TP Adjustment - comparable selection - HELD THAT:- Infosys Technology Limited and Persistent Systems Limited - ITAT observed that while the profit of the aforesaid three comparables is derived from both software development services as well as software products, however there is no precise information about the contribution made from the income derived from the sale of software to the total income of the companies. Thus, in the absence of segmental information provided by the companies in respect of the software services, the aforesaid companies have been excluded from the list of the comparables. We do not find any perversity in the approach adopted by the learned ITAT which would call for our inference. Wipro Technology Services Limited has been held to be disqualified under Rule 10B(1)(e)(ii), to become a comparable for uncontrolled tr....... + More

Reopening of assessment - addition u/s 40(a)(ia) for non deduction of TDS - HELD THAT:- Assessee disclosed all the primary facts with regard to deduction claimed on account of interest paid on loans at the original assessment stage and is considered by the AO also at original assessment stage, therefore, there is no failure on the part of the assessee to disclose fully and truly all material facts necessary for that assessment. Assessee also filed return of income originally on dated 30.09.2008 u/s 139 of the Act and four years have expired from the relevant assessment order, therefore, first proviso to section 147 would apply in favour of the assessee and no assessment could have been reopened in such circumstances against the assessee. Reasons recorded u/s 148 clearly show that assessment already framed u/s 143(3) has been reopened beca....... + More

Addition u/s 37(1) - disallowing interest provided on loan - outstanding loan was coming up from the earlier year - unsecured loan was used to purchase shares - CIT(A) did not accept the contention of the assessee because assessee failed to establish the identity, creditworthiness and genuineness of the transaction with regard to these loans and, accordingly, dismissed the appeal of the assessee - CIT(A) also directed the AO u/s 150 of the Act to take necessary remedial action for obtaining the loans from the above two parties - Whether CIT(A) has exceeded his jurisdiction even in giving directions u/s 150 - HELD THAT:- AO did not accept explanation of the assessee because in earlier years no scrutiny assessments have been made u/s 143(3) of the IT Act. But it is a fact that impugned loan amounts were taken in earlier years on which inter....... + More

Disallowance of statutory expenses claimed - HELD THAT:- Such expenditure has to be allowed as deduction. The finding of the AO that this expenditure is levied on house property income is factually incorrect. Thus we allow this ground of the assessee and direct the AO to allow this deduction. Interest paid on income tax refund - assessee submits that he had not received any such interest and in support produced Form-26AS - Revenue submits that as per its record, interest has been paid by the Department to the assessee on the amount of income tax refund - HELD THAT:- As agreed to by both the parties, this issue is remanded back to the file of the AO for fresh adjudication in accordance with law. We direct the AO to serve on the assessee the document based on which, he comes to a conclusion that interest has been paid to the assessee on income tax refund. If such evidence is not handed over to the assessee, no addition can be made.

Addition u/s 40(a)(ia) - Disallowance in respect of education 'cess' while computing total income under the normal provisions of the Act - HELD THAT:- Parliament has used the word "cess" specifically in certain provisions of the Act (refer inter alia Section 43B of the Act). Therefore, when Section 40(a)(ii) of the Act, does not spell out "cess" which is paid by the assessee as not allowable as deduction and the definition of 'Tax' does not specify 'cess' as Tax, we are of the opinion that cess cannot be treated as Tax for the purpose of Section 40(a)(ii) of the Act. And in this context, the legal maxim "Expressio Unius Est Exclusio Alterius" comes into play which means Express mention of one implies the exclusion of another. We find substance in the ground raised by the assessee in re....... + More

Levy of penalty u/s 271AAA - concealed income on account of excess claim of depreciation - withdrawal of excess claim of depreciation during assessment proceeding post to search on 05.05.2011 carried out u/s 132 - HELD THAT:- We find that the Ld. A.O has not mentioned specific charge in the notice as provided u/s 271AAA r.w.s. 274 of the Act. Rather Ld. A.O has merely mentioned one line imported from section 271(1)(c) of the Act which in the instant case is not applicable on the assessee. On going through the above reproduced defective notice we find that similar notice was issued to another group concern of the assessee M/s Keti Toll Infrastructure Ltd wherein penalty u/s 271AAA of the Act was deleted by this Tribunal. So is the notice being defective and not in accordance with law has been issued in the case of assessee for Assessment Y....... + More

Addition u/s 68 - Assessee shown earnest money with an opening balance as brought forward from the preceding year - AO made addition for want of any explanation about the nature and source of the said credit entry - assessee has contended that the amount was received through banking channel and under the contract as security deposit for the contract work to be carried out by the contractor however, the contract work was not carried by the contractor and the amount was refunded by the assessee in the subsequent year - HELD THAT:- When the amount was claimed to have been received by the assessee through banking channel and under the agreement, which was claimed to be repaid by the assessee in subsequent year then the relevant documentary evidence is required to be verified before deciding the issue of unexplained cash credit. Hence, this is....... + More

Disallowance u/s 14A - Assessee has come up with specific plea that for earning exempt dividend income, it has not incurred any expenditure, hence no suo motu disallowance has been made - HELD THAT:- When we examine the order passed by the AO we find that he has proceeded on the premise that since the assessee has earned huge dividend income, some expenditure would have been incurred for earning the same. AO has accepted the audited books of account maintained by the assessee company which is a Government undertaking. When it is undisputed fact on record that assessee company being a Government undertaking has made investment in specific Government securities and moreover substantial portion of investments is coming from earlier years, no question arises to incur separate expenses. In order to invoke the provisions contained u/s 14A read ....... + More

Bogus purchases - CIT-A sustaining an addition by estimating 12.5% of the alleged purchases on the ground that the parties were not produced and grossly ignoring the explanations, submissions and material placed on record - HELD THAT:- As evident that the assessee remained unsuccessful in discharging the burden of establishing the genuineness of the purchases. Notices issued u/s 133(6) elicited no response and the assessee failed to produce even a single supplier to confirm the transactions. Therefore, the lower authorities had no option but to make estimated additions against these suspicious purchases. No new material has been adduced by the assessee before us that would warrant us to deviate from the findings of lower authorities. We confirm the estimation of 12.5% as made by Ld. AO. The grounds thus raised stands dismissed. The assess....... + More

Penalty u/s 271(1)(c) - eligible for deduction u/s 80P(2) (d) of the Act on the interest income earned from the deposit with the Co-operative Societies - due to bonafide mistake, the interest income from other commercial banks was also taken for deduction u/s 80P(2) (d) - similarly deduction u/s 80(P) was claimed in respect of the amount earned from sale of cement, hardware, CFL and school fee etc. under bonafide belief that the assessee was eligible for claiming the deduction, the same being business income of the assessee - HELD THAT:- Assessee in this case has put a bonafide claim under a mistaken belief that the assessee was entitled to claim deduction on the aforesaid income - there was not effort by the assessee to conceal any income or to furnish any inaccurate particulars of income - assessee has also relied in this respect on the....... + More

Denial of exemption u/s 11 - AO concluded that the assessee merely is a mutual concern having no charitable object - assessee is a company with charitable object formed under section 26 of the Companies Act, 1956 and has also been granted registration under section 12A - HELD THAT:- If the objects on the basis of which the assessee was granted registration under section 12A of the Act by considering them to be of charitable nature, then, in absence of any change in such objects of the assessee, it is not understood how it can lose its identity of a charitable institution in the impugned assessment year, that too, when the registration granted under section 12A of the Act is still in vogue. Undisputedly, the departmental authorities have disallowed assessee’s claim of exemption under section 11 of the Act on the reasoning that it pro....... + More

Denial of natural justice - Assessment of loss - CIT (A) dismissed the appeal of the assessee - whether CIT-A rejecting the appeal filed by the assessee without going through the facts? - HELD THAT:- It is pertinent to note that the CIT (Appeals) has not given any categorical finding on merits of the case and also did not give sufficient opportunity of hearing to the assessee. Therefore, the CIT (Appeals) was not right in dismissing the appeal of the assessee without giving proper opportunity of hearing. Hence, we are remanding back the entire issue to the file of the CIT (Appeals) to be decided on merits. Appeal of the assessee is partly allowed, for statistical purpose.

Exemption u/s 11 - denial of registration u/s 12AA - CIT-E held that the assessee had failed to file evidence in support of the expenditure incurred on the charitable objects during the financial year 2018-19 and held that the genuineness of activities of the trust cannot be examined - HELD THAT:- Exercise undertaken by the ld. Commissioner of Income Tax, Exemption, Pune by calling for the evidence in support of the expenditure is beyond scope of his powers vested with him u/s 12AA of the Act and furthermore the proof of the expenditure is an item of assessment. The grant of registration and the assessment of income the trust are two different distinct procedure prescribed under the Act. Commissioner of Income Tax, Exemption, Pune had lost sight distinction between the process of registration and the exemption or assessment of income u/s ....... + More

Deduction u/s 80P(2)(a) (i) - the credits given to such members being for purposes other than agricultural credit - eligibility after introduction of section 80P(4) - Assessee stated to be providing credit facilities to their members for agricultural and allied purposes, have been classified as primary agricultural credit societies by the Registrar of Cooperative Societies under the Kerala Co-operative Societies Act, 1969 - HELD THAT:- The ratio decidendi of Citizen Cooperative Society Ltd. [2017 (8) TMI 536 - SUPREME COURT], must be given effect to. Section 80P of the IT Act, being a benevolent provision enacted by Parliament to encourage and promote the credit of the co-operative sector in general must be read liberally and reasonably, and if there is ambiguity, in favour of the assessee. A deduction that is given without any reference ....... + More

Grant of refund due to the petitioner alongwith interest u/s 244A - petitioner seeks a direction to the respondents, to process the return of income of the petitioner for the assessment year 2019-20 under section 143(1) - HELD THAT:- As grievance of the petitioner is now within a narrow compass matter is with respondent No.5 which will intimate the petitioner regarding processing and release of refund since processing of the income tax return for the assessment year 2019-20 has been completed. It is also seen that the said respondents have admitted that certain amount of refund is due to the petitioner processing of which at the level of respondent No.2 is complete after resolution of all technical issues. Having heard learned counsel for the parties and having considered the provisions of section 143(1) of the Act, we direct respondent N....... + More

Reopening of assessment u/s 147 - proceedings beyond the period of four years - interest on capital and remuneration from the partnership firm and the said amount had not been offered or disclosed for the purpose of taxation - HELD THAT:- It is the settled position of law that the condition precedent for the purpose of resorting to re-opening of the assessment is that the Assessing Officer should be satisfied based on some cogent or tangible material, that the case is one of escapement of income chargeable to tax. In the absence of escapement of any income chargeable to tax, it is not open for the department to re-open the case of the assessee. Assessee is right in his submission that mere incorporation of interest on partners capital and remuneration does not necessarily mean or should be construed as mandatory. There has to be some mate....... + More

Receipt in the form of non-compete fees - Revenue or capital receipt - HELD THAT:- As decided in ANJUM G BALAKHIA [2016 (7) TMI 575 - GUJARAT HIGH COURT] it is well settled that a liability cannot be created retrospectively. In the present case, compensation received under Non-Competition Agreement became taxable as a capital receipt and not as a revenue receipt by specific legislative mandate vide Section 28(va) and that too with effect from 1.4.2003. Hence, the said section 28(va) is amendatory and not clarificatory - Appellate Tribunal right in holding that provisions of section 28(iv) are not applicable in the case of assessee - Decided in favour of assessee

Disallowance u/s 40(a) (ia) - Tribunal held that the disallowance ought to be restricted to the amounts remaining outstanding, on which TDS was not made during the relevant previous year and not on the amounts which were actually paid during the previous year - HELD THAT:- From a perusal of the order passed by the Tribunal, it is evident that the issues which arose for consideration before the Tribunal have not been dealt with on merits and the Tribunal has dealt with the appeal on a technical issue. Therefore, in the peculiar fact situation of the case, we deem it appropriate to quash the order passed by the Tribunal. Therefore, the order dated 04.12.2015 passed by the Tribunal is set aside and the Tribunal is directed to adjudicate the appeal on the aforesaid three issues. Therefore, it is not necessary for us to answer the substantial questions of law framed in this appeal.

Prosecution launched for the alleged offence under Section 276C and 277 of IT Act - Whether no materials unearthed by the searching officer or the Deputy Director? - search said to have taken place in third party premises and statements recorded from 3rd parties the prosecution - HELD THAT:- Admittedly, Returns have been filed before the Assessing Officer. Merely because search has been conducted and some third parties statements were recorded and further they have also not been examined, this Court is of the view that unless a finding recorded by the Assessing Officer as to wilful attempt to evade tax or filing false verification, the complaint filed by the Deputy Director is not maintainable. Only the Assessment Officer shall reassess the total income of six Assessment year, then Assessing Authority take note of the income disclosed in ....... + More

Deemed registration u/s 12AA - HELD THAT:- It is a matter of record that vide order dated 08.07.2008, learned Income Tax Appellate Tribunal set aside the order of the Commissioner resulting into revival of the application for seeking exemption under Section 12A of the Income Tax Act dated 28.03.2007 submitted on 29.03.2007 and almost twelve years have passed, it is deemed to have been granted registration after the expiry of six months, in view of the ratio culled out in the judgments referred to above. Accordingly, the application of the petitioner for registration of the Society under Section 12A of the Income Tax Act is allowed.

Enhanced rate of tax @60% u/s 158BBE on Unexplained / Undisclosed income - Effect of Amendment enhancing the rate of tax incorporated in the I T Act and that of surcharge in the Finance Act - prospectively or retrospectively - petitioner sought for a declaration that the amendments made by the Taxation Laws (Second Amendment) Act, 2016, to Section 115BBE of the Income Tax Act, 1961 enhancing the rate of income tax, for specified incomes which are unexplained, to 60% and the surcharge provided in the Finance Act, 2016 to 25% for income covered under Section 69A, to be prospective - consequential relief is sought against Ext.P2 assessment order levying tax at the enhanced rate of 60% and surcharge @25% on the 'advance tax'. HELD THAT:- The subject amendments which are relevant for our consideration have no direct link with the demon....... + More

Capital gain computation - Determination of Fair Market Value by the Ld. CIT(A) with regard to sale of land - AO invoked the provisions of section 50C and directed the assessee as to explain as to why the value of Sub Registrar Office should not be considered for computing the capital gains, against the sale consideration admitted by the assessee - CIT(A) held that the AO is not permitted to adopt the value determined by the DVO for the A.Y.2009-10 for the earlier year i.e 2008-09 and determined the fair market value by allowing reduction of 15% for the annual increase in rates and accordingly partly allowed the appeal of the assessee. HELD THAT:- In the circumstances AO ought to have referred the valuation to the Departmental Valuation Officer as provided in sub section 2 of section 50C or made the enquiries with the APIIC. In the instan....... + More

Deduction of education cess paid u/s 40(a)(ii) - HELD THAT:- This issue is covered in favour of the assessee by the decision of Chambal Fertilizers Ltd. [2018 (10) TMI 589 - RAJASTHAN HIGH COURT]wherein it was held that education cess is not a part of tax. Accordingly, the same was held as allowable as a deduction and that disallowance u/s 40(a)(ii) of the Act cannot be made. Hon’ble High Court of Bombay in the case of Sesa Goa Ltd. vs. JCIT. [2020 (3) TMI 347 - BOMBAY HIGH COURT] held that “education cess is allowable expenditure as the word ‘cess’ is conspicuously absent under the provision of Section 40(a)(ii) of the Act”. This Bench of the Tribunal has applied and followed these decisions in the case of ITC Limited [2018 (11) TMI 1611 - ITAT KOLKATA] and other cases. Respectfully following the same we allow this claim of the assessee.

TDS u/s 194J - disallowance of leased line charges (link service cost) on account of non-deduction of tax at source - leased line charges got the final dressing up as `Royalty’ u/s 9(1)(vi) - HELD THAT:- Once there is no liability to deduct tax at source at the material time, the fortiori is that there can be no question of disallowance u/s 40(a)(ia) of the Act. When the payment of leased line charges was made, no existing provision at that time made the assessee clearly liable to deduct tax at source. Since the leased line charges got the final dressing up as `Royalty’ u/s 9(1)(vi) of the Act after the close of the relevant Financial year, we have no hesitation in holding that - even though the amount became chargeable to tax as royalty in the hands of the recipient under the Act for the year under consideration - but the sam....... + More

Addition u/s 68 - whether the enhancement made by the ld. CIT(A) is in accordance with law? - HELD THAT:- AO made no addition in respect of these items of cash credit, though in the course of hearing before him he holds the discussion of such items of income. As per the propositions of law, on such facts only the Pr. CIT or the CIT(A) is empowered to take appropriate action u/s 263 of the Act. Coming to the addition of ₹2,10,00,000/-, the assessee stated that the old address of the company has changed. Notices were sent to the old addresses. As D/R submitted that the addition may be restored to the file of the AO for fresh adjudication after giving the assessee adequate opportunity of being heard, provided the assessee in the case, cooperate and furnish all the necessary details required for the assessment including the present addr....... + More

Valuation of Rental Income - Deduction of property taxes and other statutory levies - treatment of notional interest on the security deposit - exemption of tax under the general exemption of ₹ 20 lakhs - challenge to AAR decision. Whether the property tax paid by the Appellant to the Municipal Authority can be deducted from the monthly rental income received? - HELD THAT:- In this case, the fact that the supplier and the recipient of the service (i.e lessee) are not related and that the rent is the sole consideration for the service of renting of immovable property, are not in dispute. It is seen from the draft rental agreement that the lessee is required to pay monthly rental of ₹ 1,50,000/- plus applicable taxes, subject to deduction of tax as may be applicable. Therefore, the amount received from the lessee towards the mont....... + More

Maintainability of SLP - Condonation of delay in filing SLP - HELD THAT:- There is delay of 238 days in filing the Special Leave Petition which has not been satisfactorily explained - also there are no merits in the petition. The Special Leave Petition is, therefore, dismissed on the ground of delay as well as on merits.

