Revision u/s 263 by CIT - deemed dividend addition u/s 2(22) - HELD THAT:- We find on facts that the relevant documentary evidence was called for by the AO during the course of assessment proceeding and the same were furnished by the assessee. The details of shareholders holding more than 10% shares in the assessee-company was also called for by the AO, which was furnished by the assessee. In the tax audit report filed by the assessee along with the return of income, the unsecured loan of ₹ 40 lakhs received by the assessee during the year under consideration from M/s. Vijayshree Industries Pvt. Ltd. and squared off in the year itself was recorded and even interest paid thereon was shown in the tax audit report in the details of payments made to related persons as specified u/s 40A(2)(b). The assessee was able to demonstrate before ....... + More

Short term capital gain - capital gain arose from transfer of land to the partnership firm by way of capital contribution as the assets was converted to Fixed Capital Asset by the partnership firm - CIT-A deleted the addition as upheld by ITAT - HELD THAT:- What was transferred by the partners was a current asset and not a capital asset. Section 45(3) of the Act did not come into operation for the assessment year 2008-09 by reason of conversion of the developed land and building into fixed assets by the said firm or due to revaluation by the said firm of the asset so converted during the previous year ended March 31, 2008. Section 45(3) of the Act is applicable in the year of transfer by the partner of his capital asset to the partnership firm by way of capital contribution. In the instant case, the year of transfer was the financial year....... + More

Exemption under Section 10B - Denial of exemption as assessee was not approved by the concerned statutory Board as Export Oriented Undertaking as is required in terms of clause IV of Explanation 2 of section 10 B - Tribunal allowed benefit holding assessee as 100% Export Oriented Undertaking - HELD THAT:- Tribunal considered the submission on behalf of the assessee that CBDT has issued a clarification dated 9.3.2009 to the effect that power to grant approval under Section 14 of the Industrial (Development & Regulation) Act, 1951 has been delegated to the Development Commissioner and the approval granted by the Development Commissioner shall be considered valid for the purpose of exemption under Section 10B Whether the assessee would be entitled to relief under Section 10A? - Tribunal pointed out the similarities between Section 10A an....... + More

Reopening of assessment u/s 147 - eligibility of reason to believe - change of opinion to commence proceedings for re-assessment - claim of expenses made without establishing the nature of expenses with respect to work done and documentary evidences. ad there is no brought forward losses whereas assessee claimed set off of brought forward losses - HELD THAT:- As regards point (a) and point (b), petitioner had received notice dated 15th October 2015 under Section 142(1). Item 9 in the Annexure to the notice calls upon petitioner to furnish break-up of head-wise expenses where amount paid was above ₹ 5 lakhs in the format mentioned therein and item 11 calls upon petitioner to furnish details of brought forward losses and assessed losses, if any, along with proof, i.e., assessment orders / order giving effect to CIT(A)’s order / ....... + More

Computation of deduction u/s 80HHC - HELD THAT:- The first question of law raised in this appeal has already been considered and decided by the Supreme Court in favour of the Assessee in the case of ACG Associated Capsules (P) Ltd. [2012 (2) TMI 101 - SUPREME COURT] wherein Ninety per cent of not the gross interest/rent but only the net interest/rent, which has been included in the profits of the business of the assessee as computed under the heads ‘PGBP’ is to be deducted under clause (1) of Explanation (baa) to Section 80HHC for determining the profits of the business - Decided in favour of assessee

Order passed by invoking Section 144 read with Section 69A - as submitted that the petitioner has an alternate remedy by way of an appeal under Section 246A - HELD THAT:- The impugned order has not discussed the records furnished by the petitioner to distance himself from the entire liability. Therefore, to that extent, the impugned order can be interfered by remitting the case back to the respondent to pass a proper assessment order. However, it is noticed that the petitioner has himself offered to pay the tax under Section 44AD of the Income Tax Act, 1961 on the undiscussed income. Considering the above, the impugned order is set aside subject to the petitioner paying tax as per the computation under Section 44AD of the Income Tax Act, 1961 within a period of six weeks from the date of receipt of a copy of this order. After the petition....... + More

Disallowance u/s 14A r.w.r. 8D in rectification proceedings under Section 154 - Mandation of recording satisfaction - expenditure incurred for earning income exempt - HELD THAT:- Assessee has to make a claim with regard to expenditure incurred for earning income which is not chargeable to tax, which requires to be examined by the AO and satisfaction has to be recorded, more particularly, when the Assessing Officer has not agreed with the disallowance claim under Section 14A of the Act. For disagreeing with such disallowance, deduction of the expenditure is not to be allowed which has been incurred by the assessee in relation to the income which does not form part of the total income under the Act as per Section 14A(1) of the Act. Such expenditure which has been incurred in respect of other income which has to be treated as part of the tot....... + More

Disallowance u/s 14A r.w.r. 8D - Sufficiency of own funds - HELD THAT:- The Hon'ble Bombay High Court in CIT vs. Reliance Utilities and Power Ltd [2009 (1) TMI 4 - BOMBAY HIGH COURT] has held that where an assessee possessed sufficient interest free funds of its own which were generated in the course of relevant financial year, apart from substantial shareholders’ funds, presumption gets established that the investments in sister concerns were made by the assessee out of interest free funds and, therefore, no part of interest on borrowings can be disallowed on the basis that the investments were made out of interest bearing funds. In reaching this conclusion, the Hon’ble High Court relied on the judgment of the Hon’ble Supreme Court in the case of East India Pharmaceutical Works Ltd. Vs. CIT [1997 (3) TMI 5 - SUPREME....... + More

Disallowance of payment of Labour Charges @ 5% - AO noticed that the vouchers in support of the labour charges are self-made and unverifiable - HELD THAT:- As vouchers are duly signed by the payees. It is a trade practice in the line of business of civil constructions, the vouchers in respect of labour charges are always self-made. The identical issue dealt by the Co-ordinate Bench of this Tribunal by the same combination in the case of B.C. Biyani Project Pvt. Ltd [2022 (1) TMI 705 - ITAT PUNE] as held it cannot be said that the labour charges incurred are excessive or unreasonable. Therefore, the decision of the ld. CIT(A) making the ad-hoc disallowance of labour charges at 30% cannot be sustained in the eyes of law Even in the present case also, no material was brought by the Assessing Officer suggesting that the expenditure incurred o....... + More

Disallowing deduction of Capital Expenditure u/Section 35(1)(iv) read with section 35(2) - disallowance of depreciation on assets purchased during the relevant previous year - CIT-A deleted the addition - HELD THAT:- CIT(A) deleted the addition made purely on the basis that the AO did incomplete enquiry. There was no material whatsoever produced by the Assessee to disprove the conclusions drawn by the AO and positively prove that it purchased machineries in question for R & D and that it carried out R & D activities. In such circumstances, the CIT(A) in our view fell into an error in deleting the addition made by the AO. Perusal of the order of the CIT(A) reveals that the CIT(A) has made observations that the AO could have adopted a better course than what he did, but does not go further and call upon the Assessee to produce evide....... + More

Disallowance on a/c of expenses relating to earlier years - expenses will be allowable in the year when such liability has been quantified or paid - CIT-A deleted the addition - HELD THAT:- Huge inconsistencies/anamolies in submissions of the assessee before the authorities vis-avis facts reflected in its audited books of accounts, ought to have triggered investigation and enquiry by ld. CIT(A) before allowing the aforesaid claim - CIT(A) ought to have verified whether sugarcane purchase tax was paid on the entire amount claimed to be state advised purchase price of sugarcane and the persons to whom and when such payments were made in discharge of its liability for purchase of sugarcane. The powers of ld. CIT(A) are co-terminus with powers of the AO CIT(A) also ought to have looked into the fact that the said amount of deduction which is ....... + More

Disallowance of interest expenses u/s 36(1)(iii) borrowed funds were utilized by the assessee for purposes other than its business activity, having been invested in the form of zero percent debentures in a sister concern - Whether the CIT(A), in restricting the disallowance of interest expenses has erred in ignoring the findings of the AO that on the one hand the assessee has claimed huge interest expenses and on the other hand substantial amount have been placed at the disposal of the sister concern on interest-free basis - HELD THAT:- Nowhere AO has analyzed as to when assessee had been advancing loan right from AY 2006-07 from out of any interest bearing funds or during the relevant year any further interest bearing funds have been diverted. Converting of debentures on 30.04.2011 out of debit balance with the said party cannot be treat....... + More

Addition u/s 68 - assessee has received share application money as unexplained - HELD THAT:- AO has demonstrated that all the capital introduced in the capital account of share applicants are of non-verifiable nature; credit-worthiness of Shri Sanjay Gupta is very much doubtful; most of the amounts were from unknown sources. AO has rightly assumed that the transaction is not genuine rather rooted through unsecured loans etc. whose confirmation could not be filed. We find that though the assessee had provided identity of the giver of the funds, but onus to prove creditworthiness and genuineness of transaction beyond doubt have not been discharged by the assessee. Law on this issue on this point is clear. It is necessary for the assessee to prove prima facie, three aspects of the transaction which generated funds in the form of share applic....... + More

Disallowance u/s 14A - Disallowing interest expense - the said proportionate expense claimed by the Appellant was for earning exempted income i.e. share in profit - HELD THAT:- We find that the Assessing Officer while passing the assessment order identified the issue of disallowance under section 14A, by examining the fact that assessee had earned exempt income and invested interest bearing fund for making investment for earning exempt income. However, the Assessing Officer instead of following the formula prescribed under Rule 8D made proportionate disallowance and worked out the disallowance @ 58.36% . CIT(A) confirmed the action of Assessing Officer. We find that during the year AY 2014-15 the provision of under section 14A r.w.s. Rule 8D is applicable. The Assessing Officer has not followed the formula prescribed under Rule 8D. Neithe....... + More

Revision u/s 263 by CIT - AO has failed to add the difference between the declared sale consideration and stamp duty value under section 56(2)(vii)(b)(ii) - HELD THAT:- The value adopted by PCIT is not backed by any evidence. Secondly, while adopting his own value learned PCIT has completely ignored the Government approved valuer’s report furnished by the assessee. Thirdly, he has not considered various submissions of the assessee regarding non-applicability of section 56(2)(vii)(b)(ii) of the Act. Once learned PCIT held that the assessing officer has failed to enquire into the applicability of section 56(2)(vii)(b)(ii), he should have left the issue at that and no further. Whether section 56(2)(vii)(b)(ii) would be applicable to the transaction or not should have been left to the result of enquiry to be conducted by the assessing o....... + More

Revision u/s 263 by CIT - AO framed assessment order on died company - DR vehemently pleads that the information to the effect that assessee company has died/ dissolved, was not submitted by the assessee either during the assessment stage or during the 263 revision proceedings, therefore, at this stage, the plea of the assessee should not be entertained and order passed by PCIT may be upheld - HELD THAT:- It is clear that name of assessee company was strike off from the record of the registrar of companies, with effect from 15.07.2008. The assessing officer framed original assessment order u/s 143(3) of the Act dated 30.12.2009, which is after the assessee company had dissolved/ name removed by ROC. AO has also framed the assessment order under section 143(3) r.w.s.254 of the Act, dated 31.03.2016, in pursuance of the direction given by t....... + More

Revision u/s 263 by CIT - disallowance of exemption claimed in respect of accumulation of income under section 11(2) - Whether for not investing in the equity shares in the investments prescribed under section 11(5) of the Act, whether assessee’s claim of exemption under section 11(2) of the Act can be denied in the impugned assessment year? - HELD THAT:- A plain reading of clause (iia) of proviso to section 13(1)(d) would make it clear that an outer limit of one year from the end of the financial year in which the income is received has been provided for making investment in the mode and manner prescribed under section 11(5) of the Act. In the facts of the present case, admittedly, the equity shares of Asian Paints Ltd were received by the assessee in the financial year 2014-15. Therefore, as per clause (iia) of proviso to section ....... + More

Income from House Property - as per the lease and licence agreement the property was let out for a monthly rent and the assessee has received interest free refundable security deposit - whether the departmental authorities can substitute the actual rent received by the assessee by computing notional rent? - HELD THAT:- In case of J.K. Investors (Bom) Ltd [1999 (7) TMI 675 - ITAT MUMBAI] the Tribunal has held that the benefit of the security deposit does not accrue to the lessor at the time of receipt, but only on utilization of the same. The Bench observed, when the income derived on utilization of the security deposit is otherwise taxable, there is no justification to hold that the assessee received the security deposit anticipating that certain benefit would be received. See case of CIT vs Tip Top Typography [2014 (8) TMI 356 - BOMBAY H....... + More

Additions in respect of employees contribution towards ESI/PF - assessee’s failure to pay the employee’s contribution of PF/ESI within the prescribed due dates as per Section 36(1)(va) - Scope of amendment - HELD THAT:- Admittedly and undisputedly, the employees’ contribution to ESI and PF co llected by the assessee from its employees have been deposited well before the due date of filing of return of income u/s 139(1) - D/R has referred to the explanation to section 36(1)(va) and section 43B by the Finance Act, 2021 and has also referred to the rationale of the amendment as explained by the Memorandum in the Finance Bill, 2021, however, we find that there are express wordings in the said memorandum which says “these amendments will take effect from 1st April, 2021 and will accordingly apply to assessment year 2021....... + More

Validity of reopening of assessment u/s 147 - re-assessment notice issued under the erstwhile section147/148 after 1.4.2001 without following the mandate of new section 148A - Notice as barred by limitation - enforcement of the Enabling Act and the Finance Act, 2021 - scope of provisions of Section 148 read with Section 148A as substituted by Finance Act, 2021 - substituting the provisions of the Act by means of the Finance Act, 2021 with effect from 01.04.2021, the old provisions were omitted from the statute book and replaced by fresh provisions with effect from 01.04.2021 - time limitation existing under the Act had been extended under the Ordinance - relaxation of limitation granted on account of general hardship existing upon the spread of pandemic COVID -19 - as argued respondent Income Tax Authority concerned, before issuing the im....... + More

Validity of reopening of assessment u/s 147 - re-assessment notice issued under the erstwhile section147/148 after 1.4.2001 without following the mandate of new section 148A - Notice as barred by limitation - enforcement of the Enabling Act and the Finance Act, 2021 - scope of provisions of Section 148 read with Section 148A as substituted by Finance Act, 2021 - substituting the provisions of the Act by means of the Finance Act, 2021 with effect from 01.04.2021, the old provisions were omitted from the statute book and replaced by fresh provisions with effect from 01.04.2021 - time limitation existing under the Act had been extended under the Ordinance - relaxation of limitation granted on account of general hardship existing upon the spread of pandemic COVID -19 - as argued respondent Income Tax Authority concerned, before issuing the im....... + More

Disallowance of expenses u/s 37(1) - Pharmaceutical Companies - proportionate expenditure incurred on medical practitioners - Disallowance in view of Circular No.5 of 2012 as well as regulations framed by the Medical Council of India - applicability of the Medical Council of India Regulations dated 10.12.2009 and the C.B.D.T. Circular No.5 of 2012 to pharmaceutical companies like the assessee - ITAT deleted the addition - HELD THAT:- In the present case, the Assessment Year is 2010-11. If it is found that the Circular cannot be given retrospective effect it would not be necessary to then go into the question of its applicability to pharmaceutical companies from 01.08.2012 onwards. It is seen that the Tribunal through its various benches has consistently held that C.B.D.T. Circular No.5 of 2012 would not have any retrospective effect but w....... + More

Reopening of assessment u/s 147 - Eligibility of reasons to believe - Change of opinion - provision for sales return as the expenditure was not incurred during the previous year (as also the amortization of other operating expenses) - HELD THAT:- Reasons recorded only indicate a change of opinion by the Jurisdictional Assessing Officer (JAO) based on the same set of facts and documents. Moreover, the JAO has proceeded on the incorrect premise that the amount of provision for sales return as the expenditure incurred was not incurred during the relevant year but the following year. Infact this has been accepted in the order dated 16th November 2019 rejecting petitioner's objections, which order is also impugned in this petition. The JAO, though he admits that he has erred, states that that issue of difference is not of prime relevance o....... + More

Revenue recognition - Adoption of the Accounting Standard AS-7 for determination of revenue - bogus purchases - HELD THAT:- In the present case, both the learned ITAT as well as the learned CIT(A) have placed reliance on and upheld the adoption of the Accounting Standard AS-7 by the respondent-assessee for determination of its revenue. The learned counsel for the appellant does not deny that incase the case of the Revenue is to be accepted, it will also impact the revenue determination for the respondent-assessee and its profits. In any case, the dispute involved is factual in nature and no substantial question of law arises for consideration in the present appeal.

Deduction u/s 80 IA - HELD THAT:- As recorded in the preceding paragraphs, consistently the Tribunal and the Hon’ble High Court holding the issue relating to the claim of the assessee under section 80IA of the Act in favour of the assessee and the same stands undisturbed for the assessment year 2010-11 also. In this year also, Ld. CIT(A) granted relief to the assessee by following this consistent view taken in assessee’s own case for the earlier assessment years by his predecessor as well as the higher fora, namely, the Tribunal and the Hon’ble High Court. Both the authorities below recorded a finding that the facts are similar for this year also as those are for the assessment years 2005-06 to 2011-12. In these circumstances we are of the considered opinion that in the absence of any compelling changed circumstances, th....... + More

Reopening of portal for filing of form TRAN-1 - denial of benefit of Input Tax Credit - HELD THAT:- The facts on record indicates that right from the beginning, the petitioner has been writing letters/representation to the respondents to allow the petitioner to file TRAN-1 and that the petitioner had experienced the difficulties on account of technical glitches in the GST web portal of the respondents. Since the issue is covered in favour of the petitioner, this writ petition is allowed. Decided in favor of petitioner.

