Revision u/s 263 - finding was based on Audit Objection - Rejection of books of accounts and estimation of income - Assessment Order u/s.143(3) is erroneous and prejudicial in nature in as much as the depreciation and interest were allowed as deduction after estimation of income thereby allowing double deduction to the assessee - HELD THAT:- As the estimation of Income Tax is essentially a fact finding exercise, which becomes final at the hands of the final fact finding authority of Income Tax namely, Income Tax Appellate Tribunal and we would not have entertained this appeal which lies under section 260A of the Act, only on the 'substantial question of law' arising from the order of the learned Appellate Tribunal. But we see glaring perversity in the assessment order itself. The alleged 'market standards' adopted by th....... + More

Unexplained investment in the purchase of property - Addition made u/s 69 merely on casual diary noting - Independent enquiry should be made by the Department on the market value of the property - Whether entire addition of unaccounted investment under Section 69 of Income Tax Act in the hands of the appellant, when the appellant was only holding 50% interest as co-owner of the said house property? - adjudication done under Section 47 (A) (1) of the Indian Stamp Act - HELD THAT:- A perusal of the order passed by the CIT (Appeals) dated 01.03.2019 as well as the original order dated 08.11.2019 passed by the Income Tax Appellate Tribunal did not deal with the aspect as to the adjudication done under Section 47 (A) (1) of the Indian Stamp Act. As appears from the materials placed in the form of additional typed set of documents dated 04.0....... + More

Benefit of deduction u/s 80IAB - Belated filing of returns - reasons given by the petitioner for filing the returns belatedly under Section 139 was apparently, on account of paucity of funds and account of the amendment to Section 115JB - HELD THAT:- In this case, the unnamed Chartered Accountant had purportedly advised the petitioner to delay in filing returns. He could also have not signed the report of audit in the prescribed form. It is perhaps the report of the Chartered Accountant who finalized the account for the petitioner later was made available for the assessment and the return was filed belatedly. Explanation offered by the petitioner that in view of amendment to Section 115JB created confusion and that there was paucity of fund for payment of tax under the aforesaid provision which resulted in delay in filing of the return....... + More

Addition u/s 68 - unsecured loan received - observations of the AO that the assessee has failed to satisfactorily explain the cash credit - whether the assessee has satisfied conditions stipulated in section 68 of the Act or not in respect of cash credit availed? - HELD THAT:- Details of accounts along with confirmation, addresses and PAN of the lenders have been furnished to the AO for verification. Even the assessee has furnished copy of assessment orders passed in the case of lender for the relevant year for verification. Apart from that, these funds have been received by the assessee through banking channel, and therefore, all the ingredients necessary for proving cash credit under section 68 has been satisfied by the assessee. Looking to the details provided to the Revenue authorities and copies also available in the paper book, w....... + More

Penalty u/s 271(1)(c) - Invalid notice - non specification of charge - non-striking of the inaccurate portion in notice - HELD THAT:- The show cause notice issued in the present case u/s 274 of the Act does not specify the charge against the assessee as to whether it is for concealing particulars of income or furnishing inaccurate particulars of income. The show cause notice u/s 274 of the Act does not strike out the inappropriate words. In these circumstances, we are of the view that imposition of penalty cannot be sustained. Case followed M/S MANJUNATHA COTTON AND GINNING FACTORY & OTHS., M/S. V.S. LAD & SONS, [2013 (7) TMI 620 - KARNATAKA HIGH COURT] - Decided in favour of assessee.

Characterisation of Income - capital gain or business income - activity of purchase on sale of the shares - HELD THAT:- In view of the consistent finding of the Tribunal since assessment year 2008-09, respectfully following the finding of the Tribunal for assessment year 2008-09 to 2012-13 [2018 (3) TMI 1409 - ITAT DELHI] we set aside the order of the lower authorities and hold the activity of purchase and sale of shares in question as investment activity to be assessed under the head capital gain. Disallowance under section 14A read with rule 8D - expenses on account of the income on which no activity was done in the previous year, was not accepted by the Assessing Officer and the explanation of the assessee that no expenses were incurred toward earning of dividend income shares of Dabur India Ltd, which was a strategic investment, wa....... + More

Computation of Capital gain - Section 50C applicability - agreement for sale of the property before execution of the sale deed and registration - assessee adopted the guideline value as on 04.08.2012 for computing the capital gain - adoption of guideline value on the date of entering into sale agreement OR based on the execution of sale deed - HELD THAT:- It is well settled principles of law that guideline value is only to guide the Sub-Registrar to find out the correct market value for the purpose of collecting stamp duty. Market value is not a constant figure. It may vary depending upon the various factors. Therefore, the guideline value may not always represent the market value of the property. Because of deeming provision, Section 50C of the Act, the guideline value has to be adopted in case the market value or the agreed price bet....... + More

Disallowance u/s 14A - assessee submitted that admittedly there was no exempt income earned by the assessee during the year under consideration - HELD THAT:- It is not in dispute that the assessee has not earned any dividend income from the investment made during the year under consideration. The question arises for consideration is when the assessee has not earned any exempt income / dividend during the year under consideration, can there be any disallowance u/s.14A read with Rule 8D(ii). This issue was examined by the Madras High Court in Redington India Ltd [2017 (1) TMI 318 - MADRAS HIGH COURT] wherein as found that there was no disallowance when there was no exempt income. Madras High Court in the case of Chettinad Logistics Pvt. Ltd. [2017 (4) TMI 298 - MADRAS HIGH COURT] examined this issue and by following the judgment in Redin....... + More

Exemption u/s 80G(5)(iii) - renewal of exemption denied as primary object of the Trust among others, primarily was for the benefit of Catholics and others may be admitted without any distinction of caste or creed - whether the respondent is doing charitable work without any discrimination on the basis of caste, creed or religion? - HELD THAT:- Clause 3 of the Memorandum of Association which uses the expression “primarily for the benefit of Catholics”. Others may be admitted without distinction of caste and creed” has been thoroughly examined by the Department several time and only on the satisfaction, the Tribunal granted exemption under Section 80G(5)(iii) of the Act to the Assessee. No explanation is forthcoming on behalf of the appellants – Revenue as to why the exemption was granted to the respondent - Socie....... + More

Exemption u/s 54F - AO restricted the exemptions to the expenses incurred till 31.07.2012, as the assessee failed to invest unutilized portion in Capital Gains Deposit Scheme - HELD THAT:- Mere non compliance of a procedural requirement under Section 54(2) itself cannot stand in way of assessee in getting benefit under Section 54, if he is, otherwise, in a position to satisfy that mandatory requirement under Section 54(1) is fully complied with within time limit prescribed therein. We direct the A.O. to allow the total investments made by the assessee under Section 54F of the Act after satisfying whether the impugned investment was utilized for the construction of the house within the time limit specified under Section 54F - Appeal of assessee is treated as allowed for statistical purposes.

Validity of assessment u/s 144C - Non passing draft Assessment Order - TP Adjustment - excessive Advertisement, Marketing and Promotion Expenditure (AMP) for development of the brand owned by its foreign AE, therefore such excessive AMP expenditure would amount to ‘international transaction’ - Penalty u/s 271(1)(c) - whether AO has passed the final assessment order instead of a draft assessment order? - HELD THAT:- As per Section 144C of the Act, it is mandatory for the Assessing Officer to pass draft Assessment Order. But instead of that, the Assessing Officer vide order dated 18.10.2019 merely captioned the final Assessment Order as Draft Assessment Order along with issuance of notices under Section 156 and 274 read with Section 271(1)(c) of the Act which means a final Assessment order u/s 144C was passed without following t....... + More

Income from offshore supply of products - income taxable in India - income of assessee as computed in accordance with provisions of section 44BB - activity of the PE in India - revenue from repair activities rendered by the assessee to ONGC - HELD THAT:- As decided in own case [2018 (8) TMI 52 - ITAT MUMBAI] revenue received by the assessee from offshore supply of goods to ONGC could not be taxed in India. We thus finding no infirmity in the order of the CIT(A) in context of the issue under consideration uphold the same to the said extent. If the service provider does not make available the technical knowledge, experience, skill know how or process etc., then the consideration received for rendering of such services cannot be characterised as royalty for the purpose of Article XII(3)(g) of India-Australia DTAA. Finding no infirmity ....... + More

Income tax proceedings against assessee - whether appellant is not a "state" under Article 289 of the Constitution of India and therefore, liable to tax under the Income Tax Act? - HELD THAT:- As relying on MAHARASHTRA STATE BOARD OF TECHNICAL EDUCATION VERSUS ITO-15 (2) (2) , MUMBAI [2019 (4) TMI 755 - ITAT MUMBAI] we hold that the assessee is “State” under Article 289 of the constitution of India, and is entitled to immunity from taxation under the Income Tax Act 1961. The plea of the assessee is thus sustained.

Penalty u/s 271(1)(c) - bona fide view of the assessee - Income in relation to the New Mangalore Port Trust (NMPT) project - permanent establishment (PE) in relation to the NMPT project - India Netherlands Treaty - HELD THAT:- None of the conditions is fulfilled in favour of the Revenue for imposing penalty. As it appears on record that at the very onset of filing of return the assessee explained the reasons for not including the amount in question being 3.79 crores received as “arbitration award” in its taxable income by annexing Note 7 relying upon the content of the India-Netherlands Treaty. Such Explanation has not been found to be false by the authorities below neither there is any finding to that effect as on record. Even assuming the assessee fails to substantiate the explanation, he has been able to demonstrate that th....... + More

Transfer Pricing Adjustments - Selection of MAM - HELD THAT:- We find that TNMM method as adopted by the assessee in earlier years has constantly been accepted to be the Most Appropriate Method as against the observation of Ld. TPO that it was to be applied as a last resort. We find that similar facts exist in this year. Applying TNMM method, the assessee’s margins in AE segment are much higher than margin in non-AE segment and therefore, it could be stated that the transactions were at Arm’s Length. No infirmity has been pointed out by any of lower authorities in assessee’s methodology. Therefore, respectfully following the earlier order of Tribunal in assessee’s own case, we hold that TNMM method as adopted by the assessee was appropriate methodology and therefore, no TP adjustment would be warranted on these tra....... + More

Disallowance of interest expenses u/s.36(1)(iii) on the ground that it was not incurred for business purposes - A plea of Rule of consistency has been raised to submit that since the assessee fulfilled the conditions laid down in Sec.36(1)(iii), entire interest-disallowance including suo-moto disallowance made by the assessee, was to be deleted - HELD THAT:- Correct facts need to be ascertained and brought on record in view of our observations - we are left with no option but to set-aside the impugned order and remit the issue back to the file of Ld.AO for adjudication de-novo. The Ld. AO is directed to reappreciate assessee’s claim in the light of our observations. The assessee, in turn, is directed to substantiate its claim. All the issues are kept open. Order being pronounced after ninety (90) days of hearing - COVID-19 pandem....... + More

Set off/ adjustment and carry forward of accumulated losses and unabsorbed depreciation of the demerged company - validity of the return filed under section 139(5) - AO to reject the revised ROI was that both the demerging company and the resultant company have claimed the same loss resulting in double claim of set off and carry forward of losses pertaining to the demerged undertaking - HELD THAT:- Intimation issued u/s 143(1) of the Act does not preclude the assessee from filing a revised return of income. More so, when assessment order u/s 143(3) of the Act was also passed in the present case of the assessee, thus the intimation u/s 143(1) of the Act loses its importance. And we find in this case the assessee has rightly filed the revised return of income u/s 139(5) of the Act within the stipulated time frame as per statute. In this ....... + More

Addition on account of liquidated damages - Allowable business expenditure - HELD THAT:- Both the sides, this issue is squarely covered in favour of the assessee by the decision of this Tribunal rendered in assessee’s own case for A.Y. 2008-09 to 2011-12 [2019 (4) TMI 1469 - ITAT KOLKATA] wherein held inbuilt condition of the contract that in case of late delivery of goods, percentage of consideration as liquidated damages would be deducted by the customer while making payment. It is noted that the payment was made to the assessee by the parties while it was carrying on its business, and the deduction of payment made by the parties were as per the contractual terms and so, it is an allowable deduction and we confirm the order of the Ld. CIT(A) and dismiss this ground of appeal of the revenue. Addition on account of prior period e....... + More

Addition u/s 68 - source of the cash deposited were amount received out of the unsecured loan taken in the preceding year - HELD THAT:- Issue being of double additions and in some case proper opportunity of being heard have not been provided during the course of assessment and appellate proceedings, we in the interest of justice and fair to both the parties are of the considered view that all the issues raised in these appeals for AY 2007-08 and 2008-09 by the assessee needs to be restored to the file of A.O for denovo adjudication. A.O is directed to accept all the details and material evidence brought on record by the assessee in support of his contention that double additions should not have been made, telescoping benefit of cash deposits out of the funds received from cash creditors should be provided and proper opportunity of bein....... + More

Disallowance of the Prepaid Expenses - HELD THAT:- Upon perusal of financial statements and ledger extract, we find substance in the arguments of Ld. AR. The nature of the aforesaid expenditure is prepaid expenditure which is to be claimed in subsequent years. This being the case, the impugned addition could not be sustained and therefore, we delete the same. This ground stands allowed. Training Expenditure disallowance - HELD THAT:- We find that the action of Ld. AO in treating the said expenditure as capital expenditure was bereft of any merits. The expenditure was merely training expenditure to train the assessee’s employees qua new products. The assessee did not gained any benefit of enduring in nature. The said expenditure was rightly claimed as revenue expenditure. Ground No.2 stands allowed. Depreciation on office equip....... + More

Claim of loss in the stock business denied - loss from commodity stock trading - not accepting the well accepted system of stock, wherein there is a pakka arthtia and other is stockiest - claim denied by the revenue authorities treating the same as bogus - HELD THAT:- Assessee who filed sufficient documentary evidences to substantiate its claim of purchase and sale of commodity stock in the form of documents above giving details of all commodity stock transactions entered into, copy of account of the parties with whom transaction had been entered alongwith consignment purchase and consignment sale documents. Revenue has based its findings of the transaction being bogus merely on the basis of suspicion and there is no concrete evidence, nor any investigation carried out by it on the findings submitted by the assessee, to arrive at this ....... + More

Setting off of unabsorbed depreciation against Business Income and Income from Other Sources for the current year before setting off of brought forward business losses of previous year - HELD THAT:- A bare perusal of sub-section (2) of section 72 would show that before giving effect to the provisions of section 32(2) dealing with carry forward of unabsorbed depreciation, precedence is given to set off of brought forward business losses against income under the head Profits and Gains from Business or Profession. Thus, we find merit in the contentions of the assessee. AO is directed to first set off brought forward business losses of previous years before set off of unabsorbed depreciation of the earlier year. TP adjustment - Addition on account of advertising, marketing and sales promotion expenditure - HELD THAT:- As decided in own cas....... + More

Unexplained cash credit u/s 68 - summon u/s 131 was issued to ten creditors but all returned un-served - only three Suppliers could produce by the assessee and one appeared in response to summon u/s.131 - HELD THAT:- The appellant had actually received these goods in its premises. The assessee is duly maintaining proper quantitative details to record purchase as well as sales made out of such purchases. If is further submitted that since these farmers do not maintain any proper books of accounts probably that is why some anomalies were pointed out by the Ld. AO while recording their deposition. It is further submitted that the Ld. AO has verified the books of accounts of the appellant and did not find any discrepancy in relation to sale of purchased goods to all the parties. The assessee had made total sales which has been credited in ....... + More

Period of stay in India - ascertaining the tax residency status under Section 6(1)(a) - petitioner seeking a direction to respondents to disregard/exclude the days spent by the petitioner in India since 15th July, 2016 and for allowing the petitioner to file his income tax returns for the Financial Years 2018-19 and 2019-20 as an NRI - HELD THAT:- Petitioner states that the petitioner has been forced to stay in India due to confiscation of his passport initially by the CBI and later on due to its deposit with the trial court. He points out that the passport of the petitioner is still lying deposited with the trial court. In the opinion of this Court, the issue whether the petitioner’s presence in India was with his consent or against his Will is a question of fact which will have to be decided by the assessing officer. Consequ....... + More

Harassment by the Income Tax Department - higher demand on the ground that the petitioner had not paid the ‘Self Assessment Tax’ - HELD THAT:- When the petitioner pointed out that the tax had been paid, the respondents passed yet another rectification order dated 16th August, 2019 allowing the credit of ‘Self Assessment Tax’ of ₹ 1,32,860/-, but this time raised a fresh demand by adding back an amount donated by the petitioner. When the petitioner pointed out that the donated amount had already been added back by him in his return, the respondents uploaded the very first order / intimation under Section 143(1) of the Income Tax Act dated 20th November, 2017 whereby the addition in income on account of donation was deleted, but credit of TDS amount of ₹ 37,100/- was once again denied. Prima facie this....... + More

Bail Application - creation of bogus firms/companies solely for the purpose of fraudlently creating and issuing GST invoices without any sale/purchase and actual movement of goods - HELD THAT:- It is deemed just and proper to grant bail to the petitioner(s) under Section 439 Cr.P.C. - it is directed that petitioner(s) - Gaurav Maheshwari S/o Sampat Lal Maheshwari shall be released on bail in connection with FIR No.146/2018 of Police Station Sardarpura, Jodhpur provided he/she/they execute(s) a personal bond in the sum of ₹ 1,00,000/- and two sureties of ₹ 50,000/- each. This Court is of the view that in the prevailing circumstances of complete lock-down amidst spread of COVID-19, furnishing of two sureties will be difficult on the one hand and the same may pose eminent threat to the concerned. It is, therefore, ordered that....... + More

Profiteering - supply of “Food Processor” - allegation that the benefit of GST at the time of implementation of the GST, is not passed on - contravention of section 171 of CGST Act - levy of penalty - HELD THAT:- It is evident from the details furnished in Annexure-17 & 18 that the profiteering is determined as ₹ 4,53,949/- as per the provisions of Rule 133 (1) of the CGST Rules, 2017. The Respondent is therefore directed to reduce the price of the impugned product as per the provisions of Rule 133 (3) (a) of the CGST Rules, 2017, keeping in view the reduction in the rate of tax so that the benefit is passed on to the recipients. The Respondent is also directed to deposit the profiteered amount of ₹ 4,53,949/- along with the interest to be calculated @ 18% from the date when the above amount was collected by hi....... + More

Provisional attachment of property - petitioner states that in the absence of any notice issued u/s 74 of the Central Goods and Services Tax Act, 2017 (CGST), no order of attachment under Section 83 of the Act, 2017 could have been passed by the respondents - HELD THAT:- This Court is of the view that Rule 159(5) of the Central Goods and Services Tax Rules, 2017 is squarely applicable to the facts of the present case. A Division Bench of High Court of Gujarat in PRANIT HEM DESAI VERSUS ADDITIONAL DIRECTOR GENERAL, DGGI, AZU [2019 (4) TMI 917 - GUJARAT HIGH COURT] has held that considering the fact that the petitioners were diligently prosecuting the proceedings before this court under Article 226 of the Constitution of India against the orders of attachment, if the petitioners file objections under sub-rule (5) of rule 159 of the Centr....... + More

Principles of Natural Justice - validity of assessment order - case of petitioner is that petitioner was not granted time to furnish objections to the show cause notice dated 12.12.2019 - HELD THAT:- A bare perusal of the said show cause notice dated 12.12.2019, made available in the typed set of papers, clearly indicates that the respondent issued the show cause notice on 12.12.2019 and confirmed the said proposal also on the same day, which goes against the very basic principles of natural justice, as the petitioner/assessee was not at all given an opportunity to give their objections. Needless to say that an assessment cannot be made without giving an opportunity of hearing to the assessee. The very show cause notice dated 12.12.2019 in effect, confirming the proposal made therein without hearing the petitioner, cannot be sustained ....... + More

Place of supply - Levy of IGST - manufacture and supply of die to the foreign customer - export or not - location and time of supply - reverse charge mechanism (RCM) for import - HELD THAT:- The applicant manufactures the Die as per the requirement and specifications given by the foreign buyer and using this die applicant manufacture and export the Aluminium and Zinc die Castings to the foreign buyer by retaining the Die with them till the completion of the export order or completion of Die life. However, applicant raised the tax invoice for this die immediately after the manufacture in the name of overseas customer in foreign currency for receipt of payment though the die not physically moved out of India to the place outside India. Hence manufacture and supply of die to the foreign customer does not amounts to export as per section 2(5)....... + More

Government Entity or not - Rate of tax - Works Contract - agreement with National Centre for Biological Sciences for construction of Hostel building at NCBS Campus in Bangalore - N/N. 24/2017 Central Tax (Rate) dated 21-09-2017 - HELD THAT:- On verification of the nature of the activity carried out by the applicant it was observed that applicant is providing works contract service to National Centre for Biological Science (NCBS), and there is no dispute whatsoever that it is a works contract service as per the clause (119) of Section 2 of the Central Goods and Services Tax Act, 2017. Nature of the organisation covering NCBS - HELD THAT:- The NCBS has obtained registration under the GST Act as a Trust with GSTIN 29AAATT3951F1ZC and the Council managing this organisation has three members appointed by the Government of India, one member ....... + More

Applicability of TDS under GST - catering services to educational institutions sponsored by State/ Central / Union territory - Sl. No. 66 of the Notification No.12/ 2017-Central Tax (Rate) dated 28.06.2017 - Circular 65/ 39/ 2018 - HELD THAT:- The agreements for the supply of services are entered between the Heads of the Residential Schools and the applicant and the recipient of service is hence, the Residential Schools. The nature of the contract is verified and found that the successful bidders have to prepare the food in the respective schools only and there is no provision of providing food cooked outside the premises or from one school to another. Hence the applicant has to prepare the food in the school premises and supply it to the students of the school for a monthly consideration. Further, it is seen that the students to whom ....... + More

Grant of Regular Bail - fake firms - offences under Sections 132(1)(B), (C), (D), (F), (I), (L) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- Keeping in view the order passed by the Hon’ble Supreme Court in the case of SANDEEP GOYAL VERSUS UNION OF INDIA [2020 (5) TMI 240 - SC ORDER], it is ordered that in case investigation is not completed in terms of aforesaid order passed by the Hon’ble Supreme Court, i.e., within three months from 17.04.2020, petitioner be released on bail by the trial court, subject to its satisfaction. It is further ordered that in case investigation is completed within three moths from the date of the order passed by the Hon’ble Supreme Court, it would be open for the petitioner to move the trial court for bail. In case, any such application is filed by the petitioner, the same be disposed of by the trial court on merits in accordance with law. Petition disposed off.