Legality of orders of detention passed by the respondents - detention of goods and vehicles - scope and ambit of the orders passed by the proper officer in Form GST MOV-6 and Form GST MOV-9 respectively - HELD THAT:- The procedure to be sequentially followed from the stage of recording the statement of the driver in Form GST MOV-1 to the stage of issuing an order in Form GST MOV-6 detaining the goods, is for the purpose of determining whether the goods were being transported, or stored during transit, in contravention of the provisions of the Act and Rules. The proper officer is required to apply his mind to the statement given by the driver of the vehicle, as also other documents produced by or on behalf of the owner of the goods or conveyance, to determine whether a contravention of the statutory provisions has indeed been occasioned. I....... + More

Classification of goods - Chocolate Milk Powder - to be classified under HSN 0402 or under 1806 or under any other Chapter? - HELD THAT:- Milk and Milk products are classified in Chapter 4 and the headings 0401 86 0402 are relevant to Milk / Milk in the form of powder or granules and crème. The product in the instant case is neither milk nor milk powder but “Chocolate Milk Powder”, which is admittedly obtained on blending of Whole Milk Powder with Chacolate Flavoured Powder in the ratio of 97.5 to 2.5. Further it is an admitted / undisputed fact that the product in question also does not have the characteristics, required under FSSAI and BIS, to be considered as Milk Powder. Thus the instant product does not cover under the heading 0401 or 0402. The other remaining headings of Chapter 4 are not relevant to the instant p....... + More

Classification of goods - Non Woven Bags manufactured through the intermediate product Non Woven fabric - classifiable under Heading No. 5603 are properly classifiable under Heading o. 6305 or under Heading No. 3923 - benefit of N/N. 01/2017-CT (Rate) and 01/2017-I.T. (Rate) dated 28.06.2017 as amended - HELD THAT:- Fabric made of other than the yarn of cotton, silk, rayon or nylon and similar type of material is not a textile. The word used in the sentence is “similar type of material” and the meaning of said word can only be drawn in reference of the words used before the above word. The fabric made of Fiber grade Poly Propylene granules is not a “similar type of material” of cotton, silk, rayon or nylon. Hence fabric made of Fiber grade Poly Propylene granules cannot be considered as textile. Hence, ratio of abo....... + More

Levy of tax on one time long term lease premium payable/paid by the Jinmangal Corporation to Ahmedabad Urban Development Authority - supply or not - long term lease for a period exceeding 30 years - applicant is of the view that a long term lease for a period exceeding 30 years tantamount to Sale of the immovable property since the lessor is deprived of the right to use, enjoy and possess the property once the said lease has been granted - reverse charge mechanism - annual lease premium payable/paid by the applicant, supply or not - Whether Jinmangal Corporation is required to discharge/tax under Reverse Charge Mechanism in accordance to Section 9(3) on one time lease premium payable to AUDA in light of Notification No. 13/2017 as amended by Not. No. 05/2019? HELD THAT:- The agreement made between the applicant and the lessee for long ter....... + More

Classification of goods - rate of GST - “Papad” of different shapes and sizes - applicant in his submission has tried to equate un-fried Fryums with “Papad” under Tariff Item as 1905 90 40 - HELD THAT:- What is ‘Papad’ has not been defined or clarified under Customs Tariff Act, 1975, the Central Goods and Services Tax Act, 2017 (CGST Act, 2017), the Gujarat Goods and Services Tax Act, 2017 (GGST Act, 2017), Integrated Goods and Services Tax Act, 2017 (hereinafter referred to as the IGST Act, 2017 or the Notifications issued under the CGST Act, 2017/GGST Act, 2017/IGST Act, 2017 - It is now well settled principle of interpretation of statute that the word not defined in the statute must be construed in its popular sense, meaning ‘that sense which people conversant with the subject matter with which....... + More

Classification of goods - PAPAD of different shapes and sizes manufactured/ supplied by the applicant - whether the product would attract CGST and SGST? - HELD THAT:- The issue of proper classification of the product ‘Fry Snack Foods called Fryums’ and admissibility of exemption notification under Central Excise regime was examined by the Hon’ble Customs, Excise and Gold Appellate Tribunal (CEGAT, as it was known then) in the case of TTK. PHARMA LTD. VERSUS COLLECTOR OF CENTRAL EXCISE [1992 (8) TMI 183 - CEGAT, NEW DELHI] where it was held that the product ‘Fry Snack Foods called Fryums’ have been considered as ‘Namkeen’ and not as ‘Papad’. It can be seen that PAPAD is a thing entirely different and distinct from FRYUMS. Therefore, in common parlance or in market, Fryums are not sold a....... + More

Grant of mining lease for extracting Mineral called “BLACKTRAP” - classified under Tariff Heading 9973 as item No. (iii) Transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash deferred payment or other valuable consideration. Or item No. (viia) Leasing or renting of goods as any other service under the said chapter? - rate of GST on given services provided by State of Gujarat to applicant for which royalty is being paid. HELD THAT:- The nature of service received by the application is covered under the Service Accounting Code 9973 37 - Licensing services for the right to use minerals including its exploration and evaluation. The Government has been providing the service of licensing services for the right to use minerals after its exploration and evaluation to the applicant and ....... + More

Levy of GST - Healthcare services or not - pathology or diagnostic services supply to the client who is researcher - particular thing done by the applicant with respect to services - pathology or diagnostic services supplied to clinical research organization including govt. body for their business activities (including survey of particular thing pertaining to health care service) - taxable supply of services or not. Whether pathology or diagnostic services provided to the client researcher is liable to pay GST or otherwise? - HELD THAT:- The applicant is clinical establishment engaged in diagnostic services such as clinical biochemistry, micro biology, Hematology, clinical pathology etc.; rendering services through qualified Pathologist, qualified laboratory technician, paramedical technician and Doctors; that they are solely responsible ....... + More

Classification of supply - contract with SPG Prints Austria GMBH (SPA) to provide particular services to customers of SPA in India, as per SPA’s instruction - individual supply or composite supply of service? - whether the specified transaction of the Applicant is to be reckoned as being provided to SPA or to the customers of SPA located in India? - whether the specified transaction of the Applicant could be categorized as that of an “intermediary” as per Section 2(13) of The Integrated Goods and Service Tax Act, 2017? - Export of service as per Section 2(6) of The Integrated Goods and Services Tax Act, 2017. Whether, in the facts and circumstances, the specified transaction of the Applicant should be categorized as individual supply or composite supply of service as per the Central Goods and Services Tax Act, 2017 and t....... + More

Classification of goods - HSN Code - Organic Manure - Bio-fertilizers - Granulated Nutrient Mixture - Phosphatic Rich Fertilizers - whether these products are correctly classifiable under Sub-heading nos. 3101, 3101, 3102 & 3105, respectively? - Benefit of N/N. 01/2017-Central Tax (Rate) dated 28.06.2017. Organic Manure - HELD THAT:- The ingredients viz. Sulphur Powder, Rock Phosphate and Bentonite, Gypsum, Potassium Humate and Bio-Fulvic are certainly not covered under the Animal or Vegetable products. For the product to be covered under Chapter head 3101 it is of vital importance that the product should necessarily be either direct animal or vegetable fertilisers such as ‘manure’ whether mixed together and chemically treated or otherwise and those obtained by mixing or chemical treatment of animal or vegetable products -....... + More

Classification of goods - GST rate - water chillar plants supplied by the applicant for use in the warships, vessel and submarines to be deployed by the Indian Navy - benefit of Notification No. 01/2017-IT (Rate), S. No. 252 - Composite supply or not - HELD THAT:- In the proposed activity, the major part is supply of goods viz. Compressor, Fan Condenser, Evaporator, Centrifugal Pump with motor, Electrical Panel, Chilled Water piping/Hoses and mobile trolley etc. These goods are to be delivered to the applicant to provide services of installation, testing & commissioning of the “Trailer Mounted 160TR Chilled Water Plant” at the Naval Dockyard (Vishakhapatnam). Without these goods, the services cannot be supplied by the applicant and, therefore, we find that the goods and services are supplied as a combination and in conjunc....... + More

Classification of goods - HSN Code - product Non-Woven Bags manufactured through the intermediate product, Non-Woven Fabrics - classifiable under Heading No. 6305 or under Heading 3923 or otherwise? - exemption under Notification No.1/2017-C.T. (Rate) and 01/2017-I.T. (Rate) dated 28.06.2017, as amended - HELD THAT:- The applicant is engaged in manufacturing of Polypropylene Non-Woven Bags through the intermediate product, i.e. Non-Woven Fabrics manufactured from Fiber grade poly propylene granules by adopting the Spun Bond technology. In this technology, poly propylene granules are fed to the hopper and passed through extruder at certain temperature. The melted material after filtering passed through the spinning unit to obtain a continuous single filament. The said filaments are then subject to lying on the continuous web and under cont....... + More

Classification of supply - Composite supply or not - EPC contract for complete design, engineering, manufacture, procurement, testing, inspection and complete erection and commissioning of solar power generating system (SPGS) - supply of PV Modules/Inverters or any supply covered under Chapter Heading 84, 85 or 94 of the Central Tax Notification, principal supply or not - In case, the Principal Supply be treated as 'supply of PV Modules/Inverters' or any other supply covered under Chapter Heading 84, 85 or 94 of Central Tax Notification, whether the concessional rate of 5% be applicable on the entire value of the contract i.e. supply of SPGS? HELD THAT:- The applicant Hero Solar Energy Pvt. Ltd. is engaged in the business of setting up of Solar Power Generating System (SPGS) on turnkey basis. Turnkey project is a project whereby t....... + More

Works Contract - Composite supply or not - works contract involving pre dominantly earth work i.e. constituting more than 75% of the value of work in contract provided to Central Government, State Government, Union Territory, Local authority, a government authority or a Government Entity having GST rate of 5% applicable to the applicant - Serial No. 3 of N/N. 31/2017-Central Tax (Rate) dated 13th October, 2017? HELD THAT:- The applicability of the notification no. 31/2017 on the present contract of the applicant, the nature of work needs to be examined. The term “Earth Work” has not been defined under any GST provisions. The Webster Dictionary defines Earth Work as “an embankment or construction made of earth specially one used as a field fortification. The Collins dictionary defines Earth Work as “excavation of ea....... + More

Composite supply of goods and services - Work Contract allotted by Public Health Department, Government of Haryana - Operation & maintenance of structures/components, Staff Quarters, Pump Chamber, Boundary Wall, Distribution System, Tube wells, Pumping Machinery, OHSR etc under Water Supply Scheme, Samalkha Town, Haryana - Operation & maintenance of various sizes of sewer lines, repair of civil structures, supply of consumables etc., qualify to be a composite supply of goods and services - applicability of Sl. No. 3A of Notification No. 12/2017-CT (Rate), dated 28.06.2017 as amended by Notification No. 2/2018-CT, dated 25.01.2018 - deduction of TDS - whether service recipient, Public Health Department, State of Haryana, is required to deduct TDS under Section 51 of the CGST Act, 2017 given the fact that as per applicant's vers....... + More

Input tax credit (ITC) on the inward supply of works contract service - outward supply is also works contract service - Interpretation of section 17(5) (c) & (d) of the GST Act - applicant submits that the said sub-section prohibits the recipient from claiming input tax credit on the inward supplies of the goods and services listed in the clauses - HELD THAT:- The term ‘supply’ includes both ‘inward’ and ‘outward’ supplies. If a person makes a supply, it refers to an outward supply. If the taxable person claims or is prohibited from claiming the input tax credit in respect of a supply, it refers to an inward supply. Each of the clauses of section 17(5) of the GST Act describes the supply of a class of goods or services. The input tax credit shall not be available in respect of any of the supplies li....... + More

Classification of goods - rate of tax - HSN Code - Agro Waste Thermic Fluid Heater or Boiler and parts thereof - applicability of Sl. No.234 of Schedule I to Notification No.1/2017-Central Tax (Rate), dated 28.06.2017 and corresponding notifications issued under State GST law and IGST Act - HELD THAT:- As per the functioning/working of the impugned product, it is an energy generation device, which merits classification in Chapter heading 8402 of the First Schedule to the Customs Act, 1975 - the impugned product is classifiable under heading 8402 19 19 of the First Schedule to the Customs Tariff Act, 1975, being a Thermic Fluid Heater or Boiler. The Notification No.1/2017-Central Tax (Rate) dated 28.06.2017, as amended is relevant to the matter. This Notification has six Schedules wherein the listed goods attract the rate of CGST applicabl....... + More

Exemption from GST - service of transportation of goods from Magdalla Port, Surat to its General Lighterage Area of Magdalla Port (where the Mother Vessels are anchored) or vice versa - transportation of goods on other waterway of any inland water defined in clause(b) of Section 2 of the Inland Vessels Act, 1917 - Clause (b) of Entry No.18 of the Notification No.12/2017-Central Tax (Rate) dated 28th June, 2017 - Whether the service of above transportation fall within area as defined in ‘Inland waterways’? HELD THAT:- The 1st category of the term “inland water” comprises of “any canal, river, lake or other navigable water within a state”, as mentioned herein above. According to this, waterways on any canal, river, lake or other navigable water within a state, will be a part of “Other waterway on an....... + More

Recovery of Interest - attachment order - basic grievance raised in the present writ petition is in relation to interest only. May be, on different ground viz. the provisions of Customs Act cannot be invoked for the purpose of calculation of interest - HELD THAT:- Since the petitioners have withdrawn the writ petition filed by them, a fresh writ petition for the same cause, may be with different legal grounds cannot be maintained and the same is barred by principles of res-judicata. Upon petitioners' failure to pay the applicable interest in subsequent notice dated 05.11.2018, the respondents have taken recourse to the provisions of the Customs Act and the Rules framed thereunder, that too for the purpose of ensuring recovery - As a matter of fact, determination of interest has been made in light of the judgment of Hon'ble the Sup....... + More

Interpretation of Statute - whether a Trade Notification can be amended by a Trade Notice in terms of Section 3 of the Foreign Trade (Development and Regulation) Act, 1992? - contention of the learned counsel for the petitioner is that the Trade Notice is not issued under any particular provisions of the FTDR Act - HELD THAT:- There is no source of power for issuing a Trade Notice. As stated in the counter-affidavit, a Trade Notice is procedurally issued for clarifying certain doubts that may arise among the traders. The Notification No.8/2015-20, dated 12.06.2019 is silent about the applicability of restriction imposed on import of cashew kernels broken or whole to the units in SEZs and 100% EOUs. When such is the position, by placing reliance on the Section 3 and 5 of the FTDR Act, it is stated that the Trade Notice is issued stating th....... + More

Absolute Confiscation - subject exotic birds and animals owned by the appellant - town seizure of the birds /animals - ‘prohibited’ and ‘smuggled’ or not - burden to prove the allegation of smuggling - HELD THAT:- It is a case of town seizure and not interception at the point of entry in India. Admittedly, the appellant have purchased the exotic birds/ animals in domestic area within India, which has been corroborated by the two suppliers based at Indore namely Golu and Monu who are also the co-noticees. Further, there is no evidence on record that the said Golu and Monu have smuggled the exotic birds/animals in India. Further, I find that the Revenue has failed to establish the allegation of smuggling with any cogent evidence, either by the appellant or the other two co-noticees. The burden of proof lies on Revenu....... + More

Provisional release of seized goods - electric motorcycle in complete knock down condition - benefit of N/N. 50/2017 - Customs dated 30.06.2017 - It is contended that once order of assessment has been passed, the same being an appealable one, petitioner can avail his remedy by filing appeal before the Commissioner of Customs (Appeals) - HELD THAT:- It is directed that the goods imported by the petitioner vide bill of entry No.6874524 dated 13.02.2020 be released for home consumption on payment of 25% of the basic customs duty and on furnishing bank guarantee of a nationalized bank for the remaining amount before respondent No.3 as per assessment made. On complying with the aforesaid requirements, respondents shall release the goods of the petitioner forthwith - Stand over to 16.03.2021.

Grant of Bail - bail applications were dismissed for the reason that he had violated the bail condition and there is a possibility that he may again abscond and secondly for the reason that he was undergoing COFEPOSA detention - HELD THAT:- Considering the present pandemic situation, it is not likely that the trial would get over immediately. The applicant's justification for the violation of the condition is that he had gone to Bangalore to meet his son and subsequently, he overstayed and could not return on time to report before the investigating officer as directed by this Court. His leaving jurisdiction and not reporting before the investigating officer initially was with permission. But subsequently, he overstayed and also defaulted the conditions and could ultimately be apprehended only on 12.12.2019 for undergoing detention of ....... + More

Rejection of request of provisional release of imported goods - doubt in Country of origin - Section 110 (A) of the Customs Act, 1962 - HELD THAT:- Admittedly, the goods in question were cleared for home consumption, therefore, at the time of importation the assessment has been made after investigate the goods, in that circumstances, on mere presumption or on the basis of third party evidence, it creates doubts that the country of origin is not Kingdom of Saudi Arabia. Therefore, in that circumstances, the goods are required to be provisionally released under Section 110 (A) of the Customs Act, 1962 by putting reasonable condition for release of the goods in terms of precedent decision. Therefore, the matter is remanded back to the adjudicating authority to re-consider the request of provisional release of impugned goods in judicious manner as the goods are in perishable nature within seven days from the date of receipt of this order. Appeal allowed by way of remand.

Absolute Confiscation - penalty u/s 112(a) of Customs Act - goods are LED chains or LED Modules? - rejection of BIS certification - primary ground for rejection of the BIS officials test report submitted by the importer appellant before the adjudication authority was that the sample forwarded by the dock officer to the concerned group was different from the photographs annexed to the test report - HELD THAT:- Photographs being secondary piece of evidence which appearances can vary with the angle of photography, it should not form the basis of his decision that the goods are ‘LED chains’’ and not ‘LED modules’ as opined by the BIS Authorities. In such an event also if discrepancy is noticed Circular No. 30/2017-Cus. dated 18.07.2017 at clause (f) of para 2 that permits redrawal of sample even for a second test....... + More

Exotic species - Constitutional Validity of Section 108 of the Customs Act, 1962 - vires of Article 14 and 21 of the Constitution of India - issuance of suitable Circular/Instructions to enable the citizens in domestic possession of exotic species to make declaration under the voluntary disclosure scheme without any fear of actions under the customs Act, 1962 - HELD THAT:- There are no ground to interfere with the impugned order passed by the High Court - SLP dismissed.

Grant of anticipatory bail - Case of applicant is that summons have been wrongly issued against him on the basis of suspicion and has argued regarding the facts mentioned in the summon - HELD THAT:- This Court finds that Section 108 of the Customs Act gives power to summon persons to give evidence and produce document before any Gazetted Officer of Customs duly empowered by the State Government to produce a document or any other thing in inquiry. All persons so summoned are bound to attend such inquiry and it is deemed to be judicial proceedings within the meaning of Section 198 and Section 228 I.P.C. Almost similar provision exist u/s 70 of the Central Goods and Services Act, 2017. In a case u/s 70 of the aforesaid act, this Court has granted anticipatory bail to the applicant. The applicant, Nabi Ahmad, shall be enlarged on anticipatory....... + More

Provisional attachment of seized goods - consignment of dry dates - whether the goods are of Iran origin or Pakistan origin? - HELD THAT:- A communication has been shared by the learned Advocate, Mr. Viral Shah, appearing for respondent Nos. 2 and 3, addressed to the Commissioner, Customs House, Mundra, which is by the Dy. Commissioner, Special Inquiry and Investigation Branch, Mundra, Kachchh-Bhuj, which does not contemplate any further inquiry or investigation in regard to the goods in question and has no objection to release the goods under the Customs Act. As submitted by the learned Advocate, Mr. Dhaval Shah, and confirmed by the learned Advocate, Mr. Viral Shah, for respondent-authorities, the Customs Department shall need to take a call and to take a decision in regard the goods, which came to be seized on 19.11.2019. Let the decision be taken, promptly.

