Reopening of assessment u/s 147 - Change of opinion - TP Adjustment royalty paid and lump sum fees for know how paid to Skoda Auto - HELD THAT:- As in this order by the Transfer Pricing Officer passed on 19th December 2006 under Section 92CA (3) of the said Act, the Transfer Pricing Officer has considered the royalty, technical know how amounts paid and passed his order. This order of the Transfer Pricing Officer has been considered by the AO while passing the original assessment order dated 29th December 2006 under Section 143 (3) of the said Act. Therefore, there can be nothing which has not been truly and fully disclosed and we cannot accept the submissions of Mr. Walve that explanation 1 to Section 147 provides that production before the Assessing Officer of account books or other evidence from which material evidence could with due d....... + More

Reopening of assessment u/s 147 - deductions under Chapter VIA that includes Section 80IA - HELD THAT:- The order dated 27/12/2004 for AY 2001-02 on which reliance was placed by Respondent No.1 as a reason for re-opening Petitioner's assessment for AY 1997-98 has been set to nought. On this ground also, the notice dated 30/03/2004 which is impugned in this Petition has to be set aside. We have to note that the jurisdiction exercised to reopen the assessment is not valid inasmuch as before passing the original Assessment Order dated 24/01/2000 for AY 1997-98, Petitioner was called upon to give details by a notice dated 30/07/1999 like nature of business, address of all business premises, details of current assets, details of additions / reductions to fixed assets, date of purchase, etc. Petitioner provided the details by its Advocate&#....... + More

Reopening of assessment u/s 147 - eligibility of deduction under Section 80HH/HHA/IA - HELD THAT:- The proviso of Section 147 of the Act shall therefore apply. Under Section 147 of the Act the assessment under Sub Section (3) of Section 143 can be reopened after a period of four years only if the assessee has failed to disclose fully and truly all material facts necessary for his assessment in that Assessment Year. The reasons as quoted above does not indicate initially what was the material fact that has not been disclosed fully and truly by petitioner. Therefore, on this ground alone, notice dated 30th March, 2004 has to be set aside. In the assessment order dated 30th January, 2004 the deduction claimed by petitioner have been disallowed and therefore question of any income escaping assessment also will not arise. Therefore, on the dat....... + More

TP Adjustment - ALP determination - rejecting comparable given by the assessee company by applying certain filters like Related Party Transactions (RPT) filter, turnover filter, export earnings filter, employee cost filter, etc. - HELD THAT:- While undertaking the exercise to arrive at the arm’s length price which is essentially a matter of estimate of the fair value which the Indian Company had paid or had received from its Associate Enterprise (A.E.), such exercise is required to be undertaken by the Transfer Pricing Officer (TPO) on the basis of the facts and figures relating to comparable cases of other similarly placed entities, whose relevant data is available in the public domain. As per the provisions of the Act and the Rules, the assessee company is required to furnish its own Transfer Pricing Analysis and the list of chose....... + More

Special audit u/s 142(2A) - Denial of opportunity of being heard - denial of natural justice - passing non speaking order - assessee contented as non-application of mind or non-granting of any reasons for passing order - HELD THAT:- What is being contended, is that when an order is passed under Section 142(2A) of the Act, necessary reasons have to follow which will enable the petitioner to know as to the circumstances on which the order was passed. On considering the same, we do not deem it appropriate to accept the contention. What was provided by the judgment of the Hon’ble Supreme Court in Rajesh Kumar’s case [2006 (11) TMI 135 - SUPREME COURT], culminated into the proviso being added that an adequate opportunity be granted. Admittedly, even according to the petitioner, adequate opportunity has been given. That only presupp....... + More

Validity of order u/s 144B - Faceless assessment - violation of principles of natural justice - Argument of Non service of any Draft Assessment Order as well as show cause notice - HELD THAT:- As the chronology of the events presented before us by the respondent authority that the return of the petitioner Company was selected for scrutiny and notice u/s 143(2) of the Act was issued on 22.09.2019. Date of hearing was fixed on 07.10.2019. Various responses have been given by the petitioner. It also sought time and review was also filed. Opportunity for filing reply and furnishing the document was granted. The assessee was also informed on 15.10.2020 about transfer of proceedings to the NFAC and notice was also issued to the assessee by the Regional Reassessment Centre on 04.01.2021 u/s. 142(1) of the Act. Notice of NFAC to the petitioner wa....... + More

Not accepting revised return of the petitioner in violation of Section 139 - scheme of arrangement of the de-merger of the company conceived -time limit to file the revised return under Section 139(5) of the Act had expired - revised return pursuant to the demerger on account of the order of the NCLT - HELD THAT:- As the order of the NCLT had come on 17.03.2020 and therefore, it was not possible for the petitioner to so do it within time frame as set under Section 139(5) of the Act as the appointed date as per the order of the NCLT is fixed on 01.04.2017 the petitioner would be entitled to file the revised return and in wake of the decision of this Court in case of Principal Commissioner of Income- Tax & Others Vs. Babubhai Ramanbhai Patel [2017 (7) TMI 744 - GUJARAT HIGH COURT] the original return under Section 139(1) will pale into ....... + More

TDS u/s 194H - Disallowance u/s 40(a)(ia) - no tax has been deducted on the bank guarantee commission and credit card commission paid to the banks - CIT(A) has deleted the addition holding that the provisions of Section 194H are not applicable to the transactions made by the assessee as relying on JDS APPARELS PRIVATE LIMITED [2014 (11) TMI 732 - DELHI HIGH COURT] - HELD THAT:- As assessee having engaged in the business of trading and manufacturing of jewellery and it is the normal trade practice in this business to accept the payment through credit cards and debit cards. For facilitating the payment through credit cards and debit cards, the bank deducts some bank charges and these charges are deducted by the respective bank automatically upon receipt of payment. Only the net amount is actually received by the respondent. The assessee wou....... + More

Reopening of assessment u/s 147 - Validity of reasons to believe - addition u/s 68 of the Act on account of share capital and share application money received by the assessee - as on the basis of a search operation conducted u/s 132 of the Act on 9th October, 2014 in the Kuber group of cases and on the basis of the statement recorded of Shri Mul Chand Malu and on the basis of post search enquiries, reopened the assessment after recording reasons - HELD THAT:- We find, in the instant case the information on the basis of which reasons were conceived was not gathered in search or post search enquiries. Further, the observation of the AO that M/s Binapani Merchandise Pvt. Ltd. is a Jamakharchi company is contrary to report of the commission. This company comes under the category of those companies whose address is not traceable. We further fi....... + More

Bogus share transaction - addition u/s 68 - assessee being not able to prove genuineness and credit worthiness of share capital and securities premium - HELD THAT:- It is necessary for the lower authorities, more particularly the ld. CIT(A) to record, as to when the payment for issuance of shares were received by the assessee company in its books of accounts or, in other words, when the amount were credited in the account of the assessee . Since, no discussion have taken place in the entire order passed by the ld. CIT(A) , further, we noticed that in written submissions also no such details have been filed before us, on the basis of which it can be deduced as to the date of credit of the amount in the books of the assessee - interestingly in the balance sheet also there were no outstanding loans/ amount for the earlier years. In absence o....... + More

Addition u/s 56(2)(vii)(b)(ii) - FMV of property - Mandation of reference to the valuation officer as was required per the mandate of Sec. 50C(2) - adoption by the A.O of the value that was taken by the Stamp Valuation Authority for valuing the property in question - Assessee submitted that amount for which the property in question had been transacted as per the ‘agreement’ be accepted without any reference to its market value as was adopted by the Stamp Valuation Authority - HELD THAT:- We are unable to persuade ourselves to substantiate to the claim of the assessee that as the property under construction was an under construction flat which pursuant to the fraud played by the builder had not been received by him till date; and the matter is sub-judice before the courts, therefore, the provisions of Sec. 56(2)(vii)(b) would n....... + More

Reopening of assessment u/s 147 - Change of opinion - reopening of concluded assessment - proof of fresh material or information with AO to reopen the assessment - directions to rectify the assessee”s claim for deduction u/s 36(1)(viii) - HELD THAT:- On a perusal of the “reasons to believe” on the basis of which the case of the assessee had been reopened, we find, that it is a matter of fact borne from the record that no new information/material had came to the notice of the A.O (after completion of the original assessment) which would have justified the reopening of the assessment u/s 147 - as observed by the A.O, and rightly so, a perusal of the opening line of the reasons recorded for reopening the case of the assessee, viz. "On perusal of balance sheet and computation of income, it is observed that during the ye....... + More

Addition made towards discount allowed to customers - Year of assessment - addition of discount pertains to sales made in earlier financial year on the ground that same partakes nature of prior period expenses - HELD THAT:- Assessee has allowed discount to customers on the basis of refund of special additional duty and such discount was agreed to be paid as and when assessee received refund of special additional duty from department. We further noted that the assessee has received refund of special additional duty during impugned assessment years which includes duty pertains to sales made in earlier financial year. As per contractual arrangement between the parties discount allowed to customers pertains to sales made in earlier financial year accrued for year under consideration when the assessee has received refund of special additional ....... + More

Deduction u/s. 36(1)(iii) - interest paid on loan borrowed for purchase of current assets - CIT(A) opined that the AO has erred in disallowing proportionate interest u/s. 36(1)(iii) - HELD THAT:- The assessee is in the business of developers and builders. The assessee has borrowed capital for the purpose of its business and interest paid on such capital has been claimed as deduction u/s. 36(1)(iii) of the Act in the year in which such interest has been paid. If you go through the nature of business of the assessee and the purpose for which loan was borrowed, then deduction claimed by the assessee in respect of interest paid on borrowed capital for the purpose of business or profession is deductable for the year in which such interest has been paid, because as per provisions of section 36(1)(iii) of the Act, any interest paid on capital bo....... + More

Disallowance on account of depreciation on the right to collect annuity on toll roads - assessee is engaged in the business of executing the project for design, construction, finance and maintenance of Gorakhpur By-pass on NH-28(Project Highway) in the state of Uttar Pradesh on Build, Operate and Transfer (BOT) basis under the annuity scheme - assessee entered into concession agreement with National Highway Authority of India (NHAI) and as per concession agreement, NHAI had granted exclusive right, license and authority during the subsistence of the concession agreement to implement the project - assessee classified such cost incurred and right to receive annuity on the toll road as an intangible asset eligible for depreciation u/s.32(1)(ii) - HELD THAT:- We find that the ld. CIT(A) had placed reliance on the Special Bench decision of Hyd....... + More

Addition u/s.41(1) - cessation of liability - outstanding sundry creditors - AO invoking provisions u/s.41(1) in respect of outstanding sundry creditors is that the notice u/s.133(6) sent by the AO to the sundry creditors remain unresponded and those parties were not produced by the assessee for examination by the ld. AO - HELD THAT:- We find that the assessee had duly furnished the complete ledger account of the sundry creditors for the year under consideration as well as for the subsequent years. Except for M/s. Sangham Diamonds, the assessee had even furnished the ledger account of the creditors duly confirmed by them before the ld. AO. It is not in dispute that all these sundry creditors have a valid PAN. All these sundry creditors have been duly discharged by the assessee in subsequent assessment years. We also find as on 31/03/2015,....... + More

Disallowance of forward contract loss as treated as speculative loss by AO - assessee is a star trading house engaged in the business of diamond purchasing rough and polished diamonds mainly through import from various countries, manufacturing of rough diamonds into polished diamonds and sell polished diamonds mainly by way of exports to various countries - HELD THAT:- Since the facts for the year under consideration with regard to this issue of disallowance of forward contract loss are exactly identical to the facts prevailing in A.Y.2008-09 [2016 (8) TMI 1094 - ITAT MUMBAI], the decision rendered hereinabove by this Tribunal for A.Y.2008-09 shall apply mutatis mutandis to the years under consideration also. Accordingly, the ground Nos. 1-4 raised by the Revenue are dismissed. Adhoc disallowance of miscellaneous expenses @15% made by the....... + More

Unexplained cash credit u/s.68 - Bogus share transactions - denying the exemption claimed in respect of Long Term Capital Gains u/s.10(38) - HELD THAT:- All evidences demonstrate that assessee had sold the shares through screen based trading through SEBI registered broker and the transactions were subjected to Security Transaction Tax and proceeds of the sales, after deduction of such expenses, were credited to the bank accounts of the assessee. The authorities below has not commented on the veracity of such crucial evidence filed by the assessee and they have disallowed the claim of the assessee by holding that the broker, through whom the assessees had sold shares, was a tainted stock broker who was banned by SEBI in 2010. However, while holding so the authorities below has further observed that such ban was revoked by the SEBI and the ....... + More

Rejection of books of accounts - NP rate determination - higher NP determination - HELD THAT:- As assessee has maintained cash book, ledger, journal, purchase and sales register, bank book, salary & wages register. The books of accounts have been maintained during the course of business. All the receipts are vouched. Books of accounts have been audited and a copy of audit report u/s 44AB has been furnished along with return of income. The auditors have not given any adverse remarks regarding the maintenance of the books of accounts. During the course of assessment proceedings, the books of account were produced before the A.O. and no serious defect was pointed out. In view of this the A.O. was not justified in rejecting the books accounts. Rejection of books of account is no ground for application of higher net profit even if books of....... + More

Denial of the exemption u/s 54 - Nature of property sold - assessee has not shown any income from house property which has been sold and in respect of which the deduction u/s 54 has been claimed by the assessee - HELD THAT:- As assessee has sold an immovable property situated at plot no. C-219, Siddharth Nagar, Jaipur consisting of shops, basement, a room (kotari) surrounded by a boundary wall. The same is evident from the perusal of the sale deed duly executed by the assessee as well as from the photographs annexed with the sale deed - as far as shops are concerned, even where they are built on a residential plot of land (land use not being changed in local municipality records), the nature of property for tax purposes cannot by any stretch of imagination be treated as property used for residential houses and are thus commercial in natur....... + More

Non billable warrant issued against the applicant as well as proceedings of Complaint Case u/s 276CC pending before Special Chief Judicial Magistrate, Varanasi - HELD THAT:- Considering the facts and circumstances of the case, this court feels that an adequate opportunity should be provided before passing of such orders. Hence, the application is partly allowed and matter is remanded back to the court below to pass appropriate orders on the compounding application dated 8.8.2019 within a period of two months without granting any unnecessary adjournments to either of the parties, in accordance with law. Till the disposal of the compounding application dated 8.8.2019 the non-bailable warrants issued against the applicant shall be kept in abeyance.

Carry forward of unabsorbed depreciation - beyond the eight year period mandated under the provisions of Section 32 - scope of amended provisions - Whether subsequent amendment of Assessment Year 2001-02 has allowed the depreciation of Assessment Year 1997-98, 1998-99, 1999-2000 and 2000-01 to be carried forward for unlimited period and can be claimed to be set off Assessment Year 2008-09? - HELD THAT:- The issue involved in this case is no longer res integra and has been settled in several decisions. It is brought to our notice by the learned senior counsel for the respondent that in the case of Commissioner of Income Tax vs. Sanmar Speciality Chemicals Ltd. [2020 (9) TMI 770 - MADRAS HIGH COURT] identical issue was considered wherein the Court noted various decisions of the other High Courts and in particular the decision of the High Co....... + More

Reopening of assessment u/s 147 - Notice after the expiry of period of four years - Admissibility of deduction u/s 80I - HELD THAT:- There is nothing to indicate that there has been no failure on the part of petitioner to disclose fully and truly all material facts during the course of initial assessment proceedings. The reasons are entirely based on the records and documents available with respondents and filed by petitioner. The reasons stated that on perusal of record it indicates that there has been escapement of income. Admittedly, petitioner alongwith its return of income filed its Profit and Loss Account as well as the balance sheet. The computation of income that was filed clearly showed the manner in which the deduction under Section 80 I of the Act was claimed. In the course of the assessment proceedings a specific issue was rai....... + More

Revision u/s 263 by CIT - justifying the legislative intent of Section 115 JB and 115 JAA - HELD THAT:- Tribunal took note of the decision of the Hon’ble Supreme Court in CIT vs. Alagendran Finance Limited [2007 (7) TMI 304 - SUPREME COURT] and held that the order passed by the CIT u/s 263(2) is hopelessly barred by limitation. The Tribunal rightly held that the period of limitation for the assessment year 2007-08 has to be reckoned from the date of the order passed by the AO under Section 143(3) read with Section 263 i.e. 8th December, 2011 and not from the date of the order passed by the AO under Section 143(3) read with Section 263 and 251 dated 29th November, 2012. Thus, we find that the Tribunal rightly allowed by the appeal filed by the assessee.

Assessment made u/s143(3) - alternate remedy inter alia u/s 246(A) - assessment order proceeds on the basis that the selling price is only Ex- Quarry price - assessment order proceeds on the basis that the raising-cum-selling agreement i.e., aforementioned 30.11.2005 agreement between the petitioner and TAMIN requires the difference between the selling price and the raising rate to be paid for production of minerals with taxes - HELD THAT:- As in the case on hand, none of the exceptions are attracted as would be evident from the narrative (narrative that includes capturing rival submissions) and discussion which has been set out supra. The arguments that there should have been reopening of six previous assessment orders, that the reply from TAMIN ought to have been considered and that the first respondent should not proceeded on the basis....... + More

Detention of goods alongwith vehicle - proper invoice or E-way bill not accompanied with the goods - Section 129(3) of the Central Goods and Services Tax Act, 2017 and Tamil Nadu Goods and Services Tax Act, 2017 - HELD THAT:- Considering the fact that the vehicle has been detained since 13.10.2021, this Writ Petition is disposed by directing the petitioner to pay the disputed tax proposed in the notice and to pay 50% of the proposed penalty within a period of two weeks from the date of receipt of a copy of this order. If such amount is paid, the respondents shall release the goods vehicle to the petitioner. The petitioner is given liberty to workout the remedy on merits before the Appellate Commissioner under Section 107 of the CGST Act, 2017 and TNGST Act, 2017 who shall consider the same on merits - Petition dismissed.

