Deduction u/s 10A - Tribunal directing the AO to exclude the expenditure both from the export turnover and the total turnover - Tribunal justification in holding that interest income is part of 10A deduction - HELD THAT:- When the matter is taken up today, learned counsel for the parties submitted that the first substantial question of law framed by this Court is squarely covered by the judgment of the Division Bench of this Court in the case of CIT VS. TATA ELXSI LIMITED [2011 (8) TMI 782 - KARNATAKA HIGH COURT] whereas, the second substantial question of law is covered by the decision of this Court in CIT VS. MOTOROLA INDIA ELECTRONICS PRIVATE LIMITED [2014 (1) TMI 1235 - KARNATAKA HIGH COURT] . - Decided against revenue.

Nature of expenditure - expenses incurred on projects pertaining to its website 'Rediff.com' - revenue or capital expenditure - HELD THAT:- Order of the Tribunal allowed the respondent assessee's appeal by holding that amounts spent on improvement of website would be in the nature of revenue expenditure, even when the said project was abandoned. The impugned order inter alia also records the fact that the CIT (Appeals) placed reliance upon the decision of Tata Robin Fraser Ltd. [2012 (10) TMI 59 - JHARKHAND HIGH COURT] incorrectly while rejecting the respondent assessee's appeal. No issue of abandonment of a project either in the order of the Assessing Officer or the order of the CIT(A). We also do not find any reference to the decision of the Jharkhand High Court in Tata Robins Fraser Ltd. (supra) mentioned in the orde....... + More

Reopening of assessment u/s 147 - Bogus purchases - information received from the investigation wing - HELD THAT:- AO had nowhere abandoned reasons which were the foundation for issuance of the notice for re-opening. He had considered the objections of the petitioner and disposed them of on the basis of material on record. The sole ground of the petitioner therefore, must fail. See SIL GOLD, PRAKASH SACHIN & CO VERSUS ITO, WARD-53 (4) , NEW DELHI [2018 (12) TMI 1128 - ITAT DELHI] In the present case, notice for re-opening having been issued in the case of assessment which was not framed after scrutiny. AO would have considerable latitude in issuing notice for re- opening if it is found that he had tangible material to form a belief that income chargeable to tax had escaped assessment, it would not be appropriate on our part to str....... + More

Disallowance u/ s 14A r. w. Rule 8D - need for recording satisfaction - HELD THAT:- From the reading of the judgment of the Hon’ ble Apex Court in the case of Maxopp Investment Ltd. Vs CIT [2018 (3) TMI 805 - SUPREME COURT] we find that having regard to the language of Section 14 A(2 ) of the Act, read with Rule 8D of the Rules, it clear that before applying the theory of apportionment, the AO needs to record satisfaction that having regard to the accounts of the assessee suo moto disallowance under Section 14 A was not correct. It will be in those cases where the assessee in his return has himself apportioned but the AO was not accepting the said apportionment, in that eventuality, the Assessing Officer will have to record its satisfaction to this effect. In the instant case, we find that no such satisfaction has been recorded b....... + More

Disallowance u/s 36(1)(iii) - interest expenses incurred on advancement of loans to the sister concerns on account of commercial expediency - appellant's arguments that the advances were made out of own funds and the same was out of commercial expediency - HELD THAT:- Though the assessee made an oral plea that the money had been advanced to the sister concerns on account of commercial expediency, the assessee failed to place any evidence to suggest whether funds advanced by the assessee to the sister concerns was in the nature of interest free own funds or the funds were advanced on account of commercial expediency. Interest paid by the assessee on such account cannot be allowed. The only plea of the assessee is that the assessee had mortgaged its property to avail bank loans for the sister concerns and if the sister concerns faile....... + More

Addition on renovation expenses on lease hold property - Non deduction of TDS - CIT (A) has confirmed the disallowance holding it to be non genuine - Alternatively, the Ld. CIT (A) has stated the repair and renovation expenses are not allowable since TDS was not deducted - HELD THAT:- It is an undisputed fact that the assessee carried out repair and renovation expenses on a lease property which was taken on lease and any such repair and maintenance of lease property cannot be held to be giving any enduring benefit to the assessee, firstly for the reason that leased premises is for temporary period and nature of expenses are purely in nature of repairs. In fact such kind of repairs and renovation expenses on leased premises has been held as revenue expenditure by the various courts as relied upon by the ld. counsel. Accordingly, hold that ....... + More