Rectification of Mistake - typographical error or not - HELD THAT:- There is no dispute regarding the first prayer made in the application as it appears to be a typing mistake. ₹ 60 lakhs mentioned in the third line of paragraph 25 of the Final Order dated September 12, 2019 requires to be deleted and replaced by ₹ 60 thousand. Rectification of mistake - prayer made in the context of appropriation of ₹ 1,00,00,000/- deposited by the applicant during investigation - Section 35C(2) of the Act - HELD THAT:- In the present case, the mistake apparent from the record that has been pointed out is non-consideration of an important contention raised by the appellant in the Final Order regarding legality of the order to the extent it appropriated the deposit of ₹ 1,00,00,000/- made by the appellant during investigation - It ....... + More

Release of petitioner's goods - warehousing of the goods under section 49 of the Customs Act - case of petitioner is that petitioner has complied with the terms and conditions for release of goods but because of warehousing of the goods under section 49 of the Customs Act, petitioner is required to pay a substantial amount to the customs authority - HELD THAT:- The view taken by respondent No.2 that the decision of this court while directing release of the goods was prima facie is not correct. When the High Court had directed release of the goods forthwith, it is beyond comprehension as to how a lower appellate authority can nullify such direction by ordering absolute confiscation of such goods. It is not only unacceptable but contumacious as well which aspect we may deal with at a later stage. The operation of the order dated 24th De....... + More

Exemption to goods imported by EOUs from payment of Customs Duty - benefit of N/N. 52/2003-Cus dated 31.3.2003 - full exemption to goods procured by EOUs from DTA units from payment of Central Excise Duty - benefit of N/N. 22/03-CE dated 31.03.2003 - import of raw materials like fuses, resistors, gold wire, etc. for manufacture of electronic goods such as hybrid micro circuits, resistors, etc - Violation of condition of notifications or not - further allegation is that the Appellant did not have permission for DTA Clearances - main contention of the appellant appears to be that finished goods were taxable and Central Excise Duty was to be demanded on finished goods and not the Customs duty foregone on inputs imported by them - Confiscation - redemption fine - penalty. Whether the appellants are liable to pay duty on the raw materials whic....... + More

Refund/release of Sale proceeds along with interest - seized Betel Nuts, which were released, were sold during the pendency of the appeal - HELD THAT:- The Tribunal directed the Revenue to handover the sale proceeds of the goods along with interest to the appellant as per provisions of law. Learned Advocate has submitted that the sale proceeds have been handed over. He further brings to my notice that Deputy Commissioner, Lucknow has passed an order dated 05 March, 2020 to refund the sale proceeds but refusing to pay the interest. On being questioned, he fairly agrees that the said order of the Deputy Commissioner is an appealable order and he will file an appeal thereagainst. However, as regards the release of pre-deposit and trucks, he submits that appropriate directions be issued. Inasmuch as the Tribunal directed the Revenue to pay th....... + More

Refund of amounts collected from the Petitioners as stamp duty on Bills of Entry filed for the goods imported - Legality and validity of collecting the stamp duty on the Bills of Entry - HELD THAT:- The issue is no longer res-integra in view of the pronouncement of this Court in the case of State of Gujarat and others Vs. Reliance Industries Ltd. [2011 (9) TMI 1208 - GUJARAT HIGH COURT], to which, one of us (J.B. Pardiwala, J.) was a party. In the said litigation also, the writ petitioners had challenged the notices issued by the authorities and the guidelines issued for charging the stamp duty on the Bills of Entry. The State of Gujarat lost before the learned Single Judge and accordingly, various appeals were filed and it was finally held that on bill of entry, the authorities cannot charge stamp duty under Art. 24. The respondents are ....... + More

Absolute Confiscation - penalty - Skimmed Milk Powder - imports under Duty Free Import Authorisation - prohibited goods or not - non-production of BIS Certificate at the time of assessment - HELD THAT:- It is not disputed that the department did not ask for redemption fine and rather went for complete confiscation of the goods under the guise of prohibited goods, which is not correct as per discussions already made. The Hon’ble Supreme Court in the matter of COMMISSIONER OF CUSTOMS VERSUS M/S. ATUL AUTOMATIONS PVT. LTD., AND PARAG DOMESTIC APPLIANCES [2019 (1) TMI 1324 - SUPREME COURT] has specifically laid down that there exist a fundamental distinction between what is prohibited and what is restricted. In the present case also the absence of BIS certificate can’t made the skimmed milk power as prohibited goods and since the ....... + More

Benefit of concessional rate of duty - Scope of expression "for use in specified Plantation sector" as "actual use in specified Plantation sector" - Import of hi-tech appliances i.e., sprayers, power weeders, Tea Pruners and Mist Blowers - multi utility / general purpose goods which are capable of use in the specified plantation sector by importing the condition of actual use in the specified plantation sector - benefit of S.No.252A of the Notification No.21/2002 cus dated 01.03.2002 - decision of the Supreme Court in the case of State of Haryana vs. Dalmia Dadri Cement Ltd. [1987 (11) TMI 94 - SUPREME COURT] Wherein "for use" has been interpreted to mean capable of use, complied with or not - HELD THAT:- The Supreme Court in Dalmia Dadri Cement Ltd. [1987 (11) TMI 94 - SUPREME COURT] while considering the ex....... + More

Maintainability of petition - seizure of goods - order has been passed u/s 110A and the petitioner is required to file an appeal u/s 129A of the Customs Act, 1962 - contention of the petitioner is that as his goods are deteriorating and he is paying demurrages rent, he does have a remedy of provisional release of goods on account of Circular dated 16-08-2017 - HELD THAT:- This court has carefully gone through the Circular issued on the subject and Mr Prasana Prasad has also stated in Open Court that there is no statutory provisions which requires for a report from the Directorate or Revenue Intelligence. Mr Prasana Prasad was also not able to state out any statutory provision which provides for a report from Directorate of Revenue Intelligence. He has stated that its a Departmental Protocol - In the considered opinion of this court, in ca....... + More

Maintainability of petition - availability of alternative remedy of appeal - Petitioner did not prefer any such appeal before that Appellate Authority, but has instead filed Writ Petition - HELD THAT:- Hon'ble Supreme Court of India in ASSISTANT COLLECTOR OF CENTRAL EXCISE, CHANDAN NAGAR VERSUS DUNLOP INDIA LIMITED AND OTHER [1984 (11) TMI 63 - SUPREME COURT] has succinctly explained the legal position relating to the exercise of discretionary powers under writ jurisdiction where it was held that It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be ....... + More

Maintainability of petition - availability of alternative remedy of appeal - Petitioner did not prefer any such appeal before that Appellate Authority, but has instead filed Writ Petition - HELD THAT:- Hon'ble Supreme Court of India in ASSISTANT COLLECTOR OF CENTRAL EXCISE, CHANDAN NAGAR VERSUS DUNLOP INDIA LIMITED AND OTHER [1984 (11) TMI 63 - SUPREME COURT] has succinctly explained the legal position relating to the exercise of discretionary powers under writ jurisdiction where it was held that It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be ....... + More

Disqualification of Directors - Seeking to direct the respondents to permit the petitioners to get re-appointed as Directors of any Company or appointed in any other Company without any hindrance - HELD THAT:- The issue involved in these writ petitions is no more a res integra. It is to be stated that the Registrar of Companies (RoC) has been disqualifying the Directors under Section 164(2)(a) of the Companies Act, 2013 by order dated 08.09.2017. Another list was published in the website of the first respondent on 01.11.2017 disqualifying the Directors. Yet another list of Directors were disqualified on 17.12.2018 by the RoC. The Hon'ble Division Bench in MEETHELAVEETIL KAITHERI MURALIDHARAN, KAMAL ANEESMOHAMED, SATHISH KUMAR GOPAL, GOVINDASAMY BALASUBRAMANIAM, PAARI SENTHIL KUMAR, PAARI DHANALAKSHMI, VERSUS UNION OF INDIA, THE REGIST....... + More

Approval of scheme of Amalgamation - seeking orders dispensing with the meetings of its Shareholders, Secured Creditors in respect of 1st Petitioner Company only as 2nd Petitioner Company did not have any Secured Creditors and also Meetings of Unsecured Creditors of both Companies - HELD THAT:- As required under Rule 16 of the Companies (Compromise, Arrangements and Amalgamations) Rules, 2016 has been affected in two Newspapers, i.e., the Indian Express (English) dated 08.12.2020 and Mathrubhumi (Malayalam) dated 10.12.2020 and no one has filed objection against the Scheme of Amalgamation of the Petitioner Companies. This Bench is of the view that the Scheme placed before this Bench on 16.10.2020 can be sanctioned. Hence, this Tribunal Sanction the Scheme of Amalgamation of M/s. Kunnath Paper Mills Private Limited with M/s. Mundassery Boa....... + More

Restoration of name of the company from the register of companies - section 252(3) of the Companies Act, 2013 Read with Rule 87A of the NCLT (Amendment) Rules, 2017 - HELD THAT:- Having satisfied with the reasons as mentioned in the Application, and the evidence in support of the contentions that the RI Company is holding certain assets and liabilities in the form of Land and Advances, this Tribunal is of the opinion that it would be just and proper to order restoration of name of the Company in the Register of Companies. In view of the averments made and evidence placed, refusal to restore will be an excessive penalty for the over-sight on the part of the R1 Company. The Applicant shall file all the pending Financial Statements and Annual Returns with R2 (RoC) as per the Act and Rules made thereunder. It shall also comply with the provisions of the Companies Act, 2013 without any delay in future. Form INC 28 shall also be filed as per procedure - Application disposed off.

Seeking to amend/modify the order to the effect and extent of directing that the requisite meeting of the Secured Creditor of the Applicant No. 1 / Transferor Company shall he convened and held on 22.02.2020 or any such date with adequate opportunity for the Applicant Companies to adhere to the statutory timelines prescribed for sending as well as advertising notice of the said meeting - Section 230-232 & 420 of the Companies Act, 2013 r/ w Rules 11 & 154 of the NCLT Rules, 2016 - HELD THAT:- Application is disposed of with following directions by modifying order dated 03.12.2020 passed in the case: (1) A Meeting of Secured Creditor of the Applicant Company No. 1/ Transferor Company is directed to be convened and held on 22nd February 2021, for the purpose of considering the proposed Scheme of Amalgamation. (2) The Quorum for the ....... + More

Restoration of name of the company in the Register maintained by the Respondent - Section 252(3) of the Companies Act, 2013 - HELD THAT:- It is evident from the plea of the Applicant that the Applicant Company seeking for restoration of its name in the register as maintained by RoC is not seriously pressing the validity of the process undertaken by the RoC in striking off the name of the Applicant Company as envisaged under Section 248 of the Companies Act, 2013 read with attendant Rules. However, the Applicant is seeking restoration of its name in the register as maintained by RoC by relying up on the ground that the Applicant Company as of date is carrying on the business for which it was incorporated and it is in operation and in the circumstances, it is just that the name of the Company should be restored on the Register of Companies ....... + More

Reduction of Share Capital - section 66 of the Companies Act, 2013 read with the National Company Law Tribunal (Procedure for reduction of share capital of Company) Rules, 2016 - HELD THAT:- The petitioner-company is directed to publish the notices about registration of order and minutes of reduction by the concerned Registrar of Companies, Ahmedabad, Gujarat in two newspapers, namely, i. e., Business Standard in English language and translation thereof in Sandesh in Gujarati language both having circulation in the State of Gujarat within 30 days of registration. The petition for the reduction of share capital of the company is allowed subject to the directions given hereinabove. All concerned regulatory authorities to act on production of certified copy of this order to be issued on demand by the Deputy Registrar/Assistant Registrar, National Company Law Tribunal, Ahmedabad Bench.

Seeking restoration of name of the Company on the Register of Companies maintained by the Registrar of Companies - section 252(3) of the Companies Act, 2013, R/w Rule 87A of the NCLT (Amendment) Rules, 2017 - HELD THAT:- It is not in dispute that the Registrar of Companies is conferred with power U/s. 248(1) to strike off the Company, if the Company has failed to commence its business within one year of its incorporation or a Company is not carrying on any business or operation for a period of two immediately preceding financial years and has not made any Application within such period for obtaining the status of a dormant Company U/s. 455. However, Section 248(6) states that the Registrar of Companies, before finally striking off Company, has to satisfy himself that sufficient provision has been made for the realization of all amounts du....... + More

Seeking restoration of name of the Company in the Register of Companies - section 252 of the Companies Act, 2013 - HELD THAT:- It is not in dispute that the Registrar of Companies is conferred with power U/s. 248(3) to strike off the Company, if the Company has failed to commence its business within one year of its incorporation or a Company is not carrying on any business or operation for a period of two immediately preceding financial years and has not made any Application within such period for obtaining the status of a dormant Company U/s. 455. However, Section 248(6) states that the Registrar of Companies, before finally striking off Company, has to satisfy himself that sufficient provision has been made for the realization of all amounts due to the Company and for the payment or discharge of its liabilities and obligations by the Co....... + More

Oppression and mismanagement - Section 241 and 242 of the Companies Act, 2013 - prayer for appointment of a Special Officer to take control of the affairs of the Company and handle the books of accounts - HELD THAT:- Considering the objection to sell out or buy out the shares of shareholders who are willing to exist form R1 or takes over R1 company without the other rival shareholders, it appears to me that the objections of the respondents in arriving at a competitive price higher than the price fixed by the valuer is unsustainable under law and devoid of any merits. Highlighting the Hon'ble NCLAT order dated 12.03.2020 that the Tribunal is expected to decide the CP on merits instead of adjourning the matter based on IA's, the Ld. Pr. CS has submitted that this Tribunal is prevented from conducting bidding to enable the parties t....... + More

Restoration of name of the Petitioner Company on the Register maintained by the Registrar of Companies - direction to ROC to remove disqualification of the Directors of the Company - Section 252 (3) of the Companies Act, 2013, R/w Rule 87A of the NCLT (Amendment) Rules, 2017 - HELD THAT:- It is not in dispute that the Registrar of Companies is conferred with power U/s. 248(1) to strike off the Company, if the Company has failed to commence its business within one year of its incorporation or a Company is not carrying on any business or operation for a period of two immediately preceding financial years and has not made any Application within such period for obtaining the status of a dormant Company U/s. 455. However, Section 248(6) states that the Registrar of Companies, before finally striking off Company, has to satisfy himself that suf....... + More

Restoration of name of petitioners in the Register of Companies - non-filing of financial statements and annual returns for three consecutive financial years - section 252 of Companies Act - Disqualification of petitioners form acting as petitioners - deactivation of DIN - Section 164 and 167 of the Companies Act, 2013 - HELD THAT:- In furtherance of the purpose of this scheme, directors of struck off companies who seek to be appointed as directors of other/new companies, ought to be provided an opportunity to avail of this scheme, provided that they have undergone a substantial period of their disqualification. The scheme clearly seeks to provide a fresh start for directors of defaulting companies who seek appointment in other companies or wish to start new businesses. Therefore, if a substantial period has passed since the disqualificat....... + More

Seeking modifications of the order passed in the captioned Company Scheme Applications - holding of meeting of its members by way of video-conferencing and/ or other audio-visual means - HELD THAT:- That in view of the current extra-ordinary circumstances due to the COVID-19 pandemic prevailing in the country, the meeting of the equity shareholders of Applicant Company 1 be convened on 24.02.2021 or 26.02.2021 or 01.03.2021 at 3 PM or any adjourned dates thereof, for the purpose of considering, and, if thought fit, approving, the proposed Scheme of Arrangement (Scheme), through video conferencing and/ or other audio visual means, without holding a general meeting requiring the physical presence of shareholders at a common venue, as the same in the current COVID-19 environment mandating social distancing norms shall not be feasible. That i....... + More

Restoration of name of the Company in the Register of Companies, maintained by the Registrar of Companies, Kochi - Section 252 of the Companies Act, 2013 - HELD THAT:- Even though sufficient opportunities were given to the appellant to produce the latest Balance Sheets and Financial Statements of the Company for the year ending 31st March 2019 and also the Income Tax Return Acknowledgment for the Assessment Year 2019-20, they have not produced the same. Having satisfied with the reasons as mentioned in the appeal and in the light of the provisions of Companies Act, 2013, and considering the report of the RoC, this Tribunal is of the opinion that it would be just and equitable to order restoration of the name of the Company in the Register of Companies - The Registrar of Companies, the respondent herein, is ordered to restore the original ....... + More

Approval of Composite scheme of amalgamation - seeking to dispense the meetings of the Shareholders and Secured Creditors of the Applicant Companies - seeking direction to convene the meeting of the Unsecured Creditors of the Applicant Company No. 1 ,2 & 3 for considering the composite scheme of Amalgamation - Sections 230 to 232 of the Companies Act, 2013 and other applicable provisions of the Companies Act, 2013 R/w Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- The Companies have followed extant provisions of Companies Act in framing the Scheme in question, which are duly approved by the Board of Directors of the Companies involved. The Statutory Auditor/Chartered Accountants of the Applicant Companies have issued Certificate dated 09th June, 2020 by inter-alia certifying that accounting treatment....... + More

Seeking an order, declaring the resolution dated 21.11.2015 passed in the EGM of the First Respondent Company removing the Petitioner from being a Director of the 1st Respondent Company as null and void and not binding on the Petitioner - Seeking to declare that the actions of the Respondent Nos.2 to 4, which are detrimental to the interest of the First Respondent Company are not binding on the Petitioner and the First Respondent Company - seeking to re-induct the Petitioner as the Director of the 1st Respondent Company - seeking a Permanent Injunction restraining the Respondent Nos.2 to 4 from interfering with the day to day management and administration of the first Respondent Company etc. Whether the Petitioner has come to the Tribunal with clean hands by disclosing complete material facts of the issue in question so as to seek equitab....... + More

Restoration of name of the Company in the Register of Companies, maintained by the Registrar of Companies, Kochi - Section 252 of the Companies Act, 2013 - HELD THAT:- This Tribunal is of the opinion that it would be just and equitable to order restoration of the name of the Company in the Register of Companies. The Registrar of Companies, the respondent herein, is ordered to restore the original status of the Appellant Company, as if the name of the Company has not been struck off from the Register of Companies and take all consequential actions like change of company’s status from ‘Strike off’ to ‘Active’ (for e-filing) and to intimate the bankers about the restoration of the name of the company so as to defreeze its accounts. The Registrar of Companies, Kochi is also directed to allow for filing of the Annual Returns and Financial Statements by the Company to restore the name of the Company - Application allowed.

Disqualification of Director - Non filing of annual returns - Scope of the circular - Validity of action of including the petitioner in the list of Directors of Companies who had defaulted in filing Annual Returns - sections 164 and 167 of the Companies Act, 2013 - petitioner has submitted that, all High Courts for different reasons have taken the view that defaults prior to April 2014 cannot be taken into consideration and in support of such contention, he has relied upon MUKUT PATHAK & ORS., YOGESH KHANTWAL, AARTI KHANTWAL, AND VINEET WADHWA VERSUS UNION OF INDIA AND ANR. [2019 (11) TMI 319 - DELHI HIGH COURT] - petitioner has relied upon a judgment in SUBHAS KUMAR BISWAS, BANKIM KUMAR BISWAS, GAUTAM KUMAR BISWAS, SANJAY DAS, RAMESH KUMAR AGARWAL, RAMKRISHNA DAS, SUBHAM AGARWAL AND ANOTHER, VIJAY KUMAR SINGHAL AND ANOTHER, RADHEYSHY....... + More

Approval of Scheme of Arrangement - Sections 230 to 232 read with Section 234 and other applicable provisions of the Companies Act, 2013 read with The Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Directions regarding holding and convening of various meetings issued - various directions with regard to issuance of notices for the meetings also issued. The scheme is approved - Application allowed.

Approval of Scheme of Amalgamation - Sections 230 to 232 and other applicable provisions of the Companies Act, 2013 - HELD THAT:- From the material on record, the Scheme appears to be fair and reasonable and does not violate any provisions of law and is not contrary to public policy - Since all the requisite statutory compliances have been fulfilled, petition is made absolute in terms of prayer made in the Petition. The scheme is sanctioned - application allowed.