Profiteering - purchase of Flat No. EFP 24-0501 in “Emerald Floors Premier’ project - allegation is that the Respondent had not passed on the benefit of Input Tax Credit (ITC) by way of commensurate reduction in the price of the flat - contravention of provisions of section 171 of CGST Act - application forwarded to the DGAP to conduct detailed investigation in to the complaint according to Rule 129 (1) of the CGST Rules, 2017 - HELD THAT:- It is clear from the perusal of Sub-Section 171 (1) that both the benefits of tax reduction and ITC are required to be passed on by the suppliers to the buyers by commensurate reduction in the prices as they are the concessions which have been granted to them from the public exchequer in the interest of the consumers. Sub-Section 171 (2) provides that the Central Government may on the recom....... + More

Classification of goods - kraft paper made honeycomb boards - whether classified under HSN code 48081000 or 48089000? - HELD THAT:- On verification of the structure and purpose for which kraft paper honeycomb board or paper honeycomb board used are similar to the corrugated paper board(listed under 48081000), only difference is that this paper honeycomb board consists of honey comb like structure core material at the centre and on either side of this one or more layer of kraft paper is glued by using adhesive with fluting direction being perpendicular to corrugated boards. Hence this honeycomb paper board classified under the heading 48089000 as other instead 48081000. The kraft paper honeycomb board or paper honeycomb board is classified under the heading 48089000.

Classification of goods - scooter along with retro-fitment - restriction on input tax credit on purchase of vehicle under HSN 8711 at 28% GST - whether the vehicle classified under heading 8713 or 8711? - HELD THAT:- In the instant case, it is an admitted fact that the applicant purchases a vehicle i.e. two-wheeler and also certain additional parts/accessories to retrofit the said vehicle with the said parts/accessories. The word ‘Retrofit’ as a noun is an act of adding a component or accessory to something that did not have it when manufactured. Therefore, the applicant is adding certain components to the two wheeler by retrofitting the same i.e. an attachment is added to the said two wheeler (motor cycles) to enable it to be driven by the disabled person. This does not change the basic feature of the two wheeler. In the inst....... + More

Input Tax Credit - transition to GST regime - HELD THAT:- The issue decided in the case of BRAND EQUITY TREATIES LIMITED, MICROMAX INFORMATICS LTD., DEVELOPER GROUP INDIA PRIVATE LIMITED, RELIANCE ELEKTRIK WORKS VERSUS THE UNION OF INDIA AND ORS. [2020 (5) TMI 171 - DELHI HIGH COURT] where Respondents are directed to either open the online portal so as to enable the Petitioners to file declaration TRAN-1 electronically, or to accept the same manually. Issue Notice.

Furnishing of information - petitioner has impugned the summons 11th May 2020 by the respondent no-3 seeking various information - HELD THAT:- The petitioner shall be directed to furnish all such information. furnished so far, on or before 8th June 2020. The would be at liberty to Visit the office premises of the and to collect all such information, if any, with the assistance of the necessary staff. It is clear that if any such permission is required to Visit the office premises of the from the concerned police station, such permission shall be granted to the petitioner and its staff with such conditions as it deems fit. It is made dear that no further extension of time would be granted to the petitioner to furnish such information. No coercive Steps shall be taken against the petitioner till 10th June 2020 by the respondent no.1 for ....... + More

Constitutional validity of Section 96(2) of the Rajasthan Goods and Service Tax Act, 2017 and Section 96 of the Central Goods and Service Tax Act, 2017 - petitioner has placed reliance on an order dated 03.05.2019 passed by this Court in the case of CHAMBAL FERTILISERS AND CHEMICALS LIMITED VERSUS UNION OF INDIA [2019 (7) TMI 943 - RAJASTHAN HIGH COURT] wherein similar challenge has been raised and while issuing notice by this Court, it is directed that no coercive steps shall be taken against the petitioner - HELD THAT:- The record of the Chambal Fertilisers and Chemicals Limited be called for and tagged to this brief. Issue notice to respondent No.2, returnable on 08.06.2020 - List the matter on 08.06.2020.

Recovery proceedings - Validity of assessment order - present writ petitions filed challenging the impugned demand issued on 10.03.2020 and 13.03.2020, while the writ petitions filed by the very same petitioner challenging the assessment orders, are yet to be heard by this Court - HELD THAT:- Considering the fact that these writ petitions are filed only against the consequential demand notices and considering the apprehension of the petitioner that the respondent will indulge in recovering the dues as per the demand notices immediately, this Court is of the view that the very apprehension of the petitioner is not well founded in view of the statement made by the learned Government Advocate by placing reliance on the above Notification No.35 of 2020 dated 03.04.2020. Petition disposed off.

Refund of GST - It is stated that on the application of the applicant/petitioner for refund, the Assistant Commissioner, GST, Delhi (East) has passed an order dated 19th September, 2019 rejecting the application of the applicant/petitioner for refund - applicant/petitioner states that he is not aware of the said order, of which copy also has not been furnished to him - HELD THAT:- The order dated 19th September, 2019 would not be an impediment to the relief being granted in the writ petition and the hearing of the writ petition is not to await the outcome of the appeal against the order dated 19th September, 2019. It is contended that in the circumstances of this case no appeal against the order 19th September, 2019 is required to be filed - The counsel for the respondent GST is permitted to email the counter affidavit along with annexures to this Court. List the writ petition for hearing on 10th June, 2020.

Profiteering - After-Shave Lotion Park Avenue Good Morning 50 ml - allegation that the benefit of reduction in the rate of tax not passed on by way of commensurate reduction in prices - contravention of provisions of section 171 of CGST Act - penalty - HELD THAT:- It is apparent from the perusal of Sub-Section 171 (1) that both the benefits of tax reduction and ITC are required to be passed on by the suppliers to the customers by commensurate reduction in the prices as they have been granted from the public exchequer to benefit the consumers. Sub-Section 171 (2) provides that the Central Government may on the recommendations of the GST Council constitute an Authority to examine whether the input tax credits availed by any registered person or the reduction in the tax rate have actually resulted in a commensurate reduction in the prices of....... + More

Levy of GST on inward supplies - service supplied by the sub-contracts - landscape development and maintenance of garden work for State and Central Government Departments, all government local bodies (Municipalities and Corporations) etc. and other government undertakings through contract from sub-contracts - recipient of services - challenge to AAR decision - HELD THAT:- In this case, the Appellant who is the recipient of the supply from the sub-contractor is a Co-operative Society and not an entity specified in SI.No 3 and 3A. When this criterion of the Notification is not satisfied, the sub-contractors as suppliers of service, will not be eligible for the exemption under the entries 3 or 3A of the above said Notification. It is the argument of the Appellant that if the exemption is not available to the sub-contractors, then the GST ....... + More

Levy of GST - activity of development and sale of land - Applicability of provision of Rule 31 in ascertaining the value of land and supply of service - challenge to AAR decision - HELD THAT:- In the instant case there are two activities involved, viz: development of land and sale of plots. The transaction relating to the sale of land is not a supply of either goods or service under GST (entry 5 of Schedule III of the CGST Act refers). This activity of sale of land cannot be considered as an 'exempt supply' for the reason that the activity is not at all a supply and hence the question exempting it under Section 11 of the Act does not arise. On the other hand, the activity of development of land is a supply in terms of Section 7 of the CGST Act. A combination of two activities one of which is not a supply under GST cannot be said t....... + More

Scope of Advance Ruling application - Section 97(2) CGST Act 2017 - Availability of FIRC in respect of Export proceeds with respect to services for funds received through service providers - Documents required for export without payment of tax - refund proceedings, due to non-availability of FIRC or any other supporting documents - HELD THAT:- The question sought by the applicant is outside the scope of Section 97 (2) of CGST Act 2017 therefore the application is liable for rejection without going in to the merit of the case under Section 98(2) of CGST Act 2017. Since question sought by the applicant is outside the scope of Section 97(2) of CGST Act 2017 therefore, the application is not admitted.

Jurisdiction - appeal to High Court - appropriate forum - Smuggling - Provisional release of gold jewellery - section 130 of Customs Act - HELD THAT:- An appeal lies, to this Court, under Section 130 of the Act, only on “substantial questions of law”. Dealing with an identical expression, as it occurs in Section 130A of the Act, which provides for reference, to the High Court, against orders of the learned Tribunal, and was the provision in existence, prior to 1st July, 2003, when the provision of appeal was introduced. In M/S. KUSHAL FERTILISERS (P) LTD. VERSUS THE COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, MEERUT [2009 (5) TMI 13 - SUPREME COURT], the Supreme Court held that a finding, by the learned Tribunal, to the effect that, as there was no wilful misstatement or suppression of fact, the extended period for issuance....... + More

Valuation of imported goods - Aluminium Scrap - rejection of declared value - enhancement of declared value - sole reason for enhancement of the value is on the basis of DGOV Guideline vide letter dated 15.11.2018 - Section 128 (1) of Customs Act, 1962 - HELD THAT:- The Assessing Authority reassessed the Bill of Entries by enhancing the value not on the basis of any material evidence which show that the appellant have misdeclared the value even no Contemporaneous Import Data was relied upon. The sole reason for enhancement of the value is on the basis of DGOV Guideline vide letter dated 15.11.2018. Therefore, the Adjudicating Authority has not followed the principle laid down under the Custom Valuation Rules and without application of mind straightway enhanced the value only on the basis of DGOV guildeline - In the present case, no such e....... + More

Classification of imported goods - Petroleum Hydrocarbon Solvent - restricted item or not - whether classified under Chapter Tariff Heading (CTH) 27101990, or under CTH 27101910 as Superior Kerosene Oil (SKO)? - HELD THAT:- It is not in dispute that for a product to be classified under 27101910 as SKO, it has to meet with the specifications in supplementary Note ‘C’ to Chapter 27. From a perusal of the test reports of CRCL Delhi and CRCL Kandla, assuming the same to be correct, notwithstanding the difference in the test results between the two qua the parameter regarding final boiling point. It is seen that out of the 8 parameters on which the sample has to be tested for determining whether or not the same meets with the specifications of Kerosene, it is seen from both the test results that test have not been undertaken wit....... + More

100% EOU - Removal/diversion of imported inputs in contravention of Notifications 53/97 dated 3.6.1997 and 52/2003 dated 31.3.2003 - indigenous inputs procured on the basis of CT-3 certificates and diverted in contravention of Notification No.136/94 dated 10.11.1994 as amended and No.22/2003-CE dated 31.3.2003 as amended - duty chargeable on inputs used exclusively for manufacture of goods sold in DTA - Items imported and traded without any manufacture. - Process amounting to manufacture or not - labeling and repacking of the impugned goods. HELD THAT:- As demonstrated by the learned counsel that the recipient in the case is also an EOU, who are otherwise entitled to procure goods by import or on CE-3 certificates as per the provisions of FTP. We find that the provisions of the FTP and the Customs Notification are required to be read i....... + More

Valuation of imported goods - aluminum scrap namely Taint Tabor, Tread, Tense, Zorba, Talk, Troma, terse, Twitch, Telic, etc. - case of the department is that the appellant have given a consent letter to the proposal of the enhancement of the value from USD 990 PMT as per invoice value to USD 1587 PMT - period August 2018 to May 2019 - HELD THAT:- It is clear that when the enhancement was not based on any contemporaneous import, in the present case, particularly, when the invoice price of the appellant was not disputed on the basis of any evidence of wrong declaration of the value, the enhancement in the present case is illegal and incorrect. In the case of COMMISSIONER OF CUSTOMS, NEW DELHI VERSUS PRABHU DAYAL PREM CHAND [2010 (4) TMI 360 - SUPREME COURT], the value was enhanced on the basis of LME price and assessee was not confronte....... + More

Valuation of imported goods - percentage of enhancement to the transaction value - ‘order of loading’ in the transaction value - Comparable goods or not - HELD THAT:- As the ASD do not import ‘RF products’ as well as the ‘made to order products’, but some products are imported both by the appellant and the ASD, but are not comparable. Such imports constitute a significant part of the total imports made by the appellant. Such imports are in the range of 16 to 51% during the period 2013-14 to 2017-18 or an average of 36% of the total imports made by the appellant. Further, the quantity imported by the appellant is more than 200 times than the quantity imported by the ASD - the ASD placed order for import usually when they have sales order in hand and do not undertake stocking of the products. Whereas the ....... + More

Anti Dumping Duty - condonation of delay in filing appeal - Section 9C (2) of the Customs Tariff Act, 1975 - Notification dated 17 February 2017 - HELD THAT:- The Appeal should have been filed by the Appellant within 90 days from the date of the order i.e. within 90 days from 17 February 2017. The only reason given by the Appellant for not filing the Appeal within the stipulated period is that it was not aware of the addresses of the parties nor documents were made available to them. The request of the Appellant was specifically considered and rejected by the Delhi High Court and this order has attained finality on the dismissal of the Special Leave Petition by the Supreme Court. It is, therefore, not open to the Appellant to again raise the same plea before the Tribunal in the application filed for condoning the delay in filing the appea....... + More

Duty Free Credit Entitlement’ Scheme - validity of Notification no.28 dated 28.01.2004 - third party exports - status holder - petitioner filed application before the respondent, contending therein that out of the total exports of ₹ 1070.35 crores made by the petitioner between 01.04.2003 to 31.03.2004, exports of ₹ 355.69 crores had become ineligible in view of the exclusion set out in Notification dated 28.01.2004, leaving the eligible exports at ₹ 714.66 crores entitled for the benefit of the DFCE Scheme - respondent has rejected the application of the petitioner relying upon the judgment of the Supreme Court and observing that in terms thereof, the petitioner is not eligible to any benefit under DFCE Scheme as claimed. HELD THAT:- The Supreme Court in its judgment dated 27.10.2015 [2015 (11) TMI 80 - SUPREME....... + More

Jurisdiction - proper officer to adjudicate the case - Adjudication of confiscation and penalties - Smuggling - contraband item - Gold - Section 122 of the Customs Act, 1962 - HELD THAT:- A plain reading of Section 122 would indicate that in every case under the said Chapter i.e., Chapter XIV under which anything is liable to be confiscated or any person is liable to be imposed with the penalty has to be adjudicated under Clause (a) of Section 122 of the Act by the Principal Commissioner of Customs or Commissioner of Customs or a Joint Commissioner of Customs without limit. Under Clause (b) the penalty has to be adjudicated by the Assistant Commissioner of Customs or Deputy Commissioner of Customs where the value of goods came to be confiscated does not exceed ₹ 5 Lakhs and under Clause (c) same shall be adjudicated by a Gazetted Of....... + More

Charges demanded by CFSs/ICDs for release of containers - HELD THAT:- As far as the Container Freight Stations (CFSs) and Inland Container Depots (ICDs) in minor ports are concerned, the petitioner, without prejudice to its rights and contentions and subject to the outcome of the present petition, shall be at liberty to have its containers released on payment of such charges as may be demanded by such CFSs/ICDs. As far as the CFSs/ICDs in major ports are concerned, the learned counsel for the respondent no. 1 and 4 submits that the CFSs are bound by its direction dated 23.04.2020 and the respondent no. 1 and 4 are in the process of ensuring compliance of such CFSs with the said direction.

Impleadment of Airport Authority of India [AAI], Air Operator, and Concessionaire - HELD THAT:- The respondents will be at liberty to file a combined counter-affidavit both qua the original writ petition as well as the additional-affidavit, if any, filed by the petitioners. Renotify the matter on 14.05.2020.

Imposition of Redemption Fine and Penalty - non-submission of installation certificate within 6 months and further extension of time not sought from the Customs - violation of conditions of the N/N. 97/2004 - HELD THAT:- Admittedly, in the present case, the appellant has violated the conditions of the notification no.97/2004 dt. 17/09/2004. Further, the imported goods were not installed within 6 months and no application for extension of time was submitted to the Customs as per the condition of the notification. Further, the Commissioner (Appeals) after considering all the submissions of the appellant has come to the conclusion that the appellant has violated the condition of the Notification No.97/2004 and consequently has imposed redemption fine of ₹ 50,000/- and penalty of ₹ 5000/- on the appellant under Section 112(a) of t....... + More

Condonation of delay of 135 days in filing appeal - case of appellant is that delay caused due to applicant being busy in compliance of some Department’s direction and also that the Counsel did not received the notice in time - HELD THAT:- The ground that applicant being busy in compliance of some Department’s direction, is not opined sufficient explanation for the delay as big as of 135 days - There have been findings against the present importer in the decision of M/S. JAISWAL IMPORT CARGO SERVICES LIMITED VERSUS COMMISSIONER OF CUSTOMS [2019 (8) TMI 497 - CESTAT NEW DELHI] as was filed by the applicants, co-noticee. It becomes clear that before the said decision the applicant was not inclined to file the appeal and the present appeal is the outcome due to the said decision - thus the reason is not acceptable for not been th....... + More

Charges demanded by CFSs/ICDs for release of containers - HELD THAT:- As far as the Container Freight Stations (CFSs) and Inland Container Depots (ICDs) in minor ports are concerned, the petitioner, without prejudice to its rights and contentions and subject to the outcome of the present petition, shall be at liberty to have its containers released on payment of such charges as may be demanded by such CFSs/ICDs,. As far as the CFSs/ICDs in major ports are concerned, the learned counsel for the respondent no. 1 and 4 submits that the CFSs are bound by its direction dated 23.04.2020 and the respondent no. 1 and 4 are in the process of ensuring compliance of such CFSs with the said direction.

Issuance of detention certificate - Waiver of demurrage and detention charges - Regulation 6(1)(1) of the Handling of Cargo in Customs Areas Regulations 2009 - Ministry of Shipping Order No.PD- 14033/4/2020-PD VII dated 21.04.2020 and instructions dated 24.04.2020 - HELD THAT:- The petitioner submitted that the petitioner is ready and willing to pay the duty levied by the Customs for release of the goods by making provisional assessment and therefore, the respondent may be directed to consider such request. The respondent shall consider the request of the petitioner for provisional assessment and pass such order, within a period of three weeks from the date of receipt of a copy of this order - petition disposed off.