Exemption form GST - Slaughter house fees - Fees on pay & use toilets - services rendered directly are covered under Twelfth Schedule to Article 243W of the Constitution and /or exempted under the Notfn. No mentioned against each SI No.? - HELD THAT:- The AAR has given a ruling that services by way of slaughtering of animals / fees on pay & use toilets is neither a supply of goods nor a supply of service as per notfn. No. 14/2017-CT(R) as amended by notfn. No. 16/2018-CT(R) being an activity in relation to a function entrusted to a Municipality under Article 243W of the constitution, in which they are engaged as public authority. However, the appellant is not satisfied and has sought to appeal seeking another ruling from the appellate authorities that the activity is also covered under Sl no. 56 /76 of the table in notfn. No. 12/2....... + More

Classification of supply - supply of ggods or supply of services - lease transaction or not - pallets, crates and containers (equipment) leased by CHEP India Private Limited (CIPL) located and registered in Tamil Nadu to its other GST registrations located across India - value on which GST has to be charged - lease charges or the value of equipment - Section 15 of the CGST Act and TNGST Act read with relevant Rules? - documents that should accompany the movement of the goods from CIPL, Tamil Nadu to CIPL. Kerala - mere movement of goods not amounting to a supply or not in terms of Section 7 of the CGST Act and TNGST Act - HELD THAT:- The business model proposed is in the stage of contemplation and has not attained finality with respect to merger, disposition of the assets and the following supply, in as much as the applicant could not pro....... + More

Provisional attachment of the bank(Cash Credit) account - provisions of Section 83 of the CGST Act, 2017 - HELD THAT:- The law is well-settled that a cash credit account of the assessee cannot be provisionally attached in exercise of powers under Section 83 of the CGST Act. This writ-application succeeds and is hereby allowed. The order of provisional attachment of the cash credit account of the writ-applicant is hereby quashed and set-aside.

Seeking grant of Bail - Input Tax Credit - issue of invoices and bills without physical supply of materials - Section 132(1)(b),(c)&(l) the OGST Act, 2017 - HELD THAT:- Grant of bail or refusal is always a discretionary exercise which is to be guided by judicial application of mind. No inexorable formula is in place for considering a plea of bail which depends on variety of factors as has been propounded by the Supreme Court on number of occasions. In so far as economic offences are concerned, definitely, a different approach is to be adopted but then, the basic principles of bail shall have to be borne in mind. It is well known that there is no straight jacket formula for considering the matters of bail which varies from individual case to case. In the instant case, the petitioner was arrested on 02.09.2021 for offences under Section....... + More

Input tax Credit - entitlement to avail and utilize ITC of GST Charged by IPL - supply or not - Air Separation Unit (ASU) - transfer of the leasehold rights for the remainder period of 72 years in respect of part of the property along with superstructures, for setting up of State of the art medical and industrial gases plant - restriction under Section 17(5)(d) of the GST Act 2017 - HELD THAT:- The explanation of 'Contraction' for the purposes of 'Construction' mentioned in Section 17(5)(c) and (d), is an inclusive definition and includes re-construction, renovation, additions or alterations or repairs to the extent of capitalisation to the immovable property. This inclusive explanation states specific activities covered under the term 'construction' apart from the 'Original' activity of 'Construction&#....... + More

Classification of goods - product Rodent Feed - classified under the HSN 2309 90 10 or not - exemption under the Serial Number 102 of N/N. 02/2017 - HELD THAT:- This exemption notification has grouped various tariff items under a single Serial no. 102 and has given an inclusive description for the same. Further neither the specific word ‘rodent feed’ nor the general words such as ‘animal feed’ are used. In this connection a reference need to be made to the law declared by the Hon’ble Supreme Court of India in the case of N.D.P. NAMBOODRIPAD VERSUS UNION OF INDIA & ORS. [2004 (4) TMI 583 - SUPREME COURT] wherein it has been held that the word ‘includes’ can be used to connote a specific meaning i.e., as in “means and includes or comprises or consists of”. Therefore the description i....... + More

Levy of GST - claim of expenses incurred to handle the Cost Free Distribution Sarees & Dhothies and Cost Free School Uniform Scheme - pure services or not - supply to Revenue Department/Social Welfare Department - taxable at 18% GST or not - functions entrusted to a Panchayat under Article 243G/ municipality under Article 243W of the constitution of India - whether the Handling Charges related to Pre-GST period 2015-16 and 2016-17 will also attract GST or not? - HELD THAT:- In the case at hand, it is seen that the applicant is entrusted with the work of undertaking quality check of the clothes, procurement, storage of the goods in warehouses and transport the uniforms/ sarees and dhothies for distribution to the designates places. For undertaking all these activities, they are paid 'Handling charges' as fixed by the Committee ....... + More

Levy of GST - marine engines pertaining to HS code 8407 and its spare parts - engine forms a part of fishing vessel or not - to be classified under HS code 8407 or HS code 8902? - engine forms a part of boats of HS code 8906 being supplied to defence department and other agencies used for patrolling/flood relief and rescue purposes or not - HELD THAT:- Applicant had not filed any documentary evidences along with the application to substantiate that the engines they supply are being used in fishing vessels or for boats used by defence departments. During the Personal Hearing held on 05.10.2021, they were called upon to submit Bills of entries, invoices, purchase orders for the products imported and Tax invoices issued by the applicant. Further to that they submitted bills of entries, invoices for purchase and not for sale made by them. Whe....... + More

Classification of goods - Fusible Interlining Fabrics of Cotton (FIFC) - to be classified under HSN Code 5903 or under Chapter 52(heading depending upon weightage of cotton in the fabrics)? - HELD THAT:- The applicant purchases Fusible Inter-lining Fabrics of cotton (FIFC) from various manufactures like Madura Coats Limited, Ruby Mills Lts, TALCO, etc. The said products are purchased under a Tax Invoice from the manufacturers, i.e., the goods stands assessed at the initial stage. However, the applicant has sought classification of the already assessed products stating that all these products are similar but is classified by the manufacturers under Chapter 52 or CTH 5903. Their concern is though at the manufacturer end, the products are classified differently, when they are dealing with such goods, they intend to know the correct classific....... + More

Carry forward of credit - Refund claim - Other Category of Cesses which was carry forwarded in TRAN-1 and later on, the said amount was reversed in GSTR-3B return - adjudicating authority has rejected the refund claim by taking the main ground that credit of cesses could not be carried forward as per amended explanation 3 of Section 140 of CGST Act, 2017 - Section 54(1) of the CGST Act, 2017 - HELD THAT:- There is no iota of doubt in the fact that after insertion of explanation 3 of Section 140 of CGST Act vide S. 28 of the CGST (Amendment) Act, 2018 (31 of 2018) which were made effective from 1-7-2017, accumulated credit of cesses could not be carry forwarded and also could not be utilized for payment of outward supply. The Hon’ble Madras High Court in ASSISTANT COMMISSIONER OF CGST AND CENTRAL EXCISE, COMMISSIONER CGST AND CENTRAL....... + More

Refund of excess payment of tax - export of goods on payment of IGST - zero-rated supplies or deemed export - Interpretation of Rule 86 of CGST Rules, 2017 read with Circular No. 135/05/2020, dated 31-3-2020 - whether the appeal has been filed within the prescribed time limit? - HELD THAT:- In the instant case, the appeal in the prescribed Form GST APL-01 has been filed by the appellant on 23-11-2020 i.e. the delay of 26 days from the normal period of three months as per Section 107(1) of CGST Act, 2017. The reason for delay has been mentioned by the appellant in their appeal memo that the office of the authorized representative of the appellant was closed due to COVID-19 cases, hence the appeal could not be prepared in time - Delay up to 30 days is condonable, hence condonation of delay is requested. In view of the reason given by the ap....... + More

Refund of IGST - refund has been declined for the reason that the writ applicant had availed drawback at the rate of 1.10% - HELD THAT:- The Special Leave Petitions are accordingly dismissed.

Rejection of refund application - Validity of Rule 90(3) of Central Goods and Services Tax Rules, 2017 and paragraph 12 of the impugned Circular dated 18th November, 2019 - ultra-vires of Section 54 of the CGST Act or not - seeking a direction to consider the application for refund filed by the petitioner - rejection of refund solely on the ground that the refund application filed after removal of deficiencies was beyond the prescribed period of two years - HELD THAT:- Mr. Sahid Hanief, learned counsel accepts notice on behalf of the respondents No.2 to 4. Mr. Satish Kumar, learned counsel accepts notice on behalf of the respondent No.5. List on 17th January, 2022.

Maintainability of petition - availability of alternative remedy of appeal - It is submitted that the petitioner has already deposited the tax and by not accepting the submissions and explanations, it amounts to double taxation which is not permissible - HELD THAT:- The petitioner has a remedy of filing an appeal before the GST Tribunal in terms of Section 112 of the U.P. GST Act, however, till date the Tribunal has yet not been constituted in the State of Uttar Pradesh and in this view of the matter, the petitioner is constrained to file the present writ petition before this Court. The matter requires consideration - the instant petition is admitted. List this matter on 28.02.2022.

Unblocking of Electronic Credit Ledger - period of one year as prescribed under sub-rule 3 of Rule 86A of the CGST/GGST Rules has elapsed from the date of order of blocking of the Electronic Credit Ledger - HELD THAT:- Sub-rule 3 of Rule 86A of the CGST Rules, 2017 and GGST Rules, 2017 itself has provided that the Electronic Credit Ledger can be blocked for a period of one year. On expiry of a period of one year, it would automatically get unblocked. In fact, it was the duty of the authority concerned to permit the assessee, i.e. the writ-applicant, to avail the input credit available in his ledger. Once the statutory period comes to an end, the authority has no further discretion in the matter, unless a fresh order is passed. In the case on hand, it is very unfortunate to note that despite the fact that the period of one year elapsed, th....... + More

Input tax credit - claim and availment of bogus ITC on the basis of fake invoices by creating and operating 13 fictitious firms - offences under Sections 132(1)(b),(c)&(l) of the OGST Act - HELD THAT:- As per the materials on record, the petitioner allegedly obtained GST registration vis-à-vis the fake business concerns in collusion with other accused persons by utilizing and forging the personal identity documents of the so called proprietors. The nature and extent of involvement of the petitioner with regard to the alleged transactions is clearly evident and figured out from the materials on record. In so far as the offence under Section 132 OGST Act is concerned, it is in relation to GST fraud alleged to be for an amount of ₹ 319.64 crore, wherein, the petitioner is said to be involved by creating and operating fictiti....... + More

Validity of Show cause notice - jurisdiction - Inadmissible transitional credit - Education Cess (E Cess) - Secondary & Higher Education Cess (SHE Cess) - Krishi Kalyan Cess (KK Cess) - HELD THAT:- Division Bench decision of the Bombay High Court in the case of Godrej & Boyce Mfg. Co. Ltd. Vs. Union of India & Ors., [2021 (11) TMI 157 - BOMBAY HIGH COURT] to contend that the issue raised herein is no more res integra and, therefore, approaching the appellate authority under the statute would be an exercise in futility. Learned counsel for the Revenue is directed to seek instructions as to whether the Bombay High Court decision continues to hold the field or has been challenged further by the Revenue so that this Court may decide the question of alternative statutory remedy available under the Act. Let the case be taken up on 25.01.2022.

Lifting of provisional attachment levied by the Respondents on 11 October 2019 under Section 83(2) of the CGST Act - Period beyond one year - HELD THAT:- The Hon’ble Supreme Court in case of M/S RADHA KRISHAN INDUSTRIES VERSUS STATE OF HIMACHAL PRADESH & ORS. [2021 (4) TMI 837 - SUPREME COURT] has dealt with this issue in detail and has approved the decision taken by Gujarat High Court in case of VALERIUS INDUSTRIES VERSUS UNION OF INDIA [2019 (9) TMI 618 - GUJARAT HIGH COURT]. It is held by the Hon’ble Supreme Court that the power to order a provisional attachment is entrusted during pendency of the proceedings under any of the specified provisions under Sections 63, 64, 67, 73 or 74. It is when a proceeding under any of these provisions is pending that a provisional attachment can be ordered. It is held that under sub-se....... + More

Maintainability of appeal to present petition - uploading of appeal on the appropriate portal or not - HELD THAT:- It appears that the petitioner also filed a hard copy before the respondent Appellate authority but the Appellate authority under Annexure-7 refused to accept the same as an appeal purportedly since on verification of the portal of the State GST no such appeal was found thereon. This Court need not enter into the niceties of law in this respect. Factually, the petitioner had uploaded an appeal may be before the wrong portal but it is obligatory on the part of the authorities concerned in such an event to bring it to the notice of the appellant that the appeal has been filed before the wrong authority so that the appellant can take necessary action in the said regard. It appears from the record that the appellant was unaware t....... + More

DEEC Scheme - fraudulent export of polyester fabrics and duty-free import of Polyester Filament Yarn and other items - proceedings initiated, but was not completed during the 23 years - pendency of proceedings for such a long period can be construes as reasonable period or not - HELD THAT:- There are no justification to hold that the respondents have acted in the manner law requires them to act. It is not in dispute that after the show-cause notice was issued on 30th April 1997, the petitioners were called upon for a hearing in the year 2006. At least, till 2006, it can be inferred that the issue was live. However, why no final order was passed immediately after the hearing was granted to the petitioners is not disclosed in the affidavit-in-reply. The respondents seem to have slipped into deep slumber thereafter. While the respondents&rsq....... + More

Refund of excess amount deposited - Mandatory pre-deposit - Seeking closure of bonds and return of Bank Guarantee - Import of oxygen sensors and loud speakers for use and inputs in the manufacture of ICU ventilators without payment of customs duty - benefit of exemption Notification No.20/2020-CUS dated 09.04.2020 read with Customs (Import of goods at Concession rate of duty) Rules, 2017 availed - HELD THAT:- In the light of the undisputed fact that the Order-in-Original dated 10.03.2021 itself states that the petitioner had a period of 60 days to prefer an appeal under Section 128 of the said Act of 1962 coupled with the Circular dated 16.09.2014 and the decision of this Court in M/S ORACLE INDIA PVT. LTD. VERSUS UNION OF INDIA, NEW DELHI & OTHS. [2013 (7) TMI 720 - KARNATAKA HIGH COURT], the impugned letters dated 11.03.2021 and 16........ + More

Seeking payment of duty drawback claim, along with interest - HELD THAT:- The material on record indicates that it is an undisputed fact that vide Order dated 06.07.2019, the respondent No.1 had rejected the claim of the petitioner for duty drawback. However, by Order dated 06.03.2020, the Appellate Authority not only set aside the said order dated 06.07.2019 passed by respondent No.1, but has also come to the categorical conclusion that the petitioner is entitled to the duty drawback claim made by him as well as interest on the same under Section 27A of the Customs Act - the said Order dated 06.03.2020 was binding upon the respondent No.1 who had no other option than to give effect and implement the same thereby disbursing the duty drawback claim in favour of the petitioner together with applicable interest as directed in the Order dated....... + More

Classification of imported goods - Base Oil SN50 - classified under the CTH 27101960 or not - onus to establish the cargo as High-Speed Diesel discharged by Revenue or not - confiscation of prohibited goods - levy of penalty - maintainability of appeal for determination of any question having a relation to the rate of duty of Customs or to the value of goods for purposes of assessment - HELD THAT:- Application admitted on substantial questions of law. Notify all the three Tax Appeals for final hearing on 12th January 2022 on top of the Board.

100% EOU - demand of duty on wastage/ breakage, over and above the permissible limit, of raw materials imported duty free, during the course of manufacture of final products by the EOU - whether the appellants would be eligible for the higher norms fixed by Ministry in respect of wastage/ loss/ breakage of raw materials? - whether the demand is premature? - HELD THAT:- The appellants have represented to the Ministry to revise the SION norms in blanks imported by them. Ministry after considering the request of the appellants have communicated to the development commissioner that a wastage of 15 percent has been fixed and the development commissioner may take necessary action under para 6.7(e) of Hand Book of Procedures Volume-I. Thus, in view of the decisions dated 23/9/2008 and 26/11/2008 of the Commerce Ministry, in the appellant’s....... + More

Classification of imported goods - Echo 4th Generation - Echo Dot 4th Generation - Echo Dot 4th Generation with Clock - Echo Show 5 - Echo Show 8 -Echo Show 10 - Echo Flex - Echo Studio - Echo Auto - Echo Link) - Echo Link Amp - classifiable under Customs Tariff Item 8517 62 90 or not - effective rate of duty - benefit of Serial Number 20 of Notification No. 57/2017-Cus., dated 30-6-2017, as amended by Notification No. 3/2021-Cus., dated 1-2-2021 on import of Echo Show 5, Echo Auto, Echo Flex, Echo Dot 4th Generation and Echo Dot 4th Generation with Clock. Echo 4th Generation - Echo Dot 4th Generation - Echo Dot 4th Generation with Clock - HELD THAT:- The principal function of the three devices, namely, Echo 4th Generation, Echo Dot 4th Generation and Echo Dot 4th Generation with Clock is to reproduce sound and act as speaker. Admittedly,....... + More

Classification of import goods - preparation of betel nut commonly known as Supari - API supari, Chikni supari, unflavoured supari, boiled supari and boiled & cut supari together - whether or not containing added ingredients such as food starch spices, mulethi. menthol (flavours), perfume etc. - not containing lime or katha (catechu) or tobacco - goods classifiable under Chapter/Heading 2106 90 30 as Food Preparation or not - HELD THAT:- It is admitted that boiling is an irreversible process, a boiled betel nut would be distinct from unboiled betel nut, and a boiled betel nut cannot be “unboiled” in reverse. However, it is equally obvious that boiling per se does not result in obtaining a preparation of betel nut. Speaking more generally, in view of the design of the Schedule to the CTA, HSN and plethora of judgments, besi....... + More

Valuation of imported goods - Rejection of transaction value - enhancement of transaction value of imported goods by 20% instead of 77% for the years 2013-14 to 2016-17 - re-determination of adjustment, in the transaction value on the basis of deductive value and computed value of the goods imported by the respondent-dealer - HELD THAT:- The contentions remain untenable because the Tribunal has dealt with the matter in meticulous details and has pointed out substantial basis for its findings that the transaction value shown by the respondent and that of the ASD cannot be treated as comparable at commercial level and quantitative level; and has also pointed out that the promotion activity was undertaken only by the respondent for which, it was earning higher discount. The Tribunal has also found that the difference gradually decreased from....... + More

Cancellation of bail granted - Smuggling of Wrist Watches - burden to prove under Section 123 of the Customs Act, 1962 - offences under sections 132 and 135 of Customs Act, 1962 - HELD THAT:- It is settled that once bail granted should not be cancelled in a mechanical manner without there being any supervening circumstances which are not conducive to fair trial. It cannot be cancelled on a request from the side of the complainant/investigating agency unless and until it is established that the same is being misused and it is no longer conducive in the interest of justice to allow the accused any further to remain on bail. No doubt, the bail can be cancelled only in those discerning few cases where it is established that a person to whom the concession of bail has been granted is misusing the same. In the instant case, there are no allegat....... + More

Smuggling - illegal export through Saurashtra coastal area - silver - scooter - car - HELD THAT:- Adjudication proceedings undertaken for attempted export has ended in favour of the applicant and silver is ordered to be returned back to the applicant by the appellate authority against the order of adjudicating authority - These proceedings remained pending for about 31 years from the date of filing of the aforesaid revision application as also for nearly about 38 years from the date of commission of an offence. Much water might have flown thereafter and the applicant might have settled in his life, no useful purpose would be served asking him to undergo further sentence of nearly 19 months, if at all, he has to undergo the same - Though adjudication proceedings were initiated for an attempted export which was not believed because goods we....... + More

Classification of imported goods - plastic bubble toy or plastic toy - Request for waiver of demurrage/storage/warehouse charges - HELD THAT:- The Bill of Entry is pending assessment since 19.10.2021. Whether the imported goods are parts of plastic bubble toy or plastic toy, is to be determined by the Assessing Officer. In fact, the nature of product which has been described in the Bill of Entry does not require a certificate of the Chartered Engineer. However, a sample was referred by the second respondent to a Chartered Engineer who has given a report on 02.12.2021. Thus, adequate materials are available before the first respondent (Assessing Officer) to decide the correct classifications and whether the imported goods are restricted/prohibited - Considering the fact that, the impugned Bill of Entry has not assessed for a very long peri....... + More

Seeking refund of deposit - the amount is deposit or duty? - provisional assessment as a security to the bond executed by the appellant - time limitation - unjust enrichment - Section 27 of Customs Act, 1962 - HELD THAT:- Under the Head of Account it is a customs duty which was paid under account heading No.0037 and also in the description coloumn it is clearly mentioned that the deposit of amount is equal to 20% of provisional duty therefore, the amount of ₹ 16,39,458/- has been paid as customs duty only therefore it is not a deposit as has been claimed by the appellant but it is a custom duty. Since in view of the documentary evidence, it is established that the amount for which refund was sought for by the appellant is not a deposit but it is a duty. Therefore, the refund is clearly governed by Section 27 of the Customs Act, 1962 therefore, all the provision of limitation and unjust enrichment, etc is clearly applicable. Appeal is dismissed.