Spot of starvation on account of seizure of goods - Betel Nuts - Clause (C) of Section (1) of Section 129 of the G.S.T. Act 2017 read with C.G.S.T. Act 2017- HELD THAT:- Respondent Nos. 1, 2 & 3 are represented through State and claim that so far as under the G.S.T. Act 2017 concerned are required to get the goods released unless and until that is done. There is no provision that mere on the asking on the carve of starvation of the petitioner it could be released in his favour. Therefore, he is required to follow the mandate a direction that provision has been made in Clause (C) of Section (1) of Section 129 of the G.S.T. Act 2017 read with C.G.S.T. Act 2017 whereby FORM GST MOV-08 represented before the authorities concerned among other compliance and to get the goods seized release. It is the incumbent duty of the petitioner to come....... + More

Classification of supply - rate of GST - supply of marine engines of heading 8407 and heading 8408 and/or their spare parts of heading 8409 - general tax rate as per the entry of schedule I, Sl. No. 252 of Notification No. 12017-Central Tax (Rate), Dated 28-06-2017 - whether the said marine engine and parts which are used on a fishing vessel are forming parts of the said vessels and therefore chargeable to tax @ 5% under Sr.No.252 of Notification No.1/2017 Central Tax? - HELD THAT:- The parts of goods of headings 8901, 8902. 8904 to 8907 are chargeable to CGST/SGST @ of 2.5% each - in the subject case, the marine engine and parts thereof attract 5% GST under Sr. No. 252 of Notification No. 1/2017-C.T. (Rate), dated 28-06-2017, if supplied to fishing vessels - However, if the impugned goods are supplied for use other than for fishing vesse....... + More

Scope of supply - mere acceptance joint custody of the goods without the rights and privileges of ownership of the goods - goods are destroyed by fire before being delivered under an agreement to sell - Section 7 of the GST Act - point and time of supply - Principles of interpretation of Statutes - admissibility of application - HELD THAT:- The question regarding the act of supply of rate of GST applicable on the inward supply of the applicant is covered under the definition of Advance Ruling as per section 95(a) of the GST Act and the application is therefore admissible. Whether mere acceptance of joint custody of the goods without the rights and priviledges of ownership of the needs amounts to “Supply” within the meaning of Section 7 of the GST Act? - HELD THAT:- The definition of supply under the GST act is an inclusive def....... + More

Levy of GST - payment of notice pay by an employee to the applicant-employer in lieu of notice period under clause 5(e) of II of GST Act - amount of premium of Group Medical Insurance Policy recovered at actuals from non-dependent parents of employees, and retired employees those who are covered under the said Policy - recovery of nominal amount for availing the facility of Canteen at the Refinery at Bina when it is not a supply as per clause I of Schedule III of GST Act - recovery of telephone charges from the etitployees over and above the fixed rental charges payable to BSNL - whether full ITC is available to the applicant or ITC will be restricted to the extent of GST borne by the applicant-employer? - provision of canteen services to all the employees without charging any amount (free of cost) will fall under para 1 of Schedule III o....... + More

Maintainability of appeal - time limitation - whether the appeal has been filed within the prescribed time- limit? - whether or not the appeal filed against the refund rejection order to be decided are proper? - HELD THAT:- In the instant case the order dated 03.11.2020 was received to the appellant on 24.11.2020 first time from the concerned adjudicating authority and the appeal has been filed on 23.02.2021. The appeal has been filed with delay of the normal period prescribed under Section 107(1) of the CGST Act, 2017. It is found that though the delay in filing the appeal is condonable only for a further period of one month provided that the appellant was prevented by sufficient cause from presenting the appeal is shown and the delay of more than one month is not condonable under the provisions of sub section (4) of Section 107 of the C....... + More

Seeking direction to unblock Input Tax Credit - provisions of rule 86A of the Central Goods and Services Tax Rules, 2017 - HELD THAT:- Curiously, the instructions do not refer to sub-rule (3) of rule 86A at all. The respondent no. 2 appears to be oblivious of such provision. Having regard to the statutory mandate in sub-rule (3) of rule 86A, the petitioner is entitled to claim that the input tax credit ought to have been unblocked immediately after one year of the restriction being imposed under sub-rule (1) thereof. If indeed the respondents were of the view that the petitioner had not been cooperating with the department, they ought to have proceeded against it in a manner known to law. However, to say that reply is awaited and hence lifting of the restriction has not been resorted to is clearly illegal. There are no reason to keep this writ petition pending - petition disposed off.

Seizure of goods alongwith the vehicle - E-way bill which accompanied the goods had expired before the goods could be delivered and meanwhile the vehicle developed some technical snag - section 130 of CGST Act - HELD THAT:- Prima facie, it appears that the petitioner is liable to pay SGST & CGST as the supply is within the State from Sembudoss Street, Chennai of the supplier to the petitioner at Thuvakudi in Trichy, though the bill has been sent to the petitioner's Head Office/Registered Office in Telungana. The respondent is directed to release the vehicle subject to payment of the applicable SGST and CGST by the petitioner to be treated as deposit. The respondent shall issue appropriate notice to the petitioner to show cause as to why SGST and CGST directed to be deposited should be demanded and why penalty should not be imposed on the petitioner - Petition disposed off.

Confiscation of goods or conveyance - levy of penalty under Section 130 of the Central Goods and Services Tax Act, 2017 - confiscation of the goods under Section 130 CGST Act without resorting to Section 129 of the CGST Act - HELD THAT:- Issue Notice, returnable 09.12.2021. Learned AGP, Ms.Maithili Mehta waives service of notice for and on behalf of the respondent-State. She may also take necessary instructions before 09.12.2021. The representation of the petitioner shall be decided without, in any manner, being influenced by the pendency of this petition on or before 04.12.2021.

Classification of goods - rate of GST - Fryums (different shapes and sizes of PAPAD) manufactured by the applicant - HELD THAT:- Papad in ready to cook/un-fried form is purchased by the appellant from the market. The same is first fried and various masala powders are applied and packed in small packets for being sold in market. The shape and size may vary but the ingredients, the proportion of ingredients, the composition and the recipe remains similar, if not exactly the same. The said product “Papad” of different shapes and sizes that are ready to eat condition eligible to be classified under Chapter Tariff Heading 1905 of Customs Tariff Act, 1975 accordingly, vide entry at Sr. No. 96 under Not. No. 02/2017-CT (Rate) dated 28.06.2017 product in question is exempted from the levy of Goods and Services Tax. The classification ....... + More

Classification of goods - Epoxidised Soya bean Oil - to be classified under tariff item 1518 of Schedule-I (taxable at 5%) or Schedule-II (taxable at 12%) of Notification No. 1/2017-Central Tax (Rate) dated June 28, 2017, as amended from time to time? - HELD THAT:- The product Epoxidised soyabean oil is chemically modified (epoxidised) oil. The chemical modification is such that its double bond - the Epoxidised Soyabean Oil is covered under the above chapter heading 1518. In case of COMMISSIONER OF CENTRAL EXCISE, SURAT-II VERSUS CONSUMER PLASTICS PVT. LTD. [2005 (10) TMI 321 - CESTAT, MUMBAI], the Tribunal held that the Epoxidised vegetable Oil used as plasticisers or stabilisers in plastic industry, classifiable under Chapter 15 of Central Excise Tariff and not under Heading 38.12 ibid. Whether the product Epoxidised soyabean oil is cov....... + More

Classification of goods - rate of GST - Himsa Plus Oil, which is a ayurvedic hair oil used for various hair disease and headache - beauty product or medicinal products - HELD THAT:- On reconciling the Chapter Heading with Chapter Note, it indicates that only those products whose curative or preventive value is substantial and the product is manufactured primarily with a view to control or cure a disease by adding suitable pharmaceutical ingredients shall be covered under Chapter 30. All other preparations and cosmetics even if they have therapeutic or prophylactic properties would not fall within the meaning of medicaments under the GST regime - the label of the product Himsa Plus Oil does not contain dosage (or a mention of 'as advised by the physician') which is essentially mentioned on the label of medicaments. The said fact in....... + More

Valuation - Section 15 of CGST Act - reimbursement of Employee Provided Fund & ESI - HELD THAT:- Section 15(1) of CGST Act clearly stipulates that the value of supply of goods or services or both shall be the transaction value, which is the price actually paid or payable for the said supply of goods or services or both where the supplier and the recipient of the supply are not related and the price is the sole consideration for the supply. Further, sub-section(2) of Section 15 elaborates in detail, the items that are required to be included in the value of supply, whereas sub-section (3) of Section 15 specifically elaborates the items that are not to be included in the value of supply. The condition contained in rule 33(iii) of the CGST Rules, 2017 provides that “the supplies procured by the pure agent from the third party as a ....... + More

Seizure of goods - genuineness of invoices - Contention of the learned counsel for the petitioner is that at the time of interception, admittedly, certain invoices could not be produced by the driver before the intercepting authority - HELD THAT:- The learned Standing Counsel has not been able to deny that despite the petitioner claiming himself to be the owner and having produced invoices concerned, he was not declared by the proper authority or the appellate authority to be the owner of the goods. The matter requires consideration - Learned Standing Counsel prays for and is granted three weeks time to file counter affidavit. Rejoinder affidavit, if any, may be filed within two weeks thereafter.

Seeking direction regarding restoration of old registration number under the GST Act - validity of demand as a result of denial of the Input Tax Credit (ITC) to the Petitioner - seeking direction to the Opposite Parties to permit the Petitioner to avail the ITC as an existing dealer under the existing law or on the goods held in stock on the appointed day - HELD THAT:- The case of the Department is that the cancellation of the Petitioner’s registration certificate issued originally under the Orissa Value Added Tax Act came about since the Petitioner failed to file returns. The case of the Petitioner, however, was that because of the cancellation of the registration certificate under the OVAT Act, he was not able to file returns and therefore was compelled to obtain a new registration - the fact remains that the Petitioner did seek t....... + More

Rejection of ITC claim - name of the agency and GSTIN has been incorrectly mentioned - Section 73 of the Bihar Goods and Services Tax Act. 2017 - HELD THAT:- The notice dated 06.06.2019 is quashed with the direction to the assessing officer to issue a fresh notice in the light of the statutory provisions and pass an appropriate order in accordance with law. All proceedings be positively complied with in these matters. Petition stands allowed.

Seeking direction to respondent no.4 to pass the fresh refund order of total amount without reducing the amount of interest u/s. 50(1) - seeking direction to respondent no 1 & 2 for constitution of GST Appellate Tribunal within a time frame so that the statutory right of appeal can be exercised - HELD THAT:- When the matter was taken up for hearing, the attention of this Court is drawn to the amendments brought under the Central Goods and Services Tax (CGST) Act in the Finance (No.2), Act, whereby the proviso has been added to Section 15 of the CGST Act, which has been substituted w.e.f. 01.07.2017. According to the learned Standing Counsel, fresh application if is preferred by the petitioner in wake of these amendments, his case shall be considered by the respondent Authority. Learned advocate Shri Avinash Poddar on instructions seek....... + More

Rejection of refund of unutilized compensation cess - Section 54 of the CGST Act read with Section 16 of the IGST Act read with Rule 89 of the CGST Rules - HELD THAT:- It is to be noticed that the petitioners preferred the refund claims. It emerges that the petitioner no.1 preferred refund claim of unutilized compensation cess for the period from July, 2019 to September, 2019 on account of the export and supply of goods to the SEZ and such refund applications were made on 03.02.2020. It is not disputed that the same had been received by the Assistant Commissioner, Division-4, Surat. The acknowledgment also had been received on 19.02.2020 of the receipt of such refund applications. As rightly pointed out by the petitioners, the only ground assigned for proposing the rejection of the claim for refund is the “others” with a remar....... + More

Cancellation of registration of petitioner - cancellation on the ground that the same has been obtained by means of fraud, willful misstatement and suppression of the facts - HELD THAT:- It emerges from the material on record that the application for revocation has been preferred by the petitioner on 16.08.2019, no procedure has been followed thereafter by the proper Officer and he has chosen not to issue any notice to show cause indicating his intention of rejection. When the statutory Rules provide for prescribed limit, he could not have simply sat tight over this application without doing anything in that regard and without fail he shall need to complete this process within one week from the date of receipt of the copy. Noticing the fact that it is only after he decides not to accede to the request of revocation of cancellation that su....... + More

Provisional attachment of properties - Section 83 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- As is quite clear from the various decisions which have been discussed, that there shall need to be ordinarily the pendency of proceedings under Sections 62 or 63 or 64 or 67 or 73 or 74 of the GST Act for the commissioner to form an opinion for the purpose of protecting the interest of the Government Revenue to order in writing to attach the provisionally any property including the bank account belonging to the taxable person. In absence of any kind of pendency of proceedings, it is not permissible for the respondent authority to invoke powers under Section 83 for the purpose of provisional attachment. The power to order a provisional attachment of the property of the taxable person including a bank account is draconian in natu....... + More

Permissibility of Merchanting Trade Transactions - sale of PPE products by a supplier in China to a buyer in the United States - prohibition on export of PPE products through a series of notifications - genesis of the case lies in an international MTT contract which the appellant obtained to serve as an intermediary between the sale of PPE products by a supplier in China to a buyer in the United States - HELD THAT:- Adequate stocks of PPE products are critical for the healthcare system to combat the COVID-19 pandemic. The State’s aim of ensuring supplies is in furtherance of the right to life under Article 21 and the Directive Principles of State Policy mandating the State’s improvement of public health as a primary duty under Article 47. The appellant has not challenged the legitimacy of this aim of ensuring adequate PPE in I....... + More

Levy of late fee charges - provision for purging the Bill of Entry either under the provisions of the Customs Act, 1962 or under the Provisions of aforesaid Regulations - validity of second Bill of Entry - Section 46 of the Customs Act, 1961 - HELD THAT:- Regulation 4 of the Bill of Entry (Electronic Integrated Declaration and Paperless Procession) Regulations, 2018 has been framed to implement Section 46(3) of the Customs Act, 1962. The practice of purging of Bill of Entry appears to be based on the practice adopted in various ports on account of the architecture of the ICEGATE. There is however no provision either under the Customs Act, 1962 or under the provisions of Regulation which contemplates purging of the Bill of Entry. In the facts of the case, the petitioner has filed a second Bill of Entry on 12.07.2021 and said the necessity ....... + More

Seizure of goods - Jurisdiction - power of Investigating Officer under the Customs Act, 1962 - HELD THAT:- It is unfortunate that despite a clear enunciation and pronouncement of the law on the aspect of ‘Proper Officer’ under Section 110 of the Customs Act, the concerned officials of the Respondents are repeatedly seizing goods without having the authority and jurisdiction to do so. Perhaps, the judgment in M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT], has not been either read by the concerned officials or has not been understood in the correct perspective. As a result, this Court is flooded with litigation on the same issue and we cannot help but observe that it is the action of the Respondents in not applying the binding dicta of the Hon’ble Supreme Court, which is ....... + More

Levy of penalty u/s 112(a) of the Customs Act on the exporter company (appellant), registered in Dubai - mal-practices in India through their Agent located in India and working for them in India - rejection of transaction value and re-valuing the same as per the actual value - HELD THAT:- The charge of aiding and abetting have been established against the appellant company. Further it is found that the appellant company, though it was registered having Head Office in Dubai, but it was very much present in India through its Indian Representative - Sh. Prakash Menon. It is further found that through its Indian Representative, the appellant company have actively colluded and abetted with the Indian importers by various acts of commission and accordingly penalty has been rightly imposed under Section 112(a) of the Act. The facts before the Ho....... + More

Rejection of the request for conversion of free shipping bills to drawback shipping bills - Board Circular No. 36/2010-Cus. dated 23.09.2010 - Section 149 of the Customs Act, 1962 - HELD THAT:- The Board Circular No. 36/2010-Cus dated 23.09.2010 allows conversion of free shipping bills into drawback shipping bills. The above Circular states that if the Commissioner is satisfied that the exporter failed to comply with the provisions of Rule 13 of the Drawback Rules, 2017 (filing drawback shipping bill) for reasons beyond his control, the amendment can be allowed - It is clear from the provisions as well as the Circular that the amendment of free shipping bills to drawback shipping bills can be allowed. The appellant has been able to sufficiently establish that they did not file the drawback shipping bill at the time of export for the reaso....... + More

Levy of Anti-Dumping Duty - import of float glass of thickness 3.8mm - tolerance of thickness of goods - N/N. 48/2014-Customs (ADD) dated 11th December 2014 - HELD THAT:- As nominal thickness has not been defined in BIS and moreover when actual thickness is available, then nobody can extend the tolerance to demand anti dumping duty from the appellant. Moreover, for earlier imports, the goods have been verified and allowed to be cleared by the customs authorities. In that circumstances, it is held that the demand against the appellant is not sustainable and accordingly, the same is set aside. Appeal allowed - decided in favor of appellant.