Impleadment of petition - demurrage charges in accordance with the impugned notification dated 01.04.2020 - HELD THAT:- This application has been filed by the petitioners for impleadment of three further respondents (viz., Secretary, Ministry of Finance, Department of Revenue and Expenditure; the Central Board of Indirect Taxes and Customs and the Chief Commissioner of Customs, Delhi Zone) as respondent nos. 9, 10 and 11 in the present petition. The petitioners claim that the presence of the three respondents is necessary to enable complete adjudication of the disputes raised. List before the roster bench on 01.06.2020.

Application for amendment of petition - petitioner seeks permission to amend the petition so as to include a challenge the notification bearing no. S.O. 1119(E) dated 17.03.2020 issued by the Joint Secretary to the Government of India - COFEPOSA Act - HELD THAT:- Perusal of Section 7 of COFEPOSA shows that the said provision enables the appropriate Government to take action in terms of the said provision in respect of a person against whom a detention order has been made. The pre-requisite for the Government to exercise the power under the said provision is that the proposed detenue has absconded or is concealing himself, as a result whereof the order cannot be executed. Besides, the appropriate Government “should have a reason to believe” that the situation meets the criteria for resorting to Section 7 of the Act. Merely beca....... + More

Amendment in shipping bills - rejection of request made by the Appellant for making amendment in the shipping bills on the ground that the Appellant had failed to provide any documentary evidence, as was required under section 149 of the Customs Act - HELD THAT:- The Commissioner (Appeals) completely failed to distinguish the requirements of paragraph 2 of the notification and paragraph 3 of the notification. The documents which the Commissioner (Appeals) sought from the Appellant are in relation to the requirements of paragraph 3 of the notification and in fact even the information sought in the format is a format contemplated in paragraph 3 of the notification. Paragraph 2 of the notification required a declaration to be made in the shipping bills regarding the intention to claim rebate either under paragraph 2 or paragraph 3 of the not....... + More

Confiscation of imported goods - allegation that goods at the time of import were not bearing MRP/RSP - HELD THAT:- There is no violation by the appellant as the goods have been imported through Nava Sheva which is the notified sea port and further ICD, Garhi Harsaru falls under the jurisdiction of Commissioner of Customs, ICD, Patparganj. The provision of Legal Metrology Act read with the rules thereunder do not prohibit stickering as regards MRP, prior to out of charge given to the customs - Admittedly, such stickering has been done in the facts of the present case. Appeal allowed - decided in favor of appellant.

Waiver of Demurrage Charges levied by ICDs/CFSs/Port/Terminal Operators during lockdown - Permission to traders/members of petitioner/Foundation to lift their material from their respective ports without payment of penal charges - lockdown and pandemic COVID situation - case of petitioner is that petitioner/Foundation is not seeking complete waiver of charges levied by CFS on importers/ traders for handling and clearance of cargo, but is praying for waving off of ground rent penal charges, demurrage, Container Detention Charges etc., especially when they themselves have been exempted from paying Port ground rent charges during the lock down. Whether the guidelines/letters which are only advisory in nature and contain no directions under any statute can bind CFS and direct them not to charge ground rent etc.? HELD THAT:- The advisory....... + More

Jurisdiction of Writ Court - Transfer of shares - case of petitioner is that the 2nd respondent illegally misused the DP share transfer forms and committed fraud, cheating, breach of trust by transferring the share of 4.5% in their name, though the said transfer was directed to be kept in abeyance - HELD THAT:- The Hon'ble Supreme Court of India in the decision in JAI SINGH AND ORS. VERSUS MUNICIPAL CORPORATION OF DELHI AND ANR. AND VICE-VERSA [2010 (9) TMI 1235 - SUPREME COURT] has considered the nature and scope of power under Article 227 of the Constitution of India and held that The Exercise of jurisdiction must be within the well-recognised constraints. It cannot be exercised like a 'bull in a china shop' to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This corrrect....... + More

Fresh re-auction order - reserve price reduced in fresh auction - Company under liquidation - there was no participant in the first round - No cogent reason is reflected from the orders passed by the learned Company Judge in respect of grant of permission relating to reduction in the reserve price and re-auction was held - HELD THAT:- If the Court feels that the price offered in the auction is not the adequate price, the Court can certainly order for re-auction and in the present case, a person i.e. present appellant has offered ₹ 2,80,00,000/- more in the matter, and therefore, fresh auction is inevitable. Another important aspect of the case is that the sale was confirmed on 02.03.2020 in presence of advocate of respondent No.2 with a direction to deposit entire sale consideration within a period of 60 days from the date of the....... + More

Reference of matter for arbitration - Works Contract - Invitation for tender for carrying out the balance work - privity of contract or not - Petition had sent pre-termination notice to respondent no.4, on the ground that respondent no. 4 had committed delay and breaches against the contractual delivery date of 12 months i.e. by 17th January, 2014 the respondent no.4 was not in a position to complete the said works - Micro, Small and Medium Enterprises Development Act, 2006 - HELD THAT:- There is no privity of contract between the petitioner and respondents no. 2 and 3 - In view of various clauses of the contract, there is nothing on record to show that respondent no.4 had taken consent of the petitioner to give sub- contract to respondent no.2, who in turn gave further sub- contract to respondent no.3. Moreover, this Court in order dated....... + More

Suppression of facts - Change in management - the petitioners did not seek any permission from BIFR for any change in the management - increase in authorized share capital - HELD THAT:- It appears that there are disputed questions of facts as stated by both the sides on affidavit. Moreover, it is also not in dispute that BIFR was functional when the interim order was passed by this Court. It appears that the petitioners have suppressed the material facts on record when the interim order was passed by this Court by pointing out that resolution dated 27.11.2015 was contrary to the directions of the BIFR in its order dated 18.2.2009. However, the petitioners did not point out that BIFR had already sanctioned the scheme on 17.7.2013 after taking into consideration the order dated 18.2.2009 and subsequent various orders passed from time to tim....... + More

Change of physical status of land - resume of possession of land - HELD THAT:- This Court is of the view that such a prayer cannot be granted at this stage, when there are no specific facts asserted on affidavit by the applicant as to when and by whom was the applicant informed about alleged construction activities on the subject land and the exact nature of such construction activities. Thus, there is no occasion for directing the Official Liquidator to file an affidavit to demonstrate that the physical condition of the subject land as was in existence in August, 2019 continues to be so on date. Application dismissed.

Principles of Res-Judicata - Maintainability of application - Winding up order - physical condition and status of the lands, over which the applicant claims a right - HELD THAT:- It defies comprehension as to how, in the face of the order, dated 24th April, 2020, and the observations entered, by this Court, in para 7 thereof, the applicant could maintain yet another application, with the very same prayer, without curing the defects/defaults highlighted in para 7 of the said order. There is no question, here, of application of the principle of res judicata. The fact of the matter is that an application containing an identical relief, already stands dismissed, by this Court, on the ground that such prayers could not be urged without, in the first instance, placing specific facts, on affidavit, regarding the alleged construction activitie....... + More

Transfer of shares pending - right to subscribe for rights issue - HELD THAT:- The urgency expressed by the applicants is on account of the rights issue announced by Reliance Industries Ltd (RIL). The applicants claim that certain shares of RIL, which are registered in the name of CRB Capital Markets Limited (CCML) belong to them and their applications for transferring the said shares are pending. They claim that they should also be entitled to subscribe the rights shares of RIL based on their claim to shares of RIL registered in the name of CCML. This Court is not persuaded to accept that the rights entitlement of CCML to subscribe to the shares of RIL ought to be renounced in favour of the applicants. However, it the duty of the Official Liquidator to ensure that maximum value is realised for the assets of the CCML. If the shares of ....... + More

Transfer of shares pending - entitlement to subscribe right shares - HELD THAT:- This Court is not persuaded to accept that the rights entitlement of CCML to subscribe to the shares of RIL ought to be renounced in favour of the applicants. However, it the duty of the Official Liquidator to ensure that maximum value is realised for the assets of the CCML. If the shares of RIL are not subscribed or renounced, the entitlement would lapse and the same would be of no benefit to CCML or the applicants. In the circumstances, this Court considers it apposite to direct that its rights entitlement of CCML to subscribe to RIL’s shares be sold at the maximum value as available. Application disposed off.

Principles of Natural Justice - refusal to transfer the shares - principal grievance of the appellant in this appeal as well as as argued by the counsel for the appellant is, that the Company Judge has erred in disposing of the application of the appellant, without considering the merits thereof and in terms of the order dated 13th May, 2020 in applications of others and to which the appellant was not a party - HELD THAT:- The appellant, after the alleged purchase of shares in 1997 and refusal of transfer thereof to its name soon thereafter, remained quiet for nearly 14 years, till about October, 2011 when CA No.2436/2011 was filed for directions for transfer of the shares to its name and which application was opposed by the counsel for OL and probably owing to which opposition, the then counsel for the appellant deemed it appropriate to ....... + More

Grant of Interim Bail - COVID-19 pandemic situation - main thrust which has been canvassed by learned counsel for the applicants is that due to Covid-19 (Corona Virus) infection, the applicants being diabetic patients have great risk to their lives if they are kept in jail where there are much chances of they being infected by Corona Virus - HELD THAT:- As a result of fraudulent activities, the Company has defaulted against outstanding liabilities of ₹ 3578/- crores approximately to Banks and Public Financial Institutions thereby causing wrongful loss to them and their acts and omission are punishable under section 447 and 448 of the Companies Act, 2013. Learned Assistant Solicitor General appearing on behalf of the respondents through his objection filed has drawn the attention of the Court that the applicants have been arrested fo....... + More

Admiralty Act - action in rem - Is there a conflict between actions in rem filed under the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 and the provisions of Insolvency and Bankruptcy Code, 2016 and if so, how is the conflict to be resolved? - HELD THAT:- An action in rem can be filed and the ship arrested before the moratorium under Section 14 of the IBC comes into force or during the moratorium period or even when the corporate debtor is ordered to be liquidated. A maritime claimant ought to be permitted to enforce his right in rem and obtain an order of arrest of the ship in question. This will enable him to perfect and / or crystallize his maritime lien or maritime claim as available to him under the Admiralty Act. The action in rem will not proceed till the moratorium is in place. This will ensure that the rig....... + More

Bail application - applicant has chosen to file the present bail application under sections 439 Cr.P.C. for immediate release till such time that the pandemic COVID-19 (Corona Virus) is curtailed - main case of applicant is that due to Covid-19 (Corona Virus) infection, the applicants being a sick person has great risk to his life if he is kept in jail where there are much chances of he being infected by said Corona Virus - HELD THAT:- It is apparent that the Committee has resolved to release the under trial prisoners on interim bail, who are facing criminal cases in which the maximum sentence is of 7 years and presently confined in jails, for a period of eight weeks by the competent courts. Thus, the contention of Assistant Solicitor General Sri Gyan Prakash appearing on behalf of the respondent, who vehemently argued that the applicant ....... + More

Striking off of the name of M/s. Mandakini Vacations Pvt. Ltd. (the Company), from the Register of Companies - Appellant contends that in order to recover the taxes on the undisclosed income of the Company & statutory dues and recover the revenue from the transactions of the company, there is a need of restoration of M/s. Mandakini Vacations Pvt. Ltd. in the Register of Companies. HELD THAT:- The Respondent No. 2 Company has also filed an Appeal bearing 340/252/ND/2019 for restoring its name in the Register of ROC. The Respondent No. 1 i.e. ROC has not filed its reply despite several opportunities. However, the representative of RoC present during the proceedings, did not rais any objection. The Income-tax Department is an aggrieved party within the meaning of section 252(1) read with 252(3), as it has to recover taxes payable b....... + More

Enlargement of the petitioner on bail - liabilities of Directors - Siphoning of funds - allegations against the petitioner are that he was one of the promoters and close associate of Srivastava’s and whole time director of RHL between financial year 2011-12 to 2014-15 when funds were deposited with MCD and when the refund from MCD was masqueraded and shown as unsecured loan repayable to Rishi Kumar Srivastava - power of Central Government to investigate into the affairs of a company - petitioner claims that he is not goods heath condition and requires hospitalization during the judicial custody. HELD THAT:- The medical report shows that the susceptibility of the petitioner to COVID 19 due to incarceration is not higher and further the contention of the petitioner that he had lost 13 kgs in the last 3 months is false, rather his w....... + More

Restoration of the name of the Appellant Company in the register maintained by the Registrar of Companies, NCT of Delhi and Haryana - Appellant failed to file its Annual Returns and Financial Statements after the year ending 31.03.2015 - HELD THAT:- The provisions under section 252 of the Companies Act, 2013, pertaining to restoration of the name of the Company provide that, if satisfied that the Company was, at the time of its name being struck off, carrying on business or in operation or otherwise it is just that the name of the company be restored to the Register of Companies, Tribunal may order the name of the Company to be restored to the Register of Companies. The Appellants through their submissions and arguments have been able to satisfy this Bench that it was in operation when its name was struck off by the RoC in its register....... + More

Invocation of Bank Guarantee - petitioner intends to approach the NCLT and seeks an injunction against the IOCL from encashment/invocation of the bank guarantees, forming subject matter of this writ petition, but that, owing to the lockdown, announced by the Central Government, consequent upon the n-COVID-2019 crisis, which is to continue in force till 3rd May, 2020 as of now, he is not in a position to do so - HELD THAT:- Issue notice to the respondents to show cause as to why rule nisi be not issued. Renotify on 10th June, 2020 before the Roster Bench.

Invocation of Bank Guarantee - petitioner unable to approach this Court due to COVID pandemic situation - petitioner only seeks a limited amnesty for his client by way of a restraint against the IOCL, from encashing the aforesaid three bank guarantees, till expiry of one week from lifting of the lockdown, imposed by the Central Government, which is presently in force till 3rd May, 2020 - HELD THAT:- This writ petition is disposed of by granting limited relief, to the petitioner, to the extent that, till the expiry of period of one week from the lifting of the lockdown, imposed by the Central Government, consequent to n-COVID-2019 pandemic, the IOCL shall remain injuncted from encashing/invoking the aforesaid three bank guarantees, i.e. Bank Guarantee No. 0346415BG0000105 dated 9th December, 2015 for an amount of ₹14,73,82,051/- issu....... + More

Oppression and mismanagement - Approval of Resolution Plan - allotment of equity shares to Respondent No.6 - whether the Resolutions passed during Board of Directors meeting of Respondent No. 1, held on 23rd January 2019, authorizing and allotting the impugned allotment of 1,89,000 shares to Respondent No. 6 is in accordance with law or not? - whether the impugned Sale Deed dated 26th September, 2018 is to be oppressive and seriously prejudicial to the interests of the Company? - Whether the Petitioners are entitled for their appointment as Directors. If so, what is the relief the Petitioners are entitled for? HELD THAT:- It is not the case of Petitioners that their original shareholdings have been reduced but by virtue of the impugned allotment of shares to the Respondent No. 6, their percentage of shares in the Company stand reduced ....... + More

Recovery Proceedings - Winding up petitions filed by a creditor during the time - HELD THAT:- Based on such recovery certificate issued by the Debts Recovery Tribunal, the petitioner bank initiated the proceeding before the Recovery Officer. At this point, a creditor of respondent No.2 had filed a winding up petitions under the provisions of the Companies Act in Company Petition No.8/2010. The said proceeding has resulted in the Company Court passing the winding up order. It is in that light the official liquidator is put in charge of the assets and the affairs of the respondent No.2 Company. In order to protect the interest of the workmen and also the other creditors of the respondent No.2 Company, the Official Liquidator raised certain objections in the recovery proceedings in before the Recovery Officer. In the interregnum the petit....... + More

Transfer of leasehold rights - rejection of application on the ground that the alleged transfer is not a bonafide transfer and not entered into in the interest of the company and its creditors - Section 536(2) of the Companies Act, 1956 - According to the Appellants, Lakshmi Narayana Choudhary (deceased) did not have knowledge about the pendency of winding up petition filed against STEPL, at the time of entering into the deed of transfer of leasehold rights dated 30.01.1997 - HELD THAT:- The effect of section 536(2) of the Companies Act is that where a winding up proceeding is by or subject to the supervision of the Court, any disposition of the property of the company which is made after the commencement of the winding-up is void, unless the Court otherwise orders - Under Section 441 (2) of the Companies Act, 1956, a winding up of a comp....... + More

Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute - HELD THAT:- This Court can take judicial notice of the fact that on account of COVID-19 lock down, the Institutions which are playing the adjudicatory role, including this Court, are entertaining fresh matters through E-mail and through Video Conferencing and are passing appropriate orders. This Court directs the 3rd respondent to entertain the appeal along with the application for interlocutory relief, if the papers are otherwise in order through E-mail / other electronic mode and by giving preference, shall take up the interlocutory application at the first instance through Video Conferencing and give a disposal as expeditiously as possible ; and for a period of three weeks from today, the Insolve....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - time limitation - HELD THAT:- The Corporate Debtor has not submitted any document with respect to any communication between the Corporate . Debtor and M/S. Yes Corporation pursuant to the fact that kerosene was delivered in place of aromatic spirit which was allegedly supplied by the Operational Creditor to the Corporate Debtor. It is observed that the Corporate Debtor has not placed on record any prior communication or has raised an issue or dispute with the Operational Creditor with respect to supply of kerosene in place of aromatic spirit to substantiate the argument of per existing dispute between the parties. It is further observed that the invoices raised by the Operational Creditor mention the relevant date and the rate of ....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - whether the Adjudicating Authority was justified in ignoring the time frame prescribed under Section 7 of the ‘I&B Code’ and embarking upon an enquiry to determine whether the applications filed under Section 7 contained false information, when the matters were at the very threshold stage? - HELD THAT:- ‘I&B Code’ inter alia, consolidates and amends the law relating to insolvency resolution of corporate persons in a time bound manner for various objects sought to be achieved by the statute as specified in the preamble. Section 7 of the ‘I&B Code’ deals with initiation of ‘Corporate Insolvency Resolution Process’ by the ‘Financi....... + More

Time Limitation - CIRP process - attachment of property and possession taken over - appellant contended that the Application under Section 7 is barred by limitation, the date of default being 15.10.2013; there is no “Acknowledgment Of Debt” to take benefit under Section 18 of the Limitation Act 1963; the letter dated 20.03.2018 offering OTS is beyond the limitation period of three years - HELD THAT:- The issue of limitation is to be addressed to, keeping in view the ratio laid down by the Hon’ble Supreme Court in B.K. EDUCATIONAL SERVICES PRIVATE LIMITED VERSUS PARAG GUPTA AND ASSOCIATES [2018 (10) TMI 777 - SUPREME COURT] where the Hon’ble Supreme Court has laid down that Limitation Act is applicable to Applications filed under Section 7 and 9 of the Code from the inception of the Code and that Article 137 of the ....... + More

Substitution of the director of the Corporate Debtor - impleadment of interim resolution professional - CIRP Process - pre-existing dispute regarding the deficiency of goods and services - HELD THAT:- Prior to filing the application under section 9 of the Insolvency and Bankruptcy Code, 2016 before the Adjudicating Authority NCLT filed by the Respondent No. l/Operational Creditor has approached the Construction Equipment Rental Forum (CERA), of which only Respondent No. 1/Operational Creditor is a member vide email dated 9-1-2018 at Page 136 of the Paper Book through its official Mr. Mithlesh Kumar for resolving the existing dispute and wherein, it is claimed that the CERA which is only an association arbitrarily vide its e-mail dated 28-2-2018 at Page 264 directed the Appellant to unilateral release/pay an undisclosed, unjustified and ar....... + More

Seeking stay of the CIRP process - Corporate Debtor failed to make repayment of its dues - time limitation - main grievance of the appellant is that the Adjudicating Authority while passing the order on June 13, 2018 in section 7 application had omitted to consider and adjudicate as to whether the said petition was filed within the period of "limitation" - HELD THAT:- A mere glance of the ingredients of the section 61(1) and (2) of the I and B Code indicates that though any person aggrieved of an order of the Adjudicating Authority under this part may prefer an appeal to the National Company Law Appellate Tribunal, this Tribunal is of the earnest opinion that the present appeal preferred by the appellant is per se not maintainable in law because of the established fact that when once a case was admitted under the IBC, the only o....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - time limitation - Whether the order of Decree passed by the Debts Recovery Tribunal-I, Hyderabad on 17th August, 2018 can be taken into consideration to hold that application under Section 7 of the I&B Code is within period of three years as prescribed under Article 137 of Limitation Act, 1963? - HELD THAT:- If the period of limitation is counted from the date of default/ NPA then the period comes to an end in the year 2007. In such a case, the application under Section 7 of the I&B Code is clearly barred by limitation. By filing an application under Section 7 of the I&B Code, a Decree cannot be executed. In such case, it will be covered by Section 65 of the I&B Code, which stipulates that the insolvency resolut....... + More