Condonation of delay - Rectification order u/s.154 - alternative remedy by filing application u/s. 154 - Late fee u/s. 234E - delay in filing appeal against Section 200A of the Act is 1876 days - assessee aggrieved by the order of late fee u/s. 234E but not inadvertently filed appeal before the CIT(A) against the orders passed on the intimation passed u/s. 200A of the Act but filed appeals against the orders passed u/s. 154 - HELD THAT:- Assessee has taken steps to file all these appeals with the relevant appellate authority but was pursuing only alternative remedy by filing application u/s. 154 of the Act i.e., rectification proceedings were taken up to the Tribunal and consequently, the assessee was made aware by their Chartered Accountant about the consequences of these rectification proceedings, the assessee immediately prepared the a....... + More

Revenue recognition - Percentage of completion method - Revenue recognized significantly based on principle of AS-9 (Accounting Standard as per ICAI) - HELD THAT:- Assessee has two main stream of revenues, one from ‘NOP’ Project and from other project. Assessee is basically construction contractor and also indulged in developing and sale of project named ‘NOP’. On overall basis, assessee is following percentage completion method. Whether the method of percentage of completion method can be applied for construction contract as well as real estate development project with reference Guidance Note GN(A) 23 (R2012). Assessee has commenced this project in AY 2006-07 and completed the whole project. It developed the total saleable area of 56727 Sq. ft. and upto AY 2012-13, it sold 46006 Sq. ft, this assessment year, it....... + More

Unexplained deposit in assessee’s bank account - proof of spending earlier withdrawals made by the assessee - HELD THAT:- Department has no material to show that the earlier withdrawals made by the assessee has been spent for any specific purposes and not the said amount available with the assessee to redeposit into the bank account. There is also no evidence that the assessee has made withdrawals on various dates for any other purposes than the admission of assessee’s son in a medical college. It cannot be said that the withdrawals have not been utilized to redeposit with the bank account. Therefore, it has to be presumed that the assessee has withdrawn the cash and the same remained to be unutilized for one reason or the other, and the cash remained with the assessee. In such circumstances, due credit has to be given for ....... + More

Registration u/s 12AA - Trust exists solely for education and advancement of general public utility OR for profit - CIT(Exemption) rejected the registration merely on the ground of non furnishing of documents/information by the assessee to study the bona-fides of the objects of the assessee's Trust - HELD THAT:- Finding recorded by the Ld. CIT(Exemption) that the registration cannot be granted for the assessee as it is involved in imparting the training to the employees of the state govt, is incorrect and contrary to the law. For this purposes, we may rely upon the decision of CIT Vs. Andhra Pradesh Police Welfare Society [1983 (3) TMI 19 - ANDHRA PRADESH HIGH COURT] and Water and land Management Training Research Institute [2015 (6) TMI 248 - ITAT HYDERABAD] and DIT Vs. National Safely Counsel [2015 (6) TMI 248 - ITAT HYDERABAD]. ....... + More

License/registration fee paid - whether is a commercial right and in the nature of an asset within the meaning of section 32(1)(ii) and the assessee is entitled to claim depreciation thereon? - capitalization of expenditure for special Dunnage whereas debiting the expenditure for ordinary Dunnage to the profit and loss account and claimed the same to be revenue expenditure - HELD THAT:- Assessee has been using two types of Dunnage, though for the same purpose, but with two different life times, namely, the special Dunnage having life time of more than five years, whereas the ordinary Dunnage has to be used only for one year and un-usable thereafter - the assessee has capitalized the expenditure on the special Dunnage in their accounts and has been claiming depreciation @ 16% per annum over the useful period and on the same analogy in resp....... + More

Assessment u/s. 153A - survey action u/s. 133A - HELD THAT:- In view of the uncontroverted and admitted statement given on behalf of the assessee u/s. 133A and the documents impounded during the survey, which were also virtually admitted by the assessee, there was no error in the order of the Tribunal in accepting the materials on record in order to arrive at an assessment. We cannot say that there was no search action u/s. 132 of the Income Tax Act so as to frame assessments u/s. 153A of the I.T. Act. The assessments were also based on material gathered during the course of survey u/s. 133A - See HOTEL MERIYA [2010 (5) TMI 556 - KERALA HIGH COURT] - we are inclined to dismiss this ground of the assessee. Unaccounted sale receipts in the form of cash - Estimating the collection of cash outside the books - HELD THAT:- We direct the A....... + More