Levy of penalty u/s 112(b) of the Customs Act - Smuggling - Gold Bars - foreign origin goods or not - un-reliable and inadmissible evidence or not - case of town seizure - absolute confiscation - HELD THAT:- The appellant is not at all involved in the smuggling in gold, and therefore, penalty against the appellant under Section 112(b) of the Customs Act, 1962 has been wrongly imposed by the learned Commissioner (Appeals) Customs, Lucknow. The learned Commissioner (Appeals) Customs, GST & Central Excise, Lucknow, has also failed to appreciate that there is not a single piece of evidence to establish that the Gold was smuggled on the behest of the appellant, and the appellant is actively involved in the smuggling of aforesaid Gold bars. The order of the Adjudicating Authority as well as Commissioner (Appeals), is totally based on assump....... + More

Absolute Confiscation - import of shoes - goods have violated the IPR - mis-declaration of the goods in terms of quantity and value - ‘Man’ and ‘Horse’ logos used on the shoes were not registered with the custom or not - prohibited goods or not - Were the goods which were confiscated absolutely prohibited goods under Section 11 of the Customs Act read with Rule 6? - HELD THAT:- The goods have some non-registered logos and trademarks and also have certain registered IPR on them. A plain reading of Rule 6 shows that import of goods is prohibited if the registered IPR is violated and it does not make any exception to goods which also have some other logos. It is immaterial how many logos are on the goods. If they violate any IPR, their import is prohibited, and not otherwise. In this case, the shoes with Man and Horse....... + More

Revocation of Customs Broker License - forfeiture of security deposit - levy of penalty - allegation is that the appellant failed to apply due diligence in obtaining proper KYC documents of the said exporters - violation of Regulation 10(n) of CBLR, 2018. In the case of M/s. Duoflex Expo India -RUD 2: HELD THAT:- The Customs Broker is not Omniscient and Omnipotent. The responsibility of the Customs Broker under Regulation 10(n) does not extend to ensuring that all the documents issued by various officers of various departments are issued correctly. The Customs Broker is not an overseeing authority to ensure that all these documents were correctly issued by various authorities. If they were wrongly issued, the fault does not lie at the doorstep of the Customs broker and it is not up to the Customs Broker to doubt the documents issued by th....... + More

Imposition of consolidated penalty levied u/s 112(a) read with Section 114A and 114AA of Customs Act - Appellant engaged for clearance of goods on commission basis - goods declared as men’s casual shoes ‘unbranded’ - It appeared to Revenue that the goods were undervalued with intent to evade payment of appropriate customs duty - HELD THAT:- As per the facts on record, Shri Rajesh Kumar Gupta is the actual importer who has been importing goods in the name of proprietorship firm - M/s Maa Shati of Shri Makhan Kant Sharma, which was having IEC number. Admittedly, appellant has introduced both the persons. The appellant was being paid nominal/nominal remuneration for facilitating the clearance of the goods, being imported by the said Shri Rajesh Kumar Gupta. There is no allegation in the show cause notice that this appellant....... + More

Rejection of SAD refund claim - finalization of provisional assessment not done - time-limit prescribed in the N/N. 102/2007 dated 14th September 2007 - HELD THAT:- As per the Hon’ble High Court of Delhi in PIONEER INDIA ELECTRONICS (P) LTD. VERSUS UNION OF INDIA & ANOTHER [2013 (9) TMI 705 - DELHI HIGH COURT] has held that the question of payment of duty arises only after finalization of assessment of bill of entry. Admittedly, the refund claim has been filed by the appellant on 4th April 2012 which is well within one year from the date of 27th February 2012 when the bill of entry was still pending for final assessment. Therefore, the refund claim cannot be rejected on the ground of limitation. Appeal allowed - decided in favor of appellant.

Benefit of exemption - Import of artificial glass - Machine Tuft/Coated Polyethylene Twisted Grass for soccer field known as ‘artificial grass’ and agrifab field sweeper from Canada for laying artificial football ground - competition of national or international level was conducted or not - Requirement to produce the end-use certificate - N/N. 21/2002-Cus dated 01/03/2002 - HELD THAT:- As per the condition of Customs N/N. 21/2002-Cus at serial No. 393 there is no requirement by the respondent to produce end-use certificate. The only condition is that, if such goods are imported requires to be used in national or international championship to be held in India or abroad. Therefore, the certificate issued by the AIFF is suffice to fulfill the condition of the notificaition and there is no ambiguity in the said condition. Appeal dismissed - decided against Revenue.

Seeking permission for withdrawal of petition - seizure of goods - Big cardamom - HELD THAT:- Since petitioners have been pursuing the matter before this Court, issue of limitation shall not come in the way, if the appeal is preferred within next four weeks. The petition is dismissed reserving liberty to prefer an appeal before the CESTAT (constituted under Section 129 of the Customs, Excise and Service Tax Appellate Tribunal).

Proper officer - Power of officers of DRI - Power to investigation versus power to assessment - Classification of imported goods - Areca Nuts - to be classified under Chapter 0802 or under Sub Heading 2106 of the Customs Tariff Act,1975? - Seeking to release the Arecanuts imported from Myanmar - waiver of demurrage and detention charges - proper officer to issue SCN for the purpose of assessment the third and the fourth respondents as defined under Section 2(34) of the Customs Act, 1972 - HELD THAT:- The Hon'ble Supreme Court in M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT] observed that Additional Director General of DRI was not a “Proper Officer” to exercise the power under Section 28(4) of the Customs Act, 1962 and the initiation of the recovery proceedings was held wi....... + More

Seeking direction to allow the first respondent to destuff the container and permit warehousing of the goods under Section 49 of the Customs Act, 1962 - also seeking to draw fresh samples in presence of the first respondent and send the sample for retesting to any accredited laboratory - HELD THAT:- The Writ Court or much less this Court cannot be converted into an Executing Court to execute the order passed by the Commissioner of Customs which is admittedly now been challenged before the Tribunal. In any event, we are of the view that a workable solution needs to be worked out as the goods have been imported in September 2020 and still lying in the Customs area. It may be true that the appeal as against the order of Commissioner of Customs was filed by the department only on 29th October 2021 but the filing of the said appeal was very we....... + More

Rejection of application for provisional release of the seized warehoused goods - goods were exclusively meant for export - Section 110A of the Customs Act, 1962 - HELD THAT:- Since the proceeding of DRI is continued, no final conclusion can be drawn as regard the allegation of DRI that whether the appellant have correctly classified the goods and/or valued the imported goods therefore, we proceed to decide only the issue of release of the goods - since the goods before import and warehousing was intended to be exported, no prejudice will cause to the revenue with regard to dispute, if any for classification of goods and/or valuation of the goods. There is no dispute on the fact that the appellant had export order in possession, moreover, they had received the part payment against the export order therefore, it is clear that the goods whi....... + More

Levy of interest on Customs duty levied before final assessment - Section 18(3) of the Customs Act - HELD THAT: -The date of provisional assessment and date of release of imported goods are reflected and both parties failed to place any provision of law that dictates that interest is payable from the date of import vis-à-vis assessment till the date of release of goods. Further, except Section 18(3) of the Customs Act which empowers the Respondent-Department to collect interest after final assessment, no provision of law is placed before this Tribunal to hold a finding that interest can be charged for the period between the date of import and the date of release upon provisional assessment, besides the fact that the order of the Commissioner (Appeals), which is supposed to be defended by the Respondent-Department, is being disputed....... + More

Validity of not considering the effect of earlier adjudication, pertaining to the same Assessee - extended period of limitation - correctness of demand of differential duty when the same is available to the appellant as Modvat Credit - Mis-description or suppression in the matter of classification - HELD THAT:- If the challenge to the order of the Tribunal dated 13.12.2016 in Appeal No. C/723/04 passed by the CESTAT, Court No.II impugned in this appeal is considered, it is seen that the order passed by the Tribunal in Appeal Nos. C/499 and 620/2004 on 22.02.2005 as well as the order passed by the Tribunal in Appeal No. C/02/06 also on 13.12.2016 by Court No.1 have attained finality. As regards the aspect of classification of the product in question, its classification under CTH 3824.90 as directed by the Commissioner (Appeals) on 29.03.20....... + More

Seeking amendment of drawback serial number in the shipping bills - appellant procured Brass Artwares from local market falling under tariff heading 74199930 and exported the same - rejection of the request without any reasoning - the request was rejected by the Commissioner (Appeals) on the ground that whatever amendment sought by the appellant is not based on the existing documents and the documents is not in possession of the proper officer - HELD THAT:- These findings are apparently incorrect on the face of documents such as export invoices which clearly contained the correct HS Code 74199930. However, inadvertently in the shipping bills the incorrect drawback serial number 741802B was mentioned. In this position, it cannot be said that the amendment sought by the appellant is not on the basis of documents existing at the time of expo....... + More

Levy of penalty on CHA - Enhancement in the quantum of penalty u/s 114(i) of the Customs Act - export of prohibited goods by mis-declaration - Red Sanders - authorities have failed to properly appreciate the facts and circumstances of the case - HELD THAT:- The Customs House Agents Licensing Regulations, 2004 is nothing but supporting legislation passed in exercise of the powers conferred by sub-section 2 of Section 146 of the Customs Act, 1962. The role and responsibility of the Customs House Agent in case of mis-declaration of goods has to be dealt with based on mens rea to the contribution of the Customs House Agent allowing the smugglers to misuse the licence issued to him. In the present case, Red Sanders has been stealthily exported to Malaysia in a Container bearing No.VMLU 3200873 covered under Shipping Bill No.1955099, dated 09.0....... + More

Validity of FIR - disputes arising in relation to administration of a company - argument of the learned counsel for the petitioners is that the complainant has initiated the proceedings under the Companies Act before the NCLT and the criminal prosecution launched by filing the impugned First Information Report is thus mala fide and accordingly the F.I.R. and any proceedings drawn pursuant thereto are liable to be quashed - HELD THAT:- Once the Companies Act, 2013 has come into force, mismanagement of the affairs of a company or even allegations of fraud is to be investigated in terms of the procedure contemplated in the Companies Act, 2013. SFIO is the authority to conduct the investigation and special court established under Section 435 of the Act , 2013 is the competent court to try the offences which is empowered even to try the offenc....... + More

Seeking restraint on 2nd Respondent from conducting any meetings of the Board or the Annual General Meeting of the shareholders of the 1st Respondent Company till disposal of petition - HELD THAT:- From a reading of the above, it is clear that Clause 3 of the notification GSR 464(E) dated 5th June, 2015 is applicable to a private company only if the interests of their shareholders are protected. In this case, since some of the shareholders (petitioners and Respondent No. 4) objected to the convening of the AGM, the AGM held without considering their request is against the spirit of the notification issued by Ministry of Corporate Affairs. The AGM held on 18.09.2021 is to be declared as null and void. Hence, it is declared that the AGM of the Company held on 18.09.2021 as null and void and the respondents are restrained from implementing any resolutions passed in the said AGM until further orders. Application disposed off.

Sanction of Scheme of Amalgamation - Section 230-233 of the Companies Act, 2013 - HELD THAT:- Calling of the meetings of the members/shareholders of the Transferor Company as envisaged under Section 230(1) of the Companies Act, 2013 is not necessary and will not serve any purpose, if called. This Tribunal issue the directions with respect to calling, convening and holding of the meetings of the Shareholders, Secured and Unsecured Creditors or dispensing with the same as well as issue of notices including paper publication - Application disposed off.

Prayer for substitution of Respondent No. 4, Late Provat Kumar Mitra with his legal heirs, Mr. Shantanu Mitra and Ms. Sharmistha Musgrave as Respondents No. 4A and 4B - death of Respondent No. 4 and impleadment of the legal heirs of the Respondent No. 4 - Rule 53 of the National Company Law Tribunal Rules, 2016 - HELD THAT:- The most relevant fact that is to be considered is that this has been a family company, and that each branch of the family was always represented in the company. The legal principles embodied in Order XXII CPC and its Rules have to be applied keeping this fact in view. When the time comes for pronouncement of final orders in the matter, it is better that each branch of the family is represented, so as to obviate any scope for arguments that the orders were passed without some party being given an opportunity to take p....... + More

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

Sanction of scheme of Amalgamation of the Transferor and Transferee Companies - section 233 of the Companies At, 2013 - HELD THAT:- The judgement of the Supreme Court in the case Vodafone Essar Gujarat Limited and another [2015 (8) TMI 475 - SC ORDER], makes it clear that even if the scheme of amalgamation is evolved to save income tax, it cannot be said that the only object of the scheme was tax avoidance. The scheme of amalgamation may consequently result in some tax benefit to the Petitioner Companies. Only on that ground, going by the spirit of the above cited judgement, it cannot be said that the Scheme of Amalgamation is impermissible. The Scheme also clarifies that all the taxes and duties payable by the 1st and 2nd transferor companies from the appointed date onwards including all or as any refund and claim shall for all purposes ....... + More

Seeking dismissal of the company petition - refund of money siphoned - mismanagement and oppression into the affairs of the Respondent No. 1 Company - HELD THAT:- From a bare perusal of the said company petition, it will be evident that the allegations raised in the Company Petition are since 2009 to 2019 despite the fact that the first round of litigation was filed by the petitioners were instituted in 2011 before the Learned Company Law Board, Kolkata Bench at Kolkata., inter alia, alleging mismanagement and oppression against the identical respondents. The said company petition was registered as C.P. No. 992 of 2011 - From a bare perusal of the said Company Petition being C.P. No. 992 of 2011, the allegations raised in paragraph VII to XII at pages 111 to 113, XVI-XX at pages 115 and 117, Para XXVI at page 120 and para XXXI at page 123....... + More

Seeking direction to Appellant to maintain Status Quo in relation to the ‘shareholding pattern’ as well as in relation to the ‘properties of the 1st Respondent Company - eligibility to file a petition under Sections 241, 242 of the Companies Act, 2013 - prime plea taken on behalf of the Appellant is that the ‘Tribunal’ had passed the ‘impugned order in negation of the ‘principles of natural justice’ as against the well settled the principle of law and judicial precedent - HELD THAT:- There is no two opinion of a primordial fact that no waiver application as per Section 244 (1)(b) was filed before the ‘Tribunal’ (National Company Law Tribunal, Chennai Bench, in main Company Petition) by the Respondent/Petitioner/Applicant. Taking note of the divergent contentions advanced by the L....... + More

Direction to maintain status quo - seeking vacation of stay granted - petitioner submits that the impugned order is wholly without jurisdiction and the Tribunal has failed to appreciate that the petitioner is a secured creditor whose rights are to be governed under the SARFAESI Act - HELD THAT:- There are no reason to stay the impugned order. Once the petitioner has itself approached the Tribunal by way of an application to seek vacation of order of status quo granted on 30.09.2021, which application is pending adjudication before the Tribunal and is now listed on 15.11.2021, the Tribunal will necessarily consider the petitioner’s plea that the impugned order was without jurisdiction. Moreover, it is the petitioner’s own case that it has already taken possession of the subject properties and therefore merely because it has bee....... + More

Seeking impleadment of petitioner as a proforma respondent as no direct allegation has been posed against the applicant in the instant company petition - HELD THAT:- The Respondents here and the Petitioners have submitted that the Petitioner is not a Director and he is reportedly a shareholder. The contention of the Petitioner is wrong and he has ceased to be a Director from the year 2005 as per Form 32 filed with the RoC on his resignation as Director. Hence, the Respondents here have not made a Party in the said Company Petition and thereby this IA is not maintainable. It will not be appropriate to entertain the prayer of the Petitioner to implead him as a Proforma Respondent in the Company Petition, without ascertaining the veracity of the allegations and counter allegations, the status of the Petitioner and the reasons mentioned by th....... + More

Seeking restoration of the name of the struck off company in the Register of Companies maintained by the Registrar of Companies - Section 252(3) of the Companies Act, 2013 - HELD THAT:- On perusal of the balance sheet for the year ended on 31.03.2020, it is noted that the company has share capital of ₹ 100,000/-; cash and cash equivalents is ₹ 59,355/-. It is considered just and proper to restore the name of the company in the Register of Companies, from date of its striking off subject to payment of cost for non-compliance of rules relating to filing the Statutory Returns and Audited Financial Statements. The Registrar of Companies, Hyderabad, Telangana, the respondent herein is directed to restore the original status of the applicant/Company as if the name of the applicant/company has not been struck off from the Register of....... + More

Seeking declaration, mandatory & perpetual injunction against the appellants - forfeiture of right to receive equity shares in respect of Secured ‘Zero’ Fully Convertible Debentures (FCD) - HELD THAT:- The submissions made that the jurisdiction to deal with the subject matter of the suits lay with the Company Law Board under the provisions of Section 111A of the Act, apparently have no substance. In a case where the Company refuses to register transfer / transmission of shares or debentures, the transferee could appeal to the then Company Law Board. However, the provision does not deal with a case of forfeiture of either shares or debentures and as such, the power in this regard lies only with the civil courts - As the jurisdiction under Section 111A of the Act has been consistently held to be limited to transfer and trans....... + More

Sanction of Composite Scheme of Amalgamation and Arrangement - Sections 230 to 232 read with Section 66 of the Companies Act, 2013 - HELD THAT:- Various directions with regard to holding, convening and dispensing with various meetings issued - directions with regard to issuance of various notices also issued. The scheme is approved - application allowed.