Maintainability of application - Applicant claiming himself to be the Financial Creditor has claimed to have paid an amount to the Corporate Debtor against the purchase of the land of the Corporate Debtor as earnest money - HELD THAT:- On perusal of the record, it is found that there is no agreement, as such, with regard to the sale and purchase between the Corporate Debtor and Applicant. In support of the contention, the Applicant has annexed E-receipt of transfer of funds as well as few counterfoil showing transfer of the amount in the account of Corporate Debtor viz. Digjam Ltd. Apart from these documents, no other document(s) is/are annexed, where from it can be deduced, that the amounts are paid against the agreement for the sale and purchase of land of Corporate Debtor. It is well settled that the offer and acceptance must be bas....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - time limitation - HELD THAT:- It is noticed that the dispute prior to filing of this application was with respect to 10 pieces of damaged glass and the same has been claimed by the applicant to have been settled between the parties by issuance of credit note dated April 1, 2017 which is signed by authorised signatory of both the parties. It is undisputed that the invoices claimed to be due pertain to the period on or before August 21, 2015 being the date of the last invoice of the bunch of invoices asserted to be unpaid, which should normally have been cleared within 7 days. It has been argued by the operational creditor that the amount claimed are not barred by limitation as a fresh period o....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of default or not - time limitation - only defence taken by the respondent is that the debt being barred by limitation an application under section 7 of the Code could not be maintained - HELD THAT:- In view of the order of the DRT-I the debt became due and payable with effect from August 17, 2018. The present petition was filed on March 25, 2019 within three years of the date of the order. An application under section 7 can be filed within 3 years as provided under article 137 of the Limitation Act - Admittedly the respondent had committed default in payment of the debt. In view of the orders of the DRT-I, Hyderabad the debt became "due and payable" subsequent to August 17, 2018. Therefore, the defence content....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- It is found that the Petitioner Bank has submitted the documents duly executed by the Corporate Debtors and guarantors along with the Statement of Accounts with Certificate under the Banker's Book of Evidence Act, 1891, in support of their IB Petition for initiation of C.I.R.P. - The CD has defaulted in making repayment of credit facilities to the Petitioner Bank and the date of default is 30-5-2015. The statement of accounts as on 7-7-2018 along with the Banker's Book Evidence Certificate annexed with the Petition confirms the amount in default is ₹ 310,21,71,498.38Ps as on 7-7-2018. Further, the CIBIL Reports submitted by the Applicant Bank confirm the existence of....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - Applicability of time limitation - time barred debt or not - Whether Limitation Act is applicable in this matter as the Petition is filed on 29.09.2017? - HELD THAT:- The issue is now well settled in view of B.K. EDUCATIONAL SERVICES PRIVATE LIMITED VERSUS PARAG GUPTA AND ASSOCIATES [2018 (10) TMI 777 - SUPREME COURT], that section 238A of the IBC is applicable from the commencement of the Code i.e. 01.12.2016 irrespective of the fact that this section has been added in the second amendment to the code on 06.06.2018. Hence, if a claim is hit by limitation, the same will not survive in the light of provisions of Limitation Act, 1963 as well as section 238A of the IBC - this Bench is of the Vie....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- Though the purchase orders were placed with amendments from time to time, post inspection of the said machines, the machines were not delivered to the Corporate Debtor. The Corporate Debtor's email dated 5-8-2019 establishes the fact that the Petitioner was informed about the cancellation of the contract and that the order was closed. Hence, there is no debt and default committed by the Corporate Debtor. Application dismissed.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - time limitation - HELD THAT:- A letter was sent on 23-6-2016 to Quickdel informing that as per the account statement as on 31-3-2016, ₹ 50,02,846 is receivable from Quickdel and that on 2-8-2016, confirmation was received that as on 31-3-2016, Quickdel owed an amount of ₹ 42,49,251 to Grey Orange. Relevant email from Ms. Varsha Goel, Accounts Executive of Quickdel and copy of the written communication are stated to be filed at Annexures-E and F of the petition. In the reply, Quickdel has stated that after checking the record, it is submitted that no such letter even signed acknowledged by Grey Orange or its employee as alleged as per the records maintained by Quickdel and the same....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - Operational Debt present or not - Debt due and payable or not - HELD THAT:- It is evident from the copies of invoices that there is no tax invoice paid by way of royalty to the land authorities by the Petitioner which points to the fact that no work was done by the Petitioner. There is nothing on record to show that there has been any compliance to NHAI procedures, royalty payment, approval of source of material in name of either of the parties. Therefore, this Bench has no hesitation in arriving at a conclusion, based on the facts submitted before it, that it is not a fit case of Operational Debt which can be considered u/s. 9 of the IBC. The Bench finds there is no 'Debt due' and payable and therefore, dismisses the Petition filed by the Petitioner. Petition dismissed.

Maintainability of application - applicant/operational creditor is an individual was an employee of the corporate debtor residing at the address given in the cause title - first and foremost objection raised by the corporate debtor is that the applicant has suppressed many material facts and stated many false things to mislead the Adjudicating Authority - pre-Existing dispute or not - HELD THAT:- The corporate debtor had informed the applicant about the issue of delay in the progress of work at site of ONGC and, therefore, ONGC had issued termination notice to the corporate debtor on 9th May, 2017 (page 39).On perusal of the records it is also found that the demand notice issued by the petitioner on 1-9-2018 is replied by the corporate debtor on 15-9-2018 (page 10) whereby the corporate debtor has raised various disputes/objections with r....... + More

Permission to applicant to take possession of fixed assets and all documents avaliable in the office and other premises of the Corporate debtor - mortgage of the property - HELD THAT:- As per Section 65-A(2)(c) of the Transfer of Property Act, 1882 as amended from time to time, no lease shall contain a covenant for 'renewal'. In the lease agreement of the Corporate Debtor, in a related party transaction with Marathe Hospitality, the total rent for a huge Commercial property measuring about 2310 sq. mtr. along with two-storeyed building structure, is only ₹ 25,000 per month with no increase in rental for a period of 10 years. In addition, as per the Lease Agreement, there is a provision for further extension at the sweet will of Lessee. In view of this, the Lease Agreement entered into between Phadnis Resorts and Spa India Li....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute - the contention of the corporate debtor is that the operational creditor has to render services to the Fund Manager and it is the Fund Manager who shall pay to the operational creditor/Asset Advisor - HELD THAT:- It is true that there was agreement between the Fund Manager, viz. Messrs Lighthouse Canton Private Limited and the operational creditor. Messrs Lighthouse Canton Private Limited is the Fund Manager of the Fund. According to the said Advisory Agreement, the operational creditor has to render services to the Fund Manager and fee is also to be paid by the Fund Manager. However, the Advisory Agreement was subsequently amended and as a consequence, Addendum Agreement was entered into between the....... + More

Recall of Order passed by this Tribunal - permission to Petitioner/Operational Creditor to withdraw the said Company Petition - It is contended that in the present application that the Respondent/Corporate Debtor was not aware of the above stated order till 20-12-2019, when the Applicant/IRP made him aware of our order - HELD THAT:- Since, in the present matter, the CoC is not reported to have been constituted till the date of settlement i.e. dated 26-12-2019 arrived at between the Operational Creditor and the Corporate Debtor we, being Adjudicating Authority place reliance on the decision of Hon'ble Supreme Court in the matter of Swiss Ribbons (P.) Ltd. v. Union of India [2019 (1) TMI 1508 - SUPREME COURT] where, their Lordships have pleased to observe that the Petitioner/Operational/Financial Creditor at any stage can withdraw the I....... + More

Admissibility of application - pendency of the arbitration proceedings - appellant ready to pay all dues - HELD THAT:- As per the terms of settlement, both the parties agreed to share the cost and fee of the "interim resolution professional". Learned counsel for the parties state that cost and fee of "interim resolution professional" has already been paid, which is also accepted by learned counsel appearing on behalf of the "interim resolution professional". In the facts and circumstances and in exercise of inherent powers conferred upon this Appellate Tribunal under rule 11 of the National Company Law Appellate Tribunal Rules, 2016, we accept the terms of settlement and set aside the impugned order dated September 3, 2019 and release the "corporate debtor" from rigour of "corporate insolven....... + More

Money Laundering - Release of petitioner on bail - loans to shell companies and related known entities - siphoning of funds - HELD THAT:- It is essential to observe that during the course the hearing of the present proceedings, it was suo moto by this Court brought to the notice of both the learned Senior counsel for the petitioner Mr. Mukul Rohatgi and learned Senior Standing Counsel for the State Mr. Rahul Mehra that in Writ Petition Civil Diary No.10829/2020 vide order dated 07.04.2020, the Hon’ble Supreme Court permitted the petitioner thereof who had challenged the criterion of the Hon’ble High Powered Committee of this Court dated 28.03.2020 putting an embargo to the release on interim bail/ parole of under trials in cases of alleged commission of economic offences and whereby vide order dated 07.04.2020, the Hon’b....... + More

Revocation of pardon - Section 308 of Cr.P.C - HELD THAT:- The application contains detailed allegations, on facts, to highlight that the respondent has misused the pardon, extended to him, and has not made a full and true disclosure of the information known to him, or the documents, over which he has control. Prima facie, it is not necessary to enter into the said details, as the learned trial court has dismissed the application of the petitioner on a preliminary ground, without examining it on merits. Resultantly, a pure question of law, relating to the circumstances in which revocation of pardon, under Section 308 Cr.P.C can be granted, and the conditions precedent therefor, arises for consideration. Issue Notice - List this matter for final disposal on 3rd June, 2020.

Provisional attachment of properties - physical possession of properties - COVID-19 pandemic situation - HELD THAT:- In view of the present circumstances, including the restricted functioning of the judicial authorities and the consequent impediment which may be faced in having the matter heard expeditiously by the Appellate Tribunal, the respondents are directed not to give any further effect to the impugned notices dated 01.04.2020 for a period of fifteen days from today or until the matter is taken up by the Appellate Tribunal, whichever is earlier. In view of the present situation, if it is not possible for the petitioners herein to sign the appeal paper book or the affidavits before the Appellate Tribunal, the same may be considered by the Tribunal on the signatures of learned counsel for the appellants, subject to the appellants making good the defects as soon as practicable, and not later than one week after the lifting of the national lockdown. Petition disposed off.

Bail application - Money Laundering - Scheduled Offences - an amount of ₹ 2.55 Crores was seized/recovered from possession of the co-accused Dhirendra Singh and Sanjay Sethi - HELD THAT:- It is not in dispute that the petitioners have been granted bail by the Coordinate Bench of this Court at Principal Seat, Jodhpur under section 439 Cr.P.C. under the scheduled offences. It is also not in dispute that the petitioners are in custody since 19.02.2020/ 17.03.2020. While dealing with the present bail applications, this court has to see three facts, 1. running away of the accused 2. tempering with the evidence 3. influencing witnesses - the petitioners are entitled to be released on bail for the reasons; firstly the argument of Mr. R.D. Rastogi, ASG that the petitioners failed to appear before the trial court from 21.01.2020 till 17.0....... + More

Commitment of scheduled offences - Uttar Pradesh State Industrial Development Corporation (UPSIDC), Varanasi - It is the contention of the present appellant that it is a State Authority and has been erroneously shown to have committed the scheduled offences - HELD THAT:- On perusal of the impugned order & PAO, it is seen that nowhere there is any allegations made by the ED that the present appellant has committed the scheduled offences or has generated proceeds of crime or laundered any proceeds of crime. In fact, it is admitted in the written reply to the appeal filed by ED that this appellant has been made as a party as it was the lessor of the property over which the defendants no(s) 1 to 3 has rights as lessee and the ED has got no objection if the order of the Adjudicating Authority is modified in relation to the contention of th....... + More

Money Laundering - investment of proceeds of crime - Acquiring of Liquor shops - allegation that the investment represent the process of integration of the proceeds of the crime with the main stream economy - Section 5(1) of the PMLA - It has been submitted on behalf of appellant that there is no material whatsoever on the basis of which the competent authority/adjudicating authority could have reasons to believe that movable and immovable properties purchased by the appellants were derived or obtained from proceeds of crime generated from criminal activity relating to schedule offence - right to appeal. HELD THAT:- The predicate offence and the offence of money-laundering are two distinct and separate set of offences. The offence of money laundering is independent of schedule offences. As per section 24 of PML Act, the burden of proof....... + More

Bail Application - PMLA act - substance of the charge against the petitioner is that he was the person in control and management of one Rose Valley Group of Companies - price of debenture charged as per wishes of petitioner and without permission from statutory authorities - HELD THAT:- This Court is of the view that Section 436A in its application cannot be read de hors its provisos. The object and purpose of the section is to ensure that the person is not detained pending trial for a period that may exceed half of the total punishment prescribed under the Section under which he is charged. Upon exceeding such period, the petitioner is in fact entitled to be granted bail. The right to bail under Section 436A is not absolute. This Court notes that Rose Valley Group of Companies is being prosecuted various other proceedings both civil and criminal - Application dismissed.

Restoration of possession of property - legal question raised by Respondent that this Tribunal is not empowered to restore the possession is not agreed to on the ground that the power of this Tribunal to issue stay order as well as order consequential thereto is inherent - HELD THAT:- The section 35(2)(h) of the PMLA, 2002 has empowered this Tribunal to set aside any order of dismissal of any representation for default or any order passed ex-parte. The restoration of possession in the present case is consequential to the order of restoration of appeal which was dismissed for default. The restoration of possession is an order during the pendency of the appeal and the status of the order of restoration of possession is same as in the case of passing of stay order. The main allegation against the appellant with respect to this property is....... + More

Condonation of delay of 80 days in filing the appeal - Time Limitation - Section 5 of Limitation Act, 1973 - HELD THAT:- It is an admitted case of applicant that initially appeal was filed on 24.12.2019 vide diary No.1621374/2019 and same was returned under objections which is still pending in the Registry. Whereas, in para 5 of the captioned appeal, it is specifically mentioned that no other appeal is filed or pending before this Court or any other Court - Learned counsel for applicant submits that instead of re-filing the appeal filed on 24.12.2019, the applicant/appellant has filed the present appeal by mistake. As per Section 42 of PMLA, 2002, any person, aggrieved by any decision or order of the Appellate Tribunal, may file an appeal before the High Court within 60 days from the date of communication of the decision or order of th....... + More

Fraudulent availment of VAT refund - Validity of Provisional Attachment Order - Money Laundering - proceeds of crime - Adjudicating Authority confirmed the attachment for a period of 90 days during the pendency of investigation or pendency of the proceeding before a court under PMLA - case of appellant is that at the time of expiry of 90 days from the date of confirmation order investigation was pending; property in question was purchased much prior to not only commission of alleged offence but also introduction of PMLA; and there is non-compliance of the requirement of recording of reasons prior to provisional attachment of property. HELD THAT:- Two sets of proceedings are initiated under PMLA after recording of ECIR. In first set of proceedings, initiated by Enforcement Department, property i.e. proceeds of crime are provisionally at....... + More

Restraint on Arbitral Tribunal from proceeding with the arbitral claim made by appellant - liabilities pertaining to prenationalisation period - recovery proceedings - sick company - HELD TAHT:- Since the present examination herein is limited to the aspect relating to forum and when it is seen that the claim initially made by the appellant is against the Shree Sitaram Mills Ltd. and the Respondent No.1 herein is disputing the liability for the same by bringing about a distinction since the takeover was only of Shree Sitaram Mills and not of Shree Sitaram Mills Ltd., an adjudication on that aspect to be made cannot be considered as a dispute as involving only the two public sector establishments as contemplated under the Official Memorandum. Upon consideration of evidence adduced by the parties it has to be determined in that light as t....... + More

Money Laundering - proceeds of crime - allegation that proceeds of crime utilised subsequently by the accused persons for acquisition of various movable/immovable assets so as to project them as "untainted" on continued basis even after 1st June, 2009, which is an offence under Section 3 of PML Act - HELD THAT:- It is undisputed that initially, ECIR was registered with the allegation that the total value involved in the instant offence is more than ₹ 30 lac and due to contravention of provisions under Section 37 of the Act, the proceeding was initiated in terms of the provisions under Section 2y(ii) of the PML Act for the purpose of investigation. It is also undisputed that during the course of investigation, Assistant Director, Directorate of Enforcement wrote a letter to Chief Environment Officer on 13th December, 2013 a....... + More

Provisional attachment of Fixed Deposit - It is the case of the petitioner that the third respondent has not followed the procedure contemplated under proviso to Section 8(1) of the Prevention of Money Laundering Act, 2002 by giving notice to the petitioner bank before passing the final orders confirming the provisional attachment - HELD THAT:- As seen from the first proviso to section 8(1) of the Prevention of Money Laundering Act, 2002, it is clear that before passing final orders of attachment under Section 8(1), a notice shall be sent not only to the offender, but also to a person in whose custody the property of the offender is being held - In the case on hand, the fixed deposit is alleged to have been created by the fourth respondent with the petitioner bank. In fact, a copy of the provisional order of attachment dated 15.03.2012 wa....... + More

Maintainability of appeal - money laundering - an appeal under section 42 of the Prevention of Money Laundering Act, 2002 has been filed by the Central Government and the same has been registered as APO - HELD THAT:- Section 54 of the Foreign Exchange Regulation Act, 1973 and section 35 of the Foreign Exchange Management Act, 1999 are pari materia with section 42 of the 2002 Act, yet, absence of any reference to the 2002 Act in the said Rules is a bit surprising. Absence of a code number for appeals that are carried in terms of or under section 42 of the 2002 Act and presented before this Court has resulted in assigning case code APO to this appeal. This is coupled with the omission in the said Rules to indicate which Bench would have the determination to entertain such an appeal, which has resulted in the aforesaid order of assignment. ....... + More

Grant of Bail - Money Laundering - allegation of illegal schemes to mobilise deposits from the innocent investors including the deposits under the scheme of issue of debentures with false assurance of high return and thereby generated huge sums of money for different purposes by making fool the common people - case of Respondent is that the present petitioner being the Debenture Trustees of the company was responsible for the acts and daily affairs of the company at the relevant time and as per his plan and advice, the company planned such illegal schemes - HELD THAT:- It would appear from the investigation report that the petitioner accused the Debenture Trustee member accused no. 1 was responsible for the acts and affairs of the company and at the relevant time he planned and designed the illegal schemes to mobilise deposits from the in....... + More

Bail application - money laundering - Section 439, read with Section 436A of the Code of Criminal Procedure, 1973 - period of detention of an under trial prisoner - whether any delay has been caused by the said accused person and the offence is not punishable with death? - HELD THAT:- The learned counsel has adverted to the provision of Section 436A of the Code of Criminal Procedure giving emphasis to the proviso clause that the Court may after hearing the public prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties; provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum ....... + More

Provisional attachment of confiscated proceeds of crime - Validity of provisions of Section 8 (4) of the Prevention of Money Laundering Act, 2002 - vires of of Article 14 of the Constitution of India - offence of money laundering - HELD THAT:- The Act was brought in to ensure that proceeds of crime are attached and offenders who participate and assist in the commission of crime do not enjoy the benefits of the property which is relatable to the proceeds of the crime. The Prevention of Money Laundering Act, indicates to make Money Laundering an offence under Section 3 and proceeds for punishment which extends to imprisonment. The Act envisages attachment of all properties involved in the offence of Money Laundering and the proceeds of such crime falls within the scope of the Act. It is well known that perpetrators of crime try to conceal t....... + More

Grant of anticipatory bail - Money Laundering - allegation against the petitioners for being in possession of disproportionate assets to the known sources of his income - Section 45(1) of the PMLA - HELD THAT:- Both the parties have tried to argue the case on merits, which in considered opinion of this Court is not necessary for deciding the bail, lest it may prejudice the case of any of the parties. Evidently, the investigation started in the complaint w.e.f. 18.02.2016. For more than 2½ years, the petitioners were never sought to be arrested, rather they were allowed to join the investigation by means of recording their statements and provisional attachment of their properties was also done. Petitioners could have been arrested under Section 19 of the PMLA, but the same was not done by the respondent- Department - Interim prot....... + More