Deemed dividend u//s 2(22)(e) - assessee to be in default u/s 201/201(1A) - HELD THAT:- The assessee company had advanced the loan to its associated concern M/s. Arihant Agencies which was then transferred to the account of Sh.Dinesh Kumar Jain and the fund was transferred back to the assessee company on the same day as Director’s share capital. We find that the issue of deemed dividend u/s 2(22)(e) of the Act in respect of similar transaction being made wherein the transaction of receipt and payment were on the same date itself by both the parties, arose before the Tribunal in series of cases i.e. Seema Devi Bansal i[2018 (7) TMI 1545 - ITAT DELHI] relating to Assessment Year 2010-11 and Sh. Harish Kanwar [2017 (10) TMI 997 - ITAT DELHI] relating to Assessment Year 2011-12. We have also decided similar issue in Surbhi Jain vs IT....... + More

Disallowance u/s 14A r.w.r 8D - HELD THAT:- In this case, the assessment year involved is 2006-07. Rule 8D was introduced with effect from 24/03/2008 which was prospective in operation and cannot be applied retrospectively as held by the Delhi High Court in the case of Maxopp Investment Ltd. vs. CIT [2011 (11) TMI 267 - DELHI HIGH COURT]. Accordingly, we direct the AO to disallow only 2% of expenses incurred towards exempted income. Thus, this ground of appeal of the assessee is partly allowed. Addition of sale proceeds of Rubber Trees and of timber under Rule 7A of the Income Tax Rules.1962 - as contended that Rule 7A cannot be applied as the income from sale of rubber trees is not agricultural income - HELD THAT:- High Court observed in the case of Harrisons Malayalam Ltd [2019 (1) TMI 1359 - KERALA HIGH COURT] that sale of old an....... + More

Disallowance of unpaid service tax u/s 43B - credit balance of service tax payable - HELD THAT:- As considered by the co-ordinate Bench of the ITAT, Hyderabad Benches in the case of M/s. Bartronics India Ltd. v. ACIT [2012 (6) TMI 61 - ITAT HYDERABAD] that when the assessee has not paid the service tax as required under the provisions of section 43B, which is also very much covered u/s 43B. The provisions of section 43B of the Act is very clear and it states that “any sum payable by the assessee by way of tax, duty, cess or fee, by whatever name called, under any law for the time being in force Service tax collected by the assessee and not paid to the Government exchequer before the due date of filing of return, is to be disallowed, though it was not charged to the profit and loss account and it attracts the provisions of section....... + More

Rejection of books of accounts - Suppressed production - determination of quantum of clay which can be extracted/produced from mines - HELD THAT:- AO has proceeded ahead and basis his own investigation and understanding of the mining process involved, and basis his own calculation and understanding of variables has worked out the quantum of clay which could be extracted from one of the mines owned by the assessee without referring the matter to the domain experts in the field of mining such as geologists and mining engineers. AO in the instant case, was totally unsuited for undertaking the activity of determining the exact production of the material, which itself involves very complicated procedures.” Such calculation AO has determined the shortfall or suppression in the clay production vis-à-vis production disclosed by....... + More

Reopening of assessment u/s 147 - non disposing off the objection raised by the assessee - HELD THAT:- Reassessment proceedings completed without disposing off the objection raised by the assessee cannot be sustained and consequent reassessment order u/s 147 r/w 143(3) is hereby quashed and set aside. - Decided in favour of assessee.

Addition u/s 36(1)(iii) - Less interest charged from the partners - A.O. disallowed the difference of the interest actually charged i.e. @12% and the interest that should have been charged i.e @15% - HELD THAT:- Assessee has paid interest on unsecured loans during the impugned year at an average rate of 10% which is demonstrated from the facts and figures of unsecured loan and interest paid thereon reflected in the financial statements of the assessee which are duly audited. The revenue has been unable to controvert before us. Since the basic premise with the revenue for making disallowance in the present case U/s 36(1)(iii) was that the assessee had charged less interest on the advances made to its partners and others as opposed to that paid on borrowings made by it, the same does not survive since the assessee has demonstrated that i....... + More

Revision u/s 263 - depreciation u/s.32(1) on expenditure was incurred towards export product development expenditure - HELD THAT:- If the AO allowed depreciation for the assessment year 2013-14 without due application of mind, the PCIT ought to have revised the order for the assessment year 2013-14. It may not be correct to say that the AO has not applied his mind for the assessment year 2013-14 in the proceeding for the assessment year 2014-15. The fact remains is that on identical expenditure the Assessing Officer disallowed the claim of the assessee u/s.37 and treated the same as capital expenditure and allowed depreciation. This order of AO attained finality. For the assessment year 2014-15 which is under consideration, the AO by following his own order allowed the claim of the assessee for depreciation at the rate of 25%. When the....... + More