Jurisdiction - power of DRI authorities to issue SCN - goods imported by the assessee should be rejected or not - show-cause notice proceedings have lingered on for unduly long time - Section 28 of the Customs Act, 1962 - HELD THAT:- In the present case, the question of lack of jurisdiction of the DRI authorities issuing the impugned show-cause notice is squarely covered by the decision of the Supreme Court in the case of M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT]. In the said case, this issue came up for consideration and was decided that the entire proceeding in the present case initiated by the Additional Director General of the DRI by issuing show cause notices in all the matters before us are invalid without any authority of law and liable to be set-aside and the ensuing demands ....... + More

Benefit of Exemption - Rig trident imported in April 1988 - benefit of Notification No. 516/86 dated 30.12.1986 on the strength of the essentiality certificate issued on 21.12.2011 much after the validity of the notification - HELD THAT:- In the instant case, the impugned goods were imported in 1988 and the goods were seized and such seizure was upheld by this Bench and was affirmed by the Apex Court. The appellants were not in the possession of the essentiality certificate at the time of import or at the time of filing of Bill of Entry; the essentiality certificate was applied and issued at a much later date after the expiry of the Notification and there too by a different authority which was not prescribed under the Notification claimed. Therefore, the facts of the cases referred are different and therefore any reliance placed upon them....... + More

Quantum of penalty levied under Section 114 (iii) of the Customs Act, 1962 - fraudulent export as goods were grossly undervalued - rejection of declared value - appellant’s alleged offence is that he has submitted the Shipping Bill duly signed by him wherein, the value was declared exorbitantly higher side - confiscation of goods - HELD THAT:- The valuation was not done by the appellant, the appellant have signed the shipping Bill only on the authorisation of his employer firm M/s. MAZDA GLOBAL, the value was taken from the invoice which was prepared and signed by the Proprietor of M/s. MAZDA GLOBAL Smt. Bharti J Gandhi which was sent to the appellant by Shri Amish Gandhi. The appellant being an employee of the M/s. MAZDA GLOBAL has no reason to dispute the valuation as the original valuation was finalized by his employer M/s. MAZDA....... + More

Smuggling - yellow material found in the baggage - applicability of proviso contained to Section 129 A (1) of the Customs Act - HELD THAT:- The proviso clearly stipulates that no appeal shall lie to the appellate tribunal and the appellate tribunal shall not have jurisdiction to decide any appeal in respect of an order referred to in Clause (b) of Section 129 A (1) if such order relates to goods imported or exported as baggage. In fact, a perusal of the Section 129DD indicates that a revision may lie before the Central Government. As the Tribunal does not have the jurisdiction to decide the appeal, it stands dismissed.

Classification of group of goods - measuring devices, namely flowmeters - to be classified under CTH 90.26 or not - benefit of Notification No. 24/2005-Customs, dated 1-3-2005 (Sl. No. 31). HELD THAT:- The applicant has explained the basis of grouping of the instruments/devices and each group of products are intended for different applications/industries. For example, the Cubemass group of products are for chemical/petrochemical industries while Dosimass are for personal care/F&B industries. Two expert opinions, from Fluid Control Research Institute, Palakkad. Kerala; and Institute of Chemical Technology, Mumbai arc also confirming the applicant’s stand in respect of the instruments manufactured by their Aurangabad plant. In this case, there are two different possible headings for classification of the impugned devices/instrumen....... + More

Benefit of concessional rate of duty - import of stainless-steel scarp - Entry No. 333 of the Notification No. 12/2012-Cus., dated 17-3-2012, as amended vide Notification No. 25/2013-Cus., dated 8-5-2013 - HELD THAT:- A perusal of the tariff shows that Notification No. 12/2012-Cus., dated 17-3-2021, as amended was superseded vide Notification No. 50/2017-Cus., dated 30-6-2017. Therefore, the applicant’s initial contention that there has been no factual change in respect of the application since its original filing doesn’t appear to be correct - the said notification has been amended several times since and the amendments carried out vide Notification No. 2/2021-Cus., dated 1-2-2021 are significant in the context of the present advance ruling application. The effect of the amendments carried out w.e.f. 1-2-2021 is that the bene....... + More

100% EOU - Process amounting to manufacture or not - labelling and repacking of the imported goods - inter-unit transfer - Chartered Accountants Certification is sufficient proof for co-relating to the transfer and receipt of goods or not - applicability of CBEC Circular No.314/30/97/CE dated 06.05.1997 - HELD THAT:- There is considerable force in the arguments advanced by the learned counsel for the respondent inasmuch as the goods said to have been diverted from Bengaluru unit to Venkatapur unit, both being 100% EOUs. On this inter-unit transfer of the raw material, the issue is squarely covered by COMMISSIONER VERSUS SUNIL KUMAR JAIN [2015 (9) TMI 1687 - SC ORDER] confirmed by the Hon'ble Apex Court. The finding of the Tribunal is based on this judgment and the same cannot be faulted with - Similarly, no exception can be found with....... + More

Import of Antique item - idol/statue - baggage rules - confiscation of a four headed and eight “armed metal idol” imported by the petitioner from Bangkok - goods declared as a non-Antique in the Baggage Declaration form - HELD THAT:- The petitioner has no objection if the said idols/statutes in question are handed over to Archaeological Survey of India free of charge for disposal in accordance with Point No.17.9 of Disposal Manual 2019 issued by the CBIC. The petitioner will neither claim ownership of the said idol/statute nor release of the same. Statement is accepted. In this backdrop, since the petitioner agreed not to claim ownership of the said idol/statute and in view of the Revenue agreeing to hand over the possession of the said statue to Archaeological Survey of India under the provisions of Disposal Manual 2019 issue....... + More

Oppression and mismanagement - seeking inter alia injunction against the Respondent from proceeding with the Rights Issue as it was being issued with a motive to dilute the shareholding of the Appellant in the Respondent Company - section 241 and 242 of Companies Act - HELD THAT:- It is seen that the matter was listed on 04.01.2022 and it is pertinent to mention that NCLT has recorded that the “Petitioner was heard in full‟. It is significant to mention that in all the aforenoted Orders passed by NCLT both sides were present and heard. The matter was listed for 06.12.2021 as “a specially ordered matter‟. There are force in the contention of the Learned Counsel for the Respondent that it could not be heard on 14.01.2022 on account of the pandemic and was hence posted to 18.02.2022 - Section 242(4) of the Act empower....... + More

Scope of Deposits - amounts collected by the petitioners for sale of immovable property as advance - would come under the purview of ‘deposits’ or would exempt from the purview of ‘deposits’ by virtue of Rule 2(1) (c) (xii) (b) of the Companies (Acceptance of Deposits) Rules, 2014? - HELD THAT:- The proviso to Rule 2 (1) (c) (xii) (b) makes it very clear that only when the amount becomes refundable (with or without interest) due to the reasons that the company accepting the money does not have necessary permission or approval wherever required, to deal in the goods or properties or services for which the money is taken, then the amount received shall be deemed to be a deposit under the respective rules. Admittedly, the 1st petitioner company had purchased the agricultural land and after obtaining the permission fro....... + More

Approval of the Scheme of Amalgamation - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- Section 230(2)(a) of the Act read with Rule 6(3)(viii) of the Rules shows that the scope and intent is to require Companies to disclose all investigations/proceedings which are ‘material’ and relating to the Company. We are of the considered view that the wording of Section 230(2)(a) should be interpreted as “all material facts relating to the Companies, such as, pendency of any investigation of any proceeding against the Company” - as per Clause 6 of the Scheme upon this implementation, all proceedings in the name of the ‘Transferor Company’ shall be continued and enforced against the ‘Transferee Company’ and such proceedings shall not be discontinued or prejudicially affect anyone by reaso....... + More

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

Seeking restoration of name of company in Registrar of Companies - Section 252 of the Companies Act, 2013 - HELD THAT:- The Company has been active for the period of two years preceding the date of strike off and carrying on its business for the purpose of which it was incorporated. Taking into consideration the provisions of Section 252(3) of the Companies Act, 2013 which vests this Tribunal with a discretion where the Company whose name has been struck off and such Company is able to demonstrate that there is a running business as on the date when the name was struck off and also keeping in consideration that it is just to do so can restore the name of the Company in the register. The Registrar of Companies, Chennai is ordered to restore the original status of the Petitioner Company viz. M/s. Ezhil Blue Metals Pvt. Ltd. as if the name o....... + More

Alleged removal/resignation of the 1st petitioner - validity of resolutions passed at the Board Meetings/General Meetings which have been manipulated by the respondents with respect to shareholding/directorship/vesting themselves with authority - alleged amendment to the Articles of Association - discontinuation of as Director of the first Respondent Company on account of the gross breach of fiduciary duty - validity of appointment of Respondents second, four to nine as Directors - seeking permanent injunction restraining respondent 2 to 9 from functioning or acting as directors of the first respondent company or holding themselves out as directors of the first respondent company - validity of manipulation in the shareholding of the first respondent - shifting of Registered Office from Sanghinagar to the Corporate office at Hyderabad. HEL....... + More

Sanction of scheme of arrangement and amalgamation - section 230-232 of Companies Act - HELD THAT:- In view of the fact that all the unsecured creditors of all the applicant- companies have given their consent affidavits, the meetings of the unsecured creditors of all the applicant-companies are hereby dispensed with. Various directions with regard to holding and convening of various meetings issued - directions with regard to issuance of various notices issued. The scheme is approved - application allowed.

Winding up of the respondent-Company - failure to pay the debt of the petitioner under sections 433, 434 and 439 of the Companies Act, 1956 - Transfer of winding up petitions from the Company Court to be tried by the NCLT - HELD THAT:- It appears that after the order of admission and advertisement of the petition, no further orders are passed by the Court with regard to order of winding up of the company nor the Court has appointed the provisional Liquidator. In view of the following observations of the Apex Court in case of ACTION ISPAT AND POWER PVT. LTD. VERSUS SHYAM METALICS AND ENERGY LTD. [2020 (12) TMI 535 - SUPREME COURT], this petition is required to be transferred to the NCLT, Ahmedabad. The Company Petition No. 102 of 2006 is accordingly transferred to the National Company Law Tribunal, Ahmedabad Bench. Registry to forward the papers to the Tribunal within a period of Eight weeks from today along with order - Application allowed.

Revival of petition - wilful breach - settlement of disputes between the parties - HELD THAT:- It is seen from the records that the present Application for revival of the main Company Petition was filed before this Tribunal on 10.07.2018 and from thereon the Corporate Debtor has sought numerous adjournments by paying a paltry sum towards the dues of the Operational Creditor in each and every hearing. Further, it is seen from the Order of this Tribunal dated 17.09.2020, a last opportunity was given to the Corporate Debtor to pay a sum of 17.5 million Japanese Yen to the Operational Creditor within a period of four weeks thereof. However, it is seen that the Corporate Debtor was also not able to adhere to the said timeline even after expiry of a period of one year. All these facts would go on to show that the Corporate Debtor has violated t....... + More

Oppression and Mismanagement - reconstitution of shareholders at a meeting of the shareholders of the Company to be convened by and conducted under the supervision of this Tribunal - direction to place for consideration or the shareholders all related party transactions for the years 2015-16, 2016-2017 and 2017-18 in a meeting of the shareholders of the Company to be convened by and conducted under the supervision of this Tribunal - direction to refund to the Company all amounts in related party transactions which do not obtain the approval or the shareholders in a meeting of the shareholders of the Company to be convened by and conducted under the supervision of this Tribunal - reopening of financial statements - HELD THAT:- When a company enters into a related party transaction, covered under Section 188 of the act, this requires the co....... + More

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

Sanction of Scheme of Amalgamation - Sections 230-232 of the Companies Act, 2013 - HELD THAT:- The Scheme contemplated between the petitioner companies, appears to be prima facie in compliance with all the requirements stipulated under the relevant Sections of the Companies Act, 2013. In the absence of any objections before us and since all the requisite statutory compliance have been fulfilled, this Tribunal sanctions the scheme of amalgamation appended as Annexure-A1 with the company petition. Notwithstanding the submission that no investigation is pending against the petitioner companies, if there is any deficiency found or, violation committed qua any enactment, statutory rule or regulation, the sanction granted by this Tribunal will not come in the way of action being taken, albeit, in accordance with law, against the concerned persons, directors and officials of the petitioners. The scheme is approved - application allowed.

Seeking the convening of a general meeting of the Respondent Company - Seeking to appoint an Independent Chairman for the meeting so ordered to conduct the meeting in a professional and impartial manner - HELD THAT:- The Board Meeting and AGM may not proceed without creation of hurdles by either side and therefore it is directed that an independent Chairperson shall chair the aforesaid Board Meeting and AGM, supported by a Scrutinizer, assisting in Secretarial tasks inter-alia for attendance, proxy, polling, etc., and they shall jointly file a report before this Bench on the proceedings of the Board Meeting and AGM. Though the Scrutinizer shall mainly assist the Chairperson in the AGM, he shall also assist in the Board meeting for contextual continuity. The Agenda for AGM shall be limited to the presentation/finalisation of the accounts f....... + More

Seeking removal from the Director Board of Kerala Chamber of Commerce and Industry - seeking direction for continuation as Director even after knowing the office of director held by them is vacant - validity of resignation of director - supersession of Board of Directors of the R1 Company by the NCLT appointed Chairman - HELD THAT:- If the office of any Director appointed by the Company in General Meeting is vacated before his term of office expires in the normal course, the resulting vacancy may, in default of and subject to any regulations in the Articles of the company, be filled by the Board of Directors at a meeting of the Board which shall be subsequently approved by members in the immediate next General Meeting. Any person so appointed shall hold office only up to the date up to which the Director in whose place he is appointed wou....... + More

Seeking direction to 1st Respondent to furnish the copies of the Minutes Book of the Annual General Meetings held since incorporation - denial of the representation twice as per Section 119 (3) of the Company's Act, 2013 - Petitioner's claim is that to the request made by him, no reply is received - HELD THAT:- The minutes book has to be maintained by the Company at their registered office and it shall be made available for inspection to the members on their request. The petitioner itself stated that he made a request through post but the same was returned by the postal authorities - The Respondent is a public Company incorporated on 15.03.1937. The company is required to admit the request made by a shareholder by way of an application to the company specifically stating the reason for refusal of the request within the stipulated ....... + More

Reduction of Share Capital of Company - Section 66 of Companies Act - HELD THAT:- The present position of law, while dealing with the provisions of Section 66 is that if none of the shareholders are objecting for the proposed reduction, then after considering the merits of the case as also connected facts and circumstances such petition normally deserves to be admitted. In the case of Elpro International Limited [2007 (6) TMI 292 - HIGH COURT OF BOMBAY], Hon'ble Bombay High Court has expressed that the question of reduction of share capital is the matter of domestic concern of the company. Further observed that decision for reduction is based on commercial consideration undertaken by the businessmen who are in the best position to know of the necessities and interests of the company concerned, in the absence of serious allegations as ....... + More

Sanction of scheme of Amalgamation - section 230(1) read with section 232(1) of the Companies Act, 2013 - HELD THAT:- Various direction with regard to holding, convening and dispensing with various meetings issued - directions with regard to issuance of various notices also issued. The scheme is approved - application allowed.

Oppression and mismanagement - Seeking to declare the petitioners as directors of the said company and allow the petitioners to take charge as the directors of the company - seeking direction to respondents not to restrain the petitioners from the company premises - seeking direction to 2nd and 3rd respondents not to take any action restraining petitioners taking charge as directors of the said company - seeking direction that the appointment of respondents 2nd and 3rd as null and void - seeking to allow the petitioners to perform all the duties as directors of the said company - Section 241 &242 of the Companies Act, 2013. HELD THAT:- The majority shareholders are expected to exercise their voting powers to self-remedy, before relying on any statutory provisions to protect themselves from oppression by the minorities. The statutory r....... + More

Sanction of Scheme of Arrangement - Section 230-232 of Companies Act. 2013 and other applicable provisions of the Act read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- This Bench holds that depending on the facts and circumstances of each case, the NCLT has the powers to dispense with the meetings of shareholders and others by using judicial discretion. Various directions with regard to holding, convening and dispensing with various meetings issued - directions regarding issuance of various notices also issued - the scheme is approved. Application allowed.