Sanction of Scheme of Amalgamation - Section 230 read with Section 232 of the Companies Act, 2013 - HELD THAT:- From the material on record, the Scheme appears to be fair and reasonable and is not violative to any provisions of law, nor is contrary to public interest. Since all requisite compliance has been fulfilled, the scheme is sanctioned - application allowed.

Seeking restoration of name of the company in the register maintained by the respondent/Registrar of Companies - section 252 of the Companies Act, 2013 - HELD THAT:- The applicant is seeking restoration of its name in the register as maintained by the Registrar of Companies by relying up on the "just" ground as contemplated under section 252(3) of the Companies Act, 2013. It was submitted by learned counsel for the applicant that the company has no different viable opportunity in the agricultural field of power plant and under the present condition, the applicant wants to continue the same business as well as to establish the ownership of the property with the intent to save the assets of the company. Taking into consideration the provisions of section 252 of the Companies Act, 2013 and more particularly the "just" gro....... + More

Sanction of the Scheme of Amalgamation - Sections 230 to 232 of the Companies Act, 2013 ("The Act") read with the Companies (Compromises, Arrangements & Amalgamations) Rules, 2016 - HELD THAT:- There appears to be no impediment in sanctioning the Scheme, which appears to be fair and reasonable and not contrary to public policy or violative of any provisions of law. All the statutory requirements of Sections 230-232 of the Act appear to have been complied with. Taking into consideration the facts, the Company Petition is allowed and the Scheme annexed with the Petition is hereby sanctioned, with the Appointed date fixed as April 1, 2019. The Petitioner Company-1/Transferor Company be dissolved without winding up. The scheme is approved - application allowed.

Oppression and mismanagement - breach and wilful disobedience - Sections 397, 398, 399, 402, 403, 406, 235, 237 and 247 read with Section 111 of the Companies Act, 1956 - HELD THAT:- There is no dispute that the earlier interest @15% was being paid till 30.09.1998 and the above observations only indicate that the payments were earlier made @ 15% but that the observations cannot read to mean that even from 01.04.1999 the Respondents agreed to make the payment @ 15%. The expression ‘at agreed rate’ as contained in paragraph 33 of the judgment of this Tribunal dated 20.08.2019 is capable of interpretation as put by the Respondents. When general body Resolution dated 25.09.1998 have expressly decided to pay interest @ 10% from 01.04.1999 and the general body Resolution is not denied or challenged by the Applicants, their insistenc....... + More

Sanction of Scheme of Amalgamation - Sections 230 and 232 of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 and the National Company Law Tribunal Rules, 2016, and under Section 66 of the Companies Act - HELD THAT:- Various directions with regard to holding, convening and dispensing of various meetings issued - directions with regard to issuance of various notices also issued. The scheme is approved - application allowed.

Sanction of Composite Scheme of Arrangement - Section 230-232 read with Section 66 of the Companies Act, 2013 and read with of the Companies (Compromise, Arrangement, and Amalgamations) Rules, 2016 - HELD THAT:- Various directions with regard to holding, convening and dispensing with various meetings issued - directions regarding issuance of various notices also issued. The scheme is approved - application allowed.

Sanction of Scheme of Arrangement - Section 23(1)(b) Read with Section 232 of the Companies Act, 2013, Read with Rule 15 (1) of Companies (Compromises, Arrangements and Amalgamation) Rules, 2016 and Rule 23A of the National Company Law Tribunal Rules, 2016 - HELD THAT:- Various directions with regard to holding, convening and dispensing with various meetings issued - various directions with regard to issuance of notices also issued. The scheme is approved - application allowed.

Validity of termination of work orders - consistency and prohibition as per Section 20 of Insolvency and Bankruptcy Code, 2016 (IBC) and Section 238 of IBC - whether termination proceeding could not be initiated or continued under bar of moratorium of Section 14 of IBC? - invocation of performance bank guarantees. Whether termination of Work Order No. 1 is in violation of provisional extension letter dated 30.03.2020 and/or Government’s order dated 08.06.2020? - HELD THAT:- The Corporate Debtor was awarded this work order on 20.03.2017 and has to complete the work within 15 months whereas after lapse of three years the construction has not been completed and thereafter, another three months upto 30.06.2020 was extended even though till 11.06.2020 the Corporate Debtor has completed only 76% of the work (See Pg. 29 of the Rejoinder). ....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - main contention of the Financial Creditor is that the IBMS charges have not been properly used for the purposes for which they have been charged under clause 11.2 of the agreement - existence of debt and dispute or not - HELD THAT:- The provision for IBMS has been made in order to pay maintenance bills, other charges raised by the maintenance agency, etc. It has been stated said in clause of the agreement that the IBMS charges cannot be utilised for any other purposes other than that has been mentioned in the said clause. The Corporate Debtor has himself admitted that the amount has been utilized for the purpose of construction of a club, restaurant, swimming pool and 62-seatermini theatre. Since, the financi....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The Corporate Debtor has taken objection regarding some pre-existing dispute between the parties regarding services provided by the Applicant. Further, it is stated by the Corporate Debtor that it had suffered losses due to conduct of the Applicant during his tenure. It is further submitted by the Corporate Debtor that no amount is due towards the Corporate Debtor since a sum of ₹ 15 Lakhs in cash has already been paid to the Applicant - there is no necessity of going into the issues alleged by the Corporate Debtor as there is a specific admission made by the Corporate Debtor as regards to the undisputed debt of ₹ 9 Lakhs which is due and payabl....... + More

Validity of ex-parte order - rule 11 of NCLT Rules, 2016 - whether inherent power u/r 11 can be used when alternate remedy is available? - HELD THAT:- The present Application has been filed by the Corporate Debtor on 10.6.2019 i.e., after two months after the date of admission of CIRP. On careful reading of the present Application, it is more than clear that the applicant seeks to recall/review of the Admission Order dated 10.4.2019 along with the ex-parte order dated 8.2.2019. Both the said orders have been passed by this Authority after careful consideration of facts and circumstances including the credible evidence placed in support of the fact that Corporate Debtor has been properly served with notice under section 8 of the IB Code, the main petition seeking initiation of CIRP as well as further dates of hearings before this Authority....... + More

Validity of Resolution Plan - the application of the then Resolution Professional under Section 30(6) of the IBC has been allowed without considering the claim of the Appellant - whether the claim filed by the Appellant is within the time period specified in the public announcement and the extended time period of 90 days included in Regulation 12 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016? - whether a claim, if filed after the specified time period, could be considered at this belated stage? - HELD THAT:- It is admitted by the Appellant that he filed the claim on 1.1.2020. The affidavit submitted by erstwhile RP Respondent No. 2 (diary no. 30107 dated 20.8.2021) makes it clear that the 90 days” period after the public announcement as allowed in the CIRP Reg....... + More

Validity of approved resolution plan - approved resolution plan challenged on the ground that it affects the Appellant’s rights regarding termination of the existing Leave and Licence Agreement dated 16.6.2017 with Respondent No. 1 and refund of the security deposit upon delivery of the premises and on the ground that the order has been passed without giving any notice or opportunity of hearing to the Appellant - HELD THAT:- It is clear that there is a provision in the Licence Agreement for unilateral termination of the agreement without assignment of any reason by furnishing six months’ notice. Clause 12(c) makes the licencee liable for paying all outstanding payments which include rent, water charges and electricity charges calculated on the date of termination or the date of handover of the licensed premises. It is also not....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - Time limitation - Evidence of existence of debt - HELD THAT:- In the instant case, the ‘Appellant’ had confirmed the ‘default’ and the same is undisputed. Indisputably, to secure the repayment of ₹ 31,75,00,000/- invested by the 2nd and 3rd Respondents, the ‘Corporate Debtor’ had created numerous securities to and in favour of 2nd and 3rd Respondents like that of promissory notes, purchase option agreement, mortgage of freehold lands, mortgage of residential flats on an exclusive charge basis, which was contractually financed by corporate guarantee and first personal guarantees from it promoters. Time frame for admission - HELD T....... + More

Validity of commercial arrangement that was prevailing between the parties immediately before commencement of the CIRP of both the parties - Section 14(2A) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It is decided not to go deep into the merits of the main Appeal and also not expressing any opinion about the merits of the matter, for the reason that this Tribunal cannot decide the contractual matters in a summary jurisdiction. However, taking into consideration, the paramount interest of the parties for the reason that both the Companies i.e. KSK Mahanadi and Raigarh Champa are under CIRP, the supplies are to be made by the Raigarh Champa to the KSK Mahanadi and in turn the KSK Mahanadi has to pay the charges for the supplies to keep both the companies as a going concern. This Tribunal is conscious of the decision of the Hon....... + More

Seeking direction to remove / release the lien on the said property of the Corporate Debtor - HELD THAT:- Hon’ble Supreme Court in the case of Committee of Creditors of Essar Steel India Limited vs. Satish Kumar Gupta and Ors. [2019 (11) TMI 731 - SUPREME COURT], where it was held that successful resolution Applicant cannot suddenly be faced with "undecided" claims after the resolution plan submitted by him has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by a prospective resolution Applicant who successfully take over the business of the corporate debtor. The Respondents are directed to forthwith lift lien on property and file claim before Liquidator as Operational Creditor - application disposed off.

Seeking extension of the Corporate Insolvency Resolution Process (CIRP) period by 90 days beyond 31.05.2021 - seeking exclusion of period on account of lockdown and difficulties faced from 01.01.2021 till 31.05.2021 - HELD THAT:- The application for extension has been filed in the month of May 2021. The explanation given seeking for exclusion of time from 01.01.2021 to 31.05.2021, is not satisfying as there was no lockdown imposed by the Government from 01.01.2021 to 15.05.2021, hence exclusion of the CIRP period from 01.01.2021 to 15.05.2021, cannot be granted. The Resolution Professional has been conducting meetings and has been performing her duties even during the period sought for exclusion. However, the object of the Code is to revive the Company and in view of the fact that a Resolution Plan is awaited, the exclusion of the time fr....... + More

Seeking direction to Resolution Professional to not submit the Resolution Plan before the CoC - seeking stay on the process of voting to be held on 10.08.2021, on the two Resolution Plans - seeking restraint on members of the Association from name calling or defaming the parties herein - HELD THAT:- It is seen that the applicants belong to the "class of home buyers" and being the class of creditors, they have filed this application to stay the process of voting to be held on 10.08.2021 on the two resolution plans and also a direction to the resolution professional not to submit the resolution plan. Hon'ble Supreme Court in the Jaypee Case [2021 (3) TMI 1143 - SUPREME COURT] held that "To sum up this part of discussion, in our view, after approval of the resolution plan of NBCC by CoC, where homebuyers as a class assente....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - deduction of tax at source also made - HELD THAT:- The contentions raised by the Petitioner during the course of arguments seeming to suggest that the defects were subsequently cured by the Petitioner is in itself an admission of dispute and the Petition is required to be dismissed on that ground alone. Therefore, in the lights of Mobilox Innovations Pvt. Ltd. vs. Kirusa Software Pvt. Ltd. [2017 (9) TMI 1270 - SUPREME COURT] this bench is convinced that this Petition is liable to be rejected. It is beyond reasonable doubt that a pre-existing dispute remained outstanding on the date of issuance of the statutory notice as well as on the date of filing of the Petition. Petition dismissed.

Jurisdisction - power of Tribunal to entertain the instant CA - Whether the attachment of the properties of the corporate debtor made under the provisions of the Maharashtra Protection of Interests of Depositors (In Financial Establishments) Act, 1999 (MPID Act) vide notification dated 28.08.2014 i.e. prior to the date of initiation of CIRP against the corporate debtor is liable to be de-attached in view of the overriding affect under Section 238 and other provisions of IBC 2016? - HELD THAT:- The Hon'ble Supreme Court in Innoventive Industries Ltd. v. ICICI Bank & another, [2017 (9) TMI 58 - SUPREME COURT], while dealing with the overriding effect of the Code under Section 238 of IBC with reference to Maharashtra Relief Undertakings (Special Provisions) Act, 1958 has held that the Maharashtra Act cannot stand in the way of the co....... + More

Seeking exclusion of 105 days from the CIRP period of the Corporate Debtor - seeking direction to the CoC of the Corporate Debtor to consider the Resolution Plan on PRA in time-bound manner - HELD THAT:- It is the prime intent of IBC and also held by the Hon'ble Apex Court that resolution and not liquidation should always be considered with all possibilities. The grant of time to Resolution Professional and CoC for moving towards achieving Resolution of the Corporate Debtor will be in the interest of all Home Buyers, who are also interested in considering the Plans. The only lacunae in the process of considering of Plan by CoC beyond prescribed period of CIRP. If the same is considered by this Bench for exclusion or extension there is possibility of Resolution forthcoming. The Hon'ble Supreme Court has also held that the wisdom of....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- Section 3(7) of IBC 2016 reads that “Corporate Person” means a Company as defined in clause (20) of section 2 of the Companies Act, 2013, a limited liability partnership, as defined in clause (n) of sub-section (1) of section 2 of the Limited Liability Partnership Act, 2008, or any other person incorporated with limited liability under any law for the time being in force but shall not include any financial service provider. It is evident from the said Notification dated 18th November, 2019, that the said Rules shall apply to such Financial Service Providers of categories as may be notified by the Central Government under Section 227 of the IB Code....... + More

Maintainability of application - initiation of CIRP - Corporate debtor failed to make repayment of its dues - Financial Creditors - Financial Debt or not - as per the Petitioner there is a default under Section 7 of IBC, 2016 as its “put option” was not entertained when the said demand notice dated 02.01.2018 was sent to the Respondent M/s. Hubtown Limited demanding exit by way of “put option” - HELD THAT:- The Bench notes that as per the SHA, GVFL invested in HBT Mehsana by purchasing the shares of ILFS group. This cannot be termed as an investment of GVFL by way of a loan. The money paid by GVFL to acquire the share of HBT Mehsana cannot be construed as a consideration for time value of money and it was solely for the purchase of shares of HBT Mehsana held by ILFS group to become a shareholder in the Company. The....... + More

Collection of all information relating to the assets, finances and operations of the corporate debtor for determining the financial position of the corporate debtor - seeking to receive and collate all the claims submitted by creditors to him, pursuant to the public announcement made under Sections 13 and 15 - HELD THAT:- In view of the facts that the 'Adjudicating Authority' had observed in the impugned order at paragraph 8 that the applicant himself had admitted the application that the Ex-directors were fraudulent and in fact, the Payments claimed to be made by the Petitioners/Appellants for one Mr. Rohit were not supported with any of the entries in the 'Books of Account' of the Corporate Debtor then I.A. No. 2771 of 2020 filed by the Applicants/Appellants seeking issuance of direction to the Resolution Professional of....... + More

Failure to act as per approved Resolution Plan - prayer to reinstate the COC - seeking to direct the resolution professional to ensure that the Corporate Debtor remain as a going concern - prayer made to grant 90 days to the resolution professional to make another attempt for a fresh process rather than forcing the Corporate Debtor into liquidation on account of fraud committed by Liberty - HELD THAT:- Under the approved resolution plan, both the parties have to fulfil their obligations. The Corporate Debtor has also to perform its obligations simultaneously so that the amount of ₹ 500 crores be transferred to the financial creditors/lenders of the Corporate Debtor. It is the case on behalf of the respective parties that the aforesaid obligations are to be performed mutually and simultaneously. It is reported that Implementation and....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial creditors - financial debt or not - acknowledgment of debt within the meaning of Section 18 of the Limitation Act, 1963 - HELD THAT:- On consideration of documents and correspondences including the Balance Sheets, the conclusion is inescapable that the amount of ₹ 40.75 Crores advanced by the Appellant was nothing but was a financial debt within the meaning of ‘I&B Code’ and the Adjudicating Authority committed error in holding that the Appellant is not a ‘Financial Creditor’. Whether the acknowledgment contained in the Balance Sheets as noted above, the Appellant will have a fresh period of limitation as per Section 18 of the Limitation Act? - HELD THAT:- Even if 01.09.2012 is treated t....... + More

Maintainability of application - disqualification under Section 29(A)(e) of the I&B Code, 2016 - it is observed that Appellant is trying to gain a backdoor entry on the guise of presenting themselves as MSME - eligibility to be considered as one of the Prospective Resolution Applicant - Amendment was brought to Section 240-A of the IBC, 2016, whereby some of the clauses of the Provisions of this Code not made applicable to Micro, Small and Medium Enterprises - HELD THAT:- It is a fact that the Appellant stated that he will provide Net Worth Certificate at the time of submission of Resolution Plan. It is also pertinent to note that the Resolution Professional vide his order dated 20.11.2020 also recorded the reason given by the Appellant that the Appellant will be providing suitable Net Worth Certificate issued by the Chartered Account....... + More

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

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

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

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

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

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

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

Constitutional validity of Section 50(2), (3) and (4) of the Prevention of Money Laundering Act, 2002 (PMLA) read with Section 24, 63 and 66 of the PMLA 2002 - Seeking for a direction to restrain the respondent no. 2 from issuing any further summons under Section 50(2) of PMLA 2002 against the petitioner - HELD THAT:- This Court while considering the prayer as made on behalf of the petitioner finds that petitioner has challenged the constitutional validity of the provisions of the PMLA, 2002 as void and inoperative or being violative of Article 14, 20(3), 21 of the Constitution of India. The petitioner has also sought for an order of interim stay of the operation of the impugned summons dated 24.9.2021 and 25.10.2021 to restrain the respondent no. 2 from issuing any further summons under Section 50 (2) of the PMLA, 2002. It is rightly poi....... + More

Grant of regular bail - Diversion of funds - rejection of bail application on the ground that investigation is not complete and applicant/accused may influence the fair course of investigation but now the circumstances have changed as complaint u/s 45 of PMLA has been filed by the investigating agency - HELD THAT:- The material available on record makes out a formidable case of money laundering against the applicant/accused. The submission that pre-trial detention is antithetic to the Presumption of Innocence is infact missing the woods for the trees. Pretrial detention is neither preventive nor punitive. Pre-trial detention is infact an incident of Fair Trial. There may be cases wherein releasing the accused would enable him to jeopardize the course of fair trial by attempting to wipe out the traces of crime. Therefore, in appropriate ca....... + More

Money Laundering - violation of undertaking of captive mining for the grant of Mining Lease - violation of environmental laws - section 3 read with section 70 which is punishable under section 4 of the Act of 2002 - territorial jurisdiction - petition filed at Patna - jurisdiction of State of Bihar for the said complaint - HELD THAT:- It is an admitted fact that C.B.I case was filed in the year 2016 in which the charge-sheet has not been submitted as yet the authority concerned had filed petition at Patna wherein the Hon'ble Patna High Court has held that the State of Bihar has got no jurisdiction for the said complaint and directed to return the complaint copy to the complainant and thereafter the case in hand has been filed at Ranchi. There is no doubt that the petitioner's lease is being governed under the Act of 1957. The prov....... + More

Grant of anticipatory bail - Proceeds of crime - cheating the investors - recipient of crime - Sections 3 read with Section 70 of Prevention of Money Laundering Act, 2002 and punishable under Section 4 of Prevention of Money Laundering Act, 2002 - HELD THAT:- Considering the serious allegations against the petitioner and in the absence of any material to suggest that the petitioner is not guilty of the offence and that he is not likely to commit any offence, while on bail, this Court is of the considered view that this is not a fit case, where the privilege of anticipatory bail be given to the petitioner. The prayer for anticipatory bail of the petitioner is rejected - Application dismissed.