Restoration of name of Respondent company in the ROC - Section 252 (3) of the Companies Act, 2013 - HELD THAT:- Section 252 (3) of the Companies Act, 2013 confers on this Tribunal powers to Order to restore the name of the Company in the Register maintained, provided such application is filed by (i) the Company or (ii) by any Member or (iii) any creditor or (iv) any workmen of the Company within 20 years from the date of publication of the notices under Section 248 (5) in Official Gazette about striking off name of such Company provided further that it is seen from the material on record that at the time its name being struck off, the Company was doing its business or carrying its operations - In this case, the applicant produced on record the copy of Audited Annual Accounts for all defaulting years. As per the audited reports of the Prof....... + More

Maintainability of application - initiation of CIRP - alleged default on part of the Respondent in settling an amount - Operational debt - existence of debt and dispute or not - HELD THAT:- The Respondent has sent an email on 02.06.2018, complaining about the quality of the goods supplied by the Operational Creditor. That on perusal of the e-mails sent by the Respondent to the Operational Creditor on 02.06.2018 and 19.06.2018 before the issuance of demand notice, it can be seen there is a preexisting dispute between the parties with respect to quality of material supplied by the Applicant. It is evident that the Respondent had meetings with the Operational Creditor in Mumbai and Banswara, where the complaints regarding the quality of the goods supplied by the operational creditor were made by the Respondent. Also arrangement regarding pay....... + More

Referring matter to larger bench - Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - demand notice was not served before passing of the admission order - time limitation - order of reference - relevancy of binding judicial precedent or a patent error - HELD THAT:- Application under Section 7 of I&B Code filed by M/s Stressed Assets Stabilization Fund (SASF) - Financial Creditor came to be admitted by the Adjudicating Authority (National Company Law Tribunal), Single Bench Chennai in terms of order dated 21st November, 2019 which was assailed in Company Appeal (AT) (Insolvency) No. 57 of 2020 primarily on the ground that demand notice was not served before passing of the admission order otherwise the Appellant would have shown that the ap....... + More

Liquidation of the corporate debtor - liquidation sought on the ground that there is no possibility for resolution of the corporate debtor - HELD THAT:- Section 33(2) of the Code enjoins the Adjudicating Authority to pass an order for liquidation of the corporate debtor where the resolution professional, at any time during the CIRP but before confirmation of the resolution plan, intimates the Adjudicating authority of the decision of the CoC approved by not less than sixty-six per cent. of the voting share, to liquidate the corporate debtor. In the present case, the CoC has resolved by 100 per cent. voting share to liquidate the corporate debtor. Application is allowed and the corporate debtor is ordered to be liquidated in terms of section 33(2) of the Code read with sub-section (1) thereof.

Maintainability of application - initiation of CIRP - Corporate Debtor defaulted in repayment of outstanding dues - existence of debt and dispute or not - HELD THAT:- In view of the categorical admission made by the corporate debtor as regards to the debt and the default and further proposal that he made with the petitioner, the petition can be admitted if they do not settle the matter with the bank amicably, time is granted for a period of 3 weeks to afford a last chance to the corporate debtor. It is made very very clear to the corporate debtor that no further adjournments will be granted and if the petitioner does not report to the court that the matter has been amicably settled between the parties, the orders will be pronounced in the open court on the very same day forthwith. List this matter on July 16, 2019. A categorical statement....... + More

Seeking to participate in the CIR process of the corporate debtor - section 60(5) of the Insolvency and Bankruptcy Code, 2016 Read with Rule 11 of NCLT Rules, 2016 - HELD THAT:- It is interesting to note that original date fixed for submission of EOI was on 01.01.2020 and later it was extended from time to time and last date for submission of EOI was 06.03.2020. The last date for submission of Resolution Plan was 06.04.2020 which was extended till 20.05.2020. It is interesting to note that applicant has not submitted any EOI though the period was extended till 06.03.2020. Even the time for filing resolution plan was extended from time to time and last date was 20.05.2020 for filing resolution plan - The applicant has not submitted either EOI or resolution plan in the extended period. The applicant claimed to have submitted the EOI long af....... + More

Seeking a direction to the Committee of Creditors represented by 100% voting power by Petitioner - M/s. Suryawanshi Garments LLP to appoint Resolution Professional replacing the IRP at the earliest or withdraw the application and pay the Professional charges for IRP - Rule 11 of the NCLT Rules, 2016 r/w Sec. 60(5)(c) of the I&B Code, 2016 - HELD THAT:- The CoC, comprised of only the Petitioner has not carried out its duties as required by the I&B Code, 2016. When the IRP's resignation has been accepted in the first CoC meeting, it was duty bound to replace the IRP by filing an application before this Adjudicating Authority for appointment of the RP, in terms of Section 22(3)(b) of the Code. This has not been done. The CIRP cannot move forward unless this step is taken, as all such duties as are listed in section 25 of the Code....... + More

Seeking to condone the delay in filing claim before the Resolution Professional - seeking direction to Resolution Professional to admit the claim of the Applicant - Section 60(5) of IBC, 2016, R/w Rule 11 of the NCLT Rules, 2016 - HELD THAT:- It is settled position of laws that Court/Tribunal cannot reject a meritorious claim at the threshold, on the ground of delay and laches, provided a litigant has substantiated reasons for delay. In the instant case, the Applicant is an Operational Creditor, and the record shows that admitted claims made by the Financial Creditors of CD were amounting to hundreds of Crores. In terms of Code and the Rules made thereunder, the Secured Financial Creditors are entitled for prior consideration in the matter of settlement of their claims in Resolution Plan as well as in the Liquidation Proceedings. And the ....... + More

Approval of the resolution plan - section 30(6) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- By virtue of mandatory contents of resolution plan, the same is in accordance with sections 30 and 31 of the Code, and also complies with the requirement of regulations 38 and 39 of the CIRP Regulations. The resolution applicant has sought certain reliefs and concessions in the resolution plan. This Bench is not inclined to allow any of the said reliefs and concessions prayed by the resolution applicant. Therefore, the resolution applicant may apply to the relevant regulatory authorities for said reliefs and concessions and the relevant authorities may consider it as per relevant applicable laws - The resolution applicant, on taking control of the corporate debtor, shall ensure compliance under all applicable laws for the time being i....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt ad dispute or not - service of demand notice - Appellant submits that in the instant case no Demand Notice was ever served on the ‘Corporate Debtor’ / Second Respondent as per section 8 of the ‘I&B’ Code - allegation that the said Demand Notice was knowingly addressed to the wrong address of the ‘Corporate Debtor’ by the First Respondent - HELD THAT:- An ‘Operational Creditor’ shall deliver to the ‘Corporate Debtor’ a Demand Notice in Form-3 or a copy of an invoice attached with a notice in Form-4 as per Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The Demand Notice or the copy of the invoice demanding ....... + More

Liquidation of Corporate Debtor - section 61 of the Insolvency and Bankruptcy Code - HELD THAT:- Section 29A (b) of I&B Code shall be applicable in the instant case. According to this provision of the code, a person shall not be eligible to submit a resolution plan, if such person, or any other person acting jointly or in concert with such person is a willful defaulter in accordance with the guidelines of the Reserve Bank of India issued under the Banking Regulation Act, 1949. The Appellant had been declared as a willful defaulter in terms of Reserve Bank of India both by Respondent No. 1 bank i.e. OBC and Respondent No. 3 viz. SBI. Therefore, the Appellant has no locus standi to challenge the impugned order dated 8th November, 2019. The Appellant submitted a resolution plan pursuant to the order of Hon’ble High Court of Karnata....... + More

Seeking permission to appellant to work out his remedies through the process of Labour Court and to get an award from the Labour Court in terms of the provisions contained in the Industrial Disputes Act and other parental enactments and to keep the appeal filed under Section 42 of IBC - Section 60(5) of the IBC - HELD THAT:- The claims of about 65 workmen are pending before this Tribunal for consideration. The appellant along with others already approached before the Labour Court when the Corporate Debtor declared a lock out of its factory and the Labour Court, Ernakulam passed an award of December, 21, 2015 in tune with the settlement agreement dated December, 02, 2015 made between the Union and the Management of the Corporate Debtor. Now the claim put forward by the appellant is barred by Limitation as the appellant sought to have raise....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - service of notice - HELD THAT:- Though the case was filed on 12th December, 2019, the Petitioner could not attend office objection in time. Therefore, the case was listed on 12.03.2019 for compliance of office objections. It was subsequently listed for hearing on 18.03.20, 15.06.20 and 18.06.20 but none appears for the Petitioners on these dates. So the Tribunal ordered notice to the Respondent on 22.06.20. However, service of notice could not be effected on the Respondents till date and resultantly none appears for the Respondents. And the notices sent through Registry of the Tribunal returned un-served. The Petitioner also failed to serve notices on the Respondent till date. The Respondent has broadly admitted the debt in questi....... + More

Seeking to order for distribution of the unsold Intangible Assets- Intellectual Property available with the Corporate Debtor - Section 35(1)(n) of Code R/w Regulation 38(1) of IBBI( Liquidation Process) Regulations, 2016 - HELD THAT:- The assets of the Corporate Debtor have been completely liquidated and only intellectual Property in question, on which TDB has charge, remains with Corporate Debtor. The Applicant has also explored the possibility of selling it but in vain. And the amount realised out of liquidation of assets was only ₹ 2,26,000/- which was utilised for CIRP costs, and no further funds will be available even for CIRP costs, if it is further permitted to continue. Therefore, instead of permitting the Applicant to file another Application U/s 54 of the Code, and the extant Regulations of IBBI (Liquidation Process) Regul....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Petitioner is stated to have continued the services inspite of failure to pay outstanding amount - Agreement has clearly provided terms of payment and service to be utilised and also alternative mechanism for any dispute arise out of implementation of terms and conditions of it - existence of debt and dispute or not - HELD THAT:- The Agreement has clearly provided terms of payment and service to be utilised and also alternative mechanism for any dispute arise out of implementation of terms and conditions of it. If the dues are not paid, the Petitioner has the right to suspend services until all undisputed invoices are paid. However, for the reasons best known to the Petitioner is stated to have continued the services inspite of fa....... + More

Liquidation of the Corporate Debtor - Liquidation order is challenged mainly because the Resolution Professional had not laid the Resolution Plans before the CoC for voting and based on discussion and deliberations Plans were rejected - Section 33(2) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The CoC was empowered to decide to liquidate the Corporate Debtor at any time before confirmation of the Resolution Plan, including any time before the preparation of Information Memorandum. It also appears that when CoC noticed that both the Resolution Plans were not feasible and viable, and are being non-compliant which Section 30 of the Code read with Regulation 37 of CIRP Regulation thus. The same could not be considered the Resolution Plans per se within the Code and Regulations' meaning framed thereunder. Consequently, the Co....... + More

Seeking direction for consideration of its Resolution Plan which is 12% more than the offer of the successful Resolution Applicant - power of Adjudicating Authority to judicial scrutiny and statutory provision to interfere with the commercial wisdom of the COC. What are the powers of the Adjudicating Authority under Section 31 of the I&B Code? - HELD THAT:- The Adjudicating Authority has a very limited power of judicial scrutiny under Section 31 of the I&B Code and the statutory provision does not permit the Adjudicating Authority to interfere with the commercial wisdom of the COC. Even for maximization of value of assets of the Corporate Debtor. In the impugned order Ld. Adjudicating Authority erroneously assumed that it is the duty of the Adjudicating Authority to satisfy itself that the price offer is reasonable and adequate. F....... + More

Recovery of Arrears by Invocation of Bank Guarantee - non-repair of transformers, which were under warrantee - additional cost incurred due to non-supply of transformers as per work order - HELD THAT:- Admittedly, out of total claim of ₹ 26,63,344/-, the Liquidator has accepted ₹ 12,13,371/- i.e. for non-repair of transformers, which were under warrantee, as the same is legitimate claim of the Applicant, subject to the approval of Adjudicating Authority - As regard the claim of ₹ 14,49,973/- is claimed against non-supply of transformers as per work order, which is already recovered by invocation of Bank Guarantee, however, the Applicant is further claiming additional cost, which is incurred by DGVCL due to non-supply of transformers as per work order. It is also admitted by the Applicant that he has already invoked the B....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - on the garb of OTS settlement the Corporate Debtor wanted to gain time to settle of the dues to the Financial Creditor - debt and default existed or not - HELD THAT:- It is a fact borne on record that the Corporate Debtor is unable to repay the dues to the Financial Creditor and as such on the garb of OTS settlement the Corporate Debtor wanted to gain time to settle of the dues to the Financial Creditor. Further, a perusal of the record of proceedings dated 04.02.2020, also shows that the Corporate Debtor was putting in efforts to settle of the dues of the Financial Creditor and upon such representation being made, the Corporate Debtor was granted time to settle the matter and the matter was finally posted to 02.03.2020 for report....... + More

Maintainability of application - Corporate Debtor failed to make repayment of its debt - operational creditor/applicant - applicant has stated that despite repeated reminders the respondent has not paid the outstanding operational debt - issuance of demand notice - HELD THAT:- The demand notice issued by the applicant under section 8 of the I & B Code on 18.12.2019 has been served upon the corporate debtor - On perusal of the reply filed by the corporate debtor it is found that the contentions raised in defence of the operational debt are vague, ambiguous and up-through merely to raise unnecessary and false dispute to escape the provisions of Insolvency and Bankruptcy Code, 2016. Moreover, no documentary proof is provided by the corporate debtor in support to the averments which thus makes it evident that the dispute is an after-thoug....... + More

Permission for withdrawal of petition - Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- Since the Company Petition is not yet admitted and the Parties have settled the issue by way of Settlement, we are inclined to permit the Petitioner to withdraw the instant Company Petition by reserving liberty to the Petitioner to file fresh Company Petition in accordance with law. The petition is hereby disposed of as withdrawn in terms of the settlement dated 08.09.2020 by directing the Respondent to strictly adhere to the terms of settlement, failing which, the Petitioner is at liberty to file a fresh Company Petition in accordance with law.

Petition filed challenging the summon issued - anticipation of threat and coercion during appearance - seeking direction to respondents to abstain from harassing, threatening or coercing the petitioners during questioning - seeking permission of presence of a legal practitioner - seeking to to limit the questioning time between 9.30 a.m and 4.30 p.m - seeking direction to respondents to provide copies of the statements taken from them. HELD THAT:- The question regarding maintainability of writ petition against a summons under Section 50 and the entitlement to have the presence of a legal practitioner during questioning was considered and negated by this Court in C.M. RAVEENDRAN VERSUS UNION OF INDIA ASST. DIRECTOR, ENFORCEMENT DIRECTORATE [2020 (12) TMI 703 - KERALA HIGH COURT]. Therein, reliance was placed on the judgments of the Apex Co....... + More

Maintainability of appeal - competency of Assistant Director to file the appeal - scope of Deputy Director - section 2(1)(c),2(1)(j) & 2(1)(k) of PMLA Act - It is submitted by respondent that no other person or authorities other than authorized authority under the Act can prefer an appeal and that reference has made to the title of the appeal and the affidavit thereto - HELD THAT:- Section 2(1)(c) has defined the word ‘the Assistant Director’ whereas section 2(1)(j) defined the word ‘Deputy Director’ and section 2(1)(k) has defined the words ‘Director, Additional Director and Joint Director. They are being defined as the authorities appointed under sub-section 1 of 49 of the said Act. Section 48 of the said Act specified the classes of authorities for the purpose of the PMLA, 2002(the said Act.). The Dire....... + More

Money laundering - seeking release of provisionally attached mortgaged properties (flats) - proceeds of crime - assignment of debts due and payable by borrowers including the loan in favour of the appellant - case of appellant is that the mortgaged properties were purchased by the borrowers when no such alleged scheduled offence were in the picture and that the title deeds have duly been registered and stamped which makes it further clear that the properties were not acquired from the proceed of crime - HELD THAT:- As per the submission of appellant it appears that no order on appellant’s application for substitution has been passed nor the contention raised in the reply, oral arguments advanced and the written submissions filed by the appellant is found placed in the impugned order. The Adjudicating Authority in the internal page 3....... + More

Grant of pre-arrest bail - petitioner submitted that the relief of anticipatory bail sought by the petitioner is not premature and that the petitioner's reliance on a news article of a reputed news agency for apprehension of arrest by the respondent cannot tantamount to being speculative - whether the petition filed under Section 438 of the Cr.P.C. before the High Court without exhausting remedy before the Court of Sessions Court is maintainable or not? - HELD THAT:- It is trite law that in case of economic offences, which is having an impact on the society, the Court must be very slow in exercising the discretion under Section 438 of Cr.P.C. But on perusal of the factual matrix of the case on hand, prima facie, there is no material to come to the conclusion that the act of the petitioner is having impact on the financial status of th....... + More

Grant of Bail - Money laundering - fraud with home/flat buyers - siphoning off/diversion of funds - conspiracy and huge loss of public funds - HELD THAT:- But for the Supreme Court's intervention and undertaking painful and strenuous exercise to secure and protect the interest of innocent home/flat buyers, the fraud played by the accused-applicant and other accused in cheating and defrauding thousands innocent home/flat buyers of their hard earned money, could not have been unearthed - The Supreme Court is monitoring the investigation. The Supreme Court had been in pain to note the conduct of the accused-applicant and other accused. They had even violated the Supreme Court orders and did not comply the directions issued on several occasions. The forensic auditors appointed by the Supreme Court had meticulously flagged the fraud and ch....... + More

Grant of Anticipatory Bail - Money Laundering - proceeds of crime - complainant/ officials of ED has made specific allegation that petitioner and his family members has acquired movable and immovable properties worth ₹ 80 lacs from the proceeds of crime of his father-in-law - HELD THAT:- The petitioner was married with Pooja Kumari in the month of June, 2014. Prior to the year 2014 the petitioner and his father have not produced any documentary evidence to show the acquisition of movable and immovable properties save and except ancestral property standing in the name of ancestor of the petitioner but after marriage of the petitioner with Pooja Kumari, daughter of Binay Yadav and Srimati Devi, the petitioner and his family acquired many buses, vehicles and immovable property. The petitioner also made attempt to file income tax return....... + More

Grant of Bail - allegation that some loan was given by the Bank officials on the basis of forged and fictitious documents - it is evident that the applicant never misused the liberty given by the Directorate of Enforcement - HELD THAT:- Investigation was conducted by the investigating officer of Directorate of Enforcement for a period of about 8 years and it was obligatory on his part to discover all the facts and the evidence against the accused persons. In such circumstances, it is a fit case for bail. Let applicant -Rajendra Kumar Mishra be released on bail in the aforesaid Case Crime, on his furnishing personal bond of ₹ 10 lakh and two sureties each of the said amount to the court concerned subject to conditions imposed. Application allowed.