Seeking revival of the Rajasthan State Agro Industries Corporation Limited. - Sections 391 & 443 of the Companies Act, 1956 read with Sections 230 and 273 of the Companies Act, 2013 - voluntary winding up was sought earlier - HELD THAT:- This Court finds that though Sub-clause (c) of Section 434 of the Act, 2013, speaks of transfer of certain proceedings to the National Company Law Tribunal including the proceedings relating to arbitration, compromise, arrangements and reconstruction and winding up of the Companies pending before the High Court, however, in the present case, since the order of winding up has already been passed of a Government Company and the State files an application for recalling the order passed by this Court of winding up, the same can be done by the High Court. The application filed by the State of Rajasthan des....... + More

Validity of Winding up order - breach of the mandatory requirement of advertisement before ordering winding up - bar of time limitation - estoppel from pleading fraud - violation of the principles of natural justice due to the denial of permission for cross examination - erroneous findings of fact - application of incorrect standard of proof on the question of fraud - erroneous conclusions regarding the consequences of fraud, assuming that fraud was established - winding up under clause (c) of Section 271 (directly on the ground of fraud) by any person authorised by the Central Government by notification or winding up under clause (e) of Section 271 (on the ground that it is just and equitable to wind up) in terms of Section 224(2)(a) on the basis of a report of investigation under Section 213(b). Applicability of provisions of IBC - HELD....... + More

Validity of distribution made by the Appellant as per the provision of Insolvency and Bankruptcy Code 2016 - revival of Corporate Debtor - HELD THAT:- In the present case, there is an order of attachment under ‘Prevention of Money Laundering Act’. Though the Adjudicating Authority vide its order dated 22.07.2020 has allowed the Liquidator to proceed with the sale of the assets; but the operation of the said order has been stayed by the Hon’ble Calcutta High Court vide order dated 20.11.2020 in WP No. 7962/2020 filed by the ED. In view of the same, the sale of the assets of the CD is not possible at this stage and due to legal intricacies, it is absolutely uncertain as to when the Liquidator will be able to realise the assets of the CD by disposing the same as a going concern. In these circumstances, if the impugned order....... + More

Maintainability of application - initiation of CIRP - Corporate debtor failed to make repayment of its dues - Operational Creditors - time limitation - HELD THAT:- The present is a case where Corporate Debtor in spite of several notices issued by the Adjudicating Authority did not appear to contest the Application. The date of default having been specifically mentioned in the Demand Notice as well as in the Section 9 Application as 26.11.2018, there was no material with the Adjudicating Authority to take any contrary view regarding the date of default. The observations of the Adjudicating Authority that last invoice dated 08.07.2017 which does not appear to be correct which is in altogether different format as compared to other 9 invoices. The mere fact that the invoice dated 08.07.2017 was sent in different format was not any factor on w....... + More

Approval of the Resolution Plan along with the Scheme of Amalgamation - Section 30(6) read with Section 31 of Insolvency & Bankruptcy Code, 2016 (IBC, 2016) read with Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT:- It is noted that Form H has been filed by Resolution Professional wherein all information/details as regard to conduct of CIRP as well as process adopted for Resolution Plan has been given. The Resolution Applicant has proposed to pay the financial creditor ₹ 77,10,00,000/- against its total admitted claim of ₹ 95,03,71,082/-. The amount of ₹ 12,32,44,348/- has been proposed in the Resolution Plan to pay to the Operational Creditor against the total admitted claim of ₹ 12,32,44,348/- including the S....... + More

Seeking direction to Resolution Professional of Afcan Impex Private Limited and member of CoC to allow submission of the Resolution Plan by the applicant in the matter of Afcan Impex Private Limited - Section 60(5) read with Section 30 of the Insolvency and Bankruptcy Code, 2016 read with Rule 11 of the National Company Law Tribunal Rules, 2016 - HELD THAT:- The respondent No. 1 published Form-G on 09.06.2021 inviting expression of interest for which the last date was 07.07.2021 and the last date for submission of the resolution plan was 16.08.2021 However, the applicant expressed its willingness to submit the resolution plan on 30.09.2021 which is much beyond the last date for submission of the resolution plan - It is further noted that the CoC approved the resolution plan with 100% voting on 01.10.2021 and the application before this Ad....... + More

Seeking sale as a going concern - Section 35(1) (f) & 60(5) of the Insolvency & Bankruptcy Code, 2016 r/w Reg. 32(f) and 32A of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations & Rule 11 of the NCLT Rules, 2016 - HELD THAT:- Since the interests of all the stakeholders have been taken care of and the Secured Financial Creditor (Erstwhile CoC) has also approved, it was submitted that this Tribunal may be pleased to pass necessary orders for sale of the corporate debtor as going concern. IA/463/C HE/2021 is the amendment Application seeking modification in the prayers in IA/199/CHE/2021 and the same is hereby allowed. The Liquidator is permitted to sell the assets of the Corporate Debtor as a going concern to the Respondent as per Regulation 32A of Insolvency and Bankruptcy Board of India (Liquidatio....... + More

Appointment of the Liquidator or restraining the Liquidator from discharging the employees etc. - Section 61 of the ‘Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The CoC agreed to accept the EOI of SREI and further extended the date of submission of the Resolution Plan from 02.03.2019 to 25.03.2019. However, SREI submitted the Resolution Plan on 16.04.2019 which was rejected by the CoC on 07.05.2019 by approx.98% vote. SREI went on improving the proposal just by a minuscule amounts and finally CoC decided to put the resolution plan to vote on 24.07.2019. However, the Resolution Plan was rejected by the CoC by approx.71% of the vote and rejection was communicated to the SREI. On 25.07.2019, SREI further sent a standalone financial offer raising its proposal from ₹ 395 Crore to ₹ 401 Crore - The issue was why we are ....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Non-performing assets - Financial Creditors - prohibition under the doctrine / principle of “Nullssuss Commodum Capere Postest De Injuria Sua Propria” - existence of debt and dispute or not - HELD THAT:- It is a settled law that default is committed first and second stage comes as NPA, if it is not regularized in between the period of default and within 90 days thereafter. The Code is a complete Act itself. What Section 7 of the Code requires that a Financial Creditor by filing an application in the requisite format can initiate CIRP against the CD when a Debt is due and payable in law and has not been paid and a default has occurred, the Adjudicating Authority is to initiate CIRP if, he finds default recorded in the I....... + More

Liquidation/sale proceedings under process - seeking to allow the Liquidator to keep windmill assets of the Corporate Debtor outside the sale purview of Liquidation Estate - seeking to allow the liquidator to distribute the sale proceeds from the sale of windmill - Liquidator also seeking to get himself impleaded as a party - Whether the title of windmill asset has passed to Appellants is sub-judice before the Calcutta High Court? - HELD THAT:- It is apparent that whether the title of windmill assets has been passed to the Appellants is to be decided in the Civil Suit which is pending before the HC. Thus, we are unable to convince with the argument of Ld. Sr. Counsel that the Adjudicating Authority has wrongly concluded that the Civil Suit is for determining rights of the parties over the windmill assets. Whether the order for keeping the....... + More

Seeking replacement of Liquidator - grounds pleaded in the appeal for replacing the liquidator are that the liquidator did not carryout the process of liquidation insofar as sale of assets through the e-auction is concerned, in a fair and transparent manner - it is also alleged that the liquidator did not discuss the process and details of liquidation with the stakeholders as well as Appellants, who are also stakeholders in the liquidation proceedings - HELD THAT:- In the present case, from third meeting of SCC onwards, it was decided that the Corporate Debtor or its business is not to be sold as a going concern. Hence, a period of prescribed time limit for completion of liquidation of 365 days should be counted from the date of 3rd meeting of SCC held on 9.11.2020. Since there was no “lockdown” enforced by the authorities in ....... + More

Seeking exclusion of 87 days from the calculation of 180 days (CIRP period) - requirement of approval of the CoC - Section 12 of Insolvency & Bankruptcy Code, 2016 - whether the approval of the CoC under Section 12(2) of the Code is mandatory for seeking ‘exclusion of time” even if it is sought on grounds of lockdown/time lost during the period of any ‘Stay’/Status Quo /or for any other reason? - HELD THAT:- Section 12(2) speaks about ‘extension of the time’; Regulation 40C of the Regulations speaks about ‘exclusion of time’; the fact that the Adjudicating Authority had exercised its Discretionary Powers under Rule 11 of the NCLT Rules, 2016, that the period sought for excluding the time period lost is based on the reasons mentioned in the table in para 10; the fact that had this period ....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - rejection of Operational Debt - existence of debt and dispute or not - HELD THAT:- There is no dispute that before issuance of notice in the Company Petition filed by the Appellant, the principal amount as claimed by the Appellant of ₹ 18,07,373/- was paid on 15th December, 2018. The claim of interest was refuted in the reply filed before the Adjudicating Authority by the Respondent. It was specifically a case of the Respondent that there was no agreement between the parties to make any payment of interest and the claim of interest by the Appellant is mala-fide and without any basis. In the present case, when the Corporate Debtor in its reply to Section 9 Application has clearly and categorically deni....... + More

Seeking withdrawal of application for initiation of CIRP - maintainability of case in view of the settlement and in view of the provisions of section 10A of the IBC, 2016 - HELD THAT:- No application for initiation of CIRP of a Corporate Debtor under section 7,9 and 10 of IBC, 2016 shall be filed for any default arising on or after 25th March, 2020 along with that it was also clarified that provisions of this section shall not apply to any default committed under the said sections before 25th March, 2020. Whereas, in the present case in hand the main matter has been filed under section 7 of IBC, 2016 and the default as well as the filing of the application under section 7 has taken place prior to 25th March 2020. The applicant's contention that as both the parties entered into a settlement therefore, there has been novation of the MOU....... + More

Implementation of approved Resolution Plan - delay because of the time for litigation and in making initial payments as required in the approved Resolution Plan - grant of more time for extension of CIRP for invitation of fresh EOIs or liquidation of the Corporate Debtor, in the event the Respondent No. 1 is found in default of implementation of the Resolution Plan - HELD THAT:- Effective implementation of the Successful Resolution Plan started only after 5.4.2019, when Hon’ble Supreme Court dismissed the appeal of former promoter/directors of the Corporate Debtor. It is quite apparent that the bank guarantee submitted by Respondent No. 1 was not enforced properly because it was not submitted in SWIFT mode. Respondent No. 1 has claimed that it is not responsible for non-enforceability of the Bank guarantee because it was due to the ....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor committed default in making payment to the Financial Creditor in view of the term loan and working capital facilities availed by them - Financial Creditors - existence of debt and dispute or not - HELD THAT:- The counsel for the Financial Creditor submits that since the debt is admitted, the defences taken by the Corporate Debtor cannot be appreciated. The counsel for the Corporate Debtor also does not raise any serious argument against the said contention. He only makes an attempt to submit that the inability to pay was due to the pandemic and due to the incidents mentioned in the counter. When debt is admitted, the reasons for the inability to pay, cannot help the Corporate Debtor however valid they are. It is for the Corporate Debtor to settle the matter with Financ....... + More

Release of retention money as per the Contract Agreement - Section 60(5) of Insolvency and Bankruptcy Code, 2016 Read with Rule 11 and 13 of the National Company Law Tribunal Rules, 2016 - HELD THAT:- It is clear from the arguments made by the counsel for the Applicant that the contract that assigned to the Corporate Debtor was executed and certificate was issued to that effect with regard to defect liability period extended up to 30.06.2022. The counsel for the Applicant draws the attention of the Tribunal to the notification dated 03.06.2020 wherein it is notified that retention money from the period 3 months but paid to 6 months, may not be deducted from the raised bills. In view of the said notification the application is allowed and Applicant would be entitled for the refund of retention money. The Respondent No. 2 shall release the retention money of ₹ 2,62,74,514/- forthwith. Petition disposed off.

Validity of resolution passed at the 12th COC Meeting - CoC had rejected the Applicant’s request for extension of time to submit the Resolution Plan - HELD THAT:- The Minutes of the 12th COC Meeting established that the CoC offered to the Appellant to continue to be a part of the ongoing process so that it may have an opportunity at any later stage. The Appellant had sought 15 minutes time for discussion and thereafter decided not to participate in the open bidding process and exited the Meeting. Thereafter the CoC went on to approve the Resolution Plan submitted by M/s. Om Logistics Ltd./R-8. We find force in the contention of the Learned Counsels for the Respondent that if one of the Directors of the Appellant Company Mr. Naresh Agarwal had tested Covid positive, there are no substantial reasons given for any of the other five Dir....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- Since the application filed by the Applicant fulfilled all the conditions required under Section 7 of the Code, this Tribunal ordered issue of notice to the Respondent by all modes. No one has represented on behalf of the Respondent. Despite service of notice by all modes, none appeared on behalf of the Respondent and as a result the Respondent was proceeded ex-parte by order dated 12.10.2021. The Applicant has established the existence of debt and default on the part of the Respondent and the Respondent has not availed the opportunities provided by this Tribunal to defend the arguments made by the Applicant. In view of the above situation, this Tribunal admits this petition and initiates CIRP on the Respondent with immediate effect. Application admitted - moratorium declared.

Seeking a permission for conducting the Private Sale of the Assets of the Corporate Debtor - Regulation 33(2) of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 - HELD THAT:- Since, the Applicant is in the process of selling the said property under private sale to a related party of the Corporate Debtor, not barred under Section 29A of the IBC, 2016. Where is no objection and multiple attempts of public auction by the Liquidator, this bench is of the view that this is a fit case for granting the permission for private sale of said property as the proposed buyer is related party as under Regulation 33(2) of the Regulations - the present Application is allowed by permitting private sale of said property as under Regulation 33(2) of the Regulations.

Seeking approval of Resolution Plan - Seeking consideration of its application on priority before approval of resolution plan - resolution professional has failed to discharge his obligation to assess the applicability of section 29A of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- For secured financial creditors, unsecured financial creditors and employees, 100 per cent. payment is given whereas to operational creditors, only 2 per cent. of the admitted amount is given. The fair value and liquidation value of the corporate debtor are ₹ 5,643.26 lakhs and ₹ 4,561.66 lakhs respectively. The amount given to the operational creditor is more than liquidation value. In form H in column No. 2 of clause 7, payment to unsecured financial creditors who voted in favour of the resolution plan has been mentioned as ₹ 4,17,7....... + More

Seeking grant of Anticipatory Bail - Money Laundering - ordinary offence under the Indian Penal Code - predicate offences - mandate of Section 45 of the PMLA Act coming into play or not - HELD THAT:- It is not a question of taking objection but the duty of court to examine the jurisdictional facts including the mandate of Section 45 of the PMLA Act, which must be kept in mind. It is deemed appropriate to set aside the impugned judgment and order and relegate the parties before the High Court for reconsideration of Criminal Petition afresh for grant of anticipatory bail filed under Section 438 of the Code of Criminal Procedure in connection with stated PMLA offence - The High Court may hear the remanded proceedings expeditiously, preferably within four weeks from the date of receipt of copy of this order. Appeal disposed off.

Seeking grant of Bail - Jurisdiction - predicate offence under Official Secrets Act - petitioner contends that the offences punishable under the Official Secrets Act not being the Scheduled Offences under the PMLA, ECIR recorded by the respondent and the arrest made pursuant to that as also the complaint filed is without any jurisdiction - Proviso to Section 45 of the PMLA - HELD THAT:- Indubitably, offences punishable under the Official Secrets Act are not in the list of Scheduled Offences under the PMLA. Whether the charge sheet filed in the predicate offence is for offences punishable under Sections 3/4/5 of Official Secrets Act read with 120B IPC or for Section 120B IPC substantively or whether in the absence of any charge sheet under Section 411 IPC having been filed by the Special Cell, Delhi Police, the respondent/Enforcement Direc....... + More

Money Laundering - proceeds of crime - Seeking default or Statutory bail - fraud and misappropriation of money - filing of the complaint by ED and also reserving the right to carry on further investigation and to file subsequent complaint as empowered u/s 44 Explanation (ii) of PML Act - incomplete investigation or filing of the complaint would be considered to be complete investigation for offence of money laundering - HELD THAT:- No doubt the investigation in the offence of money laundering involves tracing of different evidence of layering, padding, fabrication of documents etc. and this process requires unearthing of evidence and documents, analyzing the same and to ascertain the laundering of the proceeds of crime but once the accused has been arrested the onus lies on the Directorate to complete the investigation within the time fra....... + More

Money Laundering - Provisional Attachment order - approval of a Resolution Plan with an order approving liquidation under Section 33 when the plain language of Section 32A(2) of the IBC - HELD THAT:- List on 24th January, 2022 for hearing.

Seeking grant of bail - money laundering - proceeds of crime - bail sought on the ground that wife of accused was slipped in bathroom and was seriously injured - HELD THAT:- It has to be noted that the temporary bail is prayed on humane ground. Situation mentioned in the application indicates that, applicant is in jail since 23.01.2021. His bail application was rejected. He has two children, son and daughter. Son is aged 16 year and daughter is aged 11 year. There is no to look after them as their mother is admitted in the hospital. Acquaintances, who shifted her to the hospital have certain limitations and this fact cannot be ignored. Apart from this, it has to be noted that, in other offences for example offence against human body, family members of accused involved in offences against human body know well the background, conduct of the....... + More

Money laundering - scheduled offence - Siphoning of funds - ED has jurisdiction to investigate the scheduled offence or not - forged documents - HELD THAT:- It is material to note that, there is absolutely on justification for withdrawal of ₹ 1 Crore, that too when accounts were freeze as a part of conversion process. Even there is nothing before the Court to indicate that, Deepak Kumar Prajapati is any legal entity or holding any legal character. Even there is absolutely nothing before the Court to indicate any jural relation between applicant and Deepak Kumar Prajapati. Also there is no explanation nor any justification how cash amount was given to Deepak Kumar Prajapati (A4) and the same came to the applicant by way of loan or otherwise - there is a clear case which prima-facie indicates all the material stages of process of mone....... + More

Seeking grant of Bail - Smuggling - rule of presumption of innocence - Section 45(1) of the PML Act - constitutional validity of the provision - HELD THAT:- This Court is of the opinion that the declaration by the Supreme Court in Nikesh Tarachand Shah's [2017 (11) TMI 1336 - SUPREME COURT] would render the twin conditions prescribed in Section 45(1) of the PML Act for release of an accused on bail to be void in toto; such conditions have to be disregarded of any legal force from its inception. They cease to be law and are rendered inoperative to the extent that they are to be regarded as if they had never been enacted. That being so, the twin conditions for grant of bail under Section 45(1) of the PML Act as are now sought to be pressed into service by the ED cannot be considered to have revived or resurrected only on the prospective....... + More

Seeking grant of Anticipatory Bail - property relating on the creation of mortgage/security - fake/bogus loans - no assets were created - loan turned bad NPA in the name of non existing/pseudonymous borrowers without adhering to the prescribed norms and guidelines of the Bank and causing wrongful loss - overriding effect of PML Act over other acts - HELD THAT:- PML Act, 2002 deals with the offence of money laundering and Parliament enacted this law to deal and curb the activities of money laundering. Being a special enactment it has overriding effect on general law. Section 71 of PML Act specially provides that provisions of PML Act shall have overriding effect on any other law time being in force. Thus, it is very clear that provisions of Code of Criminal Procedure will not be applicable until there is no specific provision is given in P....... + More

Maintainability of petition - availability of alternative remedy of appeal - Validity of Provisional Attachment order - HELD THAT:- The writ petition is partly allowed by directing that, subject to the petitioners filing a statutory appeal before the Appellate Tribunal within a period of two weeks from today, the parties will maintain status quo qua the subject matter of the impugned order till the petitioners’ appeal and stay application are taken up for consideration by the Tribunal as and when it becomes functional.