Money Laundering - proceeds of crime - conspiracy - provisional attachment of assets/properties of the petitioner - offence u/s 120 (B) read with Sections 420, 467, 468 and 471 of the Indian Penal Code, 1860 and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 - HELD THAT:- On perusal of Section 2(1)(u) of the Prevention of Money Laundering Act, it is crystal clear that any property derived or obtained, directly or indirectly by any person as a result of criminal activity will come within the proceeds of crime. In the explanation it is clarified that “proceeds of crime” include property not only derived or obtained from the scheduled offence, but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offen....... + More

Money Laundering - scope of proceedings - issuance of summons - compliance with the mandate of Section 50(2) & 50(3) of PMLA - penal/coercive action against the Applicant in purported exercise of powers under Section 19 of PMLA - arrest and sentence contemplated under Section 3 of PMLA - HELD THAT:- The learned ASG is right in contending that the reference to remedies under Cr.P.C. is significant, and reference to Article 226 of the Constitution of India is consciously omitted as the issues of law are under consideration of the Supreme Court. In the case of DEVENDRA DWIVEDI VERSUS UNION OF INDIA & ORS. [2021 (1) TMI 302 - SUPREME COURT], the Supreme Court had disposed of the petitions under Article 32 and left it open to the petitioner therein to pursue the remedies available in law by approaching the High Court, unlike in the pre....... + More

Money Laundering - pre-conditions under Section 32A of the IBC is satisfied or not - HELD THAT:- It is made clear that WP(C) 4680/2021 shall be listed on 30th November, 2021 to receive the status report as directed, pertaining to the issue of appointments and vacancies at the Adjudicating Authority under the PMLA. For the said purpose only, WP(C) 4680/2021 shall be treated as a part heard matter.

Seeking grant of regular bail - Money Laundering - secret banking - acts of cheating and forgery in Netherlands by transferring of money of other persons through Hawala operations and earned commissions in the shape of cash - Section 45 of PMLA Act - HELD THAT:- Section 45 (1) (ii) is akin to Section 37 of the NDPS Act, wherein the Court, while granting bail, has to form an opinion. In a case under the NDPS Act, it is easy for an accused who has been released on bail to repeat such offence, however, in a case under the PMLA like the present case, it is not easy for an accused to commit the offence again while on bail while staying in India - there was no request on behalf of the Netherlands authorities to register a case under Section 44/45 or 65 of the PMLA as at the first instance, a mutual legal assistance was called in 2017 and it is ....... + More

Freezing of petitioner's Bank Account - allegations of corruption and money laundering were levelled - diversion of funds - reasons to believe - procedure to be followed by the ED when letters of request are received under Section 60 of the Act from a contracting state - requirement to provide ‘reasons to believe’ while passing orders under Section 17 of the PMLA - procedure to be followed by the ED while forwarding the ‘reasons to believe’ and the application under Section 17(4) of the PMLA - requirement to transmit all documents - procedure to be followed by the Adjudicating Authority, upon receipt of the application under Section 17(4) of the PMLA - level of satisfaction to be recorded by the Adjudicating Authority prior to issuance of show cause notice under section 8(1) of the PMLA - requirement to supply ....... + More

Seeking concession of 'pre-arrest bail' - Hawala/underground banking and laundering of direct or indirect proceeds of crime - offences punishable under the provisions of Sections 467/471/120-B/108-A of the IPC - HELD THAT:- This court finds it rather surprising that no offence pertaining to the provisions of Sections 420 specifically, of the IPC, has been even alleged to have been committed in the FIR, even though 'Hawala' transactions/“underground banking” are alleged to have been transacted as per the FIR itself, which prime facie (at least for the purpose of this petition seeking the extra-ordinary relief of pre-arrest bail), would seem to amount to cheating. In the face of the allegations made in the FIR and the contents of the affidavit filed on behalf of the respondent-State, impossible to accept that no ....... + More

Money Laundering - seeking grant of Anticipatory bail - criminal conspiracy - cheating and defrauding - siphoning off the commission received from the suppliers through a complex web of fake commercial transactions through multiple companies owned by the accused persons, registered outside India - fraudulent transactions - requirement of custodial interrogation of the petitioner - HELD THAT:- In the present case, it is not disputed by the respondent that the petitioner has not joined the investigation. Rather, it is on record that the petitioner has joined the investigation more than 20 times. The statements of the witnesses U/s 50 of PMLA have already been recorded and there is only an apprehension that the petitioner would tamper with the evidence or threaten the witnesses but till date nothing has been placed on record to show that any....... + More

Permission of the Court to go abroad and visit USA and Dubai was sought, which was rejected - HELD THAT:- Counsel for the petitioner could not dispute that vide order dated 19.08.2021 passed in CRM-M No.33804 of 2021 filed by the petitioner, the similar prayer has already been dismissed by this Court. There are no ground to entertain this petition and the same is accordingly, dismissed.

Money Laundering - predicate offence - irregularities in the loan disbursement by the City Co-operative Bank - only contention of the Petitioner is that since the Petitioner himself has filed the FIR, if it is to be used against the Petitioner on the premise that it is a predicate offence, then there must be material that the Respondent No. 1 must demonstrate - HELD THAT:- The contention of the Petitioner that without having copies of the ECIRs, the Petitioner cannot approach the competent court with a prayer for anticipatory bail under section 438 of Cr.P.C. is misplaced. The Petitioner apprehends his arrest, and section 438 of Cr.P.C. provides a statutory remedy for such a contingency. The learned ASG has shown the file containing the statements recorded in furtherance of ECIRs. Considering that the Petitioner has a statutory remedy und....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Offence under SEBI Act - Recovery proceedings - Attachment orders - whether recovery proceedings can be initiated straight away under section 28A of the SEBI Act without issuing notice for adjudicating a dispute between the regulator and the appellants and without giving an opportunity to the appellants to contend that they are not associated companies of PACL? - HELD THAT:- Assuming that the Recovery Officer does have the jurisdiction to initiate recovery proceedings under Section 28A is it not necessary for the Recovery Officer to issue notice before proceedings with the recovery of the amount and, further whether attachment order could be passed without issuing any notice especially when there is no evidence in the impugned order that there is a possibility that the appellants would run away with the money. Appellants is a running Comp....... + More

SEBI seeking information from the petitioner regarding alleged deemed public issue - HELD THAT:- Awareness Programme conducted by the SEBI during the year 2017, a few investors reported that the petitioner Company has been mobilising funds from the public and have issued bonus shares. As alleged that the petitioner subsequently stopped buying back the shares - A preliminary enquiry made by the SEBI, it was noticed that the petitioner-Company has passed resolutions authorising issue of equity shares to any person including existing members of the Company in any manner the board may deem fit. The language of the resolution indicated that what was intended by the Company was not strictly private placement. It was under the said circumstances that the SEBI issued notices to the petitioner-Company. Though the information sought for were expect....... + More

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

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

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

Search and seizure operation carried out by the officers of FEMA - search and specific seizure of certain gold jewellery which, according to him, was part of the stock-in-trade - Jurisdiction of High court - HELD THAT:- As cause of action has arisen within the State of West Bengal, that is, the search and seizure has taken place in West Bengal and the petitioner company is situated at West Bengal, in my view, there is no impediment in entertaining this writ petition before this High Court. Clause (2) of Article 226 of the Constitution of India clearly allows this High Court to have jurisdiction in such cases wherein the cause of action has partly arisen notwithstanding the fact that the seat of the authority dealing with the issue is outside the jurisdiction. Search and seizure of the excess jewellery that has been seized by the Enforceme....... + More

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

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

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

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

Search and seizure operation carried out by the officers of the Enforcement Directorate under FEMA - excess jewellery seized - HELD THAT:- With regard to the search and seizure of the excess jewellery that has been seized by the Enforcement Directorate, it is to be noted that in the writ petition, the petitioner has relied on several documents to indicate that this “excess jewellery” was duly accounted for and had been sent for job work. In my view, the Enforcement Directorate should look into the documents filed in the writ petition and pass a reasoned order on whether these goods are stock-in-trade or not. In the event, the Enforcement Directorate finds that the same are duly accounted for, the same should be released in favour of the petitioner in accordance with law. The above enquiry and the reasoned order should be passe....... + More

Rejection of permission to remit foreign exchange - FEMA ODI Regulations - approval on the basis of the reservations expressed by ED - as the wholly owned subsidiary of the respondent has already taken the credit of foreign exchange from various lenders and the foreign exchange has already come to the country. It is only this foreign currency which is now being repaid by the respondent - Writ of Mandamus, directing Respondent to permit Petitioner to make additional commitments and payments of USD 300 Million to its wholly owned subsidiary namely Jindal Steel and Power (Mauritius) Limited by way of equity subscription or loan or corporate guarantee or bank guarantee or through other permitted mode from Indian Bank for meeting its debt obligations - HELD THAT:- We are of the view that the order of denial of permission dated 30.12.2019 based....... + More

Transaction entered into by a foreign citizen of “Indian origin”, to deal with real estate in India on certain conditions - transaction (specified in Section 31 of the 1973 Act) entered into in contravention of that provision is void or is only voidable and it can be voided at whose instance - Mandation to get general or special permission of the RBI for transfer or disposal of immovable property situated in India by sale or mortgage by a person, who is not a citizen of India - HELD THAT:- Foreigners should not be permitted/allowed to deal with real estate in India; the peremptory condition of seeking previous permission of the RBI before engaging in transactions specified in Section 31 of the 1973 Act and the consequences of penalty in case of contravention, the transfer of immovable property situated in India by a person, wh....... + More

Offence under FEMA - Review Petition - Correction of clerical errors - respondent Sakunthala had received payment unauthorisedly in her residential premises - respondent Sakunthala that her husband Muthupal Chettiar was a partner in Kumaran and Co in Malaysia - The Appellate Board had found that there was a accidental slip and held in paragraph No.7 that ''After giving careful thought to the contentions of the parties, I find this to be a fit case where benefit of doubt should be given to the appellant at S.No.1 and 2 and therefore, hold that the charge against her have not been established'' - HELD THAT:- Appellate Board upon satisfying that the accidental slip had occurred in the order attributable to an over-sight that the non-receipt of ₹ 75,000/- by the appellant at S.No.2 in the order conflicting with the concl....... + More

Offence under COFEPOSA ACT - detention order - respondents desired to unlock the mobile phone instrument of the petitioner to retrieve the materials/ documents therefrom but petitioner did not co-operate in the opening/ unlocking of his mobile phone instrument - HELD THAT:- As timeline satisfactorily explains and justifies the time taken by the Respondents in undertaking investigation, which finally culminated in passing of the impugned Detention Order. The initial proposal sent by the Sponsoring Authority in February, 2019 was not found sufficient to justify the petitioner’s detention under Section 3 of the COFEPOSA Act. The Sponsoring Authority, therefore, continued with its efforts to conduct further investigation and, for that purpose, retrieval of the contents of the mobile phone of the petitioner was crucial. Vide his letter d....... + More

Entitlement to Interest on the amount of deposit, pending litigation, from the date of deposit till the date of actual refund - HELD THAT:- The issue is not longer res integra as the Division Bench of this Tribunal in M/S. PARLE AGRO PVT. LTD. VERSUS COMMISSIONER, CENTRAL GOODS & SERVICE TAX, NOIDA (VICE-VERSA) [2021 (5) TMI 870 - CESTAT ALLAHABAD], following the ruling of the Apex Court in SANDVIK ASIA LIMITED VERSUS COMMISSIONER OF INCOME-TAX AND OTHERS [2006 (1) TMI 55 - SUPREME COURT] have held that such amount deposited during investigation and /or pending litigation is ipso facto pre-deposit and interest is payable on such amount to the assessee being successful in appeal, from the date of deposit till the date of refund. This appeal by the Revenue is dismissed. Further, it is directed that the Adjudicating Authority shall disbu....... + More

Valuation - inclusion of reimbursable expenses in the gross value of the for determination of the value of taxable service - period involved is upto March 2015 - HELD THAT:- In the case of UNION OF INDIA AND ANR. VERSUS M/S. INTERCONTINENTAL CONSULTANTS AND TECHNOCRATS PVT. LTD. [2018 (3) TMI 357 - SUPREME COURT] referred to by the learned Counsel, Supreme Court while upholding the order of Hon’ble Delhi High Court quashing Rule 5 of Service Tax Valuation Rules, 2006 has held that Realising that Section 67, dealing with valuation of taxable services, does not include reimbursable expenses for providing such service, the Legislature amended by Finance Act, 2015 with effect from May 14, 2015, whereby Clause (a) which deals with ‘consideration’ is suitably amended to include reimbursable expenditure or cost incurred by the ....... + More

Right of the petitioner to get deduction of deposits made prior to the issuance of show cause notice - benefit of SVLDRS - amnesty scheme by way of Finance (No.2) Act, 2019 was introduced by the Central Government - HELD THAT:- A bare reading of Section 124(2) reveals that the relief calculated under Section 124(1) is subject to the condition that any amount paid during the enquiry, investigation or audit has to be deducted when issuing the statement indicating the amount payable by the declarant. The bare provision talks of ‘any amount paid’, the same does not distinguish between the amounts paid under different heads. It clearly envisages two kinds of deductions firstly any pre-deposit made at any stage of appellate proceedings under the indirect tax enactment and secondly, any deposit made during enquiry, investigation or a....... + More

Refund of Service Tax - service tax was paid under the mistake of law - Business Auxiliary Services - reverse charge mechanism - principles of unjust enrichment - period April 2007 to June 2012 - HELD THAT:- The M/S INTEROCEAN SHIPPING COMPANY VERSUS COMMISSIONER OF SERVICE TAX, DELHI [2012 (12) TMI 477 - CESTAT NEW DELHI] does not exclude the taxability of ship broking services under any other taxable category. However, the period involved in the proceedings before us is prior to 1 July 2012 when only specified services were taxable, and the onus was entirely upon the Revenue to prove classification and taxability of ship broking services under any other taxable category. No negative inference could be drawn merely from the fact that ship broker services does not appear in Section 66D of the negative list introduced with effect from 1 Ju....... + More

Classification of services - Appellant’s activities relating to Horizontal Directional Drilling (HDD) works - classifiable under Site Preparation & Clearance Service or under Works Contract Service? - denial of benefit of lower rate of tax vide Notification No. 32/2007 dated 22.05.2007 - Pipeline construction charges - Supply of Tangible Goods Service - Time Limitation - HELD THAT:- The subject SCN only raised a classification dispute alleging that the Appellant’s activities relating to Horizontal Directional Drilling (HDD) works were appropriately classifiable under ‘Site Preparation & Clearance Service’ and not ‘Works Contract Service’. The SCN never alleged that the Appellant failed to fulfill any of the conditions of Notification No. 32/2007 dated 22.05.2007 relating to Works Contract (Compo....... + More