Preventing the petition from travelling abroad - Look Out Circular (LOC) having been issued against the petitioner - allegation against the petitioner, as a director of a company against which there were certain allegations of default of a loan given by the respondent no. 3 Bank - Prevention of Money Laundering Act - HELD THAT:- A bare perusal of the contract of employment of the petitioner, annexed as annexure P2 at page 29, shows that the outer limit within which the petitioner has to returned in India is 5 months from the commencement of the date of his voyage. As such, in the present case there is little or no scope for the petitioner to remain out of India after the said period - That apart, in the present case, the travels sought by the petitioner are not even for luxury but to maintain his livelihood, since he is a sailor by occupa....... + More

Enlargement of applicant in the event of her arrest - Section 438 of the Code of Criminal Procedure, 1973 - HELD THAT:- It is revealed that the respondent – investigating agency has registered the case against the applicant. In connection with the said case, summons under Section 50 of the PMLA came to be issued to the applicant thrice. It is not in dispute that applicant did not remain present before the investigating agency and thereby not cooperated with the said agency. From the material placed on record, it is further revealed that against the husband of the applicant viz. Sanjay Gupta and others, FIR being C.R.No.I3 of 2015 is registered with CID Crime, Gandhinagar. Thus, in the facts and circumstances of the present case, when the investigating agency has issued the summons under Section 50 of the PMLA to the applicant, a....... + More

Liability of the Company and directors - repayment of the money collected through issuance of Secured Optionally Convertible Debentures - HELD THAT:- WTM relying on the provisions of sub section 2 of Section 73 of the Companies Act has observed that the liability of the Company and directors would remain until the whole of the subscription amount along with interest is refunded to the allottees. This being the position the appellant cannot escape from the liability of the repayment. In the case of Sayanti Sen [2019 (8) TMI 1441 - SECURITIES APPELLATE TRIBUNAL, MUMBAI] this Tribunal has observed that WTM in the impugned order therein had given a categorical finding that one Shri Shib Narayan Das was responsible for the affairs of the company. In the present case the appellant during the relevant period being a promoter director of GIIPL....... + More

Period of limitation to initiate proceedings - proceedings were launched by respondent SEBI after a period seven years - Manipulation of scrips - Shares were either sold in off-market or through market to the connected entities in order to create a volume manipulation in the said scrips - HELD THAT:- Power to initiate the proceedings must be exercised by the authorities within a reasonable time. This would depend upon the facts and circumstances of the case, nature of the default / statute and prejudice caused to the noticee. In the present case, the appellant neither put a plea of prejudice before the AO nor before us. It was simply stated that since the proceedings were launched by respondent SEBI after a period seven years, the same should be quashed on the ground of delay. The record would show that all the documents concerning the....... + More

Public offer of shares - no private placement as per assessee company as per WTM - offer to more than 49 persons - violation of the provisions of the Companies Act - HELD THAT:- Evidence indicates that an invitation was made by the management of the company to selected persons for subscription or purchase by less than fifty persons. Such persons receiving the offer or invitation was not calculated directly or indirectly to be availed of by other persons, and consequently such invitation or offer could not be treated as an offer or invitation to the public. The finding of the WTM on this aspect is absolutely perverse. The reasoning given that merely because three allottees had made the complaints indicates that the offer or invitation falls in the category of one which is calculated to result directly or indirectly in the shares, debent....... + More

Shares acquired without making any public announcement - as per WTM Acquisition of the shares were against Regulation 3(2) of the SAST Regulations - HELD THAT:- Though a presumption that the promoters would be persons acting in concert can be raised the same can be rebutted either by positive evidence or by negative facts discernable through the conduct of the parties. The fact that the appellant Company did not participate in acquisition of additional shares by two of the other appellants, the fact that there is no resolution passed by the present appellant and fact that there is no communication on record from the appellant Company would show that present appellant Company cannot be termed as person acting in concert. The present appeal will have to be allowed. In the present case, what we find is that Appellant Nos.5 and 6 had not d....... + More

Money mobilization - Public issue - Whether the Company came out with the Offer of RPS [Redeemable Preference Share] as stated in the Interim Order? - whether the Offer of RPS is in violation of Section 56, Section 60 and Section 73 of Companies Act, 1956? - HELD THAT:- As neither the company nor the directors have disputed the same. Also perused the documents/information obtained from the 'MCA 21 Portal' and other documents available on records. It is noted, that OIL has issued and allotted RPS to 4,191 investors during the financial years 2011-12 and 2012-13 and raised a total amount of ₹ 5,46,48,000/- - number of allottees and funds mobilized has been collated from the information from Ministry of Corporate Affairs (MCA) Portal and the documents submitted with the complaint received by SEBI. Therefore, it is possible t....... + More

Non-compliance of summons issued by SEBI - whether the appellant has violated provisions of Section 11C(3) of the SEBI Act? - whether clause 43 of the Listing Agreement has been violated by not disclosing to the Stock Exchange the alleged variations between the projected utilization of funds and the actual utilization of funds raised through the preferential allotment? - HELD THAT:- Though the appellant may be charged with non-submission of full information the submission of the appellant that the management of the appellant was new etc. has to be given some weightage while imposing the penalty. Given this and the facts of the matter, we are of the view that the amount of penalty at the rate of ₹ 10 lakh on this violation is on the higher side particularly when the appellant did provide part of the information readily available with....... + More

Private placement of securities - Allotment of Unsecured Fully Convertible Debentures (FCDs) in excess of 500 members - increase in the subscribed capital of the Company - section 71(5) - issuance of FCDs by the Company was public issue OR not? - WTM directed to cancel the FCDs and forthwith refund the money collected till date through the issuance of FCDs including the application money collected from investors,restriction to the number of shareholders to whom the debentures would be issued - appointment of trustees - HELD THAT:- Shareholders in their 68th Annual General Meeting held on 28th September, 2015 passed a special resolution to allot and issue 1,92,900 Fully Convertible Debentures of ₹ 250/- with the condition that the shareholders will have no right to renounce the offer in favour of any person and that these debentures ....... + More

Money mobilization - money collected by the Company for teak plantation scheme was in the nature of Collective Investment Scheme (CIS) as defined in section 11AA of the Securities and Exchange Board of India Act - scheme was being carried on without requisite registration under the SEBI Act - HELD THAT:- In Appeal No. 378 of 2017 were appointed as directors for a limited period between 2008 and 2009. During this period, no amount was collected under the CIS. There is no finding that the amount collected had matured during the period when these appellants were the directors. Consequently, in our opinion, these directors could not be fastened the liability to refund the amount as they had neither collected the money nor were responsible for disbursement of the money to the investors at that stage. Admittedly the said appellants after their ....... + More

Failure to make the necessary disclosures regarding creation/invocation/release of certain pledge transactions and off-market transactions/purchase of shares in the company - contention of the appellants is that Regulation 29 of the SAST Regulations is not applicable and is only applicable to the pledgee - penalty has been imposed for violation of Regulation 29(2) and 29(3) which provides that an acquirer who holds shares or voting rights entitling them to 5% or more of the shares or voting rights in the target company shall disclose every acquisition or disposal of shares representing 2% or more within two working days - HELD THAT:- Whenever a share which is pledge is invoked meaning thereby the shares are sold, the necessary consequence which follows is the reduction in the shareholding of that particular entity. In the instant case, wh....... + More

Violation of Section 6A(4)(b)(iii) of the Insurance Act, 1938 - transfer of shares made without previous approval of the authority and, therefore, such transfer of shares are null and void ab initio - HELD THAT:- Referring to communication of IRDAI vide their letter dated February 4, 2020 and their reply filed before this Tribunal, it is apparently clear that damage control measures have been adopted by Respondent No. 1 subsequent to the impugned orders dated December 4, 2019 and December 27, 2019. The communication/order of IRDAI dated February 4, 2020 has largely diluted its own order dated December 4, 2019 and December 27, 2019. The stand of the Respondent No. 1 as depicted in paragraph No. 21 of their reply makes is apparently clear that prior to any transfer of the shares in question, the authority is required to be in a position to ....... + More

Unregistered Collective Investment Scheme (hereinafter referred to as "CIS") - violation of Section 12 (1B) of the SEBI Act, 1992 and Regulation 3 of the SEBI (Collective Investment Schemes) Regulations, 1999 - fund mobilizing activity of VBDP through the scheme of allotment of land post September 2013 - fraudulent practice in terms of Regulation 4(2)(t) of the SEBI (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 2003 (hereinafter referred to as "PFUTP Regulations, 2003") - Interim order also called upon the Noticees to show cause as to why suitable directions/prohibitions under Sections 11, 11(4), 11B and 11AA of the SEBI Act read with Regulation 65 of the CIS Regulations, 1999 and Regulation 11 of the PFUTP Regulations, 2003, should not be issued/imposed? - HELD THAT:....... + More

Fraudulent and Unfair Trade Practices Relating to Securities Market - Creating artifice/scheme - appellant restrained from dealing in the securities market, directly or indirectly, for a period of five years from the date of the ad-interim ex-parte order - HELD THAT:- An unknown company suspended from trading for long; off-market buying of 1,050 shares of the said company which constitutes more than 2% of its share capital and which is in the name of an unknown person (Kushal Jain) on the recommendation of a person from the native place of the appellant with no prior connection etc. can be treated as only a fiction rather than normal business. Coupled with the finding that the appellant had other transactions off-market with Gromo as given in Table 2 page 13-14 of the impugned order is sufficient evidence to prove the connection between G....... + More

Default in price offered by the acquirers - open offer eligibility - entitlement of all shareholders for receiving interest - offer price made by the acquirers was grossly inadequate as the Target Company GTL had a plot of land worth about ₹ 2000 crore which was not reflected in the said valuation - HELD THAT:- The appellant, instead of emphasizing the relevant facts over-emphasized three valuation reports and the infrequently traded nature of GTL shares in 2018 which has no relevance and sought interest to all shareholders etc. which is untenable. The crux of the matter is simple; whether the price offered by the acquirers and the interest paid thereon to certain shareholders are in consonance with the applicable regulatory provisions and Court orders thereon. Clearly for frequently traded shares Sub Regulation 20(4) is applicab....... + More

Fraudulent and Unfair Trade Practices relating to Securities Market - Dealing illiquid scrip in order to create artificial volume and market price for vested gain - HELD THAT:- Appellant did not furnish the requisite information to the investigation team. Further, no reply was filed by the appellant pursuant to the show cause notice. Inspite of service of the summons, the appellant failed to appear nor filed any reply to defend himself even though ample opportunity of personal hearing was given. Charge levelled against the appellant remained unreburted. Further, we find that the AO considered the material evidence on record and came to a conclusion that the price payable to the stock exchange pursuant to the default committed by the appellant's client in the delivery of shares was not recovered by the appellant from its client lead....... + More

Independent director liability in respect of acts of omission or commission by a company - Fraudulent issue of debentures - HELD THAT:- Decision to issue debentures and consequent allotment was made by the company during the period when the appellant had never attended the Board Meeting. The decision making process done by the company was concluded in the absence of the appellant. The appellant had no say in the decision making process made by company and its directors with regard to the issuance of debentures. Thus, the finding of the WTM in paragraph no. 18.4.2 of the impugned order that the appellant was involved in the decision making process relating to the issuance of debentures is factually incorrect and based on surmises and conjectures. The said finding in the light of the aforesaid cannot be sustained. Admittedly, the appella....... + More

Non disclosure on transfer of shares - exemption by Regulation 10 of SAST Regulation seeked - appellants' reason that all the transfers were between the group i.e. the husband and wife i.e Appellant no.1 and 2 and their private limited Company i.e. Appellant no.3 - HELD THAT:- What is exempted under this regulation is the obligation to make an open offer. The disclosure requirement is not exempted by this Regulation. It is to be noted that while appellant Bharat Patel holds an independent account. So far as another account is concerned appellant Minal Patel is the first holder of the same alongwith Bharat Patel. The next of the account is of appellant PAT Financial Consultants Pvt. Ltd. which is a private limited Company. As per the reply submitted to SEBI, appellant PAT Financial Consultants Ltd had various shareholders like son a....... + More

Liability for action in case of default - RTA [Registrar to the Issue and Transfer Agent he appellant] fails to comply with any conditions subject to which registration has been granted or contravenes any of the provisions of the Act, Rules, Regulations or By laws of the Stock Exchange the said RTA shall be dealt with in the manner provided under Chapter V of the Securities and Exchange Board of India (Intermediaries) Regulations, 2008 ('Intermediaries Regulations of 2008') - HELD THAT:- The impugned order is harsh and unwarranted. We are of the opinion that there was no real urgency in passing an ex parte ad interim restraint order which virtually amounts to passing a final order especially when a detailed enquiry has been ordered. The respondent is empowered to pass an ex-parte interim order only in extreme urgent cases and t....... + More

Shares acquired through off market transaction - non disclosure of such acquisition under Regulation 13(1) of the PIT Regulations, 1992 - HELD THAT:- Appellant is required to be partly allowed. The observation of the Adjudicating Officer that the appellant has violated the Regulations will have to be accepted. However, the monetary penalty would have to be set aside and the appellant deserves to be let off on warning for the reasons to follow:- 1. The appellant has filed on record at Exhibit 'G' page 98 a copy of the order dated 20th October, 2005 of the Bombay High Court in Company Application No.21 of 2005 in Company Petition No.353 of 2003. It would show that one Company namely Solid Carbide Tools Ltd. was already directed to be wound up. In the said proceedings, the appellant had filed the said application claiming to be a ....... + More

Fraud scheme of issuance of GDRs - Pledge Agreement and the announcement that the GDRs were successfully subscribed without disclosing the Pledge Agreement to the investors resulted in misleading information to the public and thereby adversely impacting the investors - violation of Section 12A(a), (b), (c) of SEBI Act, 1992 read with Regulations 3(a), (b), (c), (d) and 4(1) of PFUTP Regulations, 2003 - HELD THAT:- Contention in the order that it is a fraudulent scheme created by the appellants along with some other entities cannot be faulted. In this context, it is relevant to note that in our order in the matter of PAN Asia Advisors Limited [2016 (12) TMI 1202 - SECURITIES APPELLATE TRIBUNAL MUMBAI] (Lead Manager) and Vintage (subscriber) whose beneficial owner was Arun Panchariya were all found to be guilty of the violations of Indian S....... + More

Inordinate delay in initiating the proceedings - Self trades and match trades - unfair trade practices - Regulation 3 and 4 of the PFUTP Regulations - penalty under Section 15HA of the SEBI Act - HELD THAT:- Respondent had investigated the scrips of Shree Global Tradefin Ltd. for the period March 1, 2009 to January 10, 2011 in September 2011. Pursuant thereto, a show cause notice dated April 20, 2012 was issued for the violation found during the investigated period March 1, 2009 to November 30, 2009. The respondents thereafter waited for another five years to issue a second show cause notice dated July 20, 2017 for the investigated period April 1, 2010 to January 10, 2011 which had been investigated in September 2011. We find that the respondents were aware of the alleged violation and thus there is no justification for waiting for more t....... + More

Offence under FERA - Economic Offence cases - failure to realize the respective full export proceeds of the goods within the stipulated period - Transaction in clandestine manner - Whether opportunity notice as contemplated under the proviso to Section 61 (2) (ii) of FERA has been issued to A-1 to A-3? - Whether prior permission as mandated u/s 18 (2) of FERA has been obtained by A-1 to A-3 from the Reserve Bank of India;? - judgment of acquittal recorded by the trial court - HELD THAT:- This Court has no hesitation in holding that even non-issuance of opportunity notice as contemplated u/s 61 (2) (ii) of FERA will not vitiate the case. However, in the case on hand, Ex.P-41, opportunity notice as contemplated u/s 61 (2) (ii) of FERA has been issued to the accused. In such circumstances, the finding of the trial court that no opportunity n....... + More

Organisation of a political nature as barred from receiving foreign contributions - Sections 5 (1) and 5 (4) of the Foreign Contribution (Regulation) Act, 2010 and Rules 3 (i), 3 (v) and 3 (vi) of the Foreign Contribution (Regulation) Rules, 2011 as violative of Articles 14, 19 (1) (a), 19 (1) (c) and 21 of the Constitution of India - Guidelines for declaration of an organisation to be an organisation of a political nature not being a political party are found in Rule 3 of the Rules - principal challenge of the Appellant-organisation to Section 5 (1) of the Act is on the ground that the terms ‘activity, ideology and programme’ are vague and have not been defined in the Act which result in conferring unbridled and unfettered power on the executive. Therefore, the Appellant-organisation contended that Section 5 (1) is violative ....... + More

Violation of provisions of Section 10(6) of the FEMA Act - Responsibility of Authorised person - goods had arrived in India, but the Company failed to submit Bill of Entry and did not take delivery of the goods - goods not released and as such kept in bonded warehouse - defence of the appellant that he could not be made responsible for the stated contravention. For, he became the Managing Director of the Company much later i.e. on 22.10.2001 - HELD THAT:- In the present case, the finding of fact is that the import of goods for which the foreign exchange was procured and remitted was not completed as the Bill of Entry remained to be submitted and the goods were kept in the bonded warehouse and the Company took no steps to clear the same. As a result, Section 10(6) of the FEMA Act is clearly attracted being a case of not using the procured ....... + More

Contravention of FEMA - Investment in three step-down subsidiaries through Wholly Owned Subsidiary (WOS) without the permission of the RBI - Penalty imposed - HELD THAT:- As provided that if any person contravened any provision of this act or contravened any rules, regulation, notification, direction or order issued in exercise of the powers under this Act be liable to penalty upto thrice the sum involved in such contravention where such amount is quantifiable. In the present case the sum involved are quantifiable. During the course of argument the learned counsel for the appellants submitted, on query by the Bench, submitted that more than six crores of INR were invested in the step-down subsidiaries. If it is so the imposition of ₹ 70 lakhs on the appellant company and ₹ 20 lakhs on the Managing Director is not disproport....... + More

Compounding of contravention of [Regulation 7] of FEMA - Procedure for compounding - HELD THAT:- When the information is brought to the notice of the RBI, before remitting the case to the appropriate adjudicating authority under the amended proviso, exercise of taking decision under sub-rule (2), does not get diluted in any manner. It is open for the compounding authority, after considering the objections received from the Enforcement Directorate and affording an opportunity of hearing, to take a decision to remit the case to the appropriate adjudicating authority so that requirement of sub-rule (2) of Rule 8 is complied with fully. In the instant case, merely coming into existence of the proviso will not render requirement of sub-rule (2) of Rule 8 nugatory. The proviso is in addition to sub-rule (2) and has to be read through sub-rul....... + More

Condonation of delay in filing applications for substitution of Legal Heirs (LRs) of the deceased appellant - common application for substitutions of LRs has been filed on 01.11.2018 i.e. around 370 days from the date of death of the deceased appellant - HELD THAT:- There is a huge delay of 370 days in filing the application. It is not the case of the proposed appellants that they are not aware of the pendency of the appeals before Appellate Tribunal, it is also not the case that the proposed LRs were not running the Company or that the Company was closed after the sad demise of deceased appellant for one year. In the present case, there is not only a huge delay but also there is no sufficient explanation as to why there is a delay of 370 days in filing the application. In the present case, there is not only a huge delay but also th....... + More

Offence under FERA - fraud on the banking system - mens rea is an essential ingredient as the FERA proceedings - As alleged officers responsible for conduct of the company were ‘negligent' - non specified SCN - HELD THAT:- Show Cause Notice must necessarily establish that the concerned officer was incharge of, and responsible for conduct of the company and further, spell out the offence committed by such officer. Only certain junior officers have been namedin the SCNs who can under no circumstances be said to be incharge and responsible for the bank or for conduct of its business. Further, onus to prove that a person was responsible for conduct of business of company is on the Department, which it has failed to discharge. In the impugned Orders Mr. Rajgopalan Ramkumar, Mr. Sunil G. Sawant, Mr. R.B. Dhage, Mr. Allwyn Roche, Mr....... + More

Violation of provisions under FCRA, 1976 - foreign contribution received by the respondent-petitioner - HC quashed the FIR - HELD THAT:- The impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 Cr.P.C., the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegtions made by the appellant-C.B.I., and the defence put-forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 Cr.P.C. The assessment made by the High Court at this stage, when the matter has been taken cognizance by the Competent ....... + More