Money Laundering - seeking grant of anticipatory bail - creation of shell companies - bogus bank accounts - Section 50 of PMLA, 2002 - HELD THAT:- Applicants before this Court are employees of Union Bank of India, Raipur posted at Ramsagarpara and Pandri Branches respectively. Applicants No.1 & 2 were posted in Ramsagarpara Branch, applicant No.3 was posted in Pandri Branch and applicant No.2 is posted at Pandri Branch. Allegations against them are that they being officials got the 446 bank accounts (in both branches) opened without properly following procedure prescribed and without verifying documents annexed along with account opening application forms. Allegation against applicants is that they verified application forms for opening of bank accounts. There is specific submission by learned counsel for both sides that there is no r....... + More

Jurisdiction under PMLA vs IBC - power or authority to proceed against the properties of a corporate debtor once a liquidation measure has come to be approved in accordance with the provisions made in the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The resolution plan essentially must make provision for the payment of debts of the corporate debtor owed to financial and operational creditors, workmen and others specified in Section 53 of the IBC. The resolution plans which may be received by the RP are then placed before the Committee of Creditors for their consideration. In terms of Sub-Section (4) of Section 30, a resolution plan may be approved if it is passed by a vote of not less than sixty percent of the voting share of the financial creditors in a meeting of the Committee of Creditors. The resolution plan as approved by the C....... + More

Money Laundering - provisional attachment of property - proceeds of crime - scheduled offences - offences under Section 45 read with Sections 70 and 8(5) of the Prevention of Money-Laundering Act, 2002 - HELD THAT:- The complaint by the Authorised Officer is akin to a private complaint under Section 200 of Cr.P.C. and it is not a final report by Police Officer under Section 173(2) of Cr.P.C. It is clearly stated in the complaint that it is filed by the Officer, who is duly authorized by the Central Government to file complaint in writing in tune with the second proviso to Section 45(1) of the PMLA. Both the Sections 44 and 45 of the PMLA commence with the non-obstante clause, indicating the complaint in writing by a duly Authorised Officer to be taken cognizance by the learned Special Judge without the accused being committed, notwithstan....... + More

Money Laundering - Validity of search operation held in the premises of the petitioner - pendency of investigation relating to the proceedings - main grievance projected by the petitioners is that the motive behind the search of their premises is to implicate them in some false case under the provisions of the Prevention of Money Laundering Act, 2002 - HELD THAT:- The FEMA Act, which is a legislation for regulating the economic aspect, has been passed to consolidate and maintain law relating to foreign exchange, external trade and payments and for promoting orderly development of foreign exchange. Concededly, the petitioners have knocked the doors of this court by filing these writ petitions, against the proceedings initiated under section 37 of the FEMA Act and consequential action of investigation conducted by the third respondent. As r....... + More

Grant of pre-arrest bail - laundering of proceeds of crime - economic offences or not - HELD THAT:- Economic offences constitute a class apart and need to be viewed with a different approach in the matter of bail, as such offences are normally sourced in deep-rooted conspiracies involving huge loss of public funds and need to be looked at seriously, being grave offences that affect national economy as a whole and posing a serious threat to the financial health of the country. The irrefutable fact is that the present case originated from FIR No.5(3) 2018 dated 24.03.2018 and the evidence seized in connection therewith is already in the custody of the authorities. The petitioner has also been granted anticipatory bail in relation to the said FIR in August, 2019. Documentary evidence, which would be the fulcrum of the case, having already be....... + More

Money Laundering - siphoning of funds - petitioner being vexed for two times - offences punishable under Sections 409, 420, 468, 471 and 477 IPC and Section 13(2) r/w 13(1)(c) and (d) of Prevention of Corruption Act - HELD THAT:- Merely for the reason that clause (a) of Section 44(1) states that Special Court is constituted for trial of offence under Section 4; it cannot be construed that the case has to be committed to the Special Court in accordance with Section 209 Cr.P.C. In the expression, 'without the accused being committed, the word 'committed' does not take the meaning as can be ascribed to it in the context of Section 209 Cr.P.C. Here expression takes the meaning that even without production of accused before the court or even in the absence of the accused, the Special Court can take cognizance. The petitioner being ....... + More

Seeking grant of bail - smuggling of drugs - MDMA pills - possession of the contraband exceeding the permissible limit - generation of proceeds of crime by collecting money from their customers in exchange for supply of illegal Narcotic Drugs, Psychotropic Substances, Controlled Substances and Conveyances - HELD THAT:- There is huge difference of cash deposits and declaration of income by the petitioner in his income tax returns. There is suppression of fact regarding the amount transferred in favour of accused No. 1. The conduct of the petitioner in getting the loan by paying interest from the banks by mortgaging the property and transferring the said amount to accused No. 1 is also suspicious - information that are collected from accused No. 1, the petitioner and other witnesses disclose that there is regular and huge transfer of amount....... + More

Money Laundering - proceeds of crime - possession of movable and immovable properties and pecuniary resources, disproportionate to the known source of income - predicate offence - Sections 13(2) r/w 13(1)(b) of Prevention of Corruption Act and Section 109 of IPC - HELD THAT:- The writ petitioners presume the impugned summon is for provisional attachment. Through this summon, the documents and details are sought from the petitioners in connection with investigation and there is no indication in the said summon that the authorities has reason to believe that the writ petitioners are in possession of proceeds of crime and same if not attached immediately, it will likely to frustrate proceedings under the PMLA. Even otherwise by virtue of second proviso to Section 5(1)(b) of the PMLA, the respondent has the competency and jurisdiction to issu....... + More

Money laundering - Freezing of petitioner's bank account - grievance of the petitioners can be addressed in the proceedings for continuation of freezing orders or not - urgency in the matter as salaries and statutory benefits of the employees have not been paid and the employees would suffer hardship - HELD THAT:- This Court is inclined to grant interim order to the extent of payment of salary to the employees of the petitioners. There shall therefore, be a direction to the respondents to permit the petitioners to operate the bank accounts to the extent of ₹ 2 crores, subject to their furnishing bank guarantee for the said amount. The petitioners are permitted to operate the bank accounts with respect to the amounts deposited on or after 12.10.2021, forthwith. Both the learned counsel agree that in terms of this interim order, t....... + More

Seeking grant of Anticipatory Bail - commission of a serious economic offence of money laundering - offence punishable under Section 3 read with Section 4 of the Prevention of Money Laundering Act, 2002 - HELD THAT:- Looking to the facts and circumstances of the case; specially, to the fact that the petitioner had not challenged the order dated 17.09.2021 passed by the trial court. Petitioner is involved in serious economic offence, the principle of law enunciated by Hon’ble Apex Court in P. CHIDAMBARAM VERSUS DIRECTORATE OF ENFORCEMENT [2019 (9) TMI 286 - SUPREME COURT], but without expressing any opinion on the merits of the case, it is not considered to be a fit case to enlarge the petitioner on anticipatory bail. The anticipatory bail application filed by the petitioner is dismissed.

Stay against Attachment/Freezing of Bank Account of petitioner - stay against the criminal investigation and prosecution - HELD THAT:- If we revert back to the operative portion of the impugned order of learned Single Judge which is reproduced in the earlier portion of this order, what it says is that the respondents (that is the present appellant) are restrained from taking any coercive steps against the petitioner “as directed by the Supreme Court.” Firstly, this direction preventing the department from taking coercive action against the petitioner nowhere includes stay against the order of attachment imposed by the Department. In any case the order of attachment has not been challenged and could not have been stayed. Question of stay against the criminal investigation and prosecution - HELD THAT:- In view of the clarificati....... + More

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

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

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

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

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

Compounding of offence under SEBI Act Rejected - guidelines for compounding under Section 24A - Whether accused/Company has wound up and refunded the entire amount collected under scheme to all their share holders/ creditors? - HELD THAT:- Indisputably, the learned Judge neither referred to wind up repayment report dated 22nd February, 2019, nor the orders passed by this Court in Company Petition; nor SEBIs’ circular dated 20th April, 2007, nor the Court obtained the views of SEBI before denying to compound the offence. The order dated 28th August, 2019 below Exhibit - 11 in SEBI Special Case passed by learned SEBI Special Judge is quash and set aside. As a consequence, learned Judge shall decide the application below Exhibit-11, in accordance with guidelines of the Hon’ble Apex Court set out in the case of Prakash Gupta [2021 (7) TMI 971 - SUPREME COURT]

Validity of appointment of Grant Thornton Bharat LLP (GTB) as a Forensic Auditor in respect of the financial statements of the respondent No.2/company - conflict of interest - violation of the principles of natural justice - absence of cause of action within the jurisdiction of this Court for maintaining the present petition - HELD THAT:- The “cause of action” is a bundle of facts which when taken together, with the law applicable to the said facts, gives a right to the plaintiff to seek relief against the defendant. In other words, cause of action is premised on the existence of a group of facts put together that would entitle a plaintiff to approach the court for a remedy against the defendant. In UNION OF INDIA VERSUS ADANI EXPORTS LTD. [2001 (10) TMI 321 - SUPREME COURT], it was held by the Supreme Court that in order to c....... + More

Fraudulent and Unfair Trade Practices - settlement in terms of SEBI (Settlement of Administrative and Civil Proceedings) Regulations, 2014 seeked - HELD THAT:- Petitioners are entitled to move application for settlement even at the appellate stage. However, for the said purpose, the petitioners would have to move appropriate application before the appellate forum. The said applications thereafter be rooted to the High Powered Advisory Committee which may examine the aspect keeping in view the fact that other similarly situated two companies (supra) have been allowed to get the matter settled and settlement orders have been passed in relation to the other similarly situated companies (supra). The issue with regard to the condition as laid down by the Internal Committee can also be examined by the High Powered Advisory Committee and it may ....... + More

Violation of the provisions of the SEBI Act - What exact violations raised - HELD THAT:- On going through Exhibit P3 show cause notice issued by the Deputy General manager of SEBI dated 13th March, 2020, we could not locate any such eventuality, apart from the same being explanatory in nature, enabling an aggrieved person to identify the exact violations raised against him and submit a reply understanding the gamut of the issues. Learned single Judge has rightly dismissed the writ petition holding that SEBI has power to initiate action against the appellant for violation of the provisions of the SEBI Act, 1992 - minute intricacies of the issues raised in regard to the power of the Deputy General Manager of SEBI, the question of limitation etc. are all aspects to be considered by the statutory authority in terms of the provisions of Act, 1....... + More

Compounding of offence - Price rigging and insider trading in the scrip of the Company - IPO issues - SEBI’s Investigation and the criminal complaint - HELD THAT:- The nature of the allegations against the appellant are such so as to preclude a decision to compound the offences. We have adverted, in a considerable amount of detail, to the circumstances which have been narrated in the counter affidavit filed by SEBI. We find merit in the submissions which has been urged before the Court by learned Senior Counsel who appeared on behalf of SEBI that the allegations in the present case involved serious acts which impinged upon the protection of investors and the stability of the securities’ market. The observation in the order of adjudication of the Chairperson of the SEBI dated 22 September 2000, that no loss has been caused to t....... + More

SEBI powers to issue directions and levy penalty - trustee’s decision to wind up a scheme of the mutual fund - Interpretation of the term ‘consent’ in Regulation 18(15)(c) - HELD THAT:- The quotation highlights that interpretation is sometimes a three-stage process. At first, the words being interpreted should be understood according to their grammatical meaning in their literal and popular sense. In the second stage, we consider whether in the given context the plain meaning is obscure as the text gives rise to choice of more than one interpretation, or the propositional interpretation fails to achieve the manifest purpose of the legislation, reduces it to futility, is practically unworkable or even illogical. In such cases at the third stage, the court applying interpretative tools selects or blue-pencils an interpreta....... + More

Modes of charging fees to clients by Investment Advisors - Constitutional validity and vires of Regulation 3(XII) of the Securities and Exchange Board of India (Investment Advisors) (Amendment) Regulations, 2020 (“Amendment Regulations”), by which Regulation 15A was inserted into the Securities and Exchange Board of India (Investment Advisors) Regulations, 2013 and Circular issued in pursuance thereof, being Circular Reference No. SEBI/HO/IMD/DF1/CIR/P/2020/ 182 dated 23.09.2020 challenged - whether the Board has the requisite authority under the SEBI Act, in the first place, to make regulations concerning charging of fees by Investment Advisors from their clients? - challenge is on the footing of both want of legislative power in SEBI (by delegated authority) to make a provision such as regulation 15A or to issue a Circular s....... + More

Diversion of funds - Show cause notice for violation of the PFUTP Regulations, 1995 and 2003 - WTM found that misleading statement was made by the appellant which was violative of Regulation 5 of the PFUTP Regulations, 1995 - HELD THAT:- We are of the opinion that there has been an inordinate delay in the issuance of the show cause notice. Even though there is no period of limitation prescribed in the Act and Regulations in the issuance of a show cause notice or for completion of the adjudication proceedings, the authority is required to exercise its powers within a reasonable period as held recently in Adjudicating Officer, Securities and Exchange Board of India vs. Bhavesh Pabari [2019 (3) TMI 197 - SUPREME COURT] In the instant case, we are of the opinion that the power to adjudicate has not been exercised within a reasonable period an....... + More

Investment Adviser entitled to charge fees for providing investment advice from a client in the manner as specified by the Board - Constitutional validity of Regulation 15A of the Securities and Exchange Board of India (Investment Advisers) Regulations, 2013 which was inserted by Regulation 3(XII) of the Securities and Exchange Board of India (Investment Advisers) (Amendment) Regulations, 2020, as also the consequential paragraph 2(iii) of the SEBI Circular dated 23 September 2020 - HELD THAT:- Under section 19 of the SEBI Act, the SEBI is empowered to delegate its powers and functions by general or special order in writing to any member, officer of the SEBI or any other person subject to such conditions as specified by SEBI. Accordingly, the SEBI had issued SEBI (Delegation of Statutory and Financial Powers) Order, 2019 dated 31-07-2019 ....... + More

Delay of 5 years or more in initiating action by the SEBI - HELD THAT:- Issue of delay can also be looked into by the appellant - SEBI while passing a final order keeping in view the various judgments. It is not a case where the show cause notice has not been issued by a competent authority and only on the point of delay, the notice could not have been quashed in the manner and method it has been done. See MR. MUKKARAM JAN VERSUS SECURITIES EXCHANGE BOARD OF INDIA [2021 (1) TMI 1174 - KARNATAKA HIGH COURT] Petition preferred by the respondent against the show cause notice dated 20.10.2016 and notice dated 20.8.2019, was certainly a premature writ petition and therefore, the writ appeal is allowed. The order passed by the learned Single Judge is hereby set aside. The appellant SEBI is directed to conclude the proceedings within a period of....... + More

Ex-parte adinterim order - Section 11 and 11B of the Securities and Exchange Board of India Act, 1992 - HELD THAT:- The appeals are disposed of in terms of the signed order.

Offence under SEBI - complainant foisting vicarious liability upon the accused No.1 - criminal breach of trust of the complainant and sold its shares to their own Company - HELD THAT:- After applying a ratio laid down by the Hon’ble Supreme Court in the case of Iridium India Telecom Ltd. [2010 (10) TMI 85 - SUPREME COURT] it is clear that, the accused No.1-Morgan is a necessary party for proper adjudication of the complaint. It is to be noted here that, the Letter of Pledge (Agreement) dated 7th March, 2000 is executed by the Authorized Signatory of the complaint on behalf of it, in favour of the accused No.1 company and therefore also impleadment of Morgan (A-No.1) is necessary for proper adjudication of the present complaint. The contention that, the accused No.1 is being foisted with vicarious liability, is the defence and a spec....... + More

Fraudulent collective investment scheme - HELD THAT:- The applicants company and their agents were engaged in promoting the scheme of the company by selling certificates with a promise of higher rate of interest on the eventuality of the plans of term, hence, it can be said that the activity of the applicants' company appears to be covered under Section 2 (c) of the Act, 1978 and therefore, promotion of such scheme, which is banned under Section 3 of the Act, 1978 is punishable under Section 4 of the same Act, 1978, regarding which, there is sufficient evidence present for framing of charge against the applicants. As regards framing of charge under Section 10 of Protection of Depositors Interest Act, 2005, report of the Competent Authority does not appear to be a condition precedent for lodging of FIR or framing of charge against the ....... + More

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

Pre-deposit requirement qua the petitioner - As petitioner submit that he in no way concerned with the affairs of the company after his resignation on 6-5-2006 much less with the agreement dated 21-6-2006. Further, even the earlier agreement was between the two companies to which the petitioner was not a signatory - HELD THAT:- As in our opinion, for the stand taken by the petitioner, we direct the Appellate Authority to exempt the requirement of pre-deposit as regards this petitioner (M. Umesh), in case he resorts to remedy of appeal in light of the liberty given in terms of this order. In other words, the Appellate Authority shall not insist for pre-deposit requirement qua the petitioner herein, i.e. M. Umesh. Besides, the appellate authority shall not non-suit the petitioner for having filed the appeal beyond limitation as the petitioner was pursuing remedy before the High Court in the first place and thereafter before this Court, after issuance of show cause notice.