Penalty u/s 271BA - non- filing of report as required u/s 92E in respect of the international transactions - penalties thus proceed on the basis that there were ‘international transactions’ that the assessee had with its associated enterprises - HELD THAT:- We have held that the Kaybee Exim Pte Ltd, which is alleged to be an associated enterprises of the assessee, is not an associated enterprise of the assessee Once we hold that the assessee and the alleged AE could not be treated as associated enterprises, and there are no other alleged ‘international transactions’ on the facts of this case, it could not be said that the assessee had entered into any international transactions. As a corollary to this finding, the very foundation of impugned penalties ceases to hold good in law. The impugned penalties, therefore, must be deleted. - Decided in favour of assessee.

Addition on account of peak investment with regard to interception of gold jewellery in Mumbai airport which was sold to M/s SBM Jewellers - HELD THAT:- Interception of above said jewellery was made on 14.02.12 and subsequently assessee has already recorded the above said sales in its books of accounts and the same was part of the turnover disclosed in return of income submitted before tax authorities. Since, these sales were already recorded in the books of accounts, we do not see any reason to interfere with the order passed by Ld. CIT(A), accordingly ground no. 1 raised by the revenue is dismissed. Undisclosed sales and undisclosed stock which was found during survey proceedings - HELD THAT:- We notice that the stock found during survey proceeding to the extent of 3,863.697 gms and assessee has already shown in stock in trade to the....... + More

Late filing fees payable u/s 234E - Intimatation u/s 200A - defaults of non-filing of TDS statements - HELD THAT:- Unavailability of enabling the provisions to the AO for levy of late filing fees on the assessee in respect of defaults of non-filing of TDS statement for the period prior to 01.06.2015. We find that this issue has already been adjudicated by the Co-ordinate Bench of the Tribunal, Nagpur (through e-Court, Pune) in the case of M/s. Rajyas Software Pvt. Ltd. Vs. ACIT, CPC-TDS, Ghaziabad & Others. [2020 (1) TMI 1192 - ITAT NAGPUR] We direct the Assessing Officer to examine closely the facts, dates of defaults, claims of the assessee etc once again and ensure that the above law is correctly applied to the facts of the present set of 111 cases. In case, the default pertains to the period later to 01.06.2015, the provisions for late filing fees u/s 234E r.w.s. 200A - Decided in favour of assessee.

Business income taxability - year of assessment - land held by the assessee as stock in trade - as per CIT-A it is taxable only in the year of sale of Villas and not in the relevant AY - HELD THAT:- In the case of a capital asset, if it is transfer under any of the provisions of section 2(47), coupled with handing over of possession of the capital asset, capital gain is to be offered on mercantile basis in the year in which the possession is given. As rightly pointed out by the CIT(A) in the case of the assessee, the land has been treated as stock-in-trade and the assessee has only contributed its portion of land to the JDA and is liable to offer business income in the year in which the stock-in-trade is sold. The CIT(A) has observed that the assessee has offered business profits in the AYs 2015-16 and 2016-17 i.e. the years in which the ....... + More

Reopening of assessment u/s 147 - addition received by the Assessee as non-refundable grant under section 28(iv) - application of section 44AB - HELD THAT:- Income billed by the Firm to its clients towards rendering of professional services is taxable under the head 'Profits & gains of business or profession'. Another grievance of the AO was that assessee did not get his accounts audited u/s 44AB - in case of an assessee carrying on profession, (for A.Y. 2009-10), is required to get his accounts audited in terms of section 44AB if his gross receipts in profession exceeds ten lakh rupees in any previous year. In the assessee`s case under consideration the gross receipts therefore assessee is not required to get his accounts audited u/s 44AB. Interest income does not fall under the head “income from business or professi....... + More