Offence under PMLA - seeking bail - accused-applicant, who is Managing Director of Amrapali Group of Companies - investigation has been going on qua other accused and matter involves huge amount of ₹ 6,000/- Crores - HELD THAT:- The object of PMLA is to prevent money-laundering and to provide for confiscation of property derived from, or involved in, money-laundering. Money laundering is a serious economic offence and serious threat to the national economy and national interest and, these offences are committed with cool calculation with the motive of personal gain regardless of the consequences on the society. Considering the order [2019 (7) TMI 1233 - SUPREME COURT] in which involvement of the accused in offence has been meticulously flagged, his conduct before the Supreme Court and, the fact that the investigation is still on and....... + More

Seeking Interim restoration of the attached property for using the same for the purpose of marriage - Whether the property attached under Section 5 of PMLA and as confirmed under Section 8 of PMLA can be de-sealed/released on interim basis by the Appellate Tribunal during pendency of the proceedings? HELD THAT:- A perusal of Section 3 of PMLA as well as explanation thereof shows that in case any person, directly or indirectly, has enjoyed the proceeds of crime by way of concealment or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner, said person is prohibited from enjoying the proceeds of the crime. As per the provisions of Section 5 of PMLA, the Director or any other officer not below the rank of Deputy Director, so authorised by him, is competent to provisionally attach the pro....... + More

Jurisdiction - power of the Appellate Tribunal to pass an order, allowing the application for interim relief during the pendency of the appeal, such as restoration of the property for a specific purpose for a short period of time- Interim restoration of the attached property - residential house - Prayer was made for interim restoration of the property attached between 15.11.2020 to 30.11.2020 with additional 15 days time to prepare to be used and vacate the property before and after the function. HELD THAT:- The only bar, if any, which has been projected by counsel for the respondent with reference to Section 8 of the Act, would step in only where the trial has commenced before the Special Court, which, in the present case, admittedly is not the position as till date no charges have been framed against the respondent. The said power of th....... + More

Grant of Anticipatory Bail - Money Laundering - proceeds of crime - allegation that the persons named Sarith, Swapna and Sundeep along with several other accused smuggled primary gold from abroad through diplomatic channel of UAE consulate - HELD THAT:- There is no specific provision in the Money Laundering Act dealing with granting of anticipatory bail. The act of money laundering has both civil and criminal repercussions which the offender may have to face. Apart from adjudication, the perpetrator of the crime will also have to face penal consequences. The provisions would indicate that authorities for the purpose of the Act who can take action for violation of the provisions in the Act are the Director, Additional Director, Deputy Director, Joint Director, Assistant Director and such other classes of officers as may be appointed for th....... + More

Money Laundering - Attachment of properties - Agricultural Land - right of the appellants to the properties in question - SCN not issued to appellant - whether there is any violation of the provisions of law as enunciated in Prevention of Money Laundering Act (PMLA), 2002? - HELD THAT:- On perusal of the plain copies of the chain of documents, copy of the impugned order, reply made by the respondent it is prima facie that the appellants are the owners having interest in the properties in question as they had only made-over agreements to different persons for cultivation. A decision cannot be made on assumption & presumption that as the appellants have leased out the aforesaid properties for cultivation purposes for a long period amounts to lose of the ownership. It can only be decided by Competent Civil Court. Nothing has been submitt....... + More

Money Laundering - continuation of attachment order passed under PMLA Act - section 32A(2) of the IBC - HELD THAT:- Since in the present case there was no resolution plan covering the assets of the Corporate Debtor as attached by the ED vide Provisional Attachment Order ED cannot be precluded from proceeding against the assets of the Corporate Debtor in accordance with law, merely because the CIRP has been initiated against the accused/Corporate Debtor. That, it is well settled law that the Legislature is presumed to know all existing laws as well as the needs of the society, while enacting a legislation. Therefore, it will be presumed that after considering all possible scenarios when the Ordinance has dealt with only one situation where the powers of ED under PMLA are being curtailed then it will be presumed in law that the powers of ED....... + More

Direction to the 2nd respondent to refrain from detaining the petitioner beyond reasonable time and to permit the presence of a legal practitioner during questioning - Summon order - Section 50 of the Prevention of Money Laundering Act, 2002 - HELD THAT:- There are substantial force in the preliminary objection regarding maintainability raised by the learned ASG. Exhibit P11 summons is issued under Section 50(2) of the Act. A person issued with summons is bound to attend in person or through authorised agents, as the officer issuing the summons directs, and is bound to state the truth upon any subject respecting which he is examined or makes statements and to produce such documents as may be required. As held by the Apex Court in KIRIT SHRIMANKAR VERSUS UNION OF INDIA AND OTHERS [2014 (12) TMI 150 - SUPREME COURT], no cause of action aris....... + More

Maintainability of Revision application - Grant of Police custody - Money Laundering - scheduled offences - Seeking extension of the custody of the accused-respondent No.2 with the applicant for a period of 10 days - investigation under section 156 (3) of the Code of Criminal Procedure - HELD THAT:- In view of the judgment in case Ambarish Rangeshahi Patnigere Vs. State of Maharashtra [2010 (7) TMI 1191 - BOMBAY HIGH COURT], the Single Judge of this Court has considered the aspect in respect of refusal by the Magistrate to consider the request for Police custody and has observed that the observations of the Apex Court in the case State represented by Inspector of Police and others Vs. of N.M.T Joy Immaculate, [2004 (5) TMI 573 - SUPREME COURT] would not apply to the facts of that case since the question which fell for consideration before....... + More

Grant of Bail - Bribe - allegation that applicant was found in the possession of moveable and immoveable assets - money laundering - HELD THAT:- Trial of the case in relation to disproportionate asset is also pending. In the meantime, on 23rd March, 2010, proceeding under the provisions of PML Act was also initiated by registering a case in the office of Enforcement Directorate as ECIR/02/PMLA/LZ0/2010 and notice was issued to the applicant, reply of which was given by the applicant along with the details of the friends and relatives, who allegedly gifted the applicant the cash or ornaments etc. Thereafter, notices were also issued to the said persons. Out of 31 members, 12 members appeared before the Enforcement Directorate and their statements were also recorded. It is also evident from the record that Ajay Raj Tripathi, who appeared on....... + More

Grant of anticipatory bail - money laundering - siphoning of funds - allegation of being allured to invest and purchase shares of EIPL by the petitioner - bogus contracts - HELD THAT:- The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damag....... + More

Grant of Anticipatory Bail - Money Laundering - diversion of funds - main plank of the prosecution is that funds from the bank are diverted for purposes other than stated business of the firm by routing funds obtained in the account of M/s HLF and M/s HSE and directed to M/S Mashreq Communication Limited, which is a Mumbai based company indulged in the production of films - HELD THAT:- No case for interference is made out at this stage for interference in the proceeding launched against the petitioner under PML Act, 2002 - The petitioner has full right and liberty to move an appropriate application for grant of anticipatory bail. In light of the fact that for the same property, indulgence have been shown by the appellate tribunal dealing with the fact and issue, it is provided that in case an application for anticipatory bail is moved by ....... + More

Continuation of attachment during the pendency of the appeal - money laundering - siphoning of funds - loss of ₹ 2654.40 crores to a consortium of as many as eleven banks - HELD THAT:- It has to be considered that the attachment orders by the Prevention of Money Laundering authorities came to be issued subsequent to the Central Bureau of Investigation having filed the F.I.R. and chargesheet against M/s.DPIL and after thorough investigation. When prima facie case has been made out under the Prevention of Money Laundering Act, attachment of the properties as per the orders passed by the authorities could not be said to be unjustified in law. Section 2(1)(u) of the PML Act, 2002 defines the proceeds of crime as a property derived out of criminal activity or even the value of any such property. The submission on behalf of the appellants....... + More

Money Laundering - Modification of the ex parte ad interim order - maintenance of status quo in respect of attached properties - acquittal of the accused - it was alleged that the present applicants with other accused were intentionally aiding and facilitating the payment of alleged quid pro-quo of ₹ 200 crores as a reward for alleged undue favours shown to company - HELD THAT:- The plea of petitioner/ED raised in these applications for early hearing was that since this Court is to demit the office on 30th November, 2020 and arguments on behalf of petitioner in Crl.L.P. 185/2020 stand concluded and part arguments on behalf of respondents have already been advanced, the leave petitions should, therefore, be heard expeditiously and in case, the arguments remain inconclusive, the petitioners will have to address all the arguments afres....... + More

Violation of Equity Listing Agreement clauses - whether the information relating to signing of a Binding Implementation Agreement ('Binding Agreement' for short) by an Authorized Executive Director of the appellant with the dominant Shareholders of the Bank of Rajasthan was liable to be disclosed on an immediate basis under clause 36 of the Listing Agreement and Regulation 12(2) of the PIT Regulations, 1992? - Penalty imposed of ₹ 5 lakh each on the appellant - contentions of the appellant on the inordinate delay in issuing the show cause notice and in passing the impugned order by respondent SEBI - HELD THAT:- The signed Binding Agreement in question was price sensitive and admittedly material to the performance of the appellant and needed to be disclosed on an immediate basis which was not done. On the basis of interpretat....... + More

Determination of the ownership of the securities - As stressed that the appellant is holding securities worth more than ₹ 90 crores given by Respondent No. 2 and the impugned direction is relating to only securities worth ₹ 34 crores - HELD THAT:- After perusing certain documents placed before us, without going into the detailed legalities and merit of the matter, we pass the following interim directions:- (a) The parties shall appear before NSE, either physically or through Video Conference, on June 24, 2020. NSE shall give the contact details and arrangements for the said meeting to the parties at least one day in advance. (b) Based on the database of NSE and other parties rights in respect of the securities in question shall be reconciled/determined within one week thereafter. (c) This Tribunal will hear the matter further ....... + More

Whole Time Member restraining the appellant from accessing the securities market - securities of the appellant in its demat account has also been frozen for the same period - appellant is a trader and investor in the capital market - HELD THAT:- Appellant had only executed one trade out of 983 trades, we are of the opinion that the penalty of debarring the appellant for six months is wholly unwarranted and cannot be sustained. Finding that 13 entities were acting as a homogenous group and were connected to each other and had executed the trades in a premeditated manner with a sole purpose of manipulating the price is not applicable in so far as the appellant is concerned. The finding that other notices were taking turns on different trading days with a premeditated motive to raise the LTP of the scrip is not applicable in the appellant....... + More

Violation of provision of SEBI Act v/s IPC - Bail application - offence punishable under other Act such as IPC - Whether amount taken from the clients was 'deposit' or fees - invoking the principles of M.P. Nikshepakon Ke Hiton Ka Sanrakshan Adhiniyam, 2000 - HELD THAT:- Section 26 of SEBI Act only prohibits cognizance of offence which is punishable under SEBI Act, but does not prevent cognizance in respect of offence punishable under other Act such as IPC. It is true that the police has come to know about the complainants after communicating with SEBI and after obtaining particulars from the same agency and in the FIR the names of the complainants have been given, but under Section 154 of Cr.P.C, it is not imperative that the aggrieved person is only authorized to lodge FIR. FIR has been lodged by SHO on the directions of ASP who....... + More

Fraudulent use of the mutual funds units of the complainant - Applicant seeking the grant of regular bail - applicant herein malafidely facilitated the accused director Awanish Kumar Mishra and AFSPL in using the said fraudulently transferred mutual fund units for margin - applicant seeking interim bail on the account of his wife’s illness - HELD THAT:- Applicant was in a fiduciary capacity and has allegedly committed gross breach of trust in relation thereto in alleged connivance with other co-accused persons of an alleged amount of INR 344.07 crores, and it has to be taken into account the factum that the complainant is a public limited company, and that the members of the public have also consequently been allegedly defrauded of the amount of INR 344.07 crores by alleged fraudulent use of the mutual funds units of the complainant....... + More

Power of SEBI to pass an ex parte interim order - allegation against the respondent was that being in possession of price sensitive information and being a connected person, he had sold the shares and had, thus, made a notional gain or averted a notional loss - appellant alleged that the reason for passing an ex-parte order was that there was a possibility of a diversion of the notional gain made by the respondent - HELD THAT:- Tribunal, in our view, was correct in coming to the conclusion that since the investigation was pending since 2017 and information had been supplied on 28 November 2019, there was no urgency for passing an ex-parte interim order of the nature that was issued by the Whole Time Member. It was, in this background, that the Tribunal, while affirming the power of SEBI to pass an ex parte interim order in appropriate cas....... + More

Expulsion against the appellant, from the membership of the National Stock Exchange of India Limited - Validity of respondents’ decision of withdrawal of trading facility and subsequent action of closing out of open transactions - appellant has contended that since the trading facility itself was interdicted, it could not have been expected to keep up with various margins and deposits prescribed by the respondents as no trading was being permitted. Whether prior approval of SEBI/Central Government was essential for enforcing the circular dated 19.05.1997 against trading/clearing members? - HELD THAT:- Clause (5) of Chapter IX of the Byelaws uses the phrase “the relevant authority may determine and announce” the operational parameters. Both “determination” and “announcement” of such parameters is t....... + More

Forward trade in commodities - Trading Irregularities - Piercing of corporate veil - abuse of position by the MD / Chairman of the Commodity Exchange - Plea of lack of adequate opportunity - principles of natural justice - Issuing show cause notice to the second respondent and not to the first respondent - multiple proceedings have been initiated but have resulted in no culmination over a period just short of a decade. HELD THAT:- We do feel that there was an endeavour to some extent by Respondent No.2 herein to prolong the proceedings but then looking into the enormity of the contents of the show cause notice running into 150 pages with documents spanning 4,000 pages supporting it, a reasonable time had to be given to respond to the same. We may note that the whole enquiry was at the behest of “independent enterprising journalist.&....... + More

Validity of Downgrading petitioner's bank loans' rating to 'IND BB+' from 'IND BBB - Covid-19 pandemic outbreak - Reserve Bank of India has announced moratorium for the period upto 31st May, 2020 vide Circular dated 27.03.2020 - objection regarding territorial jurisdiction - whether third respondent cannot be characterised as “State” within the meaning of Article 12 of the Constitution of India? - HELD THAT:- Even though the third respondent may be located in Mumbai, in as much as part of the cause of action arose within the territorial limits of this Court, this writ petition cannot be dismissed on the ground of lack of territorial jurisdiction. Likewise, reliance on the ouster clauses in the rating agreement is equally misplaced. As third respondent is a private body and not a “State” within t....... + More

Whether the Board obliged to grant a personal hearing to the petitioner while considering an exemption application under the Securities and Exchange Board of India (Share Based Employee Benefits) Regulations, 2014 - HELD THAT:- It is a settled position that the requirement of compliance with the principle of natural justice can vary in different situations and conditions. Even where situations where principles of natural justice require an opportunity of hearing, it does not in all circumstances mean a personal hearing. A “reasonable opportunity of being heard” to the applicant before deciding exemption application. Therefore whenever it is found necessary to provide for an opportunity, SEBI has expressly incorporated it in such provisions. No such stipulation is found in the Regulation at hand. Apprehension expressed by the S....... + More

Credit Rating Rationales - factors required to be considered by ICRA while deciding the rating - praying for a decree of declaration, declaring the Credit Rating Rationales dated 24th April, 2020 and 30th April, 2020 passed by the defendant or any other similar credit rating rationale downgrading the plaintiff’s credit rating from BBB+ (stable outlook) to BBB (negative outlook) as null, void, unenforceable and ineffective - also seeks decree of mandatory injunction directing the defendant to withdraw the said credit rating rationales from the physical as well as electronic records of the defendant including on the world wide web - charge of Violation of rating methodologies or the CRA Regulations or the Master Circular - Whether the defendant-ICRA has a right to publish the rating despite being objected to by the plaintiff/JPL? HELD....... + More

Failure to close the trading window - provisions of Clause 4 of Minimum Standards for Code of Conduct to Regulate, Monitor and Report Trading by Insiders mentioned in Schedule B read with Regulation 9(1) of PIT Regulations, 2015 - As alleged that the acquisition of AIMIN by Ecap was a price sensitive information which had come into existence on January 25, 2017 upon signing of Term Sheet - HELD THAT:- Price movement of the scrip of EFSL at the relevant point of time. Corporate announcement was made on the platform of BSE at 18:56:48 hours on April 05, 2017 i.e. after the market had closed on the said day. The scrip of EFSL had closed at ₹ 167.90 on the said day. However, I note that the scrip had opened at ₹ 175.95 the next day. This shows that the price of the scrip of EFSL had registered a spike of 4.79% on April 06, 2017. E....... + More

Insider trading - circumstantial evidence as to whether a person is guilty of insider trading - HELD THAT:- Appellant had passed on the price sensitive information regarding the open offer to the Tippees. Such inference taken from the immediate and proximate facts and circumstances surrounding the events is reasonable and logical which any prudent man would arrive at such a conclusion. The Supreme Court in Kanhaiyalal Patel 2017 (9) TMI 1269 - SUPREME COURT held that an inferential conclusion from proved and admitted facts would be permissible and legally justified so long as the same is reasonable. In the light of the aforesaid, the decisions cited by the learned counsel for the appellant on the issue that a person cannot be held guilty only on the strength of proximity of relationship with the Tippee are distinguishable on facts and are....... + More

Orders for release of securities - learned senior counsel sought intervention of this Tribunal to stay such orders as well as to allow the appellant to dispose of the securities worth ₹ 21.62 crores and thereafter releasing the remaining securities given by Respondent No. 2 to the appellant - HELD THAT:- We pass the following interim directions - The parties shall appear before NSE, either physically or through Video Conference, on June 24, 2020. NSE shall give the contact details and arrangements for the said meeting to the parties at least one day in advance. (b) Based on the database of NSE and other parties rights in respect of the securities in question shall be reconciled/determined within one week thereafter. (c) This Tribunal will hear the matter further on Friday, July 03, 2020. In the interim status quo shall be maintained....... + More

Withhold of money by SEBI - penalty for violation of Regulations 3 and 4 of Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003 - During the pendency of the appeal, the Recovery Officer of SEBI recovered an amount - HELD THAT:- Once the order of the AO imposing a penalty was set aside, there was no justification for SEBI to withhold any amount which was recovered pursuant to the order of the AO. Such retention of the amount after the order of the AO has been set aside, is without any authority of law. The fact that no direction for refund of the amount was issued by the Tribunal is immaterial. Once the order has been set aside, there is no amount to be recovered and consequently any amount so recovered has to be refunded immediately. Respondent has a....... + More

Maintainability of the Writ Petition - whether IGRP of the First Respondent has jurisdiction to re-examine the complaint of the Third Respondent pursuant to the direction issued by the Second Respondent after having arrived at the conclusion that the admissible claim of the Third Respondent against the Petitioner was 'NIL' and relegated the parties to take further course of action under the Exchange Regulations in the earlier order dated 18.10.2016, which has attained finality having remained unchallenged in the manner recognized by law - HELD THAT:- There cannot be any doubt that the attempt to re-examine the complaint of the Third Respondent against the Petitioner by IGRP of the First Respondent without any specific provision to that effect in IGRM devised by the Second Respondent in Circular No. CIR/MRD/ICC/30/2013 dated 26.09........ + More

Interest liability u/s 42(3) of FERA - main ground on which the Petitioner claims interest is that Section 42(3) of FERA stipulates that interest is payable at 6% p.a. in all cases other than cases relating to confiscation either under Section 63 of FERA or under the Customs Act, 1962 - HELD THAT:- In present writ petition claiming interest was filed on or about 28.08.2009. It is clear that the writ petition was filed more than 9 years after receiving the rupee equivalent of UK Pounds 1800. Upon perusal of the affidavit, find that the Petitioner stated that she and her counsel visited the office of the 1st Respondent to request for the payment of interest and that she was constrained to file the writ petition on account of non-payment thereof. Apart from this statement, no explanation is offered for the delay and no written reminders are ....... + More

Holding of inquiry against the petitioner in the manner provided in Rule 4 of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000 - HELD THAT:- Impugned Show Cause Notice is at the first stage wherein the Adjudicating Authority on receiving a reply to the Impugned Show Cause Notice is to form an opinion whether an inquiry at all should be held against the petitioner. At this stage we do not deem it appropriate to entertain this present petition. The petitioner shall be at liberty to raise all its contentions before the Adjudicating Authority. Needless to say, if the petitioner is aggrieved of the decision taken by the Adjudicating Authority, it shall always be open to the petitioner to challenge the same in accordance with law.