Denial of benefit of waiver from payment of Penalty under section 73 (3) of the Finance Act,1994 - renting of immovable property - petitioner was under a bona fide belief that he was not liable to pay service tax for renting of immovable property and that while the matter was pending before the second respondent, the first respondent issued the impugned show cause notice thereby denying the benefit of waiver from payment of Penalty under section 73 (3) of the Finance Act,1994 - HELD THAT:- The appellants raised a point that the demand was quantified even when the investigation was in process. It is not for the appellants to contend that the investigation was not completed before the issuance of the show cause notice. In fact, if there were any materials available to issue the show cause notice even before the completion of investigation, ....... + More

Refund of CENVAT Credit - input services - grievance is against paras 8.3 and 9 of the impugned order as the findings recorded in these paras are in respect of the issues that were never before the Commissioner (Appela) - failure to comply with the condition prescribed under Rule 6A(c) of export of services - non-fulfilment of condition of Rule 6 of Cenvat Credit Rules, 2004, Rule 6A of Service Tax Rules, 1994 and Notification No.27/2012.CE(NT) dated 18.06.2012 - HELD THAT:- The appellant has no grievance against the order of the Commissioner (Appeals) remanding the matter back to the adjudicating authority. However, his grievance is against paras 8.3 and 9 of the impugned order as the findings recorded in these paras are in respect of the issues that were never before the Commissioner (Appela). The ends of justice will be met if these tw....... + More

Levy of service tax - works contract service - contract between the supplier of RMC i.e. appellant and buyer of RMC - manufacture of Ready Mix Concrete (RMC) - activity of laying of RMC using of concrete pumping at the site of the buyer of RMC - case of the department is that it is a composite contract for supply and laying of RMC to the laying of RMC falls under works contract and liable to service tax - calculation of service tax - time limitation - HELD THAT:- As per the contract, the entire transaction is of Works Contract. However, the appellant is mainly engaged in the manufacture of Ready Mix Concrete and selling the same to various buyers. As per the nature of product, it is necessary to supply RMC in a specialized container and after reaching at the customer’s site RMC is delivered by carrying out the process of pouring, pu....... + More

Application for early hearing - monetary amount involved in the appeal - levy of service tax - testing charges received by it in respect of the services rendered in India to its foreign client - whether Revenue’s appeal be decided on merit or monetary limits in the light of Circular No. 390/MISC/116/2017-JC dated 22.08.2019? - scope of the Circular - HELD THAT:- On careful reading of the Circular, it is found that at para 4 of the said Circular it is stated that issues involving substantial questions of law as described in para 1.3 of the instruction dated 17.8.2011 would be contested irrespective of the prescribed monetary limits. Whether the appellant is liable to pay Service Tax on testing charges received by it in respect of the services rendered in India to its foreign client? - HELD THAT:- As per the said issue involved, it do....... + More

Nature of activity - manufacture or service - job of manufacturing Plastic Jars and Containers in the factory of the service recipient by the help of their own manpower - such activity falls under supply of Manpower and Recruitment Service or Job work manufacturing? - HELD THAT:- There is no dispute in the fact that the appellants have entered into the contract for undertaking the manufacturing of Plastic Jars and containers in the factory of the Service recipient. The charges for the job is on per container basis, the appellants are not collecting the fixed wages or salary against providing the manpower. Therefore, the activity carried out by the appellant is of Job Work manufacturing and not of Manpower Recruitment Service. On the same set of facts in respect of other contractors providing services to the same service recipient, this tr....... + More

Levy of service tax - Renting of Immovable Property Services - support services or not - vacant land solely used for mining purposes - royalty and dead rent collected in terms of mining lease agreements for grant of mining rights - period from 01.07.2012 to 31.03.2016 - extended period of limitation - HELD THAT:- As per the law that existed prior to 01.07.2012, leasing of vacant land / immovable property for mining purposes was not taxable and was expressly excluded from the definition of “renting of immovable property service”. Prior to 01.07.2012, only those services which were specified by definition given in subsection (105) of Section 65 were taxable - A brief look into the history of service tax law would show that prior to 01.07.2012, Section 65 was the pivotal section of service tax law and it provided definition of al....... + More

Refund claim - exclusion of export invoices worth ₹ 24,72,12,897/- from the turnover - rejection on account of necessary documents / certificates evidencing the foreign inward remittances - HELD THAT:- The impugned order is set aside and consequently, I deem it proper that the Adjudicating Authority shall look into these documents and then pass appropriate order on the exclusion of turnover pertaining to those export invoices and also pass appropriate order on the refund claim of the appellant after hearing and considering all such documents that may be furnished in support, by the appellant. Appeal allowed by way of remand.

CENVAT Credit - common input services used for providing the taxable services and trading activities - non-maintenance of separate records - Rule 6 (3A) of the CENVAT Credit Rules, 2004 - HELD THAT:- Appellant clearly state that they have provided the records year wise in as per Annexure VII, to that letter to the adjudicating authority. Commissioner in the impugned order do not contradicts the same nor records any finding in respect of the Annexure VII. In fact in the reply submitted by the Appellant then claimed in respect of the calculation errors, in the show cause notice, if these calculation errors while computing the demand are taken into account then major chunk of demand itself cannot survive. However we find that these calculation errors themselves have not been considered and adjudicated by the impugned order. On the examinatio....... + More

Non-payment of service tax - service of covering of shed/constructing a common auction platform to M/s. Rajasthan State Agriculture Marketing Board - Department after observing that the appellant has provided work contract service to RSAMB during the financial year 2012-2013 alleged that service tax has not been paid by the appellant - whether the construction of common auction platform for RSAMB is the taxable service or not? - HELD THAT:- Any service provided to an agriculture produce marketing committee or any service relating to agriculture or agricultural produce even that of construction for infrastructure for agriculture or agriculture produce specially when provided to a government / local authority acting under statute meant for such use is different from Commerce or Industry, tax is not leviable on such service - In the present ....... + More

Maintainability of petition - adjustment of pre-deposit - seeking direction to respondent No.2 to consider the pre-deposit amount as per Annexure-D which is a Challan evidencing the payment of tax and to make appropriate demand after adjusting such pre-deposit - HELD THAT:- The record of personal hearing would indicate that pre-deposit of ₹ 32,33,181/- as per the Challan bearing No.01206 dated 25.09.2014 was requested to be considered after necessary clarification. A copy of the said Challan is produced at Annexure-D to the petition. The material on record does indicate that the petitioner has furnished the Challan bearing No.01206 dated 25.09.2014 for a sum of ₹ 32,33,181/- at the time of personal hearing. No doubt, the order of rejection at Annexure-F dated 18.05.2020 states that the declarant upon verification by the Design....... + More

Levy of service tax - indivisible composite work contracts - respondent has prima facie taken a view that petitioner had rendered certain taxable services and declared the value of the services in its return of income under the Income Tax Act, 1961, but as the service provider had not paid any service tax, the same has resulted in non-payment of service tax - why income declared in the Income Tax Return for the period 2016-17 and for the period 2017-18 up to June, 2017 should not be treated as income received from taxable services under the Finance Act, 1994, besides levy of interest and imposition of penalty? - HELD THAT:- In the instant case, the two aspects i.e., whether the petitioner had provided services to only Governmental authorities, and not others, and even if provided to Governmental authorities, whether the contracts were ind....... + More

Jurisdiction to issue SCN - validity of summons issued to the officers of the petitioner - validity of appointment of officers of DGCEI as ‘Central Excise Officers’ having all India jurisdiction - premeditated mind and lacking in judicial discipline - whether proceedings instituted are without jurisdiction? - HELD THAT:- The jurisdiction of the Chief Commissioner of Central Excise, Bangalore has come to the Principal Commissioner of Tax-1, Bangalore and Chief Commissioner of Tax-II, Bangalore. Likewise, territorial jurisdiction of Principal Commissioners of Service Tax is conferred on the Principal Commissioner of Service Tax- I depicting several zones in Bangalore and Principal Commissioner of Service Tax-II depicting several zones in Bangalore. This notification comes into effect from 15-10-2014. After the 2nd respondent iss....... + More

CENVAT Credit - input services common to both taxable as well as exempt services - Rule 6(3A) of CCR,2004 - adjudicating authority dropped the demand for the period prior 1.4.2011 on the ground that trading is classified as an exempted service only from 1.4.2011 - whether the turnover of a particular unit should be taken into consideration for arriving at the amount of tax credit to be reversed in terms of Rule 6(3A) of CENVAT Credit Rules, 2004? - HELD THAT:- For the period 01.04.2011, the issue stands decided in the case of MERCEDES BENZ INDIA PVT LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-1 [2014 (4) TMI 12 - CESTAT MUMBAI] wherein it was held that trading is not an exempted service prior to 01.04.2011; provisions of Rule 6 requiring reversal of 6% of trading turnover is not applicable. We also find that the matter prescribed und....... + More

CENVAT Credit - value of trading activities to be taken for calculation - whether the value of goods, deemed to be supplied in execution of works contract, are to be treated as trading simplicitor, for calculation of amount for reversal (of proportionate credit), as per Rule 6(3)(ii) of Cenvat Credit Rules? - HELD THAT:- The addition to the trading turnover, of the value of the goods deemed to be supplied in execution of the works contract, is erroneous and wrong. Accordingly, the show cause notice is mis-conceived. It is further noticed that in the earlier period, identical show cause notice dated 2.9.2016 was issued to the appellant for denying cenvat credit to the extent of ₹ 1,37,01,095/- . On similar grounds, the said show cause notice was adjudicated by the Addl. Commissioner vide order-in-original dated 26.03.2018, wherein si....... + More

Classification of services - supply of man power and recruitment services or not - independent contractor carrying out the manufacturing activity in the premises of the service recipient - HELD THAT:- The issue has already been decided by this Tribunal in M. ARUL PRAKASAM, S. SUBARAYALU, G. RAMAKRISHNAN, R. ATHINARAYANAN AND P. KANNUSAMY VERSUS COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI [2021 (8) TMI 1063 - CESTAT CHENNAI] where it was held that the activity undertaken by the appellants cannot fall under the category of manpower supply service. The issue is no longer res integra. Following the orders of this Tribunal, the impugned order is not sustainable and same is set aside - Appeal allowed - decided in favor of appellant.

Entitlement to interest on refund - claim of interest rejected on the ground that at the time of sanction of refund and appropriation thereof, there was a confirmed demand - mandatory pre-deposit required under Section 35F in respect of appeal pending before the Commissioner (Appeals) - HELD THAT:- There is chequered history of the entire case however, the case can be decided brief. The refund of the appellant was appropriated against the confirmed demand. The said confirmed demand order was under challenge in appeal before the Commissioner (Appeals). The dispute was that whether the appellant’s payment of pre-deposit through cenvat account is legal and correct for entertaining the appeal. The Commissioner (Appeals) was of the view that the appellant was supposed to make pre-deposit payment in cash. This issue has been taken to the ....... + More

Refund of amount deposited as pre-deposit - amount deposited in excess of the mandatory pre-deposit shall be treated as deposit under section 35 F of the Central Excise Act or not? - para 3 of Circular No.984/08/2014 dated 16.09.2014 - HELD THAT:- The impugned refund cannot be called as refund of amount of pre-deposit nor has been claimed so by the appellant. The amount to the extent of pre-deposit out of aforesaid ₹ 66 Lakhs was ₹ 44 Lakhs which has already been refunded in favour of the appellant. The proposals of duty demand have been set aside. Hence, it becomes clear that appellant was not liable to pay ₹ 66 Lakhs. ₹ 44 Lakhs whereof were required as an amount of pre-deposit till the appeal of the appellant was not decided by the Tribunal. Once the Tribunal’s order setting aside the demand had attained f....... + More

Rejection of application for rectification of mistake - HELD THAT:- While rejecting the application for rectification of mistake which is filed on frivolous ground there is a requirement of putting a restraint on such unethical practice of casting aspersions on the findings of the Tribunal without basis in terms of the judgment of this Tribunal passed in the case of COMMISSIONER OF C. EX., JAIPUR-I VERSUS MELCON [2007 (3) TMI 459 - CESTAT, NEW DELHI] which is filed by learned AR Shri Sanjay Hasija at Annexure-H of his additional submission dated 10.02.2021 and in imposing a cost on the Commissioner Manpreet Arora for filing such frivolous application stating that the Commissioner (Appeals) had dismissed the appeal at the admission stage on limitation and maintainability and not on merits despite the fact that the merit of the case was hea....... + More

Clandestine removal - denial of opportunity of cross-examination of witnesses - at what stage would he be entitled to cross-examine the witnesses - relevancy of statements relied upon - HELD THAT:- A stage prior to issuance of show-cause notice cannot be regarded as an inquiry or proceeding as contemplated in the Act. As per sub-section (1) of section 14 of the Act, power to summon witnesses in any inquiry for purposes specified therein has been conferred on an officer duly empowered by the Central Government and in terms of subsection (3) thereof, any such inquiry shall be deemed to be a judicial proceeding within the meaning of section 193 and 228 of the Indian Penal Code. Prior to the issuance of a show-cause notice, neither any inquiry nor a proceeding can be said to have commenced. Therefore, any statement recorded prior to the issua....... + More

Denial of benefit of notification no. 06/2011-CE dated 01/03/2011 - Concessional rate of duty - nickel perforated rotary screen classified under chapter heading 84405031 - HELD THAT:- Admittedly, in the case of COMMISSIONER OF C, EX., VAPI VERSUS HARISH INDUSTRIES ENGINEERS [2008 (1) TMI 60 - CESTAT AHMEDABAD] the dispute with regard to classification of product and in the case of COMMISSIONER OF CENTRAL EXCISE, JAIPUR VERSUS M/S. MEWAR BARTAN NIRMAN UDYOG [2008 (9) TMI 33 - SUPREME COURT], Hon’ble Apex Court has clarified that while interpreting exemption notification, one cannot go by rules of interpretation applicable to cases of classification under the tariff. Therefore, the said decision in the case of COMMISSIONER OF C, EX., VAPI VERSUS HARISH INDUSTRIES ENGINEERS [2008 (1) TMI 60 - CESTAT AHMEDABAD] is not applicable to the ....... + More

Valuation - inclusion of cost of Pre-delivery Inspection (PDI) and After Sale Service (ASS) in the assessable value of the motor vehicles sold by the appellant to the dealers - charges/expenditure are incurred by the dealers from their profit margin - HELD THAT:- The issue is no longer res integra as held in COMMISSIONER OF CENTRAL EXCISE, MYSORE VERSUS M/S TVS MOTORS COMPANY LTD. [2015 (12) TMI 874 - SUPREME COURT] where it was decided that the said charges cannot be included in the assessable value of the motor vehicles. The issue stand settled in favour of the appellant - Appeal allowed - decided in favor of appellant.