Stay of demand - Condition of depositing 20% of the tax demanded complied with - respondent no.2 through Ext.P12 calls upon the petitioner to pay the balance of 80% tax under challenge in Ext.P4 appeal - HELD THAT:- After chronologically taking note of the dates referred to above, this court is of the view that Ext.P12 ought not to have been issued once the petitioner has complied with the condition of depositing 20% of the tax demanded. It could be that, in Ext.P10 stay has been granted upto 30.09.2019 and the appeal in Ext.P4 is not yet heard. This Court is of the view that the amounts demanded through Ext.P12 if is carried out, the appeal filed by petitioner will be more in the nature of academic pursuit of objections. To meet the ends of justice, the writ petition stands disposed of by this judgment, in the circumstances of this ca....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Permission for withdrawal of Advance Ruling application - classification of goods - determination of tax rates - HDPE SPRINKLER FEMALE COUPLER, HDPE SPRINKLER MALE COUPLER, HDPE SPRINKLER TEE, HDPE SPRINKLER BEND, HDPE SPRINKLER END CAP, HDPE PUMP CONNECTING NIPPLE, HDPE SPRINKLER ADOPTOR, HDPE SPRINKLER REDUCER and HDPE NIPPLE - HELD THAT:- The request to withdraw the application is considered. Application dismissed as withdrawn.

Classification of services - rate of tax - works contract or not - sub-contract - NHAI has executed an agreement with a Contractor for the development of a four-lane highway - applicability of Entry (iv) of Heading 9954 of the Rate Notification - HELD THAT:- The applicant is proposing to submit a bid for shifting / erection of electrical lines only to M/s Sadbhav Jodhpur Ring Road Pvt. Ltd who is the main Contractor of NHAI. Thus the activity to be carried out by the applicant is restricted to shifting / erection of electrical lines only - Further, the details mentioned in the Article XI of the agreement as well 05.12.2019, as description of work mentioned in said letter dated specifically indicates the independent nature of work to be carried out by the applicant for which such cost will be borne by the authority or by the owning entity ....... + More

Supply or not - activity of depositing the timber by the Appellant to the Government Timber Depot - whether ‘supply’ in terms of Section 7 of the CGST Act or not - Government Timer Depot - Agent of appellant or not - condonation of delay of 29 days in filing the present appeal - HELD THAT:- The Appellant has stated that the delay had occurred since they wanted to take proper legal advice before filing the appeal and that they were busy with the GST audit. Considering the submissions made by the Appellant, the delay in filing the appeal is hereby condoned in exercise of the power vested in terms of the proviso to Section 100(2) of the CGST Act. Supply or not - HELD THAT:- In the instant case, there is a transaction in goods in as much as timber is being deposited by the Appellant to the GTD. This transaction is mandated by a....... + More

Eligibility for GST input tax credit - detachable 14mm Engineered Wood with Oak top Wooden Flooring which is movable in nature - detachable sliding and stacking glass partition which is movable in nature - capitalized as “furniture and fixture”, and is not capitalized as “immovable property” - challenge to AAR decision - HELD THAT:- In the instant case, the foremost test to be applied for triggering the restriction under Section 17(5)(d) is whether an activity of fixing the detachable sliding and stackable glass partitions qualifies as ‘construction of an immovable property’ or not. The normal understanding of the term ‘construction’ is to ‘make or build’ something. For the purpose of Section 17(5)(d), the term ‘construction’ has been defined to include ‘re-cons....... + More

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

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

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

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

SEZ unit - Purchase of High-Speed Diesel (HSD) without payment of excise duty from a local refinery - validity of Guideline dated 6.4.2015 bearing Reference No. P.613/2006-SEZ - period in dispute between 1.4.2015 and 15.02.2016 - HELD THAT:- The liability to pay excise duty is on the manufacturer and not the buyer though burden of such duty is passed on the to the buyer. There is no provision under the Central Excise Act,1944 by virtue of which excise duty is payable on reverse charge basis by the buyer. Therefore, interpretation of the provision of Special Economic Zones Act, 2005 cannot be in direct violation of the provisions of the Central Excise Act, 1944. Duty if any, is payable only by the manufacturer - Further, the exemption under Section 26(1) is subject to the restriction in section 26(2) of the Act. The phrase used in section ....... + More

Principles of Natural Justice - request for cross examination denied - valuation of imported goods - short duty paid goods - HELD THAT:- Though it was submitted that the statements recorded from the petitioners were retracted, there are no material on record found - Neither the petitioner nor the respondents have filed any of the statements of the persons recorded under Section 108 of the Customs Act, 1982 nor the letter of retraction. Since the primary purpose of obtaining statement under Section 108 of the Customs Act, 1962 was for investigation and not for obtaining confessional statements/admission of liability, the respondents were asked to find out whether they could proceed with the show cause proceedings based on evidence gathered without placing primary reliance on the statements recorded from any of the three persons - the ob....... + More