Permission for Direct Investment in certain cases - Remittance of equity subscription/loan/corporate guarantee/bank guarantee or through other permitted mode - additional financial commitment in JSPML by way of equity subscription/loan/corporate guarantee/bank guarantee, etc. - Denial of grant permission to the petitioner to make additional commitment/payment - respondent have rejected the application of the petitioner and have not granted permission for making the additional financial commitment/payment of USD 300 million on account of the objection raised by the Enforcement Directorate - HELD THAT:- Respondent RBI by a cryptic non-speaking order has rejected the application of the petitioner without giving any reasons whatsoever. The said order fails to give any reasons as to why the application of the petitioner is being rejected. The ....... + More

Restrictions on dealing in foreign exchange - diversion of exported goods, non-realisation of export proceeds, non-clearance of imported bills and write off/ set off - HELD THAT:- Trend Setters Group of Companies had failed to submit Bill of Entry as evidence for actual import of the goods. Trend Setters Group of Companies did not realised the substantial portion of export proceeds and it is also established that except filing a Suit before a Sub-Court in Ernakulam, Kerala and writing to the RBI for write off/ set off, no other steps have been taken. In other words, no sufficient and visible efforts have been by/ on behalf of the Trend Setters Group of Companies to realise the export proceeds. Who was/were the person/persons responsible for the diversion of export goods / non-realisation of export proceeds and remittances of payment towar....... + More

Extension of the usance period of the Letter of Credit Facility sanctioned to the writ petitioners from 180 days to 270 days - distinction between the usance period of a Letter of Credit and the period of a Trade Credit - HELD THAT:- The argument that the 2018 Regulations brought about a change in policy regarding the usance period for credit does not hold water, since the said Regulations and the Master Direction on External Commercial Borrowings and Trade Credits dated July 1, 2015, updated up to October 6, 2015, relate to loans extended by overseas banks. The germane consideration in the present case is, rather, the Master Direction - Import of Goods and Services dated January 1, 2016 (updated lastly on April 1, 2019). Trade Credit Policy - Revised Framework formulated by the RBI on March 13, 2019 does not alter the position as far as ....... + More

Detention Orders at the pre-execution stage - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) - HELD THAT:- Proposals for invoking the provisions of the COFEPOSA Act were mooted in the second week of October 2019 - overseas evidence was received from SPA Dubai in the first week of November 2019. The proposal to detain the petitioners was further analysed keeping in view the strong tendency to indulge in smuggling activities in future. The proposal for preventive detention of the petitioners was sent to the Detaining Authority on 02.01.2020. The proposal was placed before the Central Screening Committee on 13.01.2020, and the recommendations of the Central Screening Committee (CSC) were submitted to the Detaining Authority on 14.01.2020. The proposals were examined by the Detaining Authority....... + More

Seizure and attachment of the bank account of the petitioner's father - grievance of the petitioner before this Court is that the bank account mentioned in the writ petition is not allowed to be operated by the petitioner under the guise of investigating the matter under FEMA and no order of attachment was passed by the first respondent at any point of time in respect of the said bank account and therefore, the petitioner cannot be prevented from operating the bank account - HELD THAT:- Investigation under FEMA is pending and the investigation conducted so far reveals that the amount inter alia lying in the subject matter bank account appears to have been involved in violation of provisions of FEMA. Though such counter affidavit is filed, when a specific question is put to the leaned counsel for the first respondent by this Court as t....... + More

Proceeding against a Director of a company for contravention of provisions of FERA, 1973 - Non-executive Director responsibility for the conduct of business of the Company - notice dated 19.02.2001 was issued by the Deputy Director, Enforcement Directorate to decide as to whether the adjudication proceedings as contemplated in Section 51 should be held against the Directors for contravention - HELD THAT:- The appellant had not submitted any reply to show cause notice dated 19.02.2001 which though was addressed to the Company and all Directors and the reply was sent only by the Company Secretary on 26.03.2001. The representation dated 29.10.2003 was the first representation submitted by the appellant before the adjudicating officer during course of personal hearing. What is said by a person who is called for personal hearing even though gi....... + More

Permission for Direct Investment in certain cases - direct investment in joint venture or wholly owned subsidiary outside India - application the petitioner seeks permission for remission of USD 54.99 Million on or before 31st July, 2020 - HELD THAT:- What prima facie appears is that based on a communication written by Directorate of Enforcement containing cryptic information the RBI/respondent has chosen to withhold permission to the petitioner. The discretion under clause 9 of the abovenoted Regulations has to be exercised by RBI the respondent based on cogent facts and materials and not at the mere directions of Directorate of Enforcement. It was for the respondent/RBI to exercise its discretion in the facts and circumstances of the case keeping in view its own permissions given and subsequent facts and events that may have taken place....... + More

Permission for Direct Investment in certain cases - on the saying of the concerned Enforcement Directorate, permission is being refused to the petitioner - HELD THAT:- In case an Indian party does not satisfy the eligibility norms of Regulation 6 then it may apply for RBI for approval. It is Regulation 6 which states that permission cannot be given in case the investigations are pending by the Law Enforcement agencies. Regulation 9 does not provide any such stipulation. Hence, prima facie the petitioner was correct in having approached RBI under Regulation 9. Counsel for RBI has pointed out to some inquiry initiated recently as mentioned in communication dated 14.08.2019 by Enforcement Directorate. The petitioner refutes this. We cannot help noticing that the corporate guarantee and the loans have prima facie been taken with the prior per....... + More

Selling of surplus power in Domestic Tariff Area and installing dedicated transmission lines into Domestic Tariff Area - surplus electricity supplied in the Domestic Tariff Area as per rule 47 of the Special Economic Zone Rules - to be treated as other business or not - reliance on permission dated 19.12.2006 and the Notifications dated 10.5.2007 and 19.6.2007 along with the provisions of the SEZ Act, 2005 - supply of the electricity to Domestic Tariff Area is beyond the Authorized Operations approved under the Act or not? - services received by the assessee was not shared between authorised operation in Special Economic Zone Unit and Domestic Tariff Area - whether expression “wholly consumed” referred to in Explanation (iii) of the proviso to para 2(a) of the Notification No. 17/2011-ST would be applicable to sharing business....... + More

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - Eligibility of the petitioner or maintainability of its declaration to avail the benefits of the scheme under the category of investigation, enquiry or audit - quantification of the service tax dues of the petitioner for the related period was not quantified on or before 30th June, 2019 - HELD THAT:- All that would be required for being eligible under the above category is a written communication which will mean a written communication of the amount of duty payable including a letter intimating duty demand or duty liability admitted by the person concerned during inquiry, investigation or audit. It is evident hat petitioner had given details of its outstanding service tax liability upto June, 2018 vide its intimation dated 14th September, 2018 addressed to respondent No.5. The notic....... + More

Non-payment of service tax - service rendered to foreign customers - tax not paid under the belief that it amounted to export of services - Video Tape Production Service - HELD THAT:- Issue decided in the case of PRASAD CORPORATION LTD. VERSUS COMMISSIONER OF SERVICE TAX, CHENNAI [2017 (11) TMI 435 - CESTAT CHENNAI] where it was held that we are not able to fathom how the adjudicating authority, having stated that the appellants are not engaged in the recording of any programme etc. has concluded that services or restoration, giving special effects etc. on the old films would be a "Video Tape Production". Appeal allowed - decided in favor of appellant.

Refund of Service Tax - rejection of refund claim holding that the appellant has not contested the service tax liability, therefore, the refund claim of service tax paid is not admissible - HELD THAT:- The fact which is admitted by both the sides that in the earlier round of litigation, this Tribunal passed the order and dropping the demand of service tax for extended period of limitation alongwith interest and the said order is final. In that circumstances, the refund claim filed consequent that order is admissible in the eyes of law. The refund claim alongwith interest to be paid by the department within one month from the date of receipt of this order is allowed - appeal allowed - decided in favor of appellant.

Principles of Natural Justice - principal argument of the writ applicant is that without giving any opportunity to even file reply to the show cause notice, and that no opportunity of hearing was given even before passing the impugned order in original - HELD THAT:- The writ applicant has been able to make out a strong prima facie case to have an ad­interim order in his favour in terms of para 29(c) of the writ application. Let Notice be issued to the respondents, returnable on 8th February 2021.

Benefit under the SVLDRS - writ applicant would submit that, the issue involved is very limited and if this Court takes the view that his client is entitled to claim the benefit under the SVLDRS, the order in original passed by the Commissioner, CGST, Vadodara would pale into insignificance - HELD THAT:- As the other side is not ready with the matter, it is not possible for this Court to proceed today with the hearing of the main matter. As a last chance, post this matter on 20.01.2021. We are adjourning this matter with a distinct understanding that on the next date of hearing, if none appears for the respondent, this Court shall proceed to hear Mr. Sujit Ghosh, the learned Senior Counsel appearing for the writ applicant on merits and pass an appropriate order.

Principles of Natural Justice - Validity of Clause (m) of Section 121 and Section 125 of the Sabka Vishwas (Legacy Dispute Resolution Scheme), 2019 - the clause the assesseee ineligible based on an inquiry or summons has been given up - whether the Designated Committee should have given an opportunity of hearing to the writ applicant before passing the impugned order dated 17.06.2020? - HELD THAT:- In the case on hand, the Designated Committee took the view that as an inquiry has been initiated pursuant to the summons under Section 14 of the Central Excise Act, 1944, the declaration of self assessment cannot be accepted. Let Notice for final disposal be issued to the respondents, returnable on 19.01.2021.

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - Determination of amount of pre-deposit before filing an appeal or Total amount as deposited earlier to be adjusted with Declaration of tax - whether in the facts and circumstances of the case could there be a dispute on the Service Tax deposited by the petitioner, and if there cannot be any dispute in this regard, would the petitioner upon reading the provisions of Sections 123(a)(i) and 124(2) of SVLDR Scheme, be entitled to Tax Relief thereunder which would absolve the petitioner from paying further amounts? - HELD THAT:- The SVLDR Scheme contemplates “Tax Relief” as detailed in Section 124: Section 124(2) stipulates that the ‘Tax Relief’ shall be calculated subject to the condition that any deposit during enquiry or investigation or audit shall be deducted....... + More

Levy of service tax - managing car and two wheeler parking in a public place while serving public - N/N. 25/2012-Service Tax dated 20.06.2012 - HELD THAT:- Reading of the clause Paragraph 24 of the notification 25/2012 vide Annexure-R2 read with the statement of objections filed by the second respondent cited supra, the petitioner is not entitled to exemption in payment of service tax, for the reasons that petitioner is rendering service to general public in permitting them to park the vehicles for a certain period of time and collecting fee. In other words, petitioner is rendering public services, therefore, service tax is payable. Petition dismissed.

CENVAT Credit - input services - deposit insurance service provided by the Deposit Insurance and Credit Guarantee Corporation (DICGC) - HELD THAT:- In the decision of the Larger Bench of the Tribunal in South Indian Bank vs. The Commissioner of Customs, Central Excise & Service Tax-Calicut [2020 (6) TMI 278 - CESTAT BANGALORE] it has been held that insurance service provided by the DICGC to the Banks for insuring the deposits of the public with the Banks is an “Input Service” in terms of Rule 2(l) of CCR and Cenvat credit for the service tax paid by the banks for this service can be availed by the banks for rendering output service. In view of the decision of the Larger Bench of the Tribunal in the matter of South Indian Bank, it can be concluded that the issue involved in the instant Appeal is no longer res integra. Credit is allowed - appeal allowed - decided in favor of appellant.

Refund of unutilized Cenvat Credit - refund rejected on the ground of nexus, formula prescribed under Rule 5 ibid as well as Notification No.27/2012-CE (NT) dated 18.6.2012 while calculating the amount of refund was not properly applied, on the ground that maximum amount of eligible refund cannot be greater than the unutilized Cenvat Credit for the quarter and also on the ground that the value of services are not paid to the vendor within the limitation period as prescribed u/r 4(7) ibid. HELD THAT:- There is no discussion about the contentions raised by the appellants and in the impugned order there are no proper reasonings/ findings as to how the part of the refund claim was disallowed. From the impugned order it is not possible to know the reasoning for rejection of the part of refund claim. Learned Commissioner ought to have discussed....... + More

Valuation - Business Auxiliary Service - inclusion of value of sizing in assessable value - Commissioner held that sized coal is an excisable product and sizing operation is an activity incidental and ancillary to the completion of a manufactured product and since the value of sizing is includible and has been included in the assessable value of coal sold to the customers - HELD THAT:- Sizing of coal is an incidental and ancillary process to make coal marketable and thus complete “manufacture” of coal and to make it into “excisable goods” as per Section 2(d) of the Central Excise Act. The process of sizing of coal is also therefore outside Section 65(19) of the Act since it is a process in the manufacture of the final product, sized coal. It is also found from the records of the present proceedings that in respect ....... + More

Leviability of service tax - clearing and forwarding agent service - consignment agency services alleged to have been rendered by the appellant to Tata Steel Limited - HELD THAT:- The appellant’s activities were limited to conversion of the raw materials supplied by TSL into finished goods and to send the said finished goods of TSL to the clearing and forwarding agent/consignment agent, appointed by the appellant and TSL jointly, who were situated at various parts of the country - it is also found that although the appellant had entered into the consignment agency agreement with TSL this agreement was never acted upon by the parties. The appellant also did not receive any amount from TSL as and by way of consignment agent or towards providing any consignment agency service under the said consignment agency agreement. No evidence to ....... + More

Refund of unutilised CENVAT Credit - refund denied for non-submission of requisitioned documents - opportunity of being heard also not given - violation of principles of natural justice - HELD THAT:- Refund has been denied for non-submission of requisitioned documents which the appellant submitted before the Ld. Commissioner (Appeals) which has not been considered in the impugned order. With regard to the dispute raised by the original authority for denial of refund on ground of classification, I do not agree with the reasons assigned by the said authorities inasmuch as when the repair and maintenance service per se is not excluded for the purpose of availing credit, refund should not be denied on the ground that the service provider should not have classified the same under the category of Renting of Immovable Property services. Further,....... + More

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - rejection of declaration on the ground that “as per report of the division vide letter dated 13.01.2020, no duty amount has been declared in return as payable but not paid - HELD THAT:- The admitted facts of the present case are that the petitioner has filed return under the service tax law prior to 30th June, 2019 and deposited the amount of duty along with the returns which was filed belatedly. Therefore, clause (e) of Section 123 read with clause (c) of Section 121 of the SVLDR Scheme is not applicable on the facts of the present case. The circular relied by learned counsel for the petitioner has no application to the facts of the present case inasmuch as the circulars dated 25th September, 2019 and 29th October, 2019 relied by learned counsel for the petitioner is referabl....... + More

Rent-a-cab scheme operator Service - Deemed Sale - constitutionally demarcated exclusion of the authority of the Union that precluded statutory enactment of tax on transactions of sale - section 73(1A) of Finance Act, 1994 - HELD THAT:- It is not in dispute that the tax liability confirmed in the impugned order were demanded in statements issued, under section 73(1A) of Finance Act, 1994, by reference to facts, and evidence, elaborated in the first show cause notice for the period from 1st April 2008 to 30th September 2012 which straddles the service enumerated in section 65(105)(o) of Finance Act, 1994 and the successor ‘negative list’ regime. The disputed tax in the present appeal pertains to leviability in the ‘negative list’ regime as provider of service relating to lease of motor vehicles and on the entire con....... + More

Sabka Vishwas (Legacy) Dispute Resolution Scheme, 2019 - delay in payment due to adjustment of amounts paid by the insurance company against the payment under the scheme - stance of the respondents that on a technicality of payment under a separate head, the compensation payable by the insurance company would not be adjusted against the dues under the scheme, is not in accordance with the purpose and intent of the scheme - HELD THAT:- The dues payable by the Petitioner has now been crystallised at ₹ 2,56,91,472/-. On payment of this amount, under the scheme, the Petitioner would have cleared its entire liability to the central excise authorities. The compensation being paid by the 6th Respondent is ₹ 4,60,73,182/-. This would mean that the entire due of the Department is being cleared and a surplus of ₹ 2,03,81,710/- wou....... + More

Rejection of declaration under Sabka Vishwas [Legacy Dispute Resolution] Scheme, 2019 - rejection of declaration on the ground of quantification of the liability before the prescribed date - HELD THAT:- It is seen from the declaration filed by the petitioner in Form SVLDRS-1 that the petitioner has indicated the liability/duty is in a sum of ₹ 95,94,517/-. This figure comes about after scrutiny of records and in terms of the Show Cause Notice dated 9.12.2019. If there was quantification in terms of the Final Reminder as now asserted by the petitioner, in Form in SVLDRS-1 the petitioner should have mentioned in the relevant column the amount indicated in the Final Reminder dated 15.11.2018. The fact that the petitioner mentions the Tax liability/ Demand in Form SVLDRS-1 as ₹ 95,94,517/-, an amount which is quantified in terms o....... + More

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - permission to make payment physically or electronically under the SVLDRS scheme - although the writ applicant was able to generate the challan, yet was not able to make the payment, as the portal reflected an error on the ICEGATE - HELD THAT:- The writ applicant should take up this matter with the Chairman, CBIC at the earliest by filing an appropriate application or representation - As a writ Court, it has its own limitations, but if the writ applicant is ready and willing to deposit the requisite amount, then, the Chairman, CBIC should look into the matter and try to resolve the dispute. Ultimately, the revenue is going to be benefited with the amount, that the writ applicant may deposit for the purpose of seeking the benefit under the Scheme, if found eligible. This writ applicat....... + More

Reversal of CENVAT Credit - Banking and other Financial Services - It was alleged that the appellant has not complied with the provision of of Rule 6 (3B) of Cenvat Credit Rules, 2004 in as much as it has failed to pay on monthly basis, an amount equal to 50% of the credit availed on inputs and input services used for provision of output service of banking and other financial services - Penalty - HELD THAT:- The perusal of Rule makes it clear that it require reversal of Cenvat Credit availed on inputs and input services used for provision for output service of Banking and Other Financial Services in each month but to an amount equal to 50% of the such credit availed. The Adjudicating authority below has acknowledged the reversal of credit by the appellant. However has held that reversal is not the equivalent to 50% of the total credit as ....... + More

100% EOU - Clandestine/illicit removal - Polyster Twister Yarn and Polyster Grey Fabrics - recovery of Central Excise duty equal to aggregate to custom duties - HELD THAT:- Issue Notice and Notice as to the interim relief, returnable on 27.01.2021. Service of Notice through regular mode as well as through e-mode is permitted.

SSE Exemption - Clubbing of clearance - use of brand name of others - Job work - the case of the department is that the electrodes manufactured by M/S Orion Wire Manufacturing Company bear the brand name of the appellant’s company - inclusion of such welding electrodes have to be included in the aggregate clearances of the appellant for the purpose of N/N. 8/2003 -CE - HELD THAT:- The appellant is the owner of the brand name “ Sun Arc”. They are getting electrodes manufactured by the M/s Orion Wire Manufacturing Company on job work basis by supplying materials to them. The electrodes manufactured by the job worker are cleared from the job worker premises directly. Raw materials for the manufacture of the electrodes are supplied by the appellant. The duty on the electrodes is paid by the job worker on the price at which t....... + More

Rectification of Mistake - mistake apparent on the face of record - Section 35FF of Central Excise Act, 1944 - HELD THAT:- The Revenue wants to challenge the merits of the order by way of rectification of mistake. The said act of the Revenue is not appreciable as the same shall amounts the review of own order which is not permissible in law. The issue whether the application of rectification of mistake is maintainable or not has been discussed by this Tribunal in the case of JK CARD BOARD INDUSTRY, JAMMU & KASHMIR VERSUS COMMISSIONER OF CE, JAMMU & KASHMIR JAMMU & KASHMIR [2021 (1) TMI 337 - CESTAT CHANDIGARH] where it was held that the distinction between the appeal and application for rectification of mistake is quite obvious and even a wrong finding of fact or in law needs to be challenged in an appeal before the appellate ....... + More

CENVAT Credit - applicability of N/N. 02/14-CE (N.T.) dt.20.1.2014 - denial of credit on the ground that appellant was not entitled to credit prior to the Notification No.01/10-CE dt.6.2.2010 - extended period of limitation - HELD THAT:- It is found that similarly placed assessee in DHARMPAL SATYAPAL LTD. VERSUS COMMISSIONER OF C. EX., NOIDA [2016 (9) TMI 1389 - CESTAT ALLAHABAD] was allowed the credit although against those orders, the appeals have been filed by the Revenue before the Commissioner (Appeals), in that circumstance, when the Revenue is having divergent views on the issue, the extended period of limitation is not applicable - Admittedly, in this case, the show cause notice has been issued by invoking the extended period of limitation, therefore, the denial of credit is barred by limitation. Appeal allowed - decided in favor of appellant.