Remission of duty - finished goods destroyed in the fire accident - inputs contained in the semi-finished goods destroyed in the fire accident - principles of natural justice - Rule 21 of Central Excise Rules, 2002 - HELD THAT:- There is no dispute between the appellants and revenue, on the findings recorded by the Commissioner in para 19 of his order. Commissioner has recorded categorically that fire on the 02.04.2015 in the premises of the appellant was accidental and there was no negligence on the part of appellants. Since revenue has not challenged this finding of the Commissioner, by way of cross objections or cross appeal, this finding of Commissioner has become final. Also at the time of hearing, learned counsel appearing for the Appellant agreed that Commissioner was correct in his findings to the effect that for the finished good....... + More

Nature of activity - service or process amounting to manufacture - production of electricity - Scope of Business Auxiliary Service - HELD THAT:- The Business Auxiliary Service excludes activity that amounts to manufacture. In ORIENT PAPER & INDUSTRIES LTD. VERSUS ORISSA STATE ELECTRICITY BOARD [1989 (1) TMI 138 - HIGH COURT OF ORISSA], it was held that electricity that has been specified in the First Schedule to the CE Act after its amendment was ‘excisable goods’ and, therefore, generation of electricity should be understood as ‘manufacture or production of electricity.’ In CMS (I) OPERATIONS & MAINTENANCE CO. P. LTD. VERSUS C. CE, PONDICHERRY [2007 (5) TMI 74 - CESTAT, CHENNAI], the Southern zonal Bench of the CESTAT held that electricity was manufactured goods in terms of Section 2(f) of the CE Act and, ....... + More

Clandestine manufacture - petitioner sought the inspection of the relied upon documents and the statements as well as those statements which had not been relied upon by the department - seeking cross-examination of witnesses - principles of natural justice - HELD THAT:- The Courts have thus upheld the rights of cross examination and any denial of the opportunity on that count has been held to be in violation of the principle of natural justice. It is the right of the defence/litigating parties to ask for the examination of defence witnesses who could be from any pool which can include those witnesses whose statements have been recorded and not relied upon by the Department while prosecuting the person. In the instant case, the statements have been recorded of many of the witnesses and some of whom have not been examined as they have not b....... + More

Legality and validity of the show cause notices issued by the respondent authorities - whether the said show cause notice is ex facie without jurisdiction and authority of law and in clear disregard to the binding order of the superior authority amounting to abuse of process of law, illegal and void? - HELD THAT:- The impugned show cause notice once again of raising the very issue when the order of Commissioner (Appeals) has attained finality without any challenge by the department, which deserves indulgence. It is a judicial discipline which demands following the mandate of superior authority, even when it is a quasi judicial body as such discipline is an intigral part of this well laid down principle and deserves scrupulous observance by all concerned. No one is permitted to obliterate this well defined boundaries, even in a zeal to ear....... + More

CENVAT Credit - default in payment of duty beyond 30 days - failure to pay interest on defaulted amount of duty and that the appellant had utilized Cenvat credit - Rule 8(3A) of the Central Excise Rules, 2002 - HELD THAT:- Evidently, as per Rules of interpretation, where a provision is inserted by way of substitution, it is deemed to have been inserted w.e.f. the date of the original statute, unless otherwise provided. Further, it is noticeable that the erstwhile Rule 8(3A) provided that in case an assessee is in default in depositing the duty for a period of more than 30 days, then the assessee shall be deemed to be in default and during such default, he shall not be entitled to utilise the Cenvat credit and shall be liable to pay duty consignment wise (i.e. on each clearance), whereas the substituted Rule 8(3A) provides that if the duty....... + More

Levy to Excise Duty - Ready Mix Concrete (RMC) or concrete mix manufactured by the appellant at the site of M/s Supertech Limited - extended period of limitation - HELD THAT:- Admittedly, there has been no inspection at the site (Eco Village-II), where the appellant has installed their batching plant for supplying to M/s Supertech Limited. Further, admittedly the appellant has taken registration under Service Tax provisions with the Department, and were paying service tax on the job charges. Admittedly, appellant have raised two bills one for supply of material and the other for job work - mixing the cement, aggregate water, etc. in its batching plant. Further, appellant has raised the job work invoice for concrete mix. Extended period of limitation - HELD THAT:- Revenue have not brought any facts on record in support of its allegation of....... + More

CENVAT credit - input service - GTA service - disallowed on the ground that the appellant have availed the CENVAT credit in respect of outward transportation of the goods cleared from the factory to depot and from the factory/depot to customer - HELD THAT:- If the GTA service in respect of receipt of inputs that will amount to inward transportation and credit is undisputably available in terms of definition of ‘input service’ under Rule 2(l) of CENVAT Credit Rules, 2004. In the case of outward transportation for clearance of finished goods from factory to depot, depot being the ‘place of removal’, CENVAT credit on GTA service from factory gate to ‘place of removal’ is clearly admissible. However, there is a dispute on the facts which is the root of the case. Therefore, at this stage, the Tribunal cannot....... + More

CENVAT Credit - inputs or not - items used for fabrication items of supporting structures of the capital goods - supporting structures, fabricated and embodied to the earth - constitute as “Goods” under the statute or not - Rule 2 of the CENVAT Credit Rules, 2004 - HELD THAT:- The Respondent Company had obtained a Central Excise Registration under Section 6 of the Central Excise Act, 1944 (CE Act) for the purposes of manufacturing of sponge iron and its derivative products. For manufacturing, the Respondent constructed/installed 4 100TPD Sponge Iron Plant and availed CENVAT Credit on input on various items during the relevant period i.e. from May to August, 2004. A part of the inputs included construction materials. The Court finds that in the present case the categorical finding on fact concurrently both by the Commissioner a....... + More

Waiver of SCN - differential duty with interest paid before issuance of SCN - Sale of goods with brand name as well as goods without brand name - invocation of Section 11A(2B) of Central Excise Act, 1944 - HELD THAT:- The Adjudicating Authority has quoted Section 11A(1)(2) of Central Excise Act, 1944 which is duly amended as per the amendment made by Finance Act, 2011. However, in the present case, the period involved is March 2008 to January 2010 therefore, the un-amended provision shall be applicable Unamended sub-Section 11(2B) shall apply for waiver of show cause notice. Therefore, there is fundamental error on the part of the Adjudicating Authority for considering wrong provision i.e. amended provision, which is effective by enactment of Finance Act, 2011. We also find that the appellant have paid entire differential excise duty alon....... + More

CENVAT Credit - transfer of credit - appellant have entered into service agreement with clients of different countries - requirement of ISD registration, for their Mumbai office from which they have transferred the credit - case of petitioner is that there is only one factory and one office there is no need for registration of ISD - time limitation - period from April 2011 to October 2015 - HELD THAT:- It is seen that appellant has claimed they have only one manufacturing unit. Revenue has not produced any evidence otherwise. In these circumstances there is no need of ISD Registration. There is no categorical finding of Commissioner on the nature of services and where the same are used. In the statement of Shri Minesh Gupta Manager, Warehousing and Stores, he has not clarified where these services have been used and the purpose of availin....... + More

Rejection of refund of the amount of penalty deposited - penalty was imposed under Rule 173Q of Central Excise Rules, 1944 - HELD THAT:- It is admitted fact on record that the Hon’ble Supreme Court in the case of Hans Steel Rolling Mills [2011 (3) TMI 2 - SUPREME COURT] has held that penalty under Rule 173Q is not imposable where an assessee is operating under the ‘compound levy scheme’ which is a complete code in itself. The order of Hon’ble Supreme Court is binding on all sub-ordinate Courts including the Adjudicating Authority (under the taxation law) as provided in Article 141 of the Constitution of India. The observation of the Commissioner (Appeals) for denying the refund for amount of penalty under Rule 173Q, is erroneous and bad - the impugned order-in-appeal is modified and penalty of ₹ 25,000/- deposited under the provisions of Rule 173Q is held refundable - Appeal allowed - decided in favor of appellant.

Clandestine removal - IMT Bars - Area based exemption - contravention of re-credit facility available as per N/N. 39/2001- CE date 31.07.2001 - suppression of fact in making clandestine removal or not - time limitation - HELD THAT:- is an undisputed fact that the appellant at the time of clearance of the goods under area based exemption Notification No- 39/2001- CE dated 31.07.2001 has not paid the duty. Moreover, the clearance of goods was made under the guise of that waste coal and accordingly goods were clandestinely cleared and evaded the payment of excise duty. Though the appellant subsequently paid duty but at time of clearance they have mis-declared and cleared the goods clandestinely. Therefore, the appellant has clearly contravened the condition stipulated under the Notification No. 39/2001- CE. Therefore the re credit of the dut....... + More

100% EOU - CENVAT Credit - supplementary invoices/document on which credit taken - duty paid due to closer of advance licenses in which the appellant had failed the fulfilled the export obligation as per undertaking given by them - delay in taking credit - transfer of credit as per Rule 10(3) of the Cenvat Credit Rules, 2004 - HELD THAT:- The impugned order holds that the Cenvat credit cannot be availed on the basis of supplementary invoices issued by a manufacturer or importer in case of additional amount of Excise duty or additional duties leviable under section 3 of the Customs Tariff Act paid become recoverable on the account of non levy or short levy by reason of fraud collusion or any willful mis- statement or suppression of fact etc. There is no charge that in the show cause notice that there was any fraud collusion or any willful ....... + More

CENVAT Credit - manufacture of exempt product namely ‘sludge’ - appellants have used common inputs for manufacture of dutiable product (Gelatine) and exempted product (Sludge) - non-maintenance of separate records - Rule 6 (3) of Cenvat Credit Rules, 2004 - period from 10.05.2008 to 30.09.2011 - HELD THAT:- The demand has been raised on the view that the sludge removed is an exempted goods manufactured by the appellants. The appellant does not consciously manufacture any waste. During the course of manufacture, the waste that arises is drained into the Effluent Treatment Plant. Thus, waste removed from the Effluent Treatment Plant forms sludge and is removed on a daily basis to a dump yard from where it gets dried and is thereafter sold to fertilizer manufacturers. The appellant has to comply with the pollution control require....... + More

Revival of second composite ex-parte assessment order - by composite order dated 18.07.2014 the third ex-parte assessment order had been framed against the petitioner - mistake apparent on the face of record or not - Section 31 of the U.P.V.A.T. Act, 2008 - HELD THAT:- Considering that language of the proviso to Section 6 of the Land Acquisition (Amendment) Act, 1894 and the complete absence of any statutory remedy of appeal etc. provided against a declaration made under Section 6 of the Act, the Supreme Court reasoned - it was a distinctive feature viz-a-viz Section 132(5) read with Section 132 (11) of the Income Tax Act, 1961. It was held, under the Income Tax Act, a power existed to remit a case to the original authority or, for a fresh order to be passed. Thus, besides the distinction arising on account of lack of consent or waiver gr....... + More

Levy of tax - Chewing Tobacco manufactured by the petitioners - Assessment Year 2007-2008 - applicability of limitation period of five years - error apparent on the face of record or not - Section 84 of the TNVAT Act - HELD THAT:- The product called 'Chewing Tobacco', admittedly manufactured by these petitioners from 2006-07 was not at all included as one of the item scheduled in TNVAT Act as a taxable item. Realising this omission or lacuna or with the wisdom of the legislature, Act 30 of 2011 was brought in, under which, the TNVAT Act, 2006 underwent amendment, wherein as per Section 3 of the Amending Act, after Serial No.12 to second schedule Serial No.13 was inserted, whereas, one of the item in Serial No.(vii)-'Chewing Tobacco' also has been mentioned. Admittedly, the said amendment has come into the effect only from ....... + More

Rate of tax - services rendered a pure services (Cleaning) to the Nagar Parishad, different Nagar Panchayat and submitted Bill without GST and received payment without GST - Section 61 of the Goods and Service Tax Act, 2017 and Rule 99 of the Bihar Goods and Services Tax Rule, 2017 - HELD THAT:- Undisputedly, minimum statutory period of 30 days mandated under the provisions of Section 74(A) of CGST/BGST Act, 2017 was not afforded to the petitioner for making payment due and prior to the expiry of 30 days, the assessing officer proceeded to pass the order, ex parte in nature. The notice dated 05.02.2020 (Annexure-7) directed the petitioner to file reply on 29th of February, 2020 which was within the period of 30 days. It is the mandate of law that 30 days' period has to be afforded to the parties, which was not done in the instant case....... + More

Revision of assessment under Section 84 of the TNVAT Act, 2006 - mistake in the return by itself - inter-state sales - petitioner has made a typographical mistake by adding the VAT turnover for the respective months - HELD THAT:- The turn over declared in the TNVAT returns is reflected as the turn over in the CST returns. In the TNVAT returns, the petitioner has also undertaken to pay the tax as the assessment is the self-assessment under the TNVAT Act. In the CST return, the petitioner has not assessed any tax as the petitioner was not liable to pay tax as there was no transactions of Inter-state Sales. Since the petitioner has also filed an application under Section 84 of the TNVAT Act, nothing precluded the Officer from exercising the jurisdiction under Section 22(6a) of the TNVAT Act, 2006 to see whether any tax remained unpaid. There....... + More

Application for revision filed under Section 9 (2) of the Central Sales Tax Act, 1956 read with Section 87A of the Value Added Tax Act, 2003 - Denial of claim of export sales made by the appellants - appellants have not produced records before the revisional authority - HELD THAT:- The revisional authority records that the partner of the appellants could not produce any document relating to the case and therefore, rejected the prayer for adjournment and dismissed the revision petition on the ground that in the absence of books of accounts and other relevant documents, there is no scope for examination of the grievances of the appellants. In our considered view, the approach of the revisional authority should be with a view to ensure that the taxes which are legally leviable and collectable are collected at the appropriate time. Therefore,....... + More

Classification of goods - local sales of stainless steel wires as well as the inter-State sales not supported by ‘C’ forms - Entry No.85 of Schedule II of the VAT Act - HELD THAT:- Today, when the matter was taken up, learned advocate Mr. Sheth appearing for the petitioner has submitted that no order has been passed as that was the last date on which the member of the Tribunal is demitting the office. Learned Assistant Government Pleader confirms non-appointment of any Member of the Tribunal till date - Learned advocate Mr. Sheth submits that 40% of the amount of tax has already been deposited by way of predeposite. Without entering into the merit of the matter, the impugned recovery notice dated 29.05.2021 qua Financial Years 2011-2012 and 2013-14 is being stayed till the appointment of either the President or Member of the T....... + More

Violation of principles of natural justice - validity of assessment order - rectification of mistake - assessment years 2008-2009 to 2014-2015 - HELD THAT:- Having receipt of the notice/order dated 07.01.2021, the petitioner having found any appeal provision against such order/notice dated 07.01.2021 has invoked the revisional power of the joint commissioner concerned under Section 54 of the Act and filed revisions before the first respondent on 04.03.2021 separately, in respect of each of the assessment order. Those revision petitions filed dated 04.03.2021 separately, for each of the assessment year referred to above, by the petitioner, had been rejected by separate orders passed by the first respondent dated 15.03.2021. Insofar as the assessment order originally passed by the second respondent for various assessment years referred to a....... + More

Violation of principles of natural justice - order was passed without affording an opportunity of hearing to the petitioner - inclusion of CST turnover into the VAT turnover - TNVAT Act, 2006 - HELD THAT:- Though the petitioner has an alternative remedy, no useful purpose will be served by either relegating the petitioner to the respondent or to work out the remedy before the Appellate Commissioner as the issue is one of interpreting of the provision of the two Act - the manner prescribed for the purpose of Section 21 of the TN VAT Act, 2006 is under Rule 7 of the TNVAT Rules 2007. Rule 7 as it stood on 01.01.2007 was amended with effect from 24.08.2009. A registered dealer specified in clause (a) or (b) Rule 7(1) of the TNVAT Rules, 2007, whose taxable turnover in the preceding year exceeded two hundred crores of rupees and above was req....... + More

Refund of entry tax - appellant were paying 4% tax against ''C'' Form declaration for the inter-state sales - violation of Article 301 of the Constitution or not - HELD THAT:- As on date, the legal position is that the Hon'ble Supreme Court in THE STATE OF TAMIL NADU & ORS. VERSUS ITC LIMITED & ANR. [2017 (8) TMI 1648 - SC ORDER] has upheld the validity of the Act. As pointed out by the learned Single Judge in the impugned order, if at all there is any right for the appellant herein to seek for refund of the tax already paid, such right will arise only after the disposal of the issue whether the Ingots purchased by the appellant from outside the State, is liable for entry tax and whether there is any discrimination in classification of the goods. Without a declaration regarding the legality of imposing entry ta....... + More

Seeking to forthwith activate registration certificate of the Petitioners on the online portal under the CST Act - seeking direction to Respondents to allow the Petitioners to file returns and generate C form declarations under the CST Act for purchase of natural gas for use in manufacture of finished products - seeking direction to Respondents to forthwith the Respondents to forthwith activate registration certificate of the Petitioners on the online portal under the CST Act - HELD THAT:- The petitioners are before this Court raising an identical question of law which now stands concluded with the decision of the Apex Court rendered in case of THE COMMISSIONER OF COMMERCIAL TAXES & ANR. ETC. VERSUS THE RAMCO CEMENTS LTD. ETC. [2021 (3) TMI 1184 - SUPREME COURT] as well as with the decision of this Court in case of GAURAV CONTRACTS CO....... + More

Seeking permission to petitioner to set off the excess entry tax paid by the petitioner for future payment of entry tax - HELD THAT:- The petitioner is a dealer dealing with motor vehicles and he had to pay the sales tax as per the rate prevailing during the relevant point of time. The main contention on the side of the revenue for rejecting the claim of the petitioner for refund of the excess entry tax is concerned, it is based on the law declared by this Court in KHIVRAJ MOTORS LIMITED VERSUS ASSISTANT COMMISSIONER (CT) , [2010 (2) TMI 1164 - MADRAS HIGH COURT] referred by the writ Court and accordingly, they have taken a stand that the payment of sales tax and payment of entry tax are two different separate entities, and therefore, based on the claim anything made by the dealer, that he has paid excess entry tax, after set off, towards....... + More

Classification of goods - local sales of stainless steel wires as well as the inter-State sales not supported by ‘C’ forms - Entry No.85 of Schedule II of the VAT Act - HELD THAT:- The petitioners are hopeful of making a request for the similar stand to be taken by the Tribunal. 9.1 Without entering into the merit and without endorsing anything that has been done in the past years by the Tribunal as no such challenge solely is before this Court on the ground of absence of the Presiding Officer and for want of forum as the parties litigating must not suffer, the Court first has chosen to intervene and presently would direct the respondent not to pursue any coercive recovery till the appointment of Presiding Officer is made. Acceding to the request for present, without entering into the merit of the matter and without deciding a....... + More

Principles of natural justice - impugned order passed without furnishing the copy of the report which was directed to be furnished by this Court - HELD THAT:- Though the petitioner is correct in stating that the order dated 03.09.2014 in W.P.No.23785 of 2014 was not fully complied, it is noticed that the order passed by the respondent which is challenged in this writ petition was not based on the aforesaid report which was directed to be furnished. Therefore, the petitioner cannot challenge the impugned order passed by the respondent on merits The petitioner did not take advantage of the personal hearing afforded by the respondent. Therefore, the petitioner cannot challenge the impugned order stating that the impugned order is either a non-speaking order or was passed without following the Principles of Natural Justice. Further, what is e....... + More

Application for rectification of the order - Section 84 of the Tamil Nadu Value Added Tax Act, 2006 - HELD THAT:- The petitioner has filed the rectification application under Section 84 of the TNVAT Act, 2006 on 01.10.2021. The respondent has proceeded to pass the impugned rectification order on 12.10.2021 without calling upon the petitioner to furnish the documents even after no personal hearing was granted by the respondent. The respondent should have called upon the petitioner to file the documents and thereafter passed appropriate orders for rectification of the order. This Writ Petition is allowed by directing the respondent to pass appropriate orders within a period of thirty days from the date of receipt of a copy of this order.

