Trade Taxt Act, 1948? - HELD THAT:- Admittedly, along with goods in question, bill, bilti and Form-35 were present and no discrepancies were found in the said documents except the fact that Form-31 could not be produced which was duly submitted later on. All entries of dispatch of goods either outside the State or in the State of U.P. have been duly made in the books of account so there cannot be said to be any intention to evade payment of tax - Further this Court in the ca....... + More

Reopening of assessment - Deemed assessment - time limitation - impugned notices issued beyond the period prescribed under Section 27 of TNVAT Act, 2006 or not - Assessment Year 2010- 2011 - HELD THAT:- As far as the impugned notice dated 28.2.2019 for the assessment year 2010-11 is concerned, there was a deemed assessment on 30.6.2012 by the operation of law under proviso to section 22 (2) of the Tamil Nadu Value Added Tax Act, 2006.No previous notice for reopening of the assessment appears to have been issued. Therefore, the impugned notice dated 28.2.2019 seeking to reopen the deemed assessment completed on 30.6.2012 appears to be time-barred as no notice was issued within time and is therefore liable to be declared as time barred. The assessment which was completed long after the period of limitation was held barred by law. This is no....... + More

Reversal of input tax credit - interstate sale - Section 19(2)(v) and 19(5)(c) of the TNVAT Act, 2006 - HELD THAT:- The subsequent notice issued on 31.08.2021 was responded to by a communication dated 28.09.2021 by the petitioner stating that, he needs some more time to file further objections. However, prior to that, pursuant to the earlier show cause notice, the petitioner had already given a reply on 08.11.2017, wherein he has stated that, the only transaction which is involved does not fall under interstate purchase and therefore it does not attract input tax credit under Section 19(2)(v) and 19(5)(c) of the TNVAT Act, 2006, therefore, the proposal made in this regard through the show cause notice should be dropped. However, whether this reply given by the petitioner has been considered or not has not been mentioned in the impugned or....... + More

Validity of order of reassessment - time limitation - whether the reassessment was possible only under Section 21(3) of the Value Added Tax Act, 2005 within one calendar year from the concerned year? - HELD THAT:- There is no manner of doubt that the appellants had specifically raised preliminary objection before the assessing officer that the proposed action had become time-barred and hence notice under Section 21(7) of the VAT Act issued to the appellant(s) by the authority was illegal and unjust being void ab initio. The assessment order passed by the competent authority, however, does not deal with this contention at all. That grievance had been made by way of writ petition, as the issue of limitation would go to the root of the matter being bordering on jurisdiction and authority of the officer concerned. The Single Judge accepted th....... + More

Validity of re-assessment order - release of refund claimed in the return filed for 2nd quarter 2016-2017 along with interest - HELD THAT:- It is not in dispute that the four assessment orders dated 18.09.2018 passed in respect of the four quarters of FY 2016-17 were passed by the concerned officer, in exercise of powers conferred under Section 9(2) of the Central Sales Tax Act, 1956 read with Section 32 of the Delhi Value Added Tax Act, 2004 - tax adjustment against refund vis-a-vis the fourth quarter for FY 2016-17 was also made; an aspect which is not disputed. The impugned orders dated 05.10.2019, which concern all the four quarters of the FY 2016-17, issued under the DVAT Act, in exercise of power conferred under Section 32 of the said Act, could not have been passed - the writ petition is allowed.

Attachment of bank accounts - delayed action in making assessment - It is the Petitioner's grievance that though within the stipulated period of thirty days, he has applied for setting aside the ex-parte orders, however, due to lethargy and negligence on the part of the Respondents, applications remained unattended - repeal of Bombay Sales Tax Act - HELD THAT:- Since two layers of appeal have been provided to challenge the assessment, the said exercise cannot be undertaken under writ Jurisdiction. It is well settled that the writ Court should be slow in interfering into the matters, where alternative remedy of appeal has been provided. Therefore, we deem it appropriate to keep all these points open to be agitated and decided before the appropriate forum. Reverting back, it emerges that the Petitioner has timely applied for setting asi....... + 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