Clandestine removal - allegation of clandestine use of one extra Pouch Packing Machine for manufacture and clearance by evading excise duty - period from 01-11-2013 to 30-09-2014 - Interpretation of “Compounded Levy scheme” under section 3A of Central Excise Act 1944 and Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules 2010 - Determining rate of duty and Quantification of duty under Notification No. 16/2010-CE dated 27.02.2010 - seized machine found excess - Operating Machine or not - evidentiary value of statements in term of section 9D of Central Excise Act 1944 with & without examining witnesses - Confiscation of PPM is sustainable when it is not manufactured and removed by M/s Hasmukh Tobacco Products - absence of seizure of goods manufactured or cleared ....... + More

Rectification of Mistake - mistake apparent on the face of record - review of order - Section 35C (2) of the Central Excise Act, 1944. As per Ashok Jindal, HELD THAT:- There are no merit in the applications for rectification of mistake filed by the Revenue. If any consideration is given to the same, the same shall be amount to review of our own order which is not permissible in law - the applications for rectification of mistake filed by the Revenue is dismissed. As per Sanjiv Srivastava: The present applications are undoubtedly and undisputedly the applications filed under Section 35C (2) of the Central Excise Act, 1944 for rectification of the mistake apparent from the record. It is settled law as to what can be the scope of the application made under this section and what is the mistake apparent from the records which can be rectified ....... + More

CENVAT Credit - input services - Advisory services - Activities relating to business - Legal service - whether the services availed by the appellants from M/s. Singhi Advisors Pvt. Ltd. Mumbai would amount to input services to be eligible for credit? - HELD THAT:- Rule 2(l) of Cenvat Credit Rules, 2004 has two parts, one the substantive part and the other the inclusive part. Commissioner finds that the services covered under the inclusive part of the definition of input service or services are which are rendered prior to the commencement of the manufacturing activity (such as, services for modernization, renovation or repairs of the factory) as well as services rendered after the manufacture of final products (such as advertisement, sales promotion, market research etc.) and includes services received such as accounting, auditing, financi....... + More

CENVAT Credit - input services - Warranty Services - whether warranty services are part of the manufacturing and sale activity as they are required for the purpose of ensuring sale of the goods or not? - HELD THAT:- It is the Warranty Service which implies that the value is already included in the sale price of the goods. Moreover, there is no requirement in the definition of Input Service that the value is to be included in the assessable value for the purpose of Central Excise before the credit can be allowed. There is no such restriction in the definition of input service. Appeal allowed - decided in favor of appellant.

CENVAT Credit - common input services for taxable as well as exempt goods - maintaining separate accountal of input and input services used in or in relation to manufacture of exempted and dutiable final products - alteration of option exercised under Rule 6(3) of the Cenvat Credit Rules in mid 2012-13 - time limitation - equivalent penalty under Rule 15(2) of the Cenvat Credit Rules read with Section 11AC of the Act. Whether for the purposes of Rule 6(2) and Rule 6(3) of the Cenvat Credit Rules it was obligatory on the part of the appellant to maintain separate accountal of input and input services used in or in relation to manufacture of exempted and dutiable final products prior to manufacture of the final products or reversal of the cenvat credit of the duty and tax involved in respect of exempted inputs and input services on proporti....... + More

Classification - Scope of the term Textile - Demand based on CBIC circular and Trade Notice issued by the Commissioner - Maintainability of petition - alternative remedy of preferring an appeal - Section 35B of the Central Excise Act - non-compliance of the mandatory provisions of Section 37C of the Central Excise Act, 1944 - HELD THAT:- When the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. It has been hitherto uncontroverted legal position that where a statute is required to do something in a certain way, the thing must be done in that way or not at all. The other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal position is based on a legal maxim “expressio unius est exclusio atlerius&....... + More

Valuation - inclusion of Freight charges in the assessable value - place of removal - premises of the buyers - appellant paid duty on the assessable value without including the value of freight, as according to the appellant, freight was incurred beyond the place of removal which is the factory gate of the appellant - HELD THAT:- The sale invoices raised by the appellant clearly mentioned at serial number 4 that "our responsibility ceases when goods leave factory". Rule 5 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 also provides that the cost of transportation from the place of removal to the place of delivery is not includable in the assessable value. The cost of transportation has also been separately mentioned in invoices and this cost is paid by the buyer. It is, therefore, evident....... + More

Reversal of irregularly availed CENVAT Credit - Rule 6(1) of the Cenvat Credit Rules - benefit of N/N. 65/95-CE available - Interpretation of statute - N/N. 65/95-CE - whether Notification No. 65/95-CE is a notification which grants exemption “absolutely” as envisaged under Section 5A(1) of the Act and consequently sub-section (1A) of Section 5A is attracted? - HELD THAT:- Referring to and relying upon the decisions of the Hon’ble Karnataka High Court in COMMISSIONER OF CENTRAL EXCISE VERSUS M/S FEDERAL MOGUL TPR INDIA LTD. [2015 (8) TMI 308 - KARNATAKA HIGH COURT], of the Coordinate Bench of the Tribunal in M/S INCOPAC PARTS PVT. LTD. VERSUS CCE & CGST, JAIPUR [2018 (7) TMI 1366 - CESTAT NEW DELHI] and BALKRISHNA PAPER MILLS LTD, LAXMI BOARD AND PAPER MILLS LTD, COMMISSIONER OF CENTRAL EXCISE, THANE-I VERSUS COMMISS....... + More

Seeking payment of interest on the rebate sanctioned beyond the period of three months from date of filing of claim as per Section 11BB of the Central Excise Act, 1944 - HELD THAT:- A circular of the Central Board of Excise and Customs, New Delhi, dated 01.10.2002 reiterating an earlier circular dated 02.06.1998 that stressed the importance of disposing rebate/refund claims within three months from date of receipt of such application, stating that the provisions of Section 11 BB would stand attracted 'automatically' in the case of any refund sanctioned beyond the period of three months, was also noticed - The conclusion of the Court was to the effect that the liability of the revenue to interest under Section 11BB commences from the date of expiry of 3 months from the date of receipt of application for refund under Section 11B(1) ....... + More

Principles of Natural Justice - Exemption to goods cleared from a unit located in the state of Jammu and Kashmir - benefit of N/N. 01/2010-CE dated 06.02.2010 - opportunity of hearing not provided to the petitioner - HELD THAT:- We have noticed the facts stated by the learned counsel for the parties, however, we are not dwelling on those for the reason that no findings, as such, are being recorded by this Court. The matter is being examined only with reference to violation of principles of natural justice. It is the admitted case of the parties that before passing the impugned order, the petitioner was not afforded opportunity of hearing by the authority concerned and the claim made by it, was rejected. It is a case in which the claim regarding exemption was made by the petitioner with reference to notification No. 01/2010-CE dated 06.02........ + More

CENVAT Credit - few transactions of which consignments were either fake or fictitious - 8 vehicles with respect to 24 invoices were found non-existent in the database - owners of 9 vehicles denied transportation by written communications - CENVAT Credit - HELD THAT:- During the course of search at the factory premises of the appellant neither incriminating documents were recovered nor any shortage/excess of raw materials/finished goods were found by the officers of the anti-evasion. The employees of the appellant in their statements have clearly stated that they have physically received the goods and utilized in the manufacture of their final products. The adjudicating authority is required to first conduct examination-in-chief of the witnesses whose statement is relied upon by the department and then to form an opinion whether the statem....... + More

Validity of order passed by Appellate Tribunal - Violation of principles of natural justice - invocation of Rule 26 of the Central Excise Rules, 2002 - invocation of provision of Section 112(a) and Section 112(b) of the Customs Act, 1962 simultaneously - cross-examination of the Panchas and other witnesses, whose evidences are the bone of the entire findings of the Appellate Tribunal not allowed. HELD THAT:- Issue Notice to the respondent, returnable on 19th January 2021.

Condonation of delay in filing appeal - opportunity to explain the delay not provided - respondents is that this submission is made because it is urged that the appeal is decided without opportunity to the petitioner and there is violation of the principles of natural justice - HELD THAT:- It appears rather indisputable that the petitioner is not heard by the first respondent, this Court is of the considered view that the impugned order could be quashed and the appeal could be restored on the file of the first respondent with liberty to the petitioner to file an application for condonation of delay, if such application is not already filed, and canvass for condonation of delay in filing the appeal while calling upon the first respondent to consider such application strictly in accordance with the provisions of the Central Excise Act, 1944....... + More

Excess availment of CENVAT credit - whether the appellant had taken excess CENVAT credit as arrived by the department, holding that it was paper transaction without or short receipt of raw materials? - Extended period of limitation - HELD THAT:- The value so arrived was compared with the value of raw material consumed as shown in the Balance Sheet of respective financial year. ER-1 return shows the amount of CENVAT credit taken on the quantity of raw material purchased and not on the quantity of raw material consumed. There is no provision for one to one correlation in CENVAT credit scheme - there is no other evidence on record like investigation from supplier of raw material, transporter or evidence of cash flow back or any inculpatory statement to substantiate that excess CENVAT credit taken was based on paper transaction i.e. without o....... + More

Reversal of CENVAT Credit - clearance of sulphuric acid from the factory of the responden - demand raised under rule 6(3) of the CENVAT Credit Rules 2004 - Department entertained a view that sulphuric acid, cleared to the fertilizer units without payment of duty, is an exempted product and hence the respondent is liable to pay an amount in terms of rule 6(3)(i) of the Credit Rules - HELD THAT:- What is important to note is that for the demands raised under rule 6(3)(i) of the Credit Rules in respect of sulphuric acid for the earlier period, the Supreme Court in UNION OF INDIA & OTHERS VERSUS M/S. HINDUSTAN ZINC LTD. [2014 (5) TMI 253 - SUPREME COURT] held that sulphuric acid is a by- product and there is no necessity to maintain separate records for the zinc concentrate used in the production of sulphuric acid and that rule 57CC does ....... + More

CENVAT Credit - place of removal - input services relating to export of goods to Nepal upto and at the port, airport and land border Customs station by the appellant - requirement of Rule 2(l)(ii) of the Cenvat Credit Rules satisfied or not - HELD THAT:- In the instant case the documents on record evidences that the subject goods were exported under bond by the appellant on FOB basis. Further, all the said services were and had to be rendered and/or availed at or prior to the port of shipment premises. None of these services were or can be rendered after the said goods are removed from the port. They have to be rendered before the vessels containing the subject goods left the port, from where the removal of the said goods took place. In case of export consignments ownership transfer takes place through Bill of Lading and hence the exporte....... + More

Levy of CST - Benefit of Concessional rate of tax - sales in the course of import or inter-State sales - grant of time to the appellant to produce the prescribed C-Forms to the assessing authority - whether the sales in question took place in the course of the import of the goods into the territory of India and qualify for exemption under Section 5(2) of the CST Act? HELD THAT:- The basic principles for determining as to when a sale or purchase of goods takes place in the course of import or export are contained in Section 5 of the CST Act. As per sub-section (1) of Section 5, a sale or purchase of goods shall be deemed to take place in the course of the export of the goods out of the territory of India only if the sale or purchase either occasions such export or is effected by a transfer of documents of title to the goods after the goods....... + More

Imposition of penalty under Income Tax Act - KVAT Act, 2003 - HELD THAT:- The appeals, delay condonation petitions and the stay petitions preferred by the petitioner is liable to be considered and disposed of on merits before proceeding with the recovery of amounts in terms of the orders passed by the assessment authority. There will be a direction to the 2nd respondent appellate authority to take up consider and pass appropriate orders on Exhibits P2, P2(a) and P2(b) appeals, Exts.P3, P3(a) and P3(b) delay condonation petitions and Exts.P4, P4(a) and P4(b) stay petitions preferred by the petitioner and to dispose of the same in accordance with law at the earliest, at any rate, within six weeks from the date of receipt of a copy of this judgment. Till orders are passed, coercive proceedings on the basis of the original order shall be kept in abeyance.

Validity of assessment order - 'C' Forms - petitioner contends that the 3rd respondent had issued notices on 26.08.2019 and 19.11.2019, and a Final Notice dt.07.03.2020 through e-mail to petitioner; and that such a mode of service is not contemplated in Rule 64(1)(b) of the Telangana VAT Rules, 2005 - HELD THAT:- Respondents, does not dispute that Rule 64(1) (b) of the Telangana VAT, 2005 which is applicable does not contemplate service of notices through e-mail on an assessee. He also does not dispute the proposition that it is open to an assessee to submit 'C' Forms even after the finalization of the assessment. There has been a violation of principles of natural justice causing grave prejudice to petitioner - the matter is remitted to 3rd respondent for fresh consideration; the 3rd respondent shall serve on petitioner p....... + More

Evasion of tax u/s 54(1)(14) of U.P. Value Added Tax Act - inadvertent mistake on his own part/the foreman of the firm under whom supervision the stickers containing the MRP of Premium Grade Tiles pasted in all boxes/cartoons even boxes/cartoons containing to Silver Grade Tiles and Gold Grade Tiles boxes loaded in the vehicle - purchasing dealer liable for mistakes and actions by the consignee - Whether there was an intention on the part of revisionist and under Section 54(1)(14) VAT Act it is mandatory to examine the material on record and discuses the merit of matter and record the clear finding with regard to intention whereas, there is no material on record in the order of assessing authority regarding the physical verification of each boxes/cartoons? HELD THAT:- This Court finds from a perusal of the explanation given by the revision....... + More

Demand of differential amount of tax due with interest and penalty - validity of procedure adopted under the Maharastra VAT Act - Reversal of ITC - reopening of assessments - HELD THAT:- Reliance placed in M/S. JKM GRAPHICS SOLUTIONS PRIVATE LIMITED VERSUS THE COMMERCIAL TAX OFFICER [2017 (3) TMI 536 - MADRAS HIGH COURT] and after analyzing in detail the rival contentions raised by parties and referring to the earlier decisions governing the issue, it has been held that this Court is fully convinced that the procedure adopted by the respondent, Assessing Officers in all these cases are half baked attempts, which have not yielded results and these cases are before this Court or before the Appellate Authorities and all that the Assessing Officers can record is that they have issued show cause notices or passed orders reversing the Input Tax....... + More

Attachment of Bank Accounts - non-consideration of the interim relief - consequential Section 45 Notice issued by the respondent/Revenue to its Bankers - HELD THAT:- We hope that wiser counsel would prevail and the respondents will not take any coercive action pending the hearing on 07.01.2021. Counsel for the appellant submits that on 07.01.2021 they will not seek any adjournment and the learned Additional Advocate General also submits that the matter lies in a short compass and that they would assist the Court in disposal of the matter itself. The writ appeal is disposed of with a request to the learned Single Judge to expedite the hearing and disposal, as the writ petition involves revenue to the State.

Validity of Recovery Notice issued after the Best Judgment Assessment order - Defreezing of Bank Accounts - Section 9(2) of the Central Sales Tax Act, 1956 - HELD THAT:- After the impugned Recovery Notice is issued, pursuant thereto approximately 10% of the demand has been recovered. Therefore, it would be just and reasonable to quash the impugned Recovery Notice with liberty to the authorities to initiate appropriate action for refund of the amount recovered once the petitioner’s appeal is decided on merits by the appellate authority. This Court is of the view that the petition could be disposed of directing the respondents not to take any precipitous action for the next ten working days and to issue appropriate Communication to the petitioner’s banker to de-freeze the account subject to further orders that could be made in the event the petitioner does not file an appeal within the next ten working days. Petition disposed off.

Validity of Recovery Notice issued after the Best Judgment Assessment order - Defreezing of Bank Accounts - Section 9(2) of the Central Sales Tax Act, 1956 - HELD THAT:- After the impugned Recovery Notice is issued, pursuant thereto approximately 10% of the demand has been recovered. Therefore, it would be just and reasonable to quash the impugned Recovery Notice with liberty to the authorities to initiate appropriate action for refund of the amount recovered once the petitioner’s appeal is decided on merits by the appellate authority. This Court is of the view that the petition could be disposed of directing the respondents not to take any precipitous action for the next ten working days and to issue appropriate Communication to the petitioner’s banker to de-freeze the account subject to further orders that could be made in the event the petitioner does not file an appeal within the next ten working days. Petition disposed off.

Concessional benefit of tax - purchase of High Speed Diesel from suppliers in other States - difficulty in obtaining C-Form - HELD THAT:- Revenue places reliance in the case of M/S. DHANDAPANI CEMENT PRIVATE LTD., M/S. TERU MURUGAN BLUE METAL VERSUS THE STATE OF TAMIL NADU, THE PRINCIPAL COMMISSIONER & COMMISSIONER OF COMMERCIAL TAXES, THE ASSISTANT COMMISSIONER (ST) , THE JOINT COMMISSIONER (ST) TERRITORIAL, THE DEPUTY COMMISSIONER (ST) [2019 (2) TMI 1850 - MADRAS HIGH COURT] where it was held that The Petitioner in these Writ Petitions has stated on affidavit that it is unable to download the ‘C’ forms from the websites as the same stand blocked from use. Upon enquiry with the Assessing Authorities, they have been informed that the benefit of the decision in M/s Ramco Cements Ltd can be extended only to those dealers tha....... + More

Concessional benefit of tax - purchase of High Speed Diesel from suppliers in other States - difficulty in obtaining C-Form - HELD THAT:- Revenue places reliance in the case of M/S. DHANDAPANI CEMENT PRIVATE LTD., M/S. TERU MURUGAN BLUE METAL VERSUS THE STATE OF TAMIL NADU, THE PRINCIPAL COMMISSIONER & COMMISSIONER OF COMMERCIAL TAXES, THE ASSISTANT COMMISSIONER (ST) , THE JOINT COMMISSIONER (ST) TERRITORIAL, THE DEPUTY COMMISSIONER (ST) [2019 (2) TMI 1850 - MADRAS HIGH COURT] where it was held that The Petitioner in these Writ Petitions has stated on affidavit that it is unable to download the ‘C’ forms from the websites as the same stand blocked from use. Upon enquiry with the Assessing Authorities, they have been informed that the benefit of the decision in M/s Ramco Cements Ltd can be extended only to those dealers tha....... + More

Karnataka VAT - Effect of Conversion of partnership firm into joint stock company - Carry forward deduction of unabsorbed contractor payments - the adjudicating authority as well as the first appellate authority allowed the claim but tribunal did not Whether the petitioner had substantiated with documentary evidence its claim for deduction of excess unabsorbed sub contractor payments? - HELD THAT:- It is evident that the petitioner had filed a copy of the agreement entered into with M/S B.E. Billimoria Ltd. for carrying on civil work of construction of apartments for and on behalf of the petitioner and had also filed copies of the purchase orders awarded to other registered sub contractors for carrying on the structure work, sanitary work etc. It has further been found by the first appellate authority that the petitioner had also filed ce....... + More

Refund of tax paid on raw material - Eligibility for the benefit of Government Order dated 04.04.1978 - case of Revenue is that respondent is not eligible for benefits on the ground that Government Order dated 30.06.1969 as mini steel plant of the respondent was not established prior to 01.01.1975 and also on the ground that respondent was also not eligible for revised package of incentive offered in Government Order dated 04.04.1975 since, revised package was applicable only to new industrial units whose investment in fixed assets did not exceed ₹ 10 Lakhs - HELD THAT:- The Finance Department of Government of Karnataka had issued an order dated 25.11.1969. Clause (6) of the aforesaid order provided that sales tax shall be paid in monthly or quarterly installments as the case may be by party establishing a new industry and at the en....... + More

Levy of Penalty under Section 12-A(1-A) of Karnataka Sales Tax Act, 1957 - activity of construction of flats / apartments - works contract entered into prior to commencement of the construction - HELD THAT:- From perusal of the order passed by the tribunal, it is evident that in paragraph 10, no particulars of sale agreements alleged to have executed by the petitioner prior to commencement of the work has been mentioned, even though the schedule of payment has been mentioned. The aforesaid finding recorded by the tribunal is based on without any material on record - Similarly, there was no material on record either before the first appellate authority or the adjudicating authority to establish the fact that petitioner has entered into an agreement with prospective buyers prior to commencement of the construction. Therefore, the aforesaid ....... + More

Levy of higher rate of tax - no ‘C’ Form declarations have been filed by the petitioner - Petitioner had submitted that additional C Forms have been submitted before the Assessing Officer and some have been given credit to - HELD THAT:- Without this case being cited as a precedent, the respondent officer was directed to complete the revised demand giving credit to the C Forms where appropriate. After submitting the C-Form, the Assessing officer has prepared Memorandum of Calculation of tax in respect of M/s.Servo Packaging Limited for the year 2013-14 - the impugned order of assessment stands amended in the light of the revised computation dated 05.10.2020. The petitioner will pay the balance demand as raised within a period of four (4) weeks from date of uploading of this order. Petition disposed off.