Foreign contributions - Prior permission u/s 11 to receive foreign contributions in the form of life saving equipment/articles for COVID-19 insofar as to expedite the relief work in our country - exemption to registered associations, organisations or persons, defined under Section 2(1)(m) of the Foreign Contribution (Regulation) Act, 2010 to receive foreign contributions - HELD THAT:- As exemptions and relaxations under different Statutes are not a matter of right. It is the prerogative power of the Government to exempt or give relaxations with or without stringent conditions. It is not for the Court to direct the Government to exercise the power in a particular manner. It is evident from the pleadings and not denied by the Learned Counsel for the Petitioner during the course of hearing that before filing the present petition, Petitioner ....... + More

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

Intimation by recipients of foreign contributions - Foreign Contribution Regulation Act, 2010 (“FCRA”) - peculiarities in the FC-4 Form, whereunder returns, regarding contributions received by beneficiaries under the Foreign Contribution Regulation Act, 2010 (“FCRA”) are required to be filed - petitioners’ accounts wherein foreign contributions were received were not in the SBI, till 7th October, 2020. As a result, the petitioners submit that it has become impossible for them to submit the return under FC-4 Form for the year 2019-2020.HELD THAT:- To a query from the Court as to how this situation could be remedied, Mr. Farman Ali, learned Counsel for the respondent, seeks a short adjournment in order to enable him to obtain instructions specifically on this aspect. However, he submits that no stay ought to be....... + More

Offence under FEMA - Distinction between the two stages of the adjudication process - eligible reasons by the respondent no. 1 for the formation of opinion to proceed with the inquiry against the petitioner - HELD THAT:- The Adjudicating Authority, under the Scheme of the FEMA, performs a quasi-judicial function as opposed to a purely administrative function. The requirement of giving reasons therefore cannot be undermined and must be insisted upon from the Adjudicating Authority. The reasons to be given for its opinion under Rule 4(3) of the Adjudication Rules to proceed with the inquiry though need not be as elaborate as in a Court decision or let’s say an order passed by the Adjudicating Authority under Rule 4(8) of the Adjudication Rules, but have to be adequate, proper and intelligible, sufficiently clear and explicit. They mus....... + More

Applicant in respect of Section 31(1) of FERA - time-limit for cognizance of any offence under FERA - suit for specific performance for dismissal of the suit and rejection of the plaint under Order VII Rule 11 of The Code of Civil Procedure, 1908 (CPC) on the ground that the suit is barred by law - HELD THAT:- The statement in the plaint has been made with reference to the letter dated 14th December, 1989 from the lawyers of the plaintiff to Helen Wilson which reveals that Helen Wilson was a foreign national and hence came within the statutory requirement of Section 31(1) of FERA. This letter also reveals that Helen Wilson may not have had the permission of the RBI or communicated such permission to the plaintiff as on 14th December, 1989 which would be corroborated by the letter of 8th October, 1993 of the RBI granting permission to Hele....... + More

Maintainability of appeal - monetary amount involved in the appeal - Mutuality of interest - donations/contributions by non-members would be less than rupees two crores - HELD THAT:- Appeal is disposed of in terms of Circular No. 17/2019 (F. No. 279/Misc.142/2007-ITJ(Pt.), dated 8th August, 2019 issued by the Department of Revenue, Ministry of Finance, leaving all questions of law open.

Levy of service tax - works contract services - taxable services or not - It is the case of the petitioner that the work carried out by the petitioner was not liable to tax during the period in dispute as the work involved "works contract" and was liable to service tax for the first time with effect from 01.07.2007 with the insertion of Section 65(105) (zzza) of the Finance Act, 1994 - HELD THAT:- The Tribunal, being the final fact finding authority, will determine the question of facts and arrive at a conclusion on law. In case the petitioner is aggrieved by any such order of the Tribunal, the petitioner has an alternate remedy before the High Courts and the Hon'ble Supreme Court under the provisions of the Finance Act, 1994 read with Central Excise Act, 1944. The authorities under the Acts overburdened with litigation and ....... + More

100% EOU - Refund claim of unutilised input service tax credit - Rule 5 of Cenvat Credit Rules, 2004 read with Notification No. 27/2012-CE (NT) dated 18.06.2012 - quarter April, 2017 to June, 2017 - HELD THAT:- A perusal of clause (g) of Notification No.27/2017 shows that it speaks of closing balance of credit available with assessee, and nowhere in entire notification, there is any mention that the closing balance is to be considered as the amount shown as closing balance in ER2 Return. The objection of department is solely on the basis of closing balance declared in ER2 Return. The stand of department that since the appellant did not opt for filing revised return within the given time, they could claim refund of the amount as declared in ER2 Return only. But, there has been no objection to the submissions made by the appellant from the ....... + More

Security service - Non-payment of service tax, inspite of collection of service Tax from its clients - suppression of facts - extended period of limitation - HELD THAT:- It is beyond comprehension as to what prevented the department to investigate in the year 2004 itself in contacting the end users on the service base so as to verify the authenticity of these invoice copies. It is trite that the deficiencies in the investigation or incorrect demand in the first show cause notice cannot be made good in the second show cause notice and subsequent show cause notice alleging suppression of facts again is not reasonable since repeated issuance of notices would result in revisiting the concluded proceedings and reopening of the proceedings at any point of time. The fact finding authority having taken cognizance of the facts has reached at a con....... + More

Excisable goods or not - Superior Kerosene Oil - falls under Fourth schedule or not - seeking restoration of SVLDRS-1 declaration filed by the Petitioner - opportunity of personal hearing not provided - gross violation of principles of natural justice - HELD THAT:- The principles laid down in THOUGHT BLURB VERSUS UNION OF INDIA AND ORS. [2020 (10) TMI 1135 - BOMBAY HIGH COURT] are to be considered by the Respondents while deciding the Petitioner’s case, as to, whether Superior Kerosene Oil which was the subject matter of the said declaration under the SVLDRS scheme, falls under Fourth schedule or not and whether the said product is at all excisable or not. The Petitioner had also relied upon the communication dated 26/11/2019 from Shri Navraj Goyal, OSD (CX) clarifying that only the Petroleum Crude, high speed diesel, motor spirit, ....... + More

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - Seeking to call for the records and directing the respondents to quash the impugned order - seeking issuance of discharge certificate in form SVLDRS-4 in respect of the arrears payable by the petitioner within a specified time frame - HELD THAT:- In the case in hand, if the attempt made by the petitioner to make the payment on 30.06.2020, being the last date of making the payment has become successful, certainly, the petitioner would have been in a position to get the declaration under the scheme, but in that attempt, the petitioner has failed, even though genuinely that attempt was made by the petitioner. In order to show the bonafide, the next day also, such attempt had been made to make the payment and in fact, the payment has been debited from the account, only after 24 hours, t....... + More

Recovery of service tax - supply of tangible goods for use [STGU] service or not - supply of diesel generators to customers on hire basis - period 01.04.2011 to 30.06.2012 - declared service involving “transfer of goods by way of hiring, leasing, licensing, or in any such manner without transfer of right to use such goods” under section 66E(f) of the Finance Act for the period 01.07.2012 to 31.03.2015 - whether the transaction between the Appellant and its customers would involve the transfer of right of possession and effective control or a transfer of right to use? - extended period of limitation - HELD THAT:- It can safely be said that under Sales Tax, there is transfer of possession and effective control in goods, while there is no such transfer of possession and effective control under service tax - the transaction betwee....... + More

Condonation of delay of 210 days in filing the appeal before the learned Commissioner(Appeals) - time limitation as per sub-section (3) of Section 85 of the Finance Act, 1994 - HELD THAT:- On a conjoint reading of sub-section (3) of Section 85 and the proviso appended thereto, it transpires that beyond the period of 6 months, the Commissioner(Appeals) is not empowered under the statute to condone the delay in filing the appeal. Admittedly, in this case, since there was delay of 210 days in filing the appeal before the learned Commissioner(Appeals), in our considered opinion, he has correctly rejected the appeal on the ground of limitation. Since the Tribunal is created and governed under the statute, the time limit prescribed in the statute cannot also be relaxed by it. Hon’ble Supreme Court in the case of SINGH ENTERPRISES VERSUS C....... + More

Maintainability of writ petition - Validity of show-cause notice and pre-consultation notice which have been issued without application of mind - waiver of pre-deposit on merits to file appeal and stay on the impugned demand - HELD THAT:- The impugned order is appeal-able under Section-73 of the GST Act read with Section-84 of the Finance Act. There is no good ground made out to directly entertain this writ-application questioning the legality and validity of the order in original. It prima-facie appears from the reliefs prayed for that if an appeal is filed, then towards pre-deposit the writ-applicant is obliged to deposit 7.5% of the total demand. This may be a little difficult for the writ-applicant but that by itself is not sufficient for this Court to entertain this writ-application, more particularly, when there is an alternative re....... + More

Valuation - works contract service - whether the valuation mechanism as per Rule 2A of the Service tax (Determination of Value) Rules, 2006 provides for optional methods or not? - HELD THAT:- It is seen that the contract provides for separate values for supply of materials and there being transfer of property in goods from the Respondent to the intended beneficiary, the same cannot form part of value for the purposes of Works Contract Service and since the value is clearly determinable in the invoice raised by the Respondent, the same is to be allowed as deduction from the value of the entire contract leading to the conclusion that only the Erection and Commissioning job of the contract would be leviable to Service Tax at full rate, which has been paid by the Respondent and also accepted by the Revenue during the investigation proceedings....... + More

Levy of service tax - collection of toll - Business Auxiliary Service (BAS) or not - appellant was acting as an intermediary and was instrumental in the collection of toll from the vehicles - HELD THAT:- Learned coordinate Mumbai Bench in the case of COMMISSIONER OF SERVICE TAX, MUMBAI VERSUS M/S. IDEAL ROAD BUILDERS PVT. LTD., M/S. MEP TOLL ROAD PVT. LTD. [2017 (10) TMI 401 - CESTAT MUMBAI] where it was held that The toll collection is their own income and is not parted with NHAI/MSRDC as they are concerned only with the bid amount finalized in auction and therefore cannot be termed as activity of Business Auxiliary Service. The Civil Appeal admitted by the Hon’ble Apex Court against the above order of the Mumbai Bench was subsequently withdrawn by the Revenue. The assertions of the learned advocate to be acceptable that the issue ....... + More

Seeking direction to Respondents to accept the application Form SVLDRS-1 filed by the Petitioner and to issue discharge certificate - Petitioner also seeks an opportunity to put forth his case/submissions and for a direction that, a reasoned Order be passed thereafter - requirement of opportunity of personal hearing - principles of natural justice - HELD THAT:- The question, as to, whether the tax liabilities are already quantified or not as on 30th June 2019 itself is a matter of dispute raised by the Petitioner in Writ Petition and also in the application/declaration filed under the said Scheme by the Petitioner before the Authorities. If according to the Respondents the tax liabilities were not quantified and the Petitioner was not eligible, the Respondents ought to have given an opportunity of being heard to the Petitioner before pass....... + More

CENVAT Credit - Works contract service or Commercial or Industrial Construction Services - claim of the appellant is that period prior to 01.06.2007 the works contract services was not chargeable to service tax - HELD THAT:- CBEC in letter DOF No. 334/1/2008- TRU dated 29.02.2008, is of the view that if VAT is paid under the category of Works Contract then the service should be classified as works contract services. In the instant case while the appellant has submitted the challans under which VAT has been paid but it cannot be ascertained from the said challans if the VAT has been paid under category of “Works Contract”. While the registration document shows the appellant was registered under works contract with Sale tax authorities. The learned counsel could not establish from the said records that the sales tax or VAT was p....... + More

Seeking reversal of CENVAT Credit - amount written off as bad debts - advertisement & sales promotion services - appellant has written off certain amounts for consideration of services, they have not received - period April 2009 to March 2012 - Rule 3(5C) of Cenvat Credit Rules - HELD THAT:- Prior to 01.04.2011, the appellant was required to pay service tax on receipt of consideration for the service provided, which means that if the appellant is failed to received consideration qua service provided, the appellant is not required to pay service tax; which does not mean that the appellant has provided exempted/non-taxable service. Rule 3 of the Centvat Credit Rules, 2004 deals with the situation for entitlement of the cenvat credit, which prescribes that a provider of the output service shall be allowed to take cenvat credit of any inp....... + More

Utilization of CENVAT Credit - payment of service tax for the purpose other than the ones defined under Section 3(4)(e) of the Cenvat Credit Rules, 2004 - recipient of service who is liable to pay the service tax under Section 68(2) of the Finance Act, 1994 - Rule 3(4)(e) of the Cenvat Credit Rules, 2004 - HELD THAT:- In the case of COMMISSIONER OF SERVICE TAX VERSUS M/S ARAVIND FASHIONS LIMITED [2011 (9) TMI 852 - KARNATAKA HIGH COURT], the Coordinate Bench of this Court has considered the Cenvat Credit of input services utilized by the assessee towards the payment of service tax, it has been observed that the assessee therein was the recipient of service tax, the service provider was outside the country, in law he has been treated as a service provider and is levied tax, the liability to pay tax on the service which he has received was ....... + More

Export of service or not - Technical Testing and Analysis Services have been delivered outside India & used outside India - fulfilment of all the condition under Rule 3[1] of the Export rules or not - clinical tests were performed on volunteers in India - credit on Catering Services when the same do not have any nexus with the output services provided by them, viz., ‘Technical Testing and Analysis Service' - rent received by them for the period July 2007 to May 2008 - HELD THAT:- The adjudication of the dispute, whether the services provided by the volunteers [human beings] in India could be treated as export of services and is liable to tax on consideration received for providing such services would not come within the jurisdiction of this High Court. The appeal is dismissed as not maintainable.

Levy of service tax - construction service or not - commercial service rendered by the appellant for construction of Paryatak Bhavan of the Andhra Pradesh Tourism Development Corporation Ltd. - suppression of facts or not - penalty - whether service tax could be levied for the period prior to 01.06.2007? - HELD THAT:- Service tax could only have been demanded on ‘works contract’ services after introduction of a charge on a ‘works contract’ service and not under any other head. This is what was observed by the Supreme Court in COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT]. The Supreme Court examined as to whether ‘works contract’ service can be classified under section 65(105)(zzzh) as ‘construction of complex’ ser....... + More

Levy of service tax - Construction of multi-level car parking adjacent to Airport - forming part of the Airport or not - HELD THAT:- The appeal stands dismissed as not maintainable with liberty to present the appeal before the Hon'ble Apex Court under Section 35L of the Central Excise Act, 1944.

Levy of service tax - Toll Plaza - Lay-bys - Pedestrian/Cattle Crossing - Highway traffic management Systems - Administrative, operation and maintenance of Base camp - Highway lighting, landscaping road furniture and facility road side, as part of the road construction having no separate existence and are meant only for the purpose of road - extended period of limitation - works contract service - construction service - penalties - HELD THAT:- In COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX, MYSORE PRESENTLY COMMISSIONER OF CUSTOMS NEW CUSTOMS MANGALORE VERSUS M/S. SUCH SILK INTERNATIONAL LTD., [2021 (10) TMI 1134 - KARNATAKA HIGH COURT], the Co-ordinate Bench of this Court (where one of us, the Hon’ble SSJ was a member) having considered this ruling of the Hon'ble Apex Court as well as the other judgments holding t....... + More

Refund of service tax - rejection on the ground that services were not exported, no nexus between services availed vis a vis services rendered as well as missing/ ineligible invoices - time limitation - HELD THAT:- The relevant Circular No. 141/10/2011-TRU dated 13.05.2011 on which learned Commissioner (Appeals) had placed heavy reliance but a comparison at his order at page 11 & 12 vis-avis the content of para 3 & 4 of the said Circular dated 13.05.2011 would clearly indicate that he had applied the provisions partly without thoroughly examining the clarification made in that Circular in its entirety. It is needless to mention here that appellant’s claim is to be supposed to be determined in terms of Circular No. 111/05/2009 dated 24.02.2009. Basing on which this Tribunal has passed several orders including in the case of t....... + More

CENVAT Credit - goods which are not in the nature of Capital Goods - inputs having been used in the fabrication of storage tanks - eligibility of Explanation 2 of Rule 2(k) of the Cenvat Credit Rules, 2004 - requirement of perusal of certificate of Chartered Accountants or not - corroborative evidence or not - argument of the assessee is that the items on which the credit was availed had been used for commissioning and fabrication of the storage tanks would get covered under sub clause (iii) of clause (a) of the definition of capital goods and these are necessarily required for the activities in the factory and for manufacture of the final products. HELD THAT:- Whether the assessee had produced supportive documents based on which the Chartered Accountant had certified in their favour. On going through the order passed by the tribunal as w....... + More

Condonation of delay of 376 days in filing appeal - sufficient cause for delay was shown or not - HELD THAT:- It is trite that there is no straight jacket formula for exercising the discretionary power in condoning the delay which necessarily depends on the facts and circumstances of the case. It is true that the explanation offered by the appellant for condoning the inordinate delay was not substantiated by the material evidence but in the interest of justice and equity, we deem it appropriate to provide an opportunity to the appellant to satisfactorily explain the cause for the delay in filing the appeal. The ends of justice would be sub-served in setting aside the order and remanding the matter to the CESTAT whereby an opportunity may be provided to the appellant to file a better affidavit for explaining the cause for the delay satisfa....... + More

Condonation of delay in filing appeal before the Commissioner (appeals) - Levy of excise duty - manufacture of concrete mix at project site for the purpose of construction - applicability of N/N. 4/1997-CE, dated 1.3.1997 - Applicability of similar Notification No.12/2012-CE, dated 17.3.2012 to the subject tax period - applicability of CBIC Circular bearing No.368/1/98, dated 6.1.1998 - HELD THAT:- It is not in dispute that the order in original was passed by the adjudicating authority on 14.6.2019 and the writ petition was filed by the appellants before this Court in the month of September 2020. The statute prescribes the limitation period of 60 days with the next 30 days as per the proviso i.e., totally 90 days in filing the appeal before the Commissioner of Central Excise (Appeals) against the order in original under Section 35 of the ....... + More

CENVAT Credit - inputs - inputs were received between November 1997 and December 1998 - denial of credit on the ground that under rule 3(1) of the 2004 Credit Rules, credit could be availed only in respect of the central excise duty paid on ‘inputs’ received in the factory of the manufacturer on or after 10.09.2004 - eligibility of the appellant to avail credit under rule3(2) of 2004 Credit Rules - failure on the part of appellant to produce documentary evidence in the form of relevant invoices/records showing receipt, issuance, consumption and proper accounts of inputs on which credit was availed - violation of rule 9(5) of the 2004 Credit Rules - interest - penalty - HELD THAT:- In the present case, it is seen that the appellant has explained as to why it could not immediately avail CENVAT credits on Tanks fabricated in the ....... + More

CENVAT Credit - Chemicals sent to the job workers for carrying out further process - inputs which were not received within 180 days - rule 4 (5)(a) Central Excise Rules,2004 - suppression of facts or not - time limitation - HELD THAT:- Admittedly the appellant has sent the inputs chemicals for job work in the water base. The entire processed goods have been returned within 180 days. The remaining quantity was subsequently returned back though after 180 days but the same was in the form of wastage. In fact the job worker is not required to return the wastage material which is predominantly the contaminated water therefore, it cannot be said that the appellant has not received back the processed goods within 180 days. In this fact the appellant has received back the processed goods within 180 days therefore, the demand on the ground that th....... + More