Maintainability of petition - availability of alternative remedy - Validity of assessment order and rectification order passed by the Agricultural Income Tax Officer under Section 5 (3) of the Bengal Agricultural Income Tax Act, 1944 - HELD THAT:- On perusal of relevant provisions under the West Bengal Taxation Tribunal Act, 1987, it is found that as per Section 36 of the Bengal Agricultural Income Tax Act. 1944, West Bengal Taxation Tribunal is the competent forum for adjudicating the nature of issues arise out of the impugned orders of the first Appellate authority and the nature of reliefs petitioner has sought in these Writ Petitions. Under The West Bengal Taxation Tribunal Act, 1987, the Tribunal has got exclusive jurisdiction to entertain the appeal relating to levy of tax in any assessment under the Bengal Agricultural Income Tax A....... + More

Dishonor of Cheque - acquittal of accused - Section 138 of NI Act - HELD THAT:- On perusal of the entire materials available on record, it is seen that the dispute between the petitioner and the respondent has resolved. In view of the same, the offence against the petitioner/accused is compounded and petitioner is acquitted of all the charges. This Criminal Revision Case is allowed

Dishonor of Cheque - recovery of interim compensation as land revenue - public demand or not - Whether an order for payment of interim compensation under the Negotiable Instrument Act can be enforceable under the Bihar & Orissa Public Demands Recovery Act, 1914 as a public demand? - HELD THAT:- Section 143A of the NI Act under sub- section (5) specifically states that interim compensation payable under this Section is recoverable as a fine under Section 421 of the Code of Criminal Procedure. Section 421 (1) (b) provides for issuance of warrant to the Collector to realize amounts as arrears of land revenue from movable and immovable properties of said defaulter. Further, clause 3 of Schedule I of the Recovery Act states that any money realizable as arrear of land revenue by process authorized for said purpose shall be deemed a public d....... + More

Dishonor of Cheque - insufficiency of funds - compromise has been entered into between the parties and the entire dispute has been finally resolved - compounding of offences - HELD THAT:- From the facts, it is apparent that both the contesting parties are ad idem that the compromise has been effected between the parties without any pressure, threat or undue influence and the terms of the said compromise have been duly complied with. The compromise would go a long way in maintaining the peace and harmony between the parties and thus, a prayer has been made to the Court for compounding the offence in terms of Section 147 of the Act. Since the offence relating to dishonour of cheque has a compensatory profile and is required to have precedence over punitive mechanism, therefore, the present revision petition deserves to be allowed. In the pr....... + More

As per MR. AJAY RASTOGI, J. Rights of the contesting Appellants working as Anganwadi workers/helpers to claim gratuity under the provisions of Payment of Gratuity Act, 1972 - ICDS scheme - whether the applicability of gratuity being a social security measure, be extended to the employees who served the establishment in an organized or unorganized sector and, in one way or the other, contributing in the sustainable development of the nation? - HELD THAT:- The time has come when the Central Government/State Governments has to collectively consider as to whether looking to the nature of work and exponential increase in the Anganwadi centers and to ensure quality in the delivery of services and community participation and calling upon Anganwadi workers/helpers to perform multiple tasks ranging from delivery of vital services to the effective ....... + More

Dishonor of Cheque - framing of charges - acquittal of accused - admissibility of evidences - Discharge of existing liability - rebuttal of presumption - HELD THAT:- The allegation in the complaint is that in discharge of their existing liability in respect of a loan taken by the accused company from the complainant, its three Directors, Dinesh Chandra Meheta, Chaner Pal Meheta and Hiten D Meheta in control of the affairs of the company issued a cheque bearing 212779 dated 29.05.2000 for Rs. 5,12,188/- (Exhibit 1) drawn on Bank of India, Calcutta Overseas Branch, in favour of the complainant. The said cheque was presented to Global Trust Bank Chowringhee Branch, Calcutta within its valid period of for encashment but the same was returned dishonoured on 24.08.2000. Demand notice was issued on 02.09.2000 and sent to the accused persons thro....... + More