Non-deposit of C-Forms - application under Order I Rule 10 of the CPC - HELD THAT:- As per Order I Rule 10(2) of the CPC, the Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out. In MUMBAI INTERNATIONAL AIRPORT PVT. LTD. VERSUS REGENCY CONVENTION CENTRE & HOTELS PVT. LTD. & ORS. [2010 (7) TMI 1159 - SUPREME COURT] the Supreme Court stated that the general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. The impleadment of a party can be on the bas....... + More

Validity of pre-revision notices issued - writ petitioner-dealer sent detailed replies to the pre-revision notices but the impugned orders have been made without considering the objections - violation of principles of natural justice - HELD THAT:- There is a statutory requirement is to give a reasonable opportunity to show cause and that the opportunity has been so given means the response of the dealer has to necessarily be considered while making a revisional order. It may or it may not have been considered by the first respondent but the impugned orders do not say anything about the objections. In other words, there is nothing in the impugned orders to demonstrate that the replies have been considered much less have they been dealt with - impugned orders are set aside on the short point that the objections of the writ petitioner-dealer being objections/replies to pre-revision notices have not been considered. Petition disposed off.

Attachment of property of petitioner - seeking to declare the action of respondent No.1 in attaching her property under the guise of the said notice as illegal and arbitrary - Section 25 of the Andhra Pradesh Revenue Recovery Act, 1864 - Whether the petitioner has got the locus standi and whether there exists any cause of action to challenge the notice titled “Demand prior to attachment of land” dated 30.01.2006 issued by the Deputy Commercial Tax Officer, Khammam? - HELD THAT:- In the case on hand, as per the version of the petitioner herself, the property was got registered in her name in the year 2006. Of course, her version is also that she came into possession of the property through irrevocable General Power of Attorney in the year 2003 and therefore, she got mutated her name in the relevant revenue records. The General ....... + More

Assessment of escaped turnover - time limitation - it is submitted that the impugned orders are clearly vitiated by limitation as the same are beyond six years from the date of assessment - Section 27 of TNVAT Act - Assessment Years 2011-12 and 2012-13 - HELD THAT:- Learned counsel adverting to the impugned order submits that sufficient opportunity has been given to the writ petitioner and in support of her contention, learned counsel draws the attention of this Court to the tabulation which talks about nature of opportunity given. It appears that opportunity has in fact been given to the writ petitioner, but there are lacunae, which this Court is able to see. They are, the impugned order does not say what transpired on 07.12.2020 and does not even mention the term 'personal hearing'. The other lacuna is, objections, though receiv....... + More

Collection of differential tax - compounded tax for dealers in ornaments or articles of gold, or other metals were retrospectively amended for the year 2011-12 - interpretation of the validation clause - HELD THAT:- Under S. 8(f)(i) of the KVAT Act, the rate of compounded tax for dealers who opted to pay tax under the section for the first time was marginally higher than those who had opted to pay the tax at compounded rates from the previous year or even before that period. Section 8(f)(v) of the Act dealt with the category of dealers who had opted for compounded tax from the previous years. It may be essential to extract section 8(f)(i) and S.8(f)(v) of the KVAT Act as it stood on 31-03-2011. As per the provisions of Article 196(5) of the Constitution of India, a Bill pending before the Legislative Assembly of a State shall lapse on dis....... + More

Seizure of agricultural produce recovered from the godown - reliability of documents produced like photo copies of the revenue records like Khasara and Khatauni - scope of the term dealer - HELD THAT:- The proviso to the definition of dealer excludes a person who is not a body corporate, and who sells agricultural or horticultural produce grown by himself or grown on any land in which he has an interest, whether as owner, usufructuary mortgagee, tenant, lessee or otherwise, in respect of such goods. From perusal of the record of this revision particularly the order of seizure as well as the first appellate order, this primordial aspect has not been taken into account by the authorities concerned. Under the circumstances and the facts of the present case, there is no such issue in the order passed by the Tribunal that may warrant framing of question of law under Section 58 of the Act. Revision fails - revision petition dismissed.

Dishonor of Cheque - guilty of having committed offence punishable under Section 138 of the Negotiable Instruments Act - HELD THAT:- Having taken note of the fact that entire amount of compensation stands received by the respondent-complainant and respondent has no objection in compounding the offence, this Court sees no impediment in accepting the prayer made on behalf of the petitioner for compounding of offence while exercising power under Section 147 of the Act as well as in terms of guidelines issued by the Hon'ble Apex Court in DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT], wherein it has been 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 courts below. The petitioner-accused is acquit....... + More

Dishonor of Cheque - discharge of legal debt and liability - rebuttal of presumption - offence under Section 138 of NI Act - reversal of the order of acquittal of accused - HELD THAT:- It is settled law that when an appeal against acquittal is being considered, the appellate Court shall not reverse the order of acquittal only because another view in the matter was possible on the basis of the material on record, when the view adopted by the Court below while acquitting the accused was a reasonable and possible view. Therefore, the test to be satisfied by the appellant while seeking reversal of the order of acquittal is a stringent test and the material on record will have to be appreciated in that context. In the present case, the Magistrate has acquitted the respondent no. 1 on the basis that the complaint filed by the appellant for dish....... + More

Dishonor of cheque - denial of reasonable opportunity to explain the incriminating circumstances - rebuttal of statutory presumptions - burden of proof on the complainant or not - HELD THAT:- In the present case, the complainant has presented a probable story supported by evidence. It stands established that he developed a relationship with the accused who was a cashier at the Kailashahar branch of SBI where the complainant used to come for drawing his pension. It is not denied that as an employee of the bank the accused maintained a bank account in the said branch of the bank. The fact that the accused visited the house of the complainant and requested him to give loan of ₹ 4,50,000/- also stands established. PW-2 has supported the evidence of complainant PW-1 that in his presence the complainant gave the loan in cash to the accuse....... + More

Dishonor of Cheque - insufficiency of funds - expiry of statutory period - acquittal of the accused mainly on the grounds that cognizance of the offence under Section 138 NI Act was taken before expiry of the statutory period of 15 days commencing from the date of receipt of the demand notice - condonation of delay in terms of the proviso to clause (b) of sub-section (1) of Section 142 NI Act - HELD THAT:- In the case of YOGENDRA PRATAP SINGH VERSUS SAVITRI PANDEY & ANR. [2014 (9) TMI 1129 - SUPREME COURT], appellant filed a complaint under Section 138 NI Act against respondent No. 01 before expiry of the statutory period of 15 days and the Magistrate took cognizance of offence and issued summons to the accused who assailed the order in a petition under Section 482 CrPC before the High Court. The High Court held that since the complai....... + More

Equitable Mortgage - seeking to direct the petitioner Bank to deposit before the court the whole of the auction amount received in the SARFAESI sale proceedings - HELD THAT:- To enable the decree holder to participate in the assets of a judgment debtor, the following conditions are to be satisfied by the decree holder; namely, (i) decree holder claiming share in the rateable distribution should have applied for execution of his decree to the appropriate Court, (ii) such application should have been made prior to the receipt of the assets by the Court, (iii) the assets of which a rateable distribution is claimed must be assets held by the Court, (iv) the attaching creditor as well as the decree holder claiming to participate in the assets should be holders of decrees for the payment of money, and (v) such decrees should have been obtained ....... + More

Dishonor of Cheque - signatories of the defaulted cheque - Liability of Chairman / Managing Director - burden to establish the applicability of the exemption created by the second proviso to Section 141 of the Act - case of applicants is that no proceedings may continue against any of the accused persons/applicants by virtue of the bar created by the second proviso to Section 141 of the Act - HELD THAT:- In the context of the present facts, none of the applicants namely Krishan Mohan Pandey, Manoj Kumar Pathak, Bhikari Singh and Yogesh Shukla are shown to be either officers of the Central Government or the State Government or a Financial Corporation owned or controlled either by the State Government or Central Government. It is also not shown that they had been nominated as Directors of the Corporation by virtue of that office held. On th....... + More

Dishonor of Cheque - existence of legal debt/liability or not - guilty of offence under Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- There cannot be any quarrel with the proposition that the jurisdiction being exercised by this Court in revision necessarily limits the scope to interfere in concurrent findings rendered by the two Courts below against the applicants. Nonetheless, if the applicants are able to demonstrate that the findings rendered by the two Courts below are erroneous, perverse and wholly unsustainable, the impugned judgments and orders can certainly be interfered with. A perusal of the nature of cross examination of the witnesses of the respondent and the manner in which defence evidence was led by examining witnesses, it becomes clear that the material brought on record fell way short of rebutting the....... + More

Dishonor of cheque - denial of issuance of cheque and signatures - presumption as available under Section 118 and 139 of NI Act - HELD THAT:- This court finds no force in the submission made by learned counsel for the petitioner that the learned courts below have misread the evidence, as a consequence of which findings, detrimental to the accused have come on record, rather, careful perusal of evidence led on record by the parties clearly proves that the accused with a view to discharge his liability issued cheque in the sum of ₹ 50,000/- to the complainant, but the same was dishonoured on account of insufficient funds in his bank account. Once there is no denial of issuance of cheque and signatures thereupon, presumption as available under Ss. 118 and 139 comes into play. Section 118 and 139 of the Act clearly provide that it shall....... + More

Dishonor of Cheque - discharge of legally enforceable liability or not - existence of valid agreement between parties or not - HELD THAT:- Indisputably, complainant was a member of ‘COC’ and he accepted the consideration from the accused for not preferring an appeal against the order of the NCLT. Section 23 of the Contract Act, lays down that ‘Consideration’ or ‘Object’ of the agreement is unlawful, if it is forbidden by law or would defeat the provisions of law or would involve injury to any person or property of another or the Court considers it, as immoral, or opposed to public policy. It may be stated that it is contrary to the public policy to induce public officer for money or other valuable consideration, to use their position/office and influence to procure benefit. The agreement between the Com....... + More

Dishonor of Cheque - breach of contract - offence of cheating - contention of the learned counsel appearing for the petitioner is that absolutely there is no intention whatsoever to deceive the 2nd Respondent/defacto complainant - HELD THAT:- The Courts have quashed the proceedings when the companies were not arrayed as accused and the allegations primarily targeted the company. In such a situation the company not being made a party and the Directors of the company prosecuted in their individual capacity were relieved from the criminal prosecution. It is not the case in the present FIR. The very allegation of false assurance on payment of money made against the A1 and A2 in their individual capacity. Therefore, this Court is of the view that merely the company is not made as a party, it will not absolve the petitioners when the allegation....... + More

Smuggling - narcotics medicine covered under the Narcotics Drugs and Psychotropic Substances Act, 1985 - 4200 tablets of Zolpidam - 6000 tablets of Alprazolam - 12000 tablets of Tramadol - admissibility of statements u/s 67 of the NDPS Act - HELD THAT:- The facts stated in the charge sheet do show prima facie the petitioners were dealing with narcotics and psychotropic substances in large scale. The petitioner Bablu Bhagwan Dangre allegedly had a company under the name of Krivi Infotech which used to deal with narcotic tables and an bank account in HDFC Bank, Nagpur and all the payments were received in this account in relation to the tramadol and other narcotic tablets were being used by petitioners along with Barun Chauhan. It is alleged all the orders of Tramadol tablets were received from India or other countries through mail or on ph....... + More

Dishonor of Cheque - cheque was issued for discharge of legal liability towards complainant or not - failure to rebut the onus of proof and statutory presumption under Sections 118(a) and 139 of the NI Act - acquittal of the accused - HELD THAT:- It is well settled by catena of decisions that an appellate Court has full power to review, re-appreciate and consider the evidence upon which the order of acquittal is founded. However, the Appellate Court must bear in mind that in case of acquittal, there is prejudice in favour of the accused, firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocenc....... + More

Principles of natural justice - petitioner’s right to cross-examine the complainant was closed - issuance of non-bailable warrants - HELD THAT:- It is apparent that mere change of counsel cannot be a ground to recall a witness. It is further discernible that no prejudice would be caused to an accused if relief of recalling a witness is denied, considering that the accused was given sufficient opportunity to examine the witness but he failed to do the same - At this stage, learned counsel for the petitioner has prayed that only one opportunity may be granted to the petitioner to lead defence evidence. He submits that if permitted, the petitioner undertakes to examine the defence witnesses in one day. Doubtless, the petitioner is guilty of delaying the trial, however, this Court cannot lose sight of the fact that a fair trial is the h....... + More

Dishonor of Cheque - vicarious liability against the appellants - legally enforceable debt or other liability - furnishing of ‘security’ is covered under the provisions of Section 138 of the NI Act - Magistrate in view of Section 202 CrPC - postponment the issuance of process - HELD THAT:- The explanation to Section 138 of the NI Act provides that ‘debt or any other liability’ means a legally enforceable debt or other liability. The proviso to Section 138 stipulates that the cheque must be presented to the bank within a period of six months from the date on which it is drawn or within its period of validity. Therefore, a cheque given as a gift and not for the satisfaction of a debt or other liability, would not attract the penal consequences of the provision in the event of its being returned for insufficiency of f....... + More

Principle of Issue Estoppel - whether, in view of the award declared by the Housing Commissioner, M.P. Housing Board, who was appointed as an arbitrator pursuant to the order passed by the High Court in Writ Petition No.9131 of 2008, was it open for the respondent - contractor thereafter to file a reference before M.P. Arbitration Tribunal with respect to the very claim/claims which were the subject matter of arbitration before the Arbitrator - Housing Commissioner? HELD THAT:- Apart from the fact that the award declared by the Arbitrator - Housing Commissioner was not challenged by the respondent - contractor, even, so long as the said award is not challenged before the higher forum the same is binding between the parties. Even the award or a nullity order has to be challenged before the appropriate forum/higher forum. In the present cas....... + More

Sale of the mortgaged asset - violation of the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and the Security Interest (Enforcement) Rules, 2002 - obligation to comply with Section 13(3A) of the Act - Time Limitation - validity of separate valuation of machinery in the subject property when it obtained the valuation before it sold the property to the 2nd respondent - incumbent on the part of the 1st respondent to obtain a fresh valuation certificate in view of the long gap between the valuation report and the e-auction sale or not. Whether the 1st respondent Bank had an obligation to comply with Section 13(3A) of the Act and give a response to the petitioners’ representation dt.01.11.2016 and whether the Debts Recovery Tribunal was correct in holding that there....... + More

Owner of suit property - joint ownership - legality and validity of the power of attorney and the sale deeds - contention of the respondents is that instead of purchasing suit properties only in the name of Sudarshan Kumar, the appellant incorporated his name in the sale deeds along with Sudarshan Kumar - HELD THAT:- It is an admitted position that the said Sudarshan Kumar did not step into the witness box. Moreover, there is a finding recorded by the District Court that no evidence was adduced by Sudarshan Kumar to prove that certain amounts were transmitted by him from a foreign country to the appellant. This finding has not been disturbed by the High Court. The modified decree passed by the High Court by the impugned Judgment and order proceeds on the basis of the finding that the appellant and Sudarshan Kumar were the joint owners of ....... + More

Dishonor of Cheque - discharge of legally enforceable debt or not - rebuttal of presumption or not - section 138 of NI Act - HELD THAT:- The Court, in the present case, is called upon to give verdict upon factual aspects of the matter which are required to be decided in trial Court. The truth can be unfolded after the evidence is lead in the matter. The proceedings cannot be allowed to be truncated and curtain brought down on the same only for the reason that the petitioners may have some defense which requires consideration in the trial. The argument is also raised that the respondent herein has not controverted the stand taken by the petitioners herein qua the application filed for dropping of proceedings before the trial court and therefore, the complaint is without basis - the Court finds no reason either to interfere in the order dat....... + More

Professional misconduct of Chartered Accountant - High Court of Karnataka appointed Respondent No.3/Chartered Accountant for verification of the books and other documents of the three Transferor Companies and to submit his report - scheme of merger sanctioned based on the report - HELD THAT:- The report was thus a part of the judicial proceedings before the said Court and it was duly considered and deliberated upon by the Karnataka High Court. The Court sanctioned the Scheme of Amalgamation vide judgment dated 26.03.2015 and it is apparent that the Court found no fault with or falsity in the report. Once the report passed the threshold of judicial scrutiny, there was no reason why the Disciplinary Committee of ICAI should have adjudicated the correctness or otherwise of the Report. In fact, the Disciplinary Committee rightly refrained fro....... + More

Dishonor of Cheque - rejection of prayer for waiver of pre-deposit under Section 148 of the Negotiable Instruments Act, 1881 - power of Appellate Court to order payment pending appeal against conviction - Whether in the facts and circumstances, is it a fit case for making an exception for waiver of minimum pre-deposit of 20% of compensation awarded by the trial Court? - HELD THAT:- It is settled law that general rule under Section 148 of the Act is of pre-deposit and waiver is only an exception for which special reasons need to be assigned - It would not be appropriate to pre-judge the appeal at the stage of deciding the waiver of pre-deposit. The petitioners have filed Criminal Miscellaneous Applications annexing their bank account statements and their concerns to support the contention that they are not financialy capable to make the pr....... + More