Sh. P. Chidambaram seeks bail - proposal for downstream investment - Petitioner, the then Finance Minister, Sh. P. Chidambaram approved the downstream proposal of INX News on 30.10.2008 - FIR alleging commission against Sh. Karti P. Chidambaram [arraigned as accused No. 3 in the said FIR under Section 120-B read with Section 420 of Indian Penal Code, 1860, Section 8 of the Prevention of Corruption Act, 1988 (hereinafter referred to ‘PC Act’) and Section 13(2) read with Section 13(1)(d) of the PC Act.] HELD THAT:- As petitioner instead of joining the investigation approached this Court seeking anticipatory bail and this Court was pleased to pass an interim order protecting the petitioner from arrest. Pursuant thereto, when the petitioner was called for interrogation under the protective umbrella of a pre-arrest bail reducing....... + More

Canara Bank abetted in the illegal and unauthorized dealing of foreign exchange - penalties against the appellants for the contravention of Sections 6(4), 6(5) r/w Sections 49, 8(1), 9(1)(a) and 9(1)(e) along with Para 10.3 (ii) - HELD THAT:- It is stated that from a conjoint reading of the facts and the definitions that there was neither any commission nor any omission on the part of the Appellant. Cheques issued by BFEA on an account maintained with Canara Bank were presented in the normal course of clearing and these cheques were honoured by Canara Bank. Canara Bank did not know at that point of time that the proceeds of those cheques would be remitted abroad after being credited to a convertible rupee account maintained at the ANZ Grindlays Bank. In any event the Canara Bank had nothing whatsoever to do with the crediting of money ....... + More

Sum acquired/possessed/held/owned outside India with LGT Bank without any General or Special permission of RBI - contravention alleged by invoking presumption under section 39 of FEMA, 99 - presumption of documents. - Penalty enhanced - Power of special director in the absence of appeal from Revenue side - HELD THAT:- It is stated on behalf of appellants that before the Special Director, the Appellants reiterated their contentions, in addition to submitting that the conclusion of guilt against the appellant is based on no material and that the order passed is perfunctory without application of mind and even contrary to show cause notice where the theory of 1/4th of amount was not even alleged, but the Special Director affirmed the order of the Adjudication Authority on his self-innovated and imaginary reasoning, neither based on any evide....... + More

Contravention of Regulation 7 of Foreign Exchange Management (Acquisition and Transfer of Immovable property in India) Regulations, 2000 - Confiscation of 8 flats and five car parking - penalty under section 13(2) of the FEMA Act - HELD THAT:- National of the countries specified under Regulation 7 of the Regulations can acquire or transfer immovable properties in India, provided that such a person obtains the requisite permission from the Reserve Bank of India. If the national so fails to apply for such a permission, the Reserve Bank of India has the power to accord an ex post facto permission with regards to the said transaction. The transaction in question is not a commercial transaction; as a matter of fact the Appellant still resides in the Flats. The Flats were purchased by Indian Rupees, out of monies earned in India on which ....... + More

Purchase of property in India - Individual arrived in India on Business Visa - “Person resident in India” as contemplated under Section 2(v) of the Foreign Exchange Management Act, 1999 - THAT:- Appellants residing in India for more than 182 days in the previous financial year at the time of setting up of business and purchase of property in India. Thus, they satisfied the definition of the term “Person resident in India” as contemplated under Section 2(v) of the Foreign Exchange Management Act, 1999 and therefore there was no impediment to purchase and hold property in India nor did they require any permission from the Reserve Bank of India to purchase immovable property or to set up any business in India. The property was purchased on 01.09.2009 more than a year after they entered India under a valid Visa. It ....... + More

Fastening liability on a director of a company for contravention of the FERA - Offences by companies - ‘Opportunity Notice’ - HELD THAT:- The adjudication proceedings are being pursued by the ED on the basis that each of the present Appellants was at the relevant time, “in charge of”, and “responsible to” NIL for the conduct of its business. There can be no doubt that the above standard for fastening liability on a director of a company for contravention of the FERA, applies to both criminal proceedings that would result following an ‘Opportunity Notice’ as well as the adjudication proceedings that would follow an SCN/MFA issued under Section 51 FERA. The foundational fact that requires to be shown to exist for proceeding against a person under Section 51 of the FERA read with Section 68 ....... + More

CBI investigation for violation of provisions of FCRA - Cancellation of registration under FCRA - diversion of the funds for personal benefit of the office bearers or any other individuals - Constitutional validity of Section 43 of the Foreign Contribution (Regulation) Act, 2010 (‘FCRA’) and Rule 22 of Foreign Contribution (Regulation) Rules, 2011 (FCRR) - whether they are arbitrary, unreasonable, ultra vires and violative of Articles 14 and 21 of the Constitution of India? HELD THAT:- It is equally well settled principle of law that laws are not to be declared unconstitutional on the fanciful theory that power would be exercised in an unrealistic fashion or in a vacuum or on the ground that there is a remote possibility of abuse of power. In fact, it must be presumed, unless the contrary is proved, that administration and ....... + More

Guilty of contravention of the provisions of Section 26(7)(i)(ii) of FERA 1973 - Penalty imposed on directors - dealing between a FERA Company and ‘a Person resident in India’ (which could only be an individual) - arrangement between two bodies corporate - whether amount given by LIL to HLL can neither be treated as a ‘loan’ or ‘deposit’? - HELD THAT:- Scope of “person resident in India”, it cannot be held that the amount given by LIL to HLL in the aforesaid circumstances was not ‘bonafide’ and that the Company did not act under an ‘honest and genuine belief’ that it was permissible to do so. Nor can it be said that the company ‘acted deliberately in defiance of law’ or were ‘guilty of conduct contumacious or dishonest’ or ‘acted in consc....... + More

Classification of services - Business Auxiliary Services or not - renting of immovable property service - refund claim - works contract. Classification of services - Business Auxiliary Service or not - appellants have collected amounts from their clients for payment of statutory charges to Electricity Board, Municipal Corporation, etc., on behalf of the clients - HELD THAT:- In view of the decision of the apex court in case of Intercontinental Consultants and Technocrats Pvt. Ltd. [2018 (3) TMI 357 - SUPREME COURT], no service has been rendered by the appellant to the clients of the appellants in relation to promotion of business or marketing of the goods - demand do not sustain. Renting of Immovable Property services - appellant submit that they have discharged service tax on the same and have produced the proof thereof, before the....... + More

CENVAT Credit - input services - commercial construction services - club membership fee - maintenance charges - Output services provided is of Renting of Immovable Property Services - period June, 2007 to September, 2008. Commercial Construction Services - HELD THAT:- Admittedly, the premises for which commercial construction services were received were let out by the appellant for providing the services of renting of immovable property. These admissions clarify had there been no constructed building there would have been no possibility for any service of being rented out to be provided by the Appellant. Thus, it becomes clear that the services of commercial construction as were received by the appellant for providing the output service have a direct nexus to each other. In fact, in view of above definition such services fall under the....... + More

Benefit under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 rejected - mistake in the entry of penalty in Form SVLDRS-1 by petitioner - whether the claim of the petitioner for the benefit under Scheme 2019 would stand rejected as because of the aforesaid mistake of not mentioning the penalty or a different view can also be taken in the matter? HELD THAT:- Apparently, a mistake made can be of two different types, one being a mistake based upon which a legal right is claimed so that the mistake made can be construed to be an act of misleading the authorities to claim a benefit which otherwise a party is not entitled or the mistake made was more of inadvertent nature, which can also be terms as a callous mistake, which does not put the party making such mistake on an undue advantageous position so as to make them entitled to a be....... + More

Business Auxiliary Service - taxability of profit earned by the appellant on purchase and sale of used cars - incentives and discounts received by the appellants from M/s. Maruti Suzuki India Ltd. (M/s. MSIL) - HELD THAT:- The issue is squarely covered by the decision in the case of COMMISSIONER OF SERVICE TAX, MUMBAI-I VERSUS SAI SERVICE STATION LTD [2013 (10) TMI 1155 - CESTAT MUMBAI] where it was held that commission received from various bank/finances institution for arranging loan to their prospective buyers comes under the business auxiliary service. Incentives and discounts received by the appellants from M/s. Maruti Suzuki India Ltd. (M/s. MSIL) - HELD THAT:- The issue is settled in favour of the appellant’s themselves by this Bench relying on M/S SAI SERVICE STATION LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND ....... + More

Refund of unutilized cenvat credit - carried forward of balance cenvat account to TRAN-1 GST Regime - Section 142 (4) of CGST Act,2017 - HELD THAT:- It is brought out from the facts that though the credit was availed prior to introduction of GST the refund claim was filed by them only on 22.03.2018. The requirement to debit the refund amount as under para 2 (h) of the notification can be applied only when the assessee is required to file ST-3 returns. After introduction of GST, it is not possible for the assessee to file ST-3 returns. It is not required for the appellant to deduct the amount in the ST-3 returns as and when credit is availed. Only if they intend to file refund claim they are required to debit the same - Therefore the contention of Ld. A.R that assessee ought to have debited the amount during the existence of Finance Act, 1994 itself cannot have substance. Appeal allowed - decided in favor of appellant.

Recovery of service tax along with interest and penalty - service tax on commission received on the distributors in multi level marketing system - HELD THAT:- The liability of service tax in multi level marketing system has been considered by this Tribunal in SHRI SURENDRA SINGH RATHORE AND SMT. CHANDA BOHRA VERSUS CCE, JAIPUR [2013 (8) TMI 149 - CESTAT NEW DELHI] where it was held that commission/consideration is provided according to the terms and conditions, for marketing/promotion efforts by the appellants. The receipt of commission by the appellants clearly makes them providers of “Business Auxiliary Service” as defined under Section 65(19) of the Act. Appeal dismissed - decided against appellant.

Classification of services - Intellectual Property Rights or not - payments towards the transfer of technology, design, drawing, technical know-how, intangible assets etc. to the overseas company - period 2004-05 to 2008-09 - Circular 80/2004-ST dated 17/09/2004 - HELD THAT:- On going through the agreement and Board’s circular issued in this regard, it is clear that there is a certain transfer of know-how involved it is not coming from the records of the case that such technical know-how, design, copy right etc have been patented in India in view of the clarification given by the Board unless such technical know-how etc are listed under the law for time being in force in the country and the services cannot be held to be a taxable service. The services received by the appellants from Rolls Royce Turbomeca Limited, U.K. are not in the nature of Intellectual Property Services as defined under Finance Act, 1994 - appeal allowed - decided against Revenue.

100% EOU - Refund of service tax paid - refund claim was rejected by the department on the ground that consequent to allegation of illicit mining of beach sand, the Government of Tamil Nadu vide GO dated 8.8.2013 and 17.9.2013 had banned mining of beach sand miners and also formed District level committee to verify the allegation - HELD THAT:- The ground for rejection is on an allegation that the appellant has done unlawful mining of raw sand and other minerals in excess of the permission granted to them. This aspect has to be looked into by the Govt. of Tamil Nadu as well as the committee formed for this purpose. The provisions of Mines and Minerals Act of the State has to look into the legal consequences of unlawful mining. When the appellant has exported the goods paying service tax on the services availed for exporting the goods, t....... + More

Refund of the CENVAT Credit - time limitation as provided in section 11B of CEA - part of the refund rejected on the ground that the claims were filed beyond the period of limitation specified in Section 11B - relevant date is the date of realisation of foreign exchange or not - HELD THAT:- There is no case in which Section 11B mandates that the date of invoice must be considered as the relevant date. The residual category under section11B is the date of payment of duty. In this case there is no payment of duty at all. If this residual category is considered, the relevant date will never begin. If the department’s argument has to be accepted, the refund can be claimed at any time. In order to avoid such absurd conclusions, the Tribunal has considered as to what constitutes an export of service under the Export of Service Rules and c....... + More

Non-payment of service tax - non-filing of ST-3 Returns - services to ZEC as a sub-contractor - period of dispute is from 1 April, 2007 upto 30 June, 2013 - recovery alongwith interest and penalty - extended period of limitation - whether the Appellant had submitted a reply to the Show Cause Notice? - HELD THAT:- The impugned order is dated 24 July, 2014. It appears that the reply submitted in the office could not be placed before the Commissioner at the time the order was passed. The matter on merits as to whether a sub contractor is liable to pay service tax on the activity undertaken by a sub-contractor in pursuance of a contract has been decided by a Larger Bench of the Tribunal in COMMISSIONER OF SERVICE TAX VERSUS MELANGE DEVELOPERS PVT. LTD. [2019 (6) TMI 518 - CESTAT NEW DELHI] in favour of the Department. Invocation of Exte....... + More

Refund of unutilised Cenvat credit - Input services - cleaning-Pest Control Service - Air Travel Agent Service - Car Parking Service etc. - Group Insurance Service - Hotel Services - General Insurance Service - Banking and other Financial Services - Interior Decorator Service - Business support service - Event Management Service. Cleaning services-pest control services - HELD THAT:- Pest Control Service have been availed for making the premises of the appellant pest free. The appellant has availed Pest Control Services in the nature of Cleaning Services - Credit allowed. Air Travel Agent services - denial on the ground that there is no evidence to establish that the services were availed by the employees in discharge of their office duty - HELD THAT:- The employees have travelled in connection with the discharge of their office duty....... + More

Refund of service tax - retrospective exemption - Period of limitation of 6 months - amount which was collected by the service provider SIPCOT (State Industries Promotion Corporation of Tamil Nadu Ltd., A Govt. of Tamil nadu Undertaking) on development charges - Department was of the view that the refund claimed ought to have been filed within six months from the date on which Section 104 of Finance Act, 2017 was introduced and received assent of the President - HELD THAT:- The issue decided in the case of M/S. TEKNOMEC VERSUS COMMISSIONER OF GST &CENTRAL EXCISE, CHENNAI [2019 (7) TMI 1416 - CESTAT CHENNAI] where it was held that rejection of refund claim on the ground of time bar is unjustified - rejection of refund set aside - appeal allowed - decided in favor of appellant.

Deduction of service tax from the amount payment (consideration) as per the contract terms - scope of the terms of agreement - services of lifting/collecting of municipal solid waste/garbage/malba/drain silt etc. and dumping the same to nearby designated site - appellant claims that consideration payable gets reduced on the ground that the petitioner was liable to pay service tax under the contract but was exempted - HELD THAT:- The agreed rate was of ₹ 1934/- per day per vehicle for eight hours of working. The rate was all inclusive including service tax, labour cess, accident claims etc. Escalation on the awarded rate was allowed in case of increase /decrease in fuel and minimum wages as stipulated only - The important thing that follows is that the aforesaid rate is all inclusive. It is subject to increase/decrease only in case o....... + More

Refund of CENVAT Credit - time limitation - Rule 5 of CENVAT Credit Rules, 2004 - period prior to and from 01.04.2012 - applicability of time prescribed under Section 11B of the Central Excise Act, 1944 - pivotal issue which arises for consideration would relate to refund claims made by the respective appellants under the CENVAT Credit Rules, 2004, post 31.03.2012 and for the earlier period also. Hence, Rule 5 of the CENVAT Credit Rules, 2004 which was in force up to 31.03.2012 and the Rules made from 01.04.2012 - HELD THAT:- Where any input for input service is used in the manufacture of final product which is cleared for export under Bond or letter of undertaking, the Cenvat credit in respect of the same, so used shall be allowed to be utilized by the manufacturer or provider of output service so used and shall allowed to be utilized by....... + More

Club or Association Service - principles of mutuality - services provided by a club to its members - HELD THAT:- The entire case papers as well as the judgment rendered by the Apex Court in the case of STATE OF WEST BENGAL & ORS. VERSUS CALCUTTA CLUB LIMITED AND CHIEF COMMISSIONER OF CENTRAL EXCISE AND SERVICE & ORS. VERSUS M/S. RANCHI CLUB LTD. [2019 (10) TMI 160 - SUPREME COURT], we have no hesitation to arrive at the conclusion that questions of law raised in these appeals is an issue, which is no more res integra in the light of finding recorded by the Apex Court which held that In the light of the authoritative pronouncement of Hon’ble Apex Court in Calcutta Club Ltd. holding that the companies and co-operative societies which are registered under the respective Acts can be said to be constituted under those Acts an....... + More

Refund of service tax paid - Club or Association Service - period from January, 2013 to July, 2014 - HELD THAT:- Relying on the Hon’ble Supreme Court’s ruling in STATE OF WEST BENGAL & ORS. VERSUS CALCUTTA CLUB LIMITED AND CHIEF COMMISSIONER OF CENTRAL EXCISE AND SERVICE & ORS. VERSUS M/S. RANCHI CLUB LTD. [2019 (10) TMI 160 - SUPREME COURT], it is held that there was no difference in the provisions of service tax levy in respect of Club and Association Service for the period prior to 01.07.2012 and subsequent to 01.07.2012. Therefore, the appellant are entitled for the said claim of refund. Appeal allowed - decided in favor of appellant.

Commercial or Industrial Construction Service - wrong availment of benefit of Notification No. 1/2006-ST dated 01.03.2006 - recovery of short paid duty alongwith interest and penalty - period from April 2006 to March 2008 - HELD THAT:- The Commissioner has not discussed the individual contracts, the copies of which now submitted by the Ld. Advocate, in confirming the demand against the appellant. Therefore, in the interest of justice, it is prudent to remand the matter to the adjudicating authority to analyse each and every contract under which Commercial or Industrial Construction Service has been rendered during the relevant period and the admissibility of the quantum of abatement under Notification No. 1/2006-ST dated 01.03.2006. Appeal allowed by way of remand.

Imposition of penalty u/s 78 - short paid service tax alongwith interest paid on being pointed out - malafide intent or not - HELD THAT:- The substantial amount of service tax was paid on being so pointed out by the audit along with interest. Further, it is recorded in the impugned order that the balance short fall of ₹ 52,429/- was also paid by challan dated 28 February, 2013. That is on before the date of passing of the order in original. Accordingly, under the facts and circumstances, no case of deliberate default is made out against the appellant - The appellant have given a cogent explanation for the tax short paid, that they were not having competent staff and as such some errors occurred, it was not deliberate. Such explanation have not found to be untrue. Penalty u/s 78 is set aside - appeal allowed - decided in favor of appellant.

Classification of services - Commercial or Industrial Construction Services or not - contracts awarded by the Greater Noida Development Authority are basically for the general public and for non-commercial purposes - HELD THAT:- It is seen that various activities of the appellant were required to be considered separately based upon the contracts. Further, many of the issues stand decided by the precedent decision of the Tribunal. As each and every contract is required to be examined separately, it is deemed fit to set aside the impugned order and remand the matter to Original Adjudicating Authority for fresh examination in the light of the precedent decisions of the Tribunal. Appeal allowed by way of remand.

Levy of Service Tax - Commercial or Industrial Construction Service - composite works contract - period during August 2005 - HELD THAT:- The works executed by the appellant is composite in nature involving both supply of goods as well as rendering of service. The department has agreed that the appellant’s activity is covered by Works Contract Service for the period subsequent to 1.6.2007. The Hon’ble Supreme Court in the case of Commissioner of Central Excise & Customs, Kerala Vs Larsen & Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT] has held that activities which gets covered under Works Contracts Service w.e.f. 1.6.2007 cannot be classified under any other service for the period prior to 1.6.2007 - Ratio of the said judgment is squarely applicable in the present case. Appeal allowed - decided in favor of appellant.