Validity of Section 19(11) of the Tamil Nadu Value Added Tax Act, 2006 - Assessing Authority notes the filing of declaration in Form Q in terms of Section 23 of the Act - HELD THAT:- The writ petitions challenging the vires of Section 19(11) were dismissed in USA AGENCIES VERSUS THE COMMERCIAL TAX OFFICER [2013 (8) TMI 532 - MADRAS HIGH COURT] and the matters thereafter travelled to Supreme Court wherein the vires of provision was again upheld in ALD AUTOMOTIVE PVT. LTD. VERSUS THE COMMERCIAL TAX OFFICER NOW UPGRADED AS THE ASSISTANT COMMISSIONER (CT) & ORS. [2018 (10) TMI 814 - SUPREME COURT]. The judgment of the Supreme Court is dated 12.10.2018. It would have been appropriate for the petitioner to have challenged the orders of assessment passed originally immediately thereafter and within the period of 30 days granted in this regar....... + More

Recovery of tax - seeking stay on recovery - deemed stay - pre-deposit as contemplated under Section 62 of the Act - HELD THAT:- As the appeal is stated to be filed along with application for interim stay, the respondents-authorities will not take further action pursuant to Annexure-B until consideration of the petitioner’s application in such appeal. Petition disposed off.

Restraint on respondent from initiating any assessment/ reassessment proceedings against the petitioner - Section 29(7) of the U.P. VAT Act, 2008 read with Section 9(4) of the Uttar Pradesh Tax on Entry of Goods into Local Areas Act, 2007 - extended period of limitation - HELD THAT:- Relying upon a full bench judgment in the case of M/s Harbilas Prabhu Dayal Vs. Commissioner of Sales Tax, [1979 (2) TMI 176 - ALLAHABAD HIGH COURT] this court held that hence proceedings are remanded by the appellate authority, the entire matter is at large. In the background of these facts and the legal position, this court held in para-27, which has been relied by the petitioner in the present case; that reassessment proceedings can only take place when there is an assessment order. Since no assessment order was passed by the Assessing Authority pursuant t....... + More

Rejection of rectification application - additional time even after completion of assessment - petitioner prayed for a period of three months in the Section 84 applications to file the declaration forms - Section 84 of Tamil Nadu Value Added Tax Act, 2006 - HELD THAT:- The conclusion of the authority to the effect that more than sufficient time has been granted to the petitioner to file the Forms and thus the request for additional time is not liable to be granted, is correct. The learned counsel for the petitioner would submit even at this juncture that the requisite forms are unavailable and thus I find no infirmity in the conclusion of the Officer to the fact that additional time is not liable to be granted. The impugned order to this extent, is confirmed. However, the alternate prayer raised by the petitioner has been omitted to be co....... + More

Classification of goods - point of levy of tax - tax to be levied as they exist at the time of sale or based upon how the goods are used or to what purpose the goods are put to use by the buyers after purchase? - steel structural handles, mineral fiber ceiling tiles / boards, PVC floorings, metal ceilings and axioms - respondent declared the turnovers relating to sales of iron and steel tees, angles and channels in monthly returns in Forms VAT-100 as sales of declared goods of iron and steel covered by Sl.No.30 of third schedule to the Act and paid tax at the rate of 4%. The other goods were treated as unscheduled goods and turnovers relating to sale of other goods was declared as liable to output tax at 12.5% - case of respondent is that iron and steel tees, angles and channels dealt in by the respondent were manufactured out of galvaniz....... + More

Revision of assessment order - time limitation - challenge on the ground that the revision of assessment proceedings has been initiated by the respondent beyond the period of five years from the date of original assessment and therefore, under Section 16(1)(a) of the Tamil Nadu General Sales Tax Act, 1959 r/w Section 9 of Central Sales Tax Act, 1956 - HELD THAT:- As seen from the impugned revision of assessment order, the second respondent himself has admitted that the original assessment order was passed against the petitioner as early as on 12.06.2009 - Admittedly, the revision of assessment notice was also issued on the petitioner by the respondent only on 09.04.2018 as reflected in Reference No.2 in the impugned revision of assessment order ie., beyond the period of five years from the date of the original assessment order. As seen fr....... + More

Dishonor of cheque - acquittal of accused - only defence taken is that the accused has given the said cheque in favour of one Krishnappa while availing loan of ₹ 30,000/- for him and the same has been misused - HELD THAT:-It is the specific case of the complainant that notice was sent through UCP was served and through out the cross- examination of PW.1, nothing is elicited with regard to non-service of notice sent through UCP. Though he denies the address, claiming that till 2004, he was residing in the address mentioned in the complaint but in the cross-examination, he categorically admits that his wife residing in the said address and any notice sent to that address his wife would intimate the same. The first contention that no notice was served on him cannot be accepted for the answer elicited from the mouth of DW.1 and notice s....... + More

Dishonor of Cheque - funds insufficient - post dated cheque - legally enforceable debt or not - acquittal of the accused - the accused in this case has contended that cheque in question was a post dated cheque issued for security purposes only - Whether the complainant has made out all the ingredients of Sec.138 of N.I.Act to prove the guilt of the accused person? - HELD THAT:- accused admitted his signature on cheque and its issuance to complainant. Consequently presumption under Section 118 and 139 of N.I. Act would be available to complainant - In this case, accused has not led his evidence. The reasons assigned by the trial Court that complainant failed to prove the particulars of seizure of vehicle of accused, its sale to third party, the amount received from such sale coupled with the contention that cheque issued was a post dated c....... + More

Dishonor of Cheque - acquittal of the accused - rebuttal of presumption - burden to prove - it is contended that the Trial Judge has committed an error in coming to the conclusion that the burden is on the complainant to establish the case against the accused beyond doubt - HELD THAT:- It is settled law that once the cheque is admitted and there is no dispute with regard to the signature and so also notice was issued, the Court has to draw mandatory presumption under Section 139 of the N.I. Act. No doubt, in the case on hand, the accused has given reply denying the issuance of the cheque. But in the cross-examination of D.W.1, he categorically admits that he issued the cheques and the contents of Ex.P1 cheques in both the cases are also written by him. It has to be noted that P.W.1 in the cross-examination admits that he filled up the con....... + More

Dishonor of Cheque - insufficiency of funds - expert opinion for cross-examination of cheques, sought - It is contended that the expert opinion would have aided the petitioner in setting up rebuttal evidence - HELD THAT:- A perusal of the impugned order reveals that the petitioner had executed Exhibit P14 agreement acknowledging the liability and had entered the particulars of the cheques issued towards discharge of the liability in that document. The petitioner has not disputed his signature in the agreement. Further, the petitioner has not disputed his signature in the cheques or the amount entered in words. Therefore, as rightly found by the learned Magistrate, no purpose would be served by sending the cheques for expert opinion, other than delaying the trial unnecessarily. Application dismissed.

Grant of Bail - Dishonor of Cheque - Cheating - According to complainant, as and when she had been visiting for training at Gurgaon, petitioner, who was posted at Gurgaon at that time, had been booking Hotel for her, but at the time of issuance of bill, on advise of the petitioner, she had been taking bill in the name of one person only whereas petitioner had been keeping bills having details of two persons with him and later on petitioner had made a complaint in the Company for claiming amount on the basis of wrong bills and petitioner had started to threaten her - HELD THAT:- At this stage, petitioner is entitled for bail. The petition is allowed and petitioner is ordered to be released on bail under Sections 376, 506 and 417 IPC, on his furnishing personal bond in the sum of ₹ 1,00,000/- with two sureties, one of which shall be l....... + More

Dishonor of Cheque - acquittal of the accused - main contention of the complainant in this appeal is that the Trial Judge failed to consider the evidence of PWs.1 and 2 and also the principles laid down in the judgments referred in the grounds of appeal and also failed to take note of accused Nos.1 and 2 have not entered into the witness box to rebut the evidence of the complainant - HELD THAT:- This Court has to re-appreciate the material available on record. The present appeal is filed against the order of acquittal. This Court has to re-appreciate the material on record and arrive for a conclusion whether the trial Judge has considered the material available on record or not. This Court also given anxious consideration to the principles laid down in the Judgments referred supra both by Complainant's Counsel and accused Counsel. In ....... + More

Dishonor of Cheque - quantum of sentence of imprisonment - section 138 of NI Act - HELD THAT:- The revision petitioner / accused had made a voyage of two rounds before the Trial Court and the Sessions Judge's Court in the matter and prior to the remanding of the matter by the Sessions Judge's Court and subsequent to the remand of the matter also he was convicted and the same was confirmed. Therefore, the accused apart from not pleading guilty under Section 252 Cr.P.C. has made futile exercise from the year 2000 till date in proving his alleged innocence towards the alleged offence but he has failed in his repetitive attempts. There are no reasons for setting aside the sentence of imprisonment in toto. Considering the fact that at the earliest point of time when he was convicted for the first time in the same case by the Trial Cour....... + More

Recovery of additional tax - whether the petitioner is liable to pay the tax as demanded from him and as confirmed by the Appellate Authority and whether the denial of benefit of Rule 22-A of Uttar Pradesh Motor Vehicles Taxation Rules, 1998 was a valid exercise of power? - HELD THAT:- A plain reading of the Taxation Act and the Rules makes it clear that incidence of tax is use of the vehicle and the time for payment of the tax is specified under Section 9 of Motor Vehicles Taxation Act, 1997. Thus, for imposition of tax, it is essential to establish that the vehicle is "in use". Interestingly, under section 12 of the Taxation Act, specific provisions have been provided for the contingency where the operator and the owner of the motor vehicle does not intend to use his vehicle for a period of one month or more, in fact, a perusa....... + More

Dishonor of Cheque - offence punishable under Section 138 of the NI Act - rebuttal of presumption - Sections 118 and 139 of the NI Act - Sections 118 and 139 of the NI Act - HELD THAT:- Section 118 of the NI Act provides certain presumptions to be raised laying down some special rules of evidence relating to presumptions. The presumption, therefore, is a matter of principle to infuse credibility to negotiable instruments including cheques and to encourage and promote the use of negotiable instruments in financial transactions. Section 118 of the NI Act provides presumptions to be raised until the contrary is proved, (i) as to consideration, (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of indorsements, (vi) as to appropriate stamp and (vii) as to holder being a holder in due co....... + More

Time Limit for passing of Arbitral Award - Section 29A of the Arbitration and Conciliation Act, 1996 - lockdown in view of COVID-19 - HELD THAT:- In Suo Moto Writ Petition (C) No. 3/2020, by our order [2020 (5) TMI 418 - SC ORDER], we ordered that all periods of limitation prescribed under the Arbiration and Conciliation Act, 1996 shall be extended w.e.f. 15-3-2020 till further orders. - It is directed that the aforesaid orders shall also apply for extension of the time limit prescribed under section 23(4) of the said Act. Time Limit for for completing the process of compulsory pre-litigation, mediation and settlement - Pre-Institution Mediation and Settlement under section 12A of the Commercial Courts Act, 2015 - HELD THAT:- Under Section 12A of the Commercial Courts Act, 2015, time is prescribed for completing the process of compulsory ....... + More

Jurisdiction of sole Arbitrator to adjudicate the preliminary issue of jurisdiction - whether the arbitral process could be interfered under Article 226/227 of the Constitution, and under what circumstance? - Section 34 of the Arbitration Act - HELD THAT:- The Arbitration Act is a code in itself. This phrase is not merely perfunctory, but has definite legal consequences. One such consequence is spelled out under Section 5 of the Arbitration Act, which reads as under “Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.” The non-obstante clause is provided to uphold the intention of the legislature as provided in the Preamble to adopt UNCITRAL Model Law and Rules, to reduce excessive judicia....... + More

Grant of Anticipatory Bail - Dishonor of Cheque - false and concocted agreement for sale - fraudulent sale of land - Sale deed not executed nor earnest money returned - HELD THAT:- Considering the fact that the petitioner - Som Parkash was granted the interim bail but has failed to join the investigation, there are no ground to extend the concession of interim bail to the petitioner - Som Parkash. Though the undertaking given by the petitioner - Som Parkash is not binding on his son Dharmender, however, considering the allegations in the FIR, which are directly against Dharmender who on behalf of his father has accepted the money from the complainant and thereafter, handed over the possession of the property but later on in a calculated move to cheat the complainant not only the possession was forcibly taken back but the cheques were give....... + More

Seeking forfeiture/surrender of illegally acquired property - petitioner claims that he is a bonafide purchaser, for valuable and adequate consideration, of the said property - further case of petitioner is that the impugned order were passed without any notice to the petitioner and without affording him any opportunity to be heard - principles of natural justice - Section 68-U of the Narcotic Drugs and Psychotropic Substances Act, 1985 - HELD THAT:- There is no dispute that the petitioner is a bonafide purchaser and had purchased the said property for a valuable consideration. It is also averred in the present petition, which is not traversed by the respondent, that the petitioner had availed of a loan from HDFC for purchasing the said property and a No Objection Certificate stating that the said property was not subject to any encumbran....... + More

Dishonor of Cheque - initiation of proceedings under section 138 of Negotiable Instruments Act - prayer for compounding of offence - parties have amicably settled the matter inter se them and entire compensation amount paid - HELD THAT:- Since both the parties have resolved to settle their dispute amicably interse them and entire compensation amount awarded by the learned trial Court stands paid to the petitioner, this Court sees no impediment in accepting the prayer for compounding the offence while exercising power under section 147 of the Negotiable Instruments Act - Hon'ble Apex Court in DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT], has categorically held that Court, while exercising power under Section 147 of the Act, can proceed to compound the offence even after recording of conviction by the cou....... + More

Dishonor of Cheque - insufficiency of funds - legally enforceable debt or not - validity of cheque issued by a proprietorship firm or by respondent - neither any statutory notice was issued to the proprietorship firm nor the said firm has been arraigned as an accused - rejection of application for amendment of complaint on the ground that not only the application has been filed belatedly, but it would also change the nature of the complaint - HELD THAT:- The application for amendment was filed prior to cross-examination of complainant, although charge was already framed. Further, in the statutory notice Ex. P3, it was the stand of the appellant, that an amount of ₹ 3 lac was due as the respondent had got the advertisement of his shop. Thus, this Court is of the considered opinion, that the Trial Court, committed material illegality ....... + More

Dishonor of Cheque - Section 138 of Negotiable Instruments Act, 1881 - whether a direction for deposit of a part compensation before the Appellate Court is a discretion or as to whether it is in the nature of a mandate, the provisions of the Section 148 of the Act (as amended in the year 2018) need to be borne in mind? - HELD THAT:- Section 374 Cr.P.C. does not prescribe any condition for admission of an appeal. In other words, the provisions of the statute which vests a convict with a valuable right to challenge his conviction are not circumscribed by any conditions. Nor does any provision of the Negotiable Instruments Act, 1881 refer to any pre-condition for availing a valuable right of first appeal. Section 148 of the Act just vests the Appellate Court with the power to direct the appellant to deposit an amount not less than 20% of the....... + More

Dishonor of Cheque - acquittal of the accused - Section 138 of the NI Act - main grounds urged in the respective appeals are that the trial Judge has committed an error in acquitting the accused and not properly appreciated the evidence in a proper perspective - HELD THAT:- Having perused the evidence available on record issuance of cheque is not in dispute and also notice has been given to the accused is also not in dispute. There is no dispute with regard to the fact that those notices are served on him and notice was served on him and he did not choose to give any reply. When the cheques are admitted and not given any reply, the Judgment of Rangappa's case is aptly applicable to the case on hand. No doubt, on perusal of the agreement, there is a recital to enforce the agreement for specific performance and also to claim the damages....... + More

Dishonor of Cheque - Unsigned Cheque - insufficiency of funds - rebuttal of presumption - burden of proving that a cheque had not been issued for a debt or liability - main grounds urged in the appeal is that the Trial Judge has committed an error in acquitting the accused and failed to take note of the mischievous act of the accused in issuing an unsigned cheque - HELD THAT:- These are the aspects which have not been considered by the Trial Court while considering the material available on record both oral and documentary evidence and in the cross-examination of PW.1 also nothing is elicited to prove preponderance of probabilities of the case of the accused. PW.1 only gives the admission with regard to the transaction is concerned and having acquaintance with the accused and also admits that the payment was made in respect of consultatio....... + More

Dishonor of Cheque - insufficiency of funds - acquittal of accused - grounds urged in the appeal are that the Trial Judge has committed an error in coming to the conclusion that the complainant was insolvent even though there were no material to declare him as insolvent - HELD THAT:- The evidence of P.W.1 does not inspire the confidence of the Court that loan transaction was taken place between the complainant and the accused. The accused has led the probable defence by examining D.W.2 and also setting up the defence immediately after the receipt of notice and gave the reply in terms of Ex.P.8 that the cheque given to Raghupathi Bhat on 26.03.2007 was misused by the complainant. No doubt, though the complaint filed by the accused was registered, after the investigation 'B' report was filed. The Court has to take note of the materi....... + More

Dishonor of Cheque - existence of legally enforceable debt or not - rebuttal of presumption - Section 139 of the NI Act - HELD THAT:- It is clear that the amounts are not given to the complainant. DW.3 though in his evidence, he says that the amount was paid in his presence and the complainant has affixed the signature on Ex.D2. It is elicited in the cross-examination that he does not know anything about the payment of money by the complainant to the accused and also how much amount was paid to him, but he claims that the complainant told him that the accused has availed an amount of ₹ 3,50,000/- and insisted him to get the money from the accused. He also claims that in the Hotel, it was decided to return the amount of ₹ 5,50,000/-. All of them have signed the documents in the Kanishka Hotel, DW.2 was also present and he claim....... + More