Refund of the amount Central Excise Duty - deemed exports or not - supplies made to ONGC and Oil India Limited against International Competitive Bidding - exemption under Serial No 336 of Notification No 12/2012-CE dated 17.03.2012 - when the goods are exempted and cleared on payment of duty whether subsequently refund can be claimed? - HELD THAT:- In the present case there is no dispute that the goods cleared by the appellant were indeed exempted in terms of Notification No. 12/2012-CE dated 17.03.2012. Therefore, the excise duty was not payable since the appellant has paid the excise duty which was otherwise not payable the same is refundable to the appellant. In the case of COMMISSIONER VERSUS SUNCITY ALLOYS PVT. LTD. [2007 (2) TMI 137 - HIGH COURT, RAJASTHAN], the Hon'ble Rajasthan High court held that if in respect of the goods e....... + More

Liability to pay interest on differential duty - goods cleared from depot - HELD THAT:- There is no dispute that differential duty and interest is payable in principal. However, the appellant have raised dispute about calculation of duty. It is their submission that if the cum-duty price is considered the duty amount will come to ₹ 12,95,181/- instead of total differential duty paid amounting to ₹ 15,01,214/-. This amount is sufficient to meet the differential duty of ₹ 12,95,181/- and ₹ 2,06,033/- towards interest. Accordingly, the duty of ₹ 15,01,214/- paid by them may be considered as interest and duty and there is no further interest liability. The cum-duty benefit is legally available to the assessee. Statue provides that whenever duty is calculated, it should be calculated considering cum-duty price. Ho....... + More

CENVAT Credit - duty paying documents - ISD invoices - management and repair services - clearance of waste and scrap (old empty soda bags), guddar, old PVC drum, old empty bags, etc. - scrap cleared by the appellant are not manufactured scrap or scrap arising in the course of manufacture of final products or bye-products - demand under the provisions of Rule 9 (6) of CCR - HELD THAT:- The disallowance by the Court Below is for vague reasons. The cenvat credit received by the appellant unit through ISD invoices is wholly allowable in respect of the repair and maintenance services received. Further, the Court Below have erred in allowing part of such services and have disallowed the part of amount for no ostensible reasons - the amount disallowed is bad and the ground is allowed in favour of the appellant. Demand of 6% on clearance of waste....... + More

CENVAT Credit - inputs - ingots - allegation of fake sales and transfer of inadmissible CENVAT credit, without actual transfer or delivery of goods - penalty - HELD THAT:- In the case of similarly situated co-appellant (arising from the common impugned order), the coordinate Bench of this Tribunal in the case of M/S ARYA ALLOYS PRIVATE LIMITED, ROMY BANSAL, DIRECTOR, RAJ KUMAR BANSAL, DIRECTOR (FORMER) , AMIT GUPTA VERSUS COMMISSIONER, CENTRAL GOODS & SERVICE TAX, CUSTOMS & CENTRAL EXCISE, ALWAR [2020 (3) TMI 148 - CESTAT NEW DELHI] where it was held that In the absence of the inputs, it is not possible to manufacture final product, which the appellant have shown to have manufactured and cleared on payment of duty. Penalty also cannot be levied. Appeal allowed - decided in favor of appellant.

MODVAT Credit - credit on goods used in erection of Captive Power Plant by two other Divisions of respondent No.1’s group - Rule 57Q(6) of the erstwhile Central Excise Rules, 1944 - non-filing the declaration under Rule 57G - procedures required under rule 57(T)(7) not followed - registration certificate as required under Rule 174 (4) of the erstwhile Central Excise Rules, 1944 not obtained - HELD THAT:- The respondent No.1-M/s. Larsen & Toubro Ltd. is a legal entity. The respondent No.1 has single Central Excise Registration for the entire factory and for manufacture of excisable goods. The registered ground plan of the respondent No.1’s factory covers the area where the captive power plant has been erected. It is undisputed that the power plant is within the approved ground plan of the factory. It is further pertinent to....... + More

Refund of education cess and higher education cess - whether the education cess and higher education cess which were paid along with the excise duty was also liable to be refunded along with the central excise duty in terms of exemption notifications? - HELD THAT:- Whereas it is the case of the applicant that issue is covered in view of the earlier judgment of this Court in the case of Modi Rubber Ltd. [1986 (8) TMI 60 - SUPREME COURT] which is rendered by three-Judge Bench of this Court, which is followed in the case of M/s. Unicorn Industries [2019 (12) TMI 286 - SUPREME COURT ] by this Court, on the very same issue in this batch of appeals this Court has held that when the duty is exempted the cess which is notified by subsequent Finance Act which is leviable on excise duty also stands exempted. In view of the fact that the earlier jud....... + More

Clandestine removal - M.S. Ingot - Confiscation of excess found stock - quantum of redemption fine and penalty - HELD THAT:- The excess stock found during the physical stock taking for which a panchnama was drawn in the presence of authorised signatory Shri D K Shrivastava. No objection was raised at the time of drawing the panchnama by Shri D K Shrivastava however, in the panchnama he submitted that the excess stock accumulated over a period of time therefore, in my view, there is no dispute about the excess stock found. However, no mala fide intention can be attributed to the appellant such has any attempt to clear the goods clandestinely but in terms of Rule 10 of Central Excise Rules, 2002 it is the bounden duty of the assessee to record stock of finished goods. In the present case, it is admitted fact that the excess stock was not ac....... + More

Refund - amount paid during the investigation is under protest - main thrust of the ld. A.R. is that the amount deposited by the appellants during the course of investigation has taken the shape of pre-deposit - HELD THAT:- This Tribunal has observed that the amount deposited by the appellant is sufficient for the purpose of Section 35, therefore, this Tribunal dispensed with the condition of pre-deposit of balance amount of dues. From going through the observations of this Tribunal, it is found that the observation of the Tribunal does not say that the amount paid during the course of investigation has taken the shape of pre-deposit. This Tribunal only found that it’s sufficient for the purpose of Section 35 of the Act. Further from the facts, it is clear from the order-in-original that the course of investigation, the cheques of &....... + More

Excisable goods or not - Bagasse/press-mud - Section 2(d) of the Central Excise Act, 1944 - manufacturing activity is involved in the manufacture of bagasse/press-mud or not - Section 2(f) of the Central Excise Act, 1944 - bagasse/press-mud can be considered as final products in terms of CENVAT Credit Rules, 2004 or not - common inputs/input services were used for the manufacture of both dutiable goods(sugar and molasses) and exempted goods (bagasse/ press-mud) - non-maintenance of separate records - requirement to pay an amount equal to 5% of the value of the exempted goods i.e. bagasse/press-mud, as pre Rule 6(3) of CENVAT Credit Rules, 2004 - penalty under Rule 15(2) of the CENVAT Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944. HELD THAT:- The issue is no more res integra as the question as to whether bagasse is ....... + More

CENVAT Credit - Exempt service or not - employee either provided accommodation in their residential colony and in some cases where the employees are residing outside the factory, house rent allowance given - deemed consideration under Rule 6 (3) of Cenvat Credit Rules, 2004 or not - HELD THAT:- As per Rule 6 for demanding 6%/7% it can be charged only on the value of exempted services. In the present case the appellant are not receiving any value by providing the rental house to their employee within the premises. Since no value is flowing from employee to the appellant there is no question of calculating 6%/7% on the value which does not exist - since the house was provided to the employee which are engaged in the manufacture of the final product hence ultimately all the activities get absorbed in the manufacture of the final product i.e ....... + More

Process amounting to manufacture or not - re-packing from the bulk of imported chemical to a smaller packing and re-labeling thereof - whether the process amounts to manufacture or is merely a trading activity? - extended period of limitation - HELD THAT:- It is observed that sub-clause (5) of Rule 3 of Cenvat Credit Rules, 2004, which has been relied upon by the adjudicating authority below while confirming the demand against the appellant, comes into picture only when the inputs on which Cenvat Credit has been taken, are removed, “as such‟, from the premises of the importer/ manufacturer. As already discussed above, the imported inputs have undergone such changes at the end of the appellant that may be called as manufacture prior those inputs were cleared by the appellant. It becomes abundantly clear that clearance of inputs....... + More

Seeking refund of excess duty paid - Section 3A of the Central Excise Act, 1944 - HELD THAT:- Section 3 A(4) of of the Central Excise Act, 1944 is followed as the commissioner has decided the issue in principle and remanded the matter simply, only for the purposes of calculation of the duty payable. He exercised the quasi-judicial powers in terms of Section 3 A (4) and administratively, directed his subordinate to calculate the duty. In the circumstances, it is found that there is no infirmity in the order passed and directions given by the Commissioner. It is found that the interest of justice is not in jeopardy if the directions of the learned Commissioner are sustained. However, since the matter pertains to the period September, 1997 to March, 2000 and redetermination of duty has been directed, vide M/S RHL PROFILES LTD. VERSUS COMMISS....... + More

Principles of natural justice - credit denied without following the precedential decision passed by it in the Appellant’s own case - denial of substantial benefit of credit on the basis of appreciation of incorrect facts which were never set up by the Department in the impugned proceedings - denial of credit even after holding that the Job Worker had no facility to manufacture Crown Corks by using Tin Sheets which were in fact received by the Job Worker for printing and sent back to the Appellant after printing - denial of credit without appreciating the fact that denial of substantial benefit to the Appellant amounts to doubt taxation - invocation of longer period of limitation - HELD THAT:- The dispute is relating to the MODVAT credit availed on 88.637 metric tons of Tin Sheets during the period 1991-92 to 1993-94 by the appellant....... + More

Supporting manufacturer or not - Procurement of inputs under Advance licence Scheme - appellant has not disclosed the facts to the department - suppression of facts or Mis-declaration - extended period of limitation - Central Excise (Removal of goods at concessional rate of duty for manufacture of excisable goods) Rules, 2001 - HELD THAT:- The present case can be decided on limitation itself therefore, the issue on merit is not decided. In the present case demand involved is for the year 2008 whereas Show cause notice has been issued in June 2013 therefore, the entire demand is under extended period. The Show cause notice as well as the Order-In- Original alleged that the appellant has not disclosed the facts to the department that they have procured the duty free material from the M/s Sterlite Industries (I) Ltd against invalidation of a....... + More

Refund claim of the pre-deposit - Rejection on the ground of time bar in as much as the appellant has filed the refund claim on 25.05.2018 after the final order was passed by the Commissioner (Appeals) on 24.04.2009 - HELD THAT:- The amount paid by the appellant is clearly a pre-deposit, as per the stay order passed by the Commissioner (Appeals) dated 20.06.2008. It is found from Board Circulars, Circular dated 02.01.2002 and Circular dated 16.09.2014, which are binding on the departmental Officer, the time limit of one year prescribed under Section 11B particularly in respect of pre-deposit which is by an order of the appellate forum, shall not apply. Moreover there is a reason for filing appeal on 25.05.2018 by the appellant that the departments appeal before the CESTAT was pending and appellant had filed the refund claim immediately af....... + More

Principles of natural justice - petitioner was not given reasonable opportunity to show cause before the impugned orders were made - alleged mismatch qua ITC (Input Tax Credit) - non-verification of dealer at the other end by Assessing Officer-respondent - HELD THAT:- This Court having set out the reasons for not acceding to the prayer of the writ petitioner now sets out infra the conclusion and that is the captioned writ petition fails. It is made clear that if the writ petitioner chooses to file statutory appeal under Section 51 of TNVAT Act, it will be open to the Appellate Authority to consider the same (subject to limitation and subject to pre-deposit condition, if any) on its own merits and in accordance with law uninfluenced by any observation made in this order. Petition dismissed.

Recovery of dues - Attachment of Bank Accounts - petitioner neither charged Value Added Tax nor remitted the tax on the sales effected under the provisions of the Tamil Nadu Value Added Tax Act, 2006 - Section 22(6) of the TNVAT Act, 2006 - HELD THAT:- Though the petitioner has been both negligent in neither filing the returns nor by filing reply to the notices which preceded passing of the first mentioned impugned order dated 28.10.2016 of the first respondent and failed to answer the subsequent notices issued by the first respondent asking the petitioner to pay the arrears of tax, the facts on record also indicates that the petitioner had filed a petition under Section 22(6) of the TNVAT Act, 2006 for revision of the order dated 28.09.2016 in time. Since the petition has not been disposed, the impugned recovery cannot be proceeded immed....... + More

Validity of assessment order - copies of documents relied upon by the respondent/Appellate Authority was not furnished despite a specific request, by the appellant - violation of principles of natural justice - HELD THAT:- The grievance of the appellant that failure to furnish the documents relied upon would result in violation of natural justice is well-founded. It has been consistently held that whenever an assessment is made on the basis of certain documents and if a request is made by the assessee, it is incumbent on the Assessing Officer to furnish such copies to enable the assessee to respond to the allegations. The order of assessment dated 28.08.2014 is set aside and the respondent is directed to communicate to the appellant the list of documents available and furnish the copies of such documents which form the basis / relied upon in the order of assessment, at the cost of the appellant - appeal disposed off.

Validity of Assessment order - Non-furnishing of necessary documents as sought by petitioner - HELD THAT:- By seeking certain documents, without ascertaining the availability or non-availability of such documents, an assessee cannot be permitted to prolong and protract the issues with reference to the Assessment Orders. In this regard, seeking certain clarifications of documents in a calculated manner, there is a possibility of collusion. In such circumstances, all these aspects cannot be gone into by this Court in writ proceedings. However, the fact remains that the petitioner has received four documents, pursuant to the orders of this Court and the said facts are admitted by the petitioner. Thus, certain documents were already furnished and the petitioner is of an opinion that some other documents are also required for the purpose of su....... + More

Levy of Assam VAT - Nature of activity - sale or service or both - denting and painting job on a vehicle - levy of VAT on paints by treating the nature of works as works contract - transfer of property in paints during the restoration and reconditioning work or not - HELD THAT:- If a new vehicle is considered, a vehicle is made of thousands of components, each having its unique character. Nonetheless, though a vehicle is a composition of numerous unique components, it is impermissible for the taxing authority to tax individual item of the vehicle. Similarly, in the composite work of denting and painting contract, the combination would be a composite contract of labour and service and as in the present case, the petitioner is liable for and is paying service tax as imposed on the work of denting and painting, being a service provided by a ....... + More

Validity of assessment order - input tax credit - failure to disclose the turnover in the return on the part of supplier - opportunity of personal hearing - case remitted back to the Assessing Officer to re-do the assessment once again after giving an opportunity of hearing to the petitioner - HELD THAT:- It is noticed that Principal Secretary / Commissioner of Commercial Taxes has now issued the Circular No.5/2021, dated 24.02.2021. Ultimately, the purpose of remanding the case back to the respondent was to pass appropriate orders after ascertaining whether the petitioner was indeed entitled to Input Tax Credit or whether the respondent was justified in demanding the tax. There cannot be any embargo on the respondent from passing orders even though the time specified had lapsed and merely because the respondent either failed to approach ....... + More

Revision of assessment order - tax on inter-state sales transactions - denial of benefit of concession under Section 3 of the Central Sales Tax Act, 1956 - C Forms were lost - petitioner had filed the xerox/photo copies of C-forms - Section 84 of the TNVAT Act, 2006 - HELD THAT:- As far as the production of C Forms is concerned, Rule 12 of the Central Sales Tax (Registration and Turnover) Rules, 1957 makes it very clear that it is for the petitioner to approach the selling dealer and obtain appropriate Forms from the Sales Tax Department from the other states. It is not open for the petitioner to shift the burden on the Assessing Officer to verify from the data from the website of the Sales Tax Department from the supplier's end. To that extent, there is no merits in the present writ petition. The petitioner is bound to obtain certifi....... + More

Validity of assessment order - input tax credit - mismatch in Returns filed by the dealers and information captured by the department - opportunity for personal hearing not provided - violation of the natural justice - HELD THAT:- Though the petitioner failed to come and collect the document after notice was issued to the petitioner on 05.08.2021 for the assessment year 2009-2010 and on 29.07.2021 for the assessment year 2014- 15, it was incumbent on the part of the respondent to call upon the petitioner to come for a personal hearing before passing the impugned orders. That apart, the petitioner had already filed W.P.Nos.18107 and 18109 of 2017 before this Court wherein the respective pre-assessment notices issued to the petitioner dated 05.08.2021 and 29.07.2021 were challenged. Since the impugned orders have been passed without calling....... + More

Seeking restoration of cancelled registration of petitioner - blocking of input tax credit - except the show-cause notice, nothing else was furnished or nothing was attached to such show-cause notice. - HELD THAT:- The whole object of issuing a show-cause notice is to make the recipient of the notice understand what the authority is trying to convey and what are the nature of the allegations. In the case on hand, when there are allegations of bogus billing, it was expected of the authority to at least furnish some information about such bogus billing. At this stage, Mr. Sharma submitted that along with the show-cause notice, there is always few documents attached which would indicate what the authority wants to convey about the bogus billing. It has been stated on oath not only in the memorandum of the writ application but even in the rep....... + More

Levy of penalty under Section 53(12) of Karnataka Value Added Tax Act, 2003 for breach of Section 53(2) of the Act - transporter has carried the scrap of Copper, Aluminium and Brass in vehicle bearing No. HR-61-A-4041 which was alleged to be robbed and the police had found the same in vehicle Nos.KA-05-AC-7002 and KA-13-8671 before a godown at Madanayakanahalli, Bengaluru, intercepted the vehicle - HELD THAT:- The appellate authority came to a conclusion that the original documents tendered at the HRCP (in), Attibele, which is the border entry check post of Karnataka were not traceable on account of theft and since the enforcement authority had only an access to verify the duplicate set of documents, could not have arrived at a conclusion that the consignor M/s Bhagawathi Enterprises is from Salem, Tamil Nadu, and the Cosignee being at Ne....... + More

Validity of re-assessment order - denial of input tax credit claimed on the basis of tax invoices issued by such selling dealers, who did not furnish tax compliance - burden of prove - fake/bogus transaction - HELD THAT:- The burden of proof certainly lies on the appellant -assessee to prove the transaction whether is genuine or not. Merely for the reason that the selling dealers have not filed the return and failed to discharge the tax liability by remitting the tax collected, could not be a ground to disallow the input tax credit claimed by the assessee unless such transaction is found to be not genuine and is a fictitious document/invoice created to claim input tax credit i.e., a bogus transaction. In the absence of such analysis made by the authorities, merely for the reasons as aforesaid, input tax credit could not be denied. It is a....... + More

Levy of Entertainment tax - Valuation - consideration towards the services excluding the service tax component or on both - entertainment tax can be levied on the transaction of service which is so characterized under the Finance Act, 1994 or not? - legislative competence of State of Karnataka to levy tax under KET Act, 1958 on the transaction which is exclusively reserve for Union Parliament for the purposes of service tax under Entry 92C of the List I of Schedule VII of the Constitution of India - prohibition under constitutional discipline of Article 246 to adopt the sources of revenue which are exclusive received for the Union Parliament - applicability of judgement of ANAND SWARUP MAHESH KUMAR VERSUS THE COMMISSIONER OF SALES TAX [1980 (9) TMI 238 - SUPREME COURT] - validity to proceed with the appeals while the question of legislati....... + More

Levy of CST - inter-state sales effected without C-Form declarations - amount claimed as deduction by the petitioner to be in the nature of discount requiring compliance of Rule 3(2)(c) of the Karnataka Value Added Tax Rules, 2005 or not - levy of CST on the notional value adopted in compliance of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 - HELD THAT:- It is not in dispute that the tax invoices were raised by the petitioner and subsequently credit notes were issued, whereby in the credit note, value is shown as ₹ 3/-, whereas ₹ 6/- is shown in the invoice. The authorities referring to Rule 3(2)(c) of the Rules and Section 30 of the Act as it stood during the relevant period proceeded to reject the claim of the assessee i.e., the value of goods sold to any related parties in terms of Rule ....... + More

Erroneous exercise of Jurisdiction - issue raised in these writ petitions is that the Assessing Officer has erroneously applied the provisions of the TNVAT Act and passed the assessment orders which resulted exercise of jurisdiction erroneously - violation of principles of natural justice - HELD THAT:- Jurisdictional error should not result in exoneration of liability. Jurisdictional error, if any committed, is technical, and thus, rectifiable. In such circumstances, the Courts are expected to quash the order passed by an incompetent authority and remand the matter back for fresh adjudication. Contrarily, if an assessee is exonerated from liability, undoubtedly, the purpose and object of the Act is defeated. The growing practice in the High Court is to file writ petitions under Article 226 of the Constitution of India without exhausting t....... + More

Defreezing of current bank accounts - Entry No.58 A of the Schedule II of the VAT Act - HELD THAT:- Noticing the fact that the petitioner is already before the statutory authority filing two Revision Application Nos.54 & 55 of 2021, let the same be decided within a period of two weeks from the date of receipt of a copy of this order. In the event of the petitioner making a request of defreezing the Bank Accounts and the authority acceding to such request, the final adjudication also can come thereafter within a period of eight weeks. The present petition stands disposed off.