CENVAT Credit - input services - Management Consultancy Services - Security Services - allegation that the invoices did not carry either serial number or service tax registration number - wrongful transfer of credit - lack of nexus on input services - Medi-claim, Vehicle Insurance, Canteen Exp., CHA Bills, Guest House, Vehicle Hire Charges, Membership Charges, Residential Premise - credit on ISD invoices issued by appellant’s Mumbai and Ahmedabad branch for services received by the said units prior to their registration - common input services for both exempted and dutiable clearances. Demand of ₹ 3,30,189/- cenvat credit - Allegation that invoices issued in respect of ‘Management Consultancy Services’ and ‘Security Services’ have been wrongly availed as invoices for the same did not carry either ser....... + More

Refund of amount/duty paid during investigation alongwith interest - amount was paid under protest - section 11B of Central Excise Act, 1944 - period of closure of the factory as the respondent was engaged in manufacturing and packing of Jarda Scented Tobacco - HELD THAT:- There are no merit in the observation of the ld. Commissioner (Appeals) in allowing the rejected amount of ₹ 29,81,483/- when the respondent himself withdrew the refund claim in absence of documentary evidence of payment of duty for the period from July, 2015 to January, 2016. Since, the said amount was withdrawn by the respondent the adjudicating authority has no occasion to examine its admissibility and record a finding in this regard. The Commissioner (Appeals) finding that the respondent would have paid the duty during the closure of the factory is based on ex....... + More

Lapse of CENVAT Credit - exemption Notification No. 30/2004-CE dated 09.07.2004 w.e.f. 1st April, 2016 - HELD THAT:- On the plain reading of the above Rule 11 (3) (i) (ii), it is clear that as per sub-clause (2), the credit shall be lapsed only if the exemption under the Notification is absolute that means in case of conditional Notification the provision of lapsing of credit will not apply. In the case of PATODIA FILAMENTS PVT LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE & ST, DAMAN [2019 (8) TMI 201 - CESTAT AHMEDABAD] where it was held that In the present case all the conditions enumerated under sub rule 3 (i) has been followed by the Appellant and he is not required to reverse the entire credit lying in balance on the date of opting notification No. 30/2004–CE dated 09.07.2004. Therefore, the balance credit is not liabl....... + More

Adjudication on the SCNs issued against him - issuance of OIO was not clearly and cogently explained by the Respondent - HELD THAT:- The Commission at the outset observed that the CPIO/ FAA did not provide a satisfactory response to the Appellant. The provisions of the RTI Act, 2005 and various judgments on the subject matter clearly establish that it is the duty of the CPIO to provide clear, cogent and precise response to the information seekers. Section 7 (8) (i) of the RTI Act, 2005 also states that where a request for disclosure of information is rejected, the CPIO shall communicate the reasons for such rejection. The Hon’ble Delhi High Court in the matter of [J P Aggarwal v. Union of India (WP (C) no. 7232/2009 2011 (8) TMI 1333 - DELHI HIGH COURT ] clearly stated that the PIO acts as the Pivot for enforcing the implementati....... + More

Maintainability of appeal - Sab-ka-viswas (legacy dispute resolution scheme) 2019 - HELD THAT:- The appeal is dismissed for non-prosecution - If the appellant has indeed not applied for SVLDRS and also wishes to pursue it, they may file an application for restoration of appeal.

CENVAT credit - re-credit taken aver reversal - capital goods used for Job work under N/N. 214/86 - HELD THAT:- Issue decided in appellant own case M/S. VIKRANT EXTRUSIONS VERSUS COMMISSIONER OF CENTRAL EXCISE & ST, DAMAN [2019 (6) TMI 1491 - CESTAT CHENNAI] where it was held that the assessee is entitled to take note of as per Rule 6(5) of the Cenvat Credit Rules, 2004, as there is no dispute of the fact that a sum of ₹ 3,21,308/- available as Cenvat credit was in respect of input services, which are given under Rule 6(5) of the Cenvat Credit Rules, 2004. There is no need of filing of refund claim and in such circumstances the appellant could avail the Cenvat Credit which was voluntarily reversed. Appeal allowed - decided in favor of appellant.

Denial of CENVAT Credit - input services - GTA Services - period March 2005 to January 2006 - HELD THAT:- The impugned order has once again raised the same demand which has already been settled in favour of the assessee. The only proper course would have been to challenge the same further rather than knocking at the back door, which is not permissible. Demand set aside - appeal allowed - decided in favor of appellant.

Maintainability of appeal - appropriate forum - applicability of notification No.13/2008-CE dated 01.03.2008 amending the notification No.108/95-CE dated 28.05.1995 - Section 35G or 35L of the Central Excise Act? - HELD THAT:- A conjoint reading of Section 35G and 35L, it could be seen that an appeal would lie to this Court against every order passed in an appeal by the appellate tribunal, if the case involves a substantial question of law. However, exception to this general rule is that an appeal would lie before the Hon’ble Apex Court and not before this Court against an order relating, amongst other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment. The aforesaid authoritative principles by the Hon’ble Apex Court in the ca....... + More

CENVAT Credit - input services - Garden maintenance - housekeeping within the factory premises - HELD THAT:- The issue regarding admissibility of CENVAT Credit in respect of garden maintenance is squarely covered by the decision of Tribunal in the case of M/S NHAVA SHEVA INTERNATIONAL CONTAINER TERMINAL PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIGAD [2017 (4) TMI 805 - CESTAT MUMBAI] where it was held that It is apparent that credit for the sewage treatment plant and for the garden maintenance cannot be denied as the same are statutory requirement for operating the Port - credit allowed. House Keeping - HELD THAT:- The consent obtained from the Pollution Control Committee by the appellant is subject to the condition that the appellant shall maintain good housekeeping in the factory premises. Thus, maintenance of good housekeep....... + More

Valuation - manufacture and clearance of physician samples - sale on principal to principal basis - applicability of Rule 4 of the Central Excise Valuation Rules, 2004 or Section 4(1)(a) of the Central Excise Act, 1944 - HELD THAT:- This Tribunal following the ratio laid down by Hon’ble Supreme Court in COMMR. OF CENTRAL EXCISE & CUSTOMS, SURAT VERSUS M/S SUN PHARMACEUTICALS INDS. LTD. & ORS. [2015 (12) TMI 670 - SUPREME COURT], observed in the case of M/S MEDISPRAY LABORATORIES PVT. LTD., M/S MEDITAB SPECIALITIES PVT. LTD., AND M/S OKASA PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, GOA [2017 (2) TMI 309 - CESTAT MUMBAI] where it was held that the physician samples manufactured and sold by Okasa Pvt. Ltd. to their principal, the transaction is on principal to principal basis. Therefore, whatever goods were sold by the appellant to their principal is correct transaction value in terms of Section 4. Appeal allowed - decided in favor of appellant.

CENVAT Credit - capital goods or not - structural items used for supporting the capital goods - HELD THAT:- From the definition of capital goods, it is clear that anything which can be called as component spare and accessory of the goods falling under Chapters 82, 84, 85 and 90 of the Excise Tariff Act shall also be called as capital goods - In the present case, it is the submission of the appellant that the MS Structure is neither fabricated nor has been erected post fabrication by the appellant, but it has been purchased from the manufacturer of the boiler, the capital good itself. The said broilers are used in manufacture of appellant's final product. It is emphasized that the boiler manufacturer himself is selling the structure, it being utmost necessary for the said boiler to be put to use. The invoices as emphasized by the ap....... + More

Monetary amount involved in the appeal - prosecution of appeal - Circular bearing No.F.No390/Misc/163/2010-JC dated 17.08.2011 - whether such appeal filed by the revenue against order dated 08.08.2018, which involved the tax component of ₹ 1,81,754/- could not have been prosecuted or not? HELD THAT:- By Circular dated 17th August 2011 referred herein, monetary limit fixed for the Appellate Tribunal to adjudicate the appeal had been restricted to ₹ 5 lac and above. The said monetary limit came to be enhanced upto ₹ 10 lac by Circular dated 17th December 2015. The Central Board of Excise & Customs by its extent Instruction F.No.390/Misc./163/2010-JC dated 1st January 2016 has clarified that Circular dated 17th December 2015, whereunder monetary limits for Appellate Tribunal, High Courts and Supreme Court entertainin....... + More

Classification - Clearance of 2nd lamp with the set of "Solar Power Generating System" or "Solar Photovoltaic Lantern" to M/s Aura Solar Products Pvt Ltd - Benefit of Exemption - Notification No 6/2002-CE - recovery of Central Excise duty with interest and penalty - HELD THAT:- The manner in which the goods were being cleared by the appellant was in a package comprising of two lanterns along with a solar photovoltaic panel. SPV Panel having capacity and provisions to charge both the lanterns simultaneously. The packaging and the manner of marketing the product also suggest that both the lamps in the package are marketed as solar lanterns. It is an admitted fact and a fact not in dispute that appellants do not sell the single lantern individually or separately. That being so revenue has no jurisdiction to vivisect the p....... + More

Valuation - inclusion of amount of sales tax paid by the appellant in the form of VAT 37B Challan in the assessable value - HELD THAT:- The matter is already been decided by this Tribunal in case of SHREE CEMENT LTD. SHREE JAIPUR CEMENT LTD. VERSUS CCE, ALWAR [2018 (1) TMI 915 - CESTAT NEW DELHI] where it was held that there is no justification for inclusion in the assessable value, the VAT amounts paid by the assessee using VAT 37B Challans. Appeal dismissed - decided against Revenue.

Refund of CENVAT Credit - while entertaining the refund claim of the appellant, various adjustments were required to be done against various demand and rebate claim filed by the appellant - HELD THAT:- While entertaining the refund claim, the adjudicating authority has observed that refund claim of ₹ 4,97,809/- has been withdrawn by the appellant being inadmissible. But, no finding has been given by the adjudicating authority, how this calculation has been arrived at. In view of this, the adjudicating authority is required to provide the details of admissible refund claim sought by the appellant of ₹ 4,97,809/-. Therefore, the impugned order qua rejecting the refund claim of ₹ 4,97,809/- on the ground that the same is not admissible and withdrawn is set aside and the matter is remanded back to the Adjudicating Authority........ + More

Supply of bus chassis to Delhi Metro Railway Corporation (DMRC) - benefit of N/N. 6/2006-CE dated 01.03.2006 - HELD THAT:- The Hon’ble High Court in M/S. AZAD COACH PVT. LTD. VERSUS DELHI METRO RAIL CORPORATION LTD. & ANR [2019 (4) TMI 1863 - DELHI HIGH COURT] and Supreme Court in M/S. AZAD COACH PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE JAIPUR [2019 (12) TMI 1303 - SC ORDER] have directed that as the matter relating to valuation for the levy of duty on such bus supplied to the appellant by Tata Motors and finally to DMRC through Tata Motors, the appellant is also entitled for similar exemption under Notification No. 6/2006. Accordingly, the Hon’ble High Court read with order of Hon’ble Supreme Court referred to in above have directed this Tribunal for re-quantification of the value of duty payable in the light....... + More

Remand of the case - Coordinate Bench of this Court [in which Dr.Vineet Kothari, J. was one of the Member] in the case of THE COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, COIMBATORE. VERSUS PRICOL LIMITED, CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, SOUTH ZONAL BENCH CHENNAI [2019 (8) TMI 759 - MADRAS HIGH COURT] had also upheld the remand of the matter to the Tribunal - HELD THAT:- Since the matter already stands remanded back to the First Appellate Authority by the order of the learned Tribunal, we are not inclined to make any observations on the merits of the case and the parties are directed to raise their rival contentions before the First Appellate Authority - the First Appellate Authority will decide the case in accordance with law - Appeal disposed off.

CENVAT Credit - capital goods - cement, rebar coils, TMT bars and MS rebar utilized in foundation of machinery, machinery foundation, recovery foundation, ESP foundation, storage tanks etc. - HELD THAT:- So far storage tank is concerned, this is a specific item of capital goods mentioned in Rule 2 (a)(A)(vii) of CENVAT Credit Rules, 2004. Other items of iron and steel - HELD THAT:- These items are admittedly utilized in the foundation and erection of machinery, the issue stands settled in favour of the appellant by ruling of Hon’ble Madras High Court in the case of M/S. INDIA CEMENTS LTD. VERSUS THE CUSTOM, EXCISE AND SERVICE TAX & THE COMMISSIONER OF CENTRAL EXCISE, [2015 (3) TMI 661 - MADRAS HIGH COURT] and also by the Hon’ble Gujarat High Court in the case of MUNDRA PORTS AND SPECIAL ECONOMIC ZONE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE & CUSTOMS [2015 (5) TMI 663 - GUJARAT HIGH COURT]. Appeal allowed - decided in favor of appellant.

Refund of excess duty paid for the month of April, 2012 - compounded levy scheme - HELD THAT:- Through the order of the Adjudicating Authority dated 01.04.2019 and entertaining various refund claims of the appellant but have no whisper of any word about the refund claim for the month of April, 2012 wherein refund claim of excess duty of ₹ 9,50,000/-, Machine No. 2 was sealed for the period 16.04.2012 to 30.04.2012, which shows the negligence on the part of the Adjudicating Authority for not entertaining the refund claim despite the direction of the Tribunal vide order dated 10.10.2017. The Adjudicating Authority is directed to entertain the refund claim for the month of April, 2012 within a period of seven days from the receipt of this order and pass the order in accordance with law, if it is held that the appellant is entitled for the refund of excess duty, the same shall be paid alongwith interest - Appeal disposed off.

Excisability/dutiability/marketibility - by-product - captive consumption - Carbon dioxide generated during the process of fermentation of beer, and used inhouse for carbonation of beer - HELD THAT:- The issue herein is squarely covered by the precedent decision of Division Bench of this Tribunal in the appellant’s own case COMMISSIONER OF CENTRAL EXCISE-LUDHIANA VERSUS M/S UNITED BREWERIES LTD. [2015 (6) TMI 262 - CESTAT NEW DELHI] where it was held that just because, the respondent were purchasing carbondioxide from other suppliers, it cannot be presumed that the carbondioxide generated in their unit was of the same character and properties as the gas being purchased from outside and hence, would be marketable. Appeal allowed - decided in favor of appellant.

Levy of VAT - Renting of space - Transfer of Right to use - petitioner is a provider of Passive Infrastructure service for the Mobile Telecommunication Operators (MTO) - whether within the scope of VAT or not - Section 4 of the TNVAT Act, 2006 - scope of the extended definition of sale in Section 2(33)(iv) under the said Act - HELD THAT:- As per the said definition, transfer of right to use “any goods” for any purpose for cash, deferred payment or other valuable consideration is a sale. As per the decision of the Hon’ble Supreme Court in BHARAT SANCHAR NIGAM LTD. (BSNL) VERSUS UNION OF INDIA [2006 (3) TMI 1 - SUPREME COURT], such transfer should be to the exclusion of the owner and others and exclusively in favour of the person in whose favour such transfer of right to use is made. From the facts that has been disclos....... + More

Recovery of VAT - supply of petroleum crude - TNVAT Act - It is the case of the respective petitioners that the exploration and supply of petroleum crude oil has taken place outside the State of Tamil Nadu and in the Exclusive Economic Zone of India as defined in the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 and therefore no VAT can be levied - HELD THAT:- Petroleum products are liable to pay tax under Entry 41, Part B to the 1st Schedule being declared goods within the meaning of Section 14 of the CST Act, 1956. Therefore, if the sale had taken place within the state, it would be liable to tax under Section 3 of the Tamil Nadu VAT Act, 2006. There is no doubt there was sale between the petitioners and other co-explorers of petroleum crude oil under the “Crude Oil Sale Agreemen....... + More

Maintainability of appeal - Requirement of mandatory pre-deposit - appeal came to be dismissed for non-enclosing the receipt of deposit of 20% of the demand as envisaged under Section 48(4)(ii) of the VAT Act - HELD THAT:- This court has taken note of Ground-6 raised by appellant in that case that some time ought to have been granted to the appellant to comply with requirement of Section 48(4)(ii) of VAT Act. By oral submissions, learned counsel also tried to convince this Court that now the appellant, somehow was able to arrange the amount required for the pre-deposit and as such, by recording submissions of learned counsel for the appellant, Annexure A2 order was passed. Looking to the pleadings of appellant in tax case no.68/2019 and in WP 132/2019, particularly ground no.6 wherein the appellant wanted an opportunity to make the def....... + More

Condonation of delay in filing appeal - appeal filed after a delay of nine years, two months and 15 days - HELD THAT:- The reasons given in the application were sufficient to condone the delay. When the affidavit had gone unrebutted and in the affidavit it has been stated that Jaipal was not an employee of the applicant and further it was stated that the applicant was facing financial crunch and the employees were taking voluntary retirement, the delay in filing the appeal ought to have been condoned even though there was a substantial delay. Having had found that there were sufficient reasons given in the delay condonation application, the delay is being condoned - revision allowed.

Input Tax Credit - manufacturing loss, but also goods which were traded by the petitioner sold as such - HELD THAT:- The issue as to whether the petitioner was liable to pay /revise Input Tax Credit availed on various goods manufactured, is now covered by a decision of this Court in M/S. RAN INDIA STEELS (P) LTD. VERSUS THE PRINCIPAL SECRETARY / COMMISSIONER OF COMMERCIAL TAXES, THE COMMERCIAL TAX OFFICER (FAC) , CHENNAI [2019 (12) TMI 1305 - MADRAS HIGH COURT] where it was held that there is no scope for reversal of input tax credit on inputs which get consumed during the course of manufacture as “invisible loss”. There is no question to denying Input Tax credit availed on goods manufactured and traded by the petitioner unless they were contrary to other provisions of the order. Since the respondent also included the turnover purportedly purchased by the petitioner and sold while confirming the demand, the impugned orders need to be aside. Petition disposed off.

Auction Sale of Attached property - Recovery of tax - petitioner had purchased the properties which were already attached by the Department for the legitimate Government dues - HELD THAT:- This Court is of the view that the petitioner ought to have taken necessary care and caution while purchasing the properties from the third respondent. No documents/ papers have been filed by the petitioner to show that he had approached and contacted the office regarding the requirement of any details as regards existence of any charge on the properties. Thus, it is clear that the petitioner had never approached the Department, to find out as to whether any dues are payable by the third respondent / existence of any charge on the properties, before purchase of the properties. In the present case, the petitioner herein purchased the properties from t....... + More

Input tax credit - duty paying invoices - case of petitioner is that the petitioner had availed Input Tax Credit on the strength of invoices issued by dealers who had availed Input Tax Credit on the strength of invoices of dealers whose registrations were cancelled either and/or there was no proof of their sale of goods to the petitioner’s sellers - HELD THAT:- In this case, the petitioner claims to have availed Input Tax Credit on the strength of invoices raised by some of the dealers who had in turn purchased from other dealers who had not shown having sold the goods to the petitioner’s dealers from whom the petitioner had purchased the goods - Since there are disputed questions of fact and the dispute is not purely confined only law, the present Writ Petitions are liable to be dismissed with liberty to the petitioner to fil....... + More

Recovery of amount alongwith penalty - N/N. 8911/DCE/T(P)/AUC/2012- 13 dated 30.05.2012 - It is the case of the petitioner that she had money transactions with the 3rd respondent and had borrowed a sum of ₹ 50,000/- and in this connection had offered her property as a security for repayment of the aforesaid loan - HELD THAT:- In this case the petitioners property was offered as a security for permitting the ex-license to run a arrack shop. The 3rd respondent was not only required to offer property by way of mortgage but was also required to register the same in favour of the respondents. However, same was not registered - Similarly the information furnished by the Public Information Officer of the office of the Deputy Collector (Excise) vide communication dated 24.04.2015 in response to an application filed by the petitioner on 26.0....... + More

Detention of goods - sale of goods during inter-state movement - Jurisdiction of state - immediate release of the detained lorry and the consignment of goods on the ground that the transaction was covered by E1 sales invoice and therefore the transaction outside the purview of the respondents under Tamil Nadu Value Added Act, 2006 - HELD THAT:- If at all, the Check Post authorities at Maharashtra border had found that the goods were not charged to tax on such inter-state sale, they would have detained the goods and the lorry there. In fact, they would have collected appropriate central sales tax before the goods left the Maharastra border under the provisions of the Central Sales Tax Act, 1956 - As such, no taxable event had taken place within the State of Tamil Nadu. There was also no scope for invoking Section 72 of the TNVAT Act, 20....... + More

Levy of Entertainment tax - online booking charges - Section 3(7) (c) of the Tamil Nadu Entertainment Tax Act, 1939 - whether the online ticketing charges quoted by the petitioners would have to be included in the ‘payment for admission’ liable to tax? - HELD THAT:- The petitioners levy an additional charge upon a consumer only when he opts for the online facility and these charges are necessary to defray the expenses incurred by the petitioner for offering this facility to a consumer. They point out that the online booking facility is hosted by third party service providers, such as, BookMyShow and other similar portals, which charge the petitioners a fee for hosting the booking portal. This has to be re-compensated and hence the online booking charge - Each will be rendered meaningless without the other and thus it is only t....... + More

Re-opening of assessment - notices issued under Section 16 of the TNGST Act, 1959 - levy of penalty under Section 16(2)(c) and 10(3)(1) of TNGST Act - HELD THAT:- It is noticed that the petitioner has challenged only the notices issued by the 1st respondent on 24.02.2010 pursuant to the orders dated 16.05.2005 of the Appellate Assistant Commissioner (CT) - III and a notice issued pursuant to the order dated 05.05.2010 of this Court in W.P.Nos.9771 & 9772 of 2010. All the Writ Petitions were filed by the petitioner including the present Writ Petitions were nothing, but abuse of the court proceeding. Since the direction of this Court in the Writ Petitions has not been complied with, I am inclined to quash the impugned notice dated 03.06.2010 for failure to comply with the directions of this Court in W.P. Nos. 9771 & 9772 of 2010 ....... + More

Deemed assessment order - challenge on the ground that there is no valid reason for the respondent to call for such records in the light of Pondicherry General Sales Tax (Assessment) Rules, 2007 which was implemented on the eve of Pondicherry VAT Act, 2007 w.e.f. 01.12.2007 - HELD THAT: The assessment order in question pertains to 2001 to 2002 for which the petitioner has also filed returns. Since PGST Act, 1967 was being replaced with Puducherry VAT Act, 2007, the Government of Puducherry issued the above Rules. The purpose of the aforesaid Rule was to bring finality to the assessment proceedings which had remained incomplete as on 01.05.2007. The respondents ought to have passed a deemed assessment order and thereafter, initiated fresh proceedings under the provisions of the newly inserted Pondicherry VAT Act, 2007 read with Pondicherry....... + More

Maintainability of petition - Jurisdiction - power of Excise Officials of the Golaghat district to search and seize any “IMFL” consignments originating from the State of Arunachal Pradesh which is meant for State of Nagaland - HELD THAT:- In the present case in hand, it is the Inspector of Excise, Golaghat (Sadar) who initiated the search in the consignments which were on transit from Arunachal Pradesh to Nagaland purportedly through a specified route from Naharlagun in the State of Arunachal Pradesh to Dimapur in the State of Nagaland via State of Assam through Bandordewa, Tezpur and Golaghat as per the consignment notes. The vehicles were seized on 24.11.2019 and on 25.11.2019 for violation of route as it was seized at a place called Telgarom in the Golaghat district. The provisions of Sections 42 and 43 of the Act 2000 a....... + More

Principles of natural justice - reasonable opportunity of being heard denied - levy of Entry Tax - revision dismissed for want of prosecution - HELD THAT:- The records do not reveal in specific terms as to whether the notices were served on the petitioner or not as there is no endorsement as regards receipt of the notices by the petitioner. However, the fact remains that the revision was preferred by petitioner and not by the Revenue and therefore it was the bounden duty of petitioner to be abreast with the dates of hearings. Since the Revision was filed by the petitioner it was his responsibility to be aware of the dates of hearing. The petitioner cannot pass on the buck to anyone else and thus cannot take shelter of non-service of notice as regards date of hearing. The revisional authority has dismissed the revision for want of prosecut....... + More

Completion of assessment proceedings - Time Limitation - amendment in Section 25(1), where assessment was five year which was amended to six years - HELD THAT:- The assessment in respect of the period of limitation for reopening has already expired and cannot be reopened in view of the provisions of the Act. Petition allowed.