Waiver / remission from payment of demurrage charges,Transshipment and other charges - storage of containers by the custodian of the goods - Rejection of issue of “Detention Certificate’ - delay in transshipment - It is the case of the petitioner that since it has wide-bodied cargo aircrafts and since there is no facility for landing of such aircrafts in Trivandrum, the petitioner brought the cargo in these aircrafts to the Chennai International Airport for being transshipped to Trivandrum/Calicut by road - petitioner requested to issue of “Detention Certificate’ to claim waiver / remission from payment of demurrage charges from the 3rd/4th respondent at the earliest - HELD THAT:- The procedure for issue of “Detention Certificate’ was contained in Public Notice No. 111 of 1985 dated 29.07.1985 of the Bo....... + More

Jurisdiction - power of DRI Officials to issue SCN - HELD THAT:- The issue relating to jurisdiction of DRI Officials to issue show cause notice to the Assessee in such cases is said to be pending before the Hon'ble Supreme Court in the case of Mangli Impex vs. Union of India [2016 (5) TMI 225 - DELHI HIGH COURT], in which the Hon'ble Supreme Court has granted stay order - in view of the fact that the learned Tribunal has clearly protected the interest of both the Revenue as well as the Assessee by directing the Assessing Authority to keep the matter pending and maintain status quo till the Hon'ble Supreme Court decides the appeal of the Revenue in the case of Mangli Impex, filed against the decision of the Delhi High Court, we do not find any reason to interfere with the decision of the Tribunal, as in our opinion, no question of law arises for consideration in this appeal. Appeal disposed off.

Permission to amend the shipping bill - HELD THAT:- Respondent No.2 states that though the power exist to correct a shipping bill under Section 149 of the Customs Act, a proper application needs to be made by the Petitioner, to be considered as per law. The learned Counsel for the Petitioner states that an application will be made within a period of one week from today - If such application is made within a period of one week from today, the learned Counsel for Respondent No.2 on instructions states that it would be decided as per law within a period of four weeks. Statement is accepted. Petition disposed off.

Issuance of license and allocation of quota qua Calcined Pet Coke - Request for allocation of CPC - limitation on quantum of CPC - HELD THAT:- Reliance placed in the case of M.C. MEHTA VERSUS UNION OF INDIA & ORS. [2018 (11) TMI 1352 - SUPREME COURT] where it was held that Calcined Pet Coke (CPC) (domestic as well as imported) can be used as raw-material for anode making in the Aluminium industry with the revised BIS specifications, the imported raw-material cannot exceed 0.5 MT per annum in total. Nothing survives in the captioned writ petition and the interlocutory application, and the same can, thus, be disposed of - The matter is, however, directed to be listed for compliance, at the request of counsel for parties, on 04.06.2020.

Calculation of interest on delayed refund - relevant date - correction of calculation of interest from 27.01.2010 namely from the date on which the interest claimed is to be paid - Section 27(1)(a) of the Customs Act, 1962 - HELD THAT:- Tribunal after considering rival contentions raised has rightly held that claims were returned due to deficiency and deficiency memos having been addressed itself would evidence that there cannot be a claim for interest as no show cause notice was issued, is erroneous conclusion as provisions of Section 11B of the Central Excise Act, 1944, do not contemplate for returning of any refund claims - As rightly held by the Tribunal cause of action for claiming interest would arise after 3 months from the date of filing of said refund claim. If at all the application is defective, it would only be an irregularity....... + More

Smuggling - Contraband Gold - Confiscation - imposition of penalty u/s 112(a) of the Customs Act, 1962 - HELD THAT:- Reading of Section 122 of the Customs Act, 1962 indicates that in every case under the said Chapter i.e., Chapter XIV under which anything is liable to be confiscated or any person is liable to be imposed with the penalty has to be adjudicated under Clause (a) of Section 122 of the Act by the Principal Commissioner of Customs or Commissioner of Customs or a Joint Commissioner of Customs without limit. Under Clause (b) the penalty has to be adjudicated by the Assistant Commissioner of Customs or Deputy Commissioner of Customs where the value of goods came to be confiscated does not exceed ₹ 5 Lakhs and under Clause (c) same shall be adjudicated by a Gazetted Officer of Customs lower in rank than an Assistant Commission....... + More

DFIA (duty free import authorisation) License - requirement of disclosure of technical characteristics, quality and specifications of the essential oil said to have been used in manufacture of Paan