Principles of natural justice - opportunity of hearing was provided or not - petitioner by a letter requested the respondent to give further time for personal hearing - HELD THAT:- Considering the fact that the order has been passed without hearing the petitioner in respect of the issue which has been pending considerably for a long period of time, the respondent should have awaited and given an opportunity to the petitioner to appear and make submissions. The case is remitted back to the respondent to pass a fresh order by 17.01.2022. The petitioner is therefore directed to appear before the respondent for a personal hearing on 23.12.2021 at 11.30 AM. - Petition allowed by way of remand.

Classification of goods - Whip Topping - taxable under the residuary provision when Sl. No.4 of the Notification dated 30.04.2005 or not - industrial inputs or not - HELD THAT:- It is discernable that in identical circumstances in the assessee's own case in STA No.118/2013 and allied matters referred to above, the coordinate bench of this Court having considered the applicability of the clarification issued by the Commissioner, has set aside the order of the Tribunal as to whether it is prospective or retrospective in nature and restored the matter to the file of the assessing authority to examine this aspect keeping open the rights and contentions of the parties. The matter is restored to the file of the assessing authority for examining the matter - revision petition is allowed in part.

Validity of assessment order - Tamil Nadu Value Added Tax Act, 2006 - HELD THAT:- The issue decided in the case of M/S. ALL INDIA METAL AND ALLOYS VERSUS THE ASSISTANT COMMISSIONER HARBOUR-IV ASSESSMENT CIRCLE CHENNAI. [2021 (9) TMI 1144 - MADRAS HIGH COURT] were it was held that there have been gross violation of principles of natural justice, which would justify that the Appellant is entitled to invoke the extraordinary jurisdiction of this Court. The matter is remitted to the Assessing Officer and the Assessing Officer is directed to issue notice to the Appellant to appear in-person - Petition allowed by way of remand.

Levy of excise duty on the liquor destroyed in fire - Demand raised against the writ petitioner company (respondent herein) towards loss of excise revenue because of destruction of liquor in fire - fire incident that took place in a godown of the distillery of the respondent company - whether demand of excise duty on the liquor lost in fire is authorised by law and has rightly been raised as per the applicable provisions of the Act of 1910, the Excise Manual and the Rules of 1969? - HELD THAT:- A comprehensive look at the relevant provisions of law makes it clear that so far as IMFL is concerned, no provision is made in the Excise Manual for any wastage allowance in relation to the bottled sprit, but, in terms of Rule 7(11) of the Rules of 1969, an allowance up to 1% on the total quantity of spirit stored during a month may be allowed for....... + More

Validity of Arbitral Award - neglected to furnish the Form-Cs within the time prescribed resulting in a sales tax assessment - penalty imposed under the ‘Take or Pay/Supply or Pay’ Clause - award of amount claimed by DSM on account of sales tax paid to the Sales Tax Authorities - whether the impugned award is vitiated by patent illegality as the Arbitral Tribunal has entered into an award in favour of HPCL for recovery of the amounts of penalty claimed in terms of Clause 3 of the Initial Agreements (Take or Pay/Supply or Pay Clause) and, in favour of DSM under a similarly worded clause in the Fifth Agreement? - HELD THAT:- An amount equivalent to 10% of the basic rate would be payable for undelivered quantity, which falls short of the threshold of 90% of the ordered quantity. DSM was also entitled to receive penalty at the sam....... + More

Levy of penalty of dismissal from service - Fraud by the Bank Clerk - industrial dispute - Breach of duty as a custodian of public money - dishonesty, fraud or manipulation of documents - standards of proof of criminal proceedings to disciplinary proceedings as the misconduct by an employee in disciplinary proceedings - probabilities and preponderance of evidence - HELD THAT:- The High Court has fallen into an error in coming to the conclusion in the impugned judgment and directing, once again, the matter to be remitted to the Industrial Tribunal to now seek opinion of a hand writing expert. There are certain inherent legal limitations to the scrutiny of an award of a Tribunal by the High Court while exercising jurisdiction under Article 226 of the Constitution of India. If there is no jurisdictional error or violation of natural justice ....... + More

Validity of Arbitral Award - dishonor of cheque - legally enforceable debt or not - claimant having exercised the option under section 60 of the Indian Contract Act by adjusting the payment of ₹ 50 lakhs towards four earlier invoices, three invoices fully adjusted and one invoice partly adjusted - claimant not having made the claim in respect of those three fully paid invoices is estopped from raising the plea that the cheque of ₹ 50 lakhs issued by the respondent towards part payment having been dishonored - acknowledgment of liability in respect of all the outstanding invoices on the date of commencement of the arbitral proceedings or not. HELD THAT:- A perusal of the statement of claim indicates that the only averment regarding period of limitation is found in paragraph 26 of the statement of claim alleging that the cause o....... + More

Dishonor of Cheque - Suspension of order passed by the lower court - right ot appeal - insufficient funds - Section 148 of the N.I. Act, having retrospective effect or not - HELD THAT:- It is true that the right to appeal is an absolute right. However, in a case where a judgment and order of conviction and sentence is passed, the Court may order release of the accused on bail having regard to the nature of offence as also to other relevant factors, including its effect on society. In the present case, the cheques in question were issued in November - December 2013 and there is no quarrel on the issue that the amounts involved are the legal dues payable by the applicant-accused to the respondent-complainant. While allowing the application (Exhibit-5) filed under Section 389 of Cr.P.C., the Sessions Court has directed the applicant-appellan....... + More

Dishonor of Cheque - insufficient funds - Compounding of offences - seeking preponing the date of hearing of main case from 10.01.2022 to today itself - HELD THAT:- It is apparent that both the contesting parties are ad idem that the compromise has been duly effected between the parties without any pressure, threat or undue influence and the terms of the said compromise have been duly complied with. The compromise would go a long way in maintaining peace and harmony between the parties and thus, a prayer has been made before this Court for compounding the offence in terms of Section 147 of the Negotiable Instruments Act, 1881 read with Section 320 (6) Cr.P.C. Since the offence relating to dishonour of cheque has a compensatory profile and is required to have precedence over punitive mechanism, therefore, the present revision petition dese....... + More

Dishonor of Cheque - initiation of proceedings under Section 138 of the N.I. Act against petitioner, without joining the Partnership Firm - whether partnership firm has to be made a party to the proceedings, in view the provisions of Section 141 of the Act? - HELD THAT:- Undisputed facts are that the cheques were issued by the partnership firm, the present petitioner is the signatory to the cheque as an authorized partner and the transaction of purchase of land was for the firm. Section 141 of the N.I. Act provides for the constructive liability on the person responsible for the conduct of the business of the company or partnership firm. Section 141 describes about the offences by the Company. The explanation to Section 141 giving the meaning to ‘Company’ means any body corporate and includes a firm or other association of ind....... + More

Dishonor of Cheque - dispute is settled between the parties and the complainant has no objection if the complaint is set aside - HELD THAT:- Having gone through the material placed on record, it has emerged that the applicant has been convicted by the concerned Criminal Court for the offence punishable under Section 138 of the N.I. Act. However, now, the parties have amicably settled the dispute and, therefore, the complainant has filed an affidavit stating that if the order of conviction passed against the applicant is quashed and set aside, he has no objection. When the parties have settled the dispute amicably, compounding of the offence is required to be permitted - reliance can be placed in the case of DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT]. Respondent No.2 filed a complaint under Section 138 of ....... + More

Dishonor of Cheque - insufficiency of funds - discharge of legally enforceable debt or not - rebuttal of statutory presumption - HELD THAT:- Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable probability of the non-existence of the presumed fact. During cross-examination, it is noticed by this court that the complainant did not make any attempt to deny about the said factual aspects, as surfaced from the chief-examination of DW-2. During cross-examination, it has further come to light that the said amount of ....... + More

Dishonor of Cheque - It is the case of the petitioner that even though in Annexure- A4 order the petitioner was directed to remit the amount of fine in the trial court, the amount paid directly to the complainant who is the 2 nd respondent herein - HELD THAT:- Admittedly, there is substantial compliance of the direction issued by this Court in Annexure-A4 order in as much as the total amount of fine was directed to be paid as compensation to the complainant and in fact the complainant has received the amount also. An affidavit endorsing the said fact was also placed before this Court by the 2 nd respondent. The court is directed below to make necessary entry in the fine register recording the factum of settlement between the parties, as if fine is realised and paid to the complainant - petition disposed off. Application disposed off.

Dishonor of Cheque - insufficient funds - rebuttal of presumption - legally enforceable debt or liability or not - complainant has failed to establish the transaction and outstanding and inspite of the same, both the courts have not appreciated the said material on record - exercise of revisional jurisdiction - HELD THAT:- The petitioner cannot find fault with the continuation of the transactions of the accused even for the month of September-2008 also. It is also important to note that the ledger extract is also marked as Ex. P.8 and counsel referring this Ex. P.8 certified copy which is produced before him also submits that even subsequent to the issuance of cheque also transactions have taken place in the month of August and September-2008 and hence, it is clear that Ex. P.7 corroborates that the transactions were continued till Septem....... + More

Dishonor of Cheque - existence of legally enforceable debt or not - service of statutory legal notice - allegation is that the impugned cheque was stolen by the respondent when he was working as Supervisor under the petitioner - HELD THAT:- Admittedly, no action has been taken by the petitioner on the allegation that the respondent had stolen any of his cheques. Such an action has not been taken even after the filing of his complaint. Though it is correct that the rebuttal proof can be through preponderance of probability, the probability cannot be presumed from mere suggestion put by the accused during his cross examination, PW1. Even if the accused does not subject himself for examination, the improbabilities can also be explored from the evidence and materials of the complainant. The simple contention of the complainant is that he had ....... + More

Dishonor of Cheque - insufficiency of funds - legally enforceable debt or not - acquittal of the accused - sufficiency of service of notice or not - rebuttal of presumption u/s 139 of NI Act - HELD THAT:- In the instant case, the postal receipt has been filed by the appellant and information received under the Right to Information Act, 2005 has also been filed by the appellant relating to postal receipts, by which the Postal Department had informed that the item had been delivered on the respondent. In his affidavit given in the examination-in-chief, the appellant has deposed about these facts. It categorically establishes that, in fact, service had been sufficient on the respondent. There is no doubt about it. While referring to the complaint and the statement of the appellant, learned counsel for the respondent submits that nowhere, the....... + More

Arbitration award - Validity of appointment of sole arbitrator - Termination of contract - Jurisdiction of High Court while deciding the appeal under Section 37 of the Arbitration Act - HELD THAT:- As per settled position of law laid down by this Court in a catena of decisions, an award can be set aside only if the award is against the public policy of India. The award can be set aside under Sections 34/37 of the Arbitration Act, if the award is found to be contrary to, (a) fundamental policy of Indian Law; or (b) the interest of India; or (c) justice or morality; or (d) if it is patently illegal. None of the aforesaid exceptions shall be applicable to the facts of the case on hand. The High Court has entered into the merits of the claim and has decided the appeal under Section 37 of the Arbitration Act as if the High Court was deciding t....... + More

Dishonor of Cheque - discharge of legal enforcement debt or not - rebuttal of presumption - section 138 of NI Act - HELD THAT:- This Court sees no reason to interfere with the well reasoned judgments passed by the courts below, which otherwise appear to be based upon the correct appreciation of evidence and as such, same need to be upheld. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.PC, to re-appreciate the evidence, especially, in view of the concurrent findings of fact and law recorded by the courts below. In the present case, this Court is unable to find any error of law as well as fact, if any, committed by the courts below while passing impugned judgments, and as such, there is no occasion, whatsoever, to exercise the revisional power - Having scanned entire evidence available on record, this cour....... + More

Dishonor of Cheque - discharge of lawful liability - rebuttal of presumption - Section 138 of NI Act - HELD THAT:- This Court sees no reason to interfere with the well reasoned judgments passed by the courts below, which otherwise appear to be based upon the correct appreciation of evidence and as such, same need to be upheld. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.PC, to re-appreciate the evidence, especially, in view of the concurrent findings of fact and law recorded by the courts below. Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as fact, if any, committed by the courts below while passing impugned judgments, and as such, there is no occasion, whatsoever, to exercise the revisional power. This Court finds no ille....... + More

Maintenance of status quo with regard to SARFAESI action - Nonperforming Asset - creation of equitable mortgage by way of deposit of title deeds over the immovable properties with respect to the mortgaged properties - HELD THAT:- In the present case, the respondents - borrowers whose accounts have been declared as NPA in the year 2013 have filed the writ petitions before the High Court challenging the communication dated 13.08.2015 purporting it to be a notice under Section 13(4) of the SARFAESI Act. It is required to be noted that as per the appellant - assignor approximately ₹ 117 crores is due and payable to the Bank. While passing the ex-parte interim order on 26.08.2015 and while entertaining the writ petitions against the communication dated 13.08.2015, the High Court has directed to maintain status quo with respect to the pos....... + More

Dishonor of Cheque - amicable settlement between parties - compounding of offence - requirement to deposit 15% of the amount of the cheque with the Gujarat State Legal Services Authority - the applicant has submitted that the cheque amount is more than ₹ 1 crore and it is difficult for the applicant to deposit 15% amount of the cheque with the Gujarat State Legal Services Authority. It is further submitted that the applicant is in jail since 7.9.2021 - HELD THAT:- The applicant is permitted to deposit 10% of the said cheque amount with the Gujarat State Legal Services Authority, out of which the applicant shall deposit 5% of the said cheque amount within a period of one month and deposit the remaining amount of 5% of the said cheque amount within a period of five months thereafter with the Gujarat State Legal Services Authority. Application disposed off.

Dishonor of Cheque - seeking amendment in the cheque number - cheque number is 054285 and that in the statutory notice the respondent/complainant had mentioned the cheque number as 024337 and he had also given the same number in the complaint and proof affidavit - HELD THAT:- This Court finds it to be a genuine and bonafide error by the respondent/complainant based on the return memorandum issued by the Bank. The Hon'ble Apex Court in S.R. Kumar vs. Sunaad Raghuram [2015 (7) TMI 1260 - SUPREME COURT], has held that though there is no specific provision in Cr.P.C. to amend the complaint or petition filed under Cr.P.C., if amendment sought to be made relates to a simple infirmity which is curable by means of formal application for amendment and by allowing such amendment, no prejudice would be caused to either side, such amendment could....... + More

Dishonor of Cheque - application praying for deposit of diet money - Section 138 of N I Act - HELD THAT:- This Court is of the considered view that herein there is lapse on the part of the accused but the Court below has also contributed towards this lapse by not undertaking the exercise of going through its orders and ascertaining the fate of the process undertaken by the Court to summon the witnesses in terms of the list of witnesses filed by the accused and the diet money deposited by him. Therefore, in these peculiar circumstances, this Court is of the considered view that interest of justice demands that at least one more opportunity be granted to the accused to lead evidence with Court assistance so that justice is done to him. Parties through Counsel are directed to appear before the learned Court below on 06.01.2022, on which date....... + More

Suit for recovery of money against the respondent-defendant - breach of contract - seeking extension of period of limitation for filing written statement - HELD THAT:- The submission proceeds on a misconceived notion about concept of limitation. The limitation for filing written statement provided in Order VIII Rule 1 Proviso is thirty days and not one hundred twenty days. The additional period of ninety days is allowed to be utilized for filing the written statement on showing sufficient cause as grace period. It is not the limitation per se. The ninety days additional period allowed to the defendant, it comes into play, if the defendant had failed to file written statement within the prescribed period of thirty days. The ninety days are the additional window following the prescribed limitation in which the defendant may show the suffici....... + More

Dishonor of Cheque - preponderance of probabilities - legally enforceable debt or not - acquittal of the accused - rebuttal of presumption - Whether the judgment of the learned Sessions Judge in acquitting the accused from the offence under section 138 of the Negotiable Instruments Act basing on the materials available on record is fair and proper? - HELD THAT:- The standard of rebuttal proof that need to be produced by the accuses is not necessarily strict proof beyond reasonable doubt. It is sufficient if the probabilities are proved through preponderance. Hence, the accused need not necessarily get into the box and subject himself for examination or produce any records of his own. And it is sufficient that he could bring out the improbable facts and circumstances from the case of the complainant. Because the object of punishment contem....... + More