Maintainability of petition - effective alternative remedy by way of Revision - Section 56 of the Kerala Value Added Tax Act, 2003 - whether the product of the appellant will fall under entry 36 in accordance with Rule 23 of the Rules of Interpretation? - HELD THAT:- There are no authoritative pronouncement of this court or the hon'ble Supreme Court with respect to the interpretation of the amended provision. Therefore, whether the exercise done by the Ist respondent by invoking the powers under Section 56(1) is sustainable or not, can be decided only on an elaborate consideration into the merits of the issue. In that respect, we perfectly agree with the findings rendered by the learned Single Judge that the orders do not suffer from any jurisdictional error or violation of natural justice or contravention of the provisions. All the c....... + More

Revision of order - change of opinion - Notification No.A-5-1-94/ST-V (55) dated 30.03.1994 - section 9 (2) of Central Tax Act, 1956 read with section 19 (1) of the M.P. General Sales Tax Act, 1958 - exemption from payment of tax granted on “all kinds of footwear made of PVC and chappals made of rubber and straps there of the sale price of which did not exceed ₹ 50/- per pair”. Whether proper interpretation has been done by the Madhya Pradesh Commercial Tax Appellate Board by holding that the notification was not general to class of goods, and therefore, the assessee was not entitled for the benefit of exemption from payment of tax under Section 8 (2A) of the Central Sales Tax Act, 1956? HELD THAT:- The notification in the present case exempting all kind of footwear made of PVC, chappals made of rubber and straps t....... + More

Validity of Tamil Nadu General Sales Tax (Fourth Amendment) Act, 1959 (Act 18 of 2002) dated 26.05.2002, w.e.f. 01.04.2002 - ilevy of tax on imported goods at 20 % vide Tamil Nadu General Sales Tax (Fourth Amendment) Act, 1959 (Act 18 of 2002) dated 26.05.2002, w.e.f. 01.04.2002 as substituted by Tamil Nadu General Sales Tax (Seventh Amendment) Act, 1959 (Act 22 of 2002) inserting Section 3(2-C) and Eleventh Schedule (Item 9) to the Tamil Nadu General Sales Tax Act, 1959 dated 26.05.2002, w.e.f. 01.07.2002 - Agreement dated 28.02.1995 on Trade and Commerce between the Government of Kindom of Bhutan and the 3rd respondent Union of India. HELD THAT:- The decision cited by the petitioner in the context of anti-dumping duty in the case of COMMISSIONER OF CUSTOMS, BANGALORE VERSUS M/S. G.M. EXPORTS & OTHERS [2015 (9) TMI 1162 - SUPREME ....... + More

Principles of Natural Justice - Evasion of tax - fake bills - stand of the petitioner is that the documents purported to have been sent vide letter dated 02.11.2011 were never received and therefore, the petitioner has not been able to file a reply - HELD THAT:- Though a detailed counter has been filed by the respondent, there is no specific denial to the allegation of the petitioner that the documents had not been served in person. Since the impugned order has been passed without furnishing the documents and the impugned order is merely based on the averments that the documents were served to one Tmt.Leelavathi on 05.12.2011, the impugned order is quashed by remitting the case back to the respondent to pass fresh orders. The petitioner is therefore directed to appear before the respondent on the 1st instance before the 1st respondent on 30.06.2020 to collect the documents specified in letter dated 02.11.2011 - petition allowed by way of remand.

Reopening of assessment - Escapement of turnover - whether the restaurant of the petitioner was part of its One Star service and whether separate registration in 2011 for the running a Bar will have any bearing on the assessment made in the impugned orders? - HELD THAT:- The registration granted to the petitioner by the Ministry of Tourism, Department of Tourism on 12.11.2009 was subject to petitioner complying with all the regulatory conditions for classification/to classification of hotels and other terms and conditions to be introduced by the Department from time to time - There is no clarity as to whether separate kitchen and dining area existed for provision of One Star Hotel Service by the petitioner independent of the restaurant with the kitchen for which the petitioner had obtained registration earlier on 19.05.2008 vide TIN No.33....... + More

Liability of last owner - statutory dues under the Electricity Act, 2003 read with the General Terms & Conditions of Supply - whether the liability towards previous electricity dues of the last owner could be mulled on to the respondent? - HELD THAT:- The electricity dues, where they are statutory in character under the Electricity Act and as per the terms & conditions of supply, cannot be waived in view of the provisions of the Act itself more specifically Section 56 of the Electricity Act, 2003 (in pari materia with Section 24 of the Electricity Act, 1910), and cannot partake the character of dues of purely contractual nature. Where, as in cases of the E-auction notice in question, the existence of electricity dues, whether quantified or not, has been specifically mentioned as a liability of the purchaser and the sale is on &....... + More

Dishonor of Cheque - insufficiency of funds - rebuttal of presumption - failure of the drawer to make the requisite payment within fifteen days from the date of receipt of the notice - section 138 of NI Act - HELD THAT:- Although the violation of the provisions of Section 269SS of the Income tax Act is an offence under Section 271-D of the Act, but it is not an offence under the Negotiable Instruments Act, 1881, which is silent about the cash limit. Thus, these violations alone may not be sufficient to throw away the complaint in entirety; still, it remains as one of the factors which would weigh in favor of the accused, while appreciating the evidence led in the course of discharging the statutory presumptions of Ss. 118 and 139 of the Negotiable Instruments Act, 1881 - Another factor that creates a serious doubt in the credibility of th....... + More

RTI - Scope of Public Authority - whether the petitioner institutions would be public authority under the provisions of section 2(h) of the Act? - HELD THAT:- Reliance placed in the case of CENTRAL PUBLIC INFORMATION OFFICER, SUPREME COURT OF INDIA VERSUS SUBHASH CHANDRA AGARWAL [2019 (11) TMI 895 - SUPREME COURT] it is not possible to hold that the petitioners who are substantially financed by the companies owned by the State Government cannot be said to be "public authority and as such, the petitioners would be covered by the definition of "public authority" under section 2(h)(d)(i) of the Act 2005. Matters remanded back to the respondent no.1, as the matter is very old and in view of the facts on record, it would not be possible to take a different view than what is held by the respondent no. 2 to apply the provision ....... + More

Dishonor of Cheque - main thrust of argument is that since respondent No. 1 admittedly received a sum of ₹ 5 million US Dollars from one of the debtors of the respondent No. 2 company, therefore, after adjustment of this amount, no debt is left and 5 complaints U/s 138 NI Act are liable to be quashed - HELD THAT:- In the instant case, though admittedly, an amount of 5 million US Dollars have been received by respondent No. 1 from M/s Roseberry Global FZE, Sharjah, who according to the petitioner is one of the debtor(s) of respondent No. 2 company but there is nothing on record to suggest that there were any such directions from the side of respondent No. 2 company to apply the said amount so received against the cheques in question in respect of which the complaints are pending. Liability against the respondent No. 2 company is a....... + More

Waiver of GST dues - release of an amount of ₹ 500 Crores by way of loan under the scheme of the Government of India to revive the projects so that work may start and then on completion the money is generated and repaid - HELD THAT:- It was pointed out by the learned Receiver that UCO Bank is considering the proposal for financing of the unsold inventory part. Considering urgency, let them consider and take a decision within 15 days in consultation with the learned Receiver - A note has been submitted by Mr. M.L.Lahoty, learned counsel, with respect to sale of certain properties in Eden Park and Castle completed by NBCC. Let the learned Receiver respond to the Note submitted by Mr. Lahoty on the next date of hearing and to point out whether their flats already stand allotted. The DRT is directed to transmit the rent which they have received from property that has been attached to the Amrapali Account (being A/c No. 02070210002834) maintained by the Registry of this Court.

Dishonor of Cheque - insufficiency of funds - offence punishable under Section 138 of the Negotiable Instruments Act, 1881 - applicability of Section 143A of the Act - HELD THAT:- Section 143A was inserted in the Act with effect from 01.09.2018 by Amendment Act 20 of 2018. Section 143A(1) of the Act provides that, notwithstanding anything contained in the Code of Criminal Procedure, 1973, the Court trying an offence under Section 138 may order the drawer of the cheque to pay interim compensation to the complainant (a) in a summary trial or a summons case, where he pleads not guilty to the accusation made in the complaint and (b) in any other case, upon framing of charge. Section 143A(2) of the Act states that the interim compensation under sub-section (1) shall not exceed twenty per cent of the amount of the cheque. In the instant case....... + More

Grant of Interim Bail - during pendency of the present bail application, applicant has suffered from number of ailments and presently he is under treatment before Urologist - HELD THAT:- The applicant has made out a case for interim bail for eight weeks. Let applicant-Subhash Chandra Aggarwal, who is involved in Case Crime No.347 of 2007, under Sections- 419, 420, 467, 468 and 471 IPC, Police Station- Poorakalandar, District- Faizabad/Ayodhya, be released on interim bail for eight weeks to the satisfaction of the court concerned subject to conditions imposed. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial - applicant shall co-operate in the trial sincerely without seeking any adjournment.

Grant of Interim Bail - NDPS Act - COVID-19 Pandemic situation - HELD THAT:- This Court has considered the medical records which have been filed by the Applicant as also the submissions of the Petitioner and the Respondent - the interim bail is granted to the Applicant upto 10th May, 2020 subject to furnishing a bond of ₹ 1 lakh along with surety for the said amount. The Applicant shall stand restrained from leaving the country and shall also not influence any witness or hamper the investigation in any manner. The Applicant shall surrender before the Jail Superintendent on 11th May, 2020. Application disposed off.

Grant of Bail - conviction of sentence under section 6 read with section 5(m) of the POSCO Act - suspension of sentence on 13.04.2020 - prevailing COVID-19 pandemic situation - HELD THAT:- Although the record shows that the applicant has only been in prison since 24.02.2020 which was the date the sentencing order was passed ; and that he has been convicted of heinous offences under the POCSO Act, in the unprecedented circumstances of a public health emergency that prevail today and the consequent need to decongest prisons for the overall medical safety of all prisoners, this court is persuaded to grant to the appellant interim suspension of sentence for a period of three months subject to the conditions - The appellant shall furnish a personal bond in the sum of ₹ 50,000/- to the satisfaction of the Jail Superintendent. Considering ....... + More

Smuggling - contraband item kept in safe custody by income tax officers - Interpretation of statute - true import and construction of the provisions contained in sections 41 and 42 of the NDPS Act - whether the act of the Income Tax Officers of collecting and keeping the contraband in the safe custody on 7th January 2014 constitutes a seizure? HELD THAT:- The phraseology of sections 41 and 42 of NDPS Act, indicates that the powers under those sections cannot be exercised by an officer who is not either empowered or authorized. A search and seizure operation by an officer not empowered or authorized would be without mandate of law. Such search and seizure cannot be banked upon to visit a person with the consequences envisaged by the provisions of the Act. Can this prescription be applied with equal vigour when the contraband is found pe....... + More

Dishonor of Cheque - legally recoverable debt or not - rebuttal of presumption - whether the cheque was given in security or not and its effect? - HELD THAT:- If any cheque is given in security, then presumption of legally enforceable debt or liability exists which has to be rebutted by the accused to the extent that full amount due and payable to the complainant has been paid or otherwise - in the case in hand, accused did not discharge the onus lying over him and he could not rebut the presumption as per Section 118 and Section 139 of the Act. Here, the complainant/ appellant on the request of respondent/accused, borrowed ₹ 1,00,000/- on 29-03-2007 and in lieu thereof accused/respondent issued a cheque in favour of the appellant bearing No.531001. Thus there is legally recoverable debt or liability on the accused/respondent. It....... + More

Smuggling - Cocaine - applicability and compliance of of Section 50 of the NDPS Act - HELD THAT:- Admittedly, Laya was searched. Thus, plainly, provisions of Section 50 of the NDPS Act would be applicable notwithstanding that the recovery was made from the bag carried by her. The question whether provisions of Section 50 have to be complied with in case a search of a person is carried is no longer res integra. In Raju @ Abdul Haque @ Jagga v. State of West Bengal [2018 (9) TMI 845 - SUPREME COURT ], the Supreme Court had reiterated the above. The Court also referred to the Constitution Bench decision in Vijaysinh Chandubha Jadeja v. State of Gujarat [2010 (10) TMI 934 - SUPREME COURT], wherein the Court had held that provisions of Section 50 of the NDPS Act are mandatory. The court held that the concept of substantial compliance is not....... + More

Maintainability of application - Dishonor of Cheque - non-payment of 20% of compensation amount as per Section 148 of N.I. Act - petitioner has not challenged any specific order of the Courts below - HELD THAT:- On careful reading of the Section 482 of Cr.P.C. it appears that it gives inherent power to the High Court to make such orders as may be necessary to prevent abuse of process of any Court or otherwise to secure the ends of justice. Under Section 482 of Cr.P.C., there is no necessity to challenge any specific order of any Court, if the aggrieved person feels that the act of anyone is amount to abuse of process of law, he can pray to the High Court to exercise its inherent jurisdiction and pass appropriate direction to secure the ends of justice. Herein, in petition memo, the petitioner prays for specific direction with regard to he....... + More

Conversion of Consumer Welfare Fund Bill, 2010 into the Consumer Welfare Fund Rules, 2010 - transfer of the unclaimed or unpaid amounts of unidentifiable consumers lying with respondents to Consumer Welfare Fund or a Suspense Account as well as for refund of the same - HELD THAT:- This Court is of the firm view that present writ petition is untenable in law inasmuch as the petitioner has failed to appreciate that there is a system of separation of powers under the Indian Constitution and it is not for the courts to either legislate or convert bills/acts into rules or to disburse amounts to certain hospitals or for certain causes, howsoever genuine they may be. The petitioner would like the unutilized and unclaimed amounts lying with Cooperative Banks, Insurance Companies etc being given a similar treatment. Petitioner has adverted to t....... + More

Dishonor of Cheque - validity of concurrent verdicts of guilty and conviction made against her by the courts below and the sentence imposed - offence u/s 138 of NI Act - absence of evidence to rebut the presumption under Section 139 of the Act - HELD THAT:- The complainant has no obligation, in all cases under Section 138 of the Act, to prove his financial capacity. But, when the case of the complainant is that he lent money to the accused by cash and that the accused issued the cheque in discharge of the liability, and if the accused challenges the financial capacity of the complainant to advance the money, despite the presumption under Section 139 of the Act, the complainant has the obligation to prove his financial capacity or the source of the money allegedly lent by him to the accused. The complainant has no initial burden to prove h....... + More

Withdrawal of the 3rd financial upgradation granted in the grade pay of ₹ 6600/- along with the recovery process to be initiated by the department of Central Excise and Customs - HELD THAT:- In wake of the pendency of the matter for consideration before the Apex Court in case of Union of India vs. M.V.Mohanan Nair and other five SLPs, the Delhi High Court has been followed by the Tribunal where it noticed the different views by different High Courts. The issues raised before the Tribunal in all these original applications concern the interpretation and clarification of grant of 3rd financial upgradation under the MACP to the superintendents by placing them in pay band- III with grade pay of 6600/- who were granted non-functional grade pay of ₹ 5400/- in pay band- II. Only on the ground that in case of petitioner, there has ....... + More

Detention of detenue - llicit trafficking of narcotic drugs and psychotropic substances - HELD THAT:- Under Clause (5) of Article 22 of the Constitution of India, the Authority making an order of preventive detention is required to afford an opportunity to the detenue to make a representation against the order of detention. As far as law relating to representation is concerned, it is fairly well settled. Non-consideration of the representation made by the petitioner against the order of detention - HELD THAT:- There is absolutely no explanation forthcoming for not forwarding the representation dated 15th April 2020 to the Specially Empowered Officer who had passed the impugned order. Even the representation dated 17th April 2020 made by the petitioner to the Central Government through the Superintendent of Central Prison was not forwar....... + More

Appointment to the Group 'C' post of Greaser in the Customs Marine Wing falling within the jurisdiction of the Customs Gujarat Zone in pursuance of the Recruitment Notification dated 11.09.2017 - HELD THAT:- There is no dispute regarding the fact that the petitioner had participated in the recruitment process in pursuance of the advertisement issued by the respondents and that his name was not reflected in the list of successful candidates declared on 26.02.2018. Considering the fact that the petitioner has chosen to approach this court after a period of more than two years, without issuing any notice to the other side, we permit the petitioner to approach the respondents with a request to disclose the outcome of the vigilance inquiry undertaken by the respondents in which the petitioner had also participated either by filing a....... + More

Extension of period of limitation prescribed under the general law or Special Laws - prevailing Covid-19 Virus pandemic situation in India - HELD THAT:- To obviate the difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings - this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities. This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction - Issue notice to all the Registrars General of the High Courts, returnable in four weeks.

Extension of Interim stay - extremely limited functioning of courts due to pandemic covid-19 situation and lockdown - HELD THAT:- Since some of the restrictions imposed by the Government of India are still in operation, and taking note of the extraordinary circumstances, in continuation of this Court’s order dated 25th March, 2020, we hereby order that in all matters pending before this Court and Courts subordinate to this Court, wherein the interim orders issued, as mentioned in our order dated 25th March, 2020, were subsisting as on 15.05.2020 and expired or will expire thereafter, the same shall stand automatically extended till 15.06.2020 or until further orders, except where any orders to the contrary have been passed by the Hon’ble Supreme Court of India in any particular matter, during the intervening period. Registry is directed to list this matter on 15.06.2020 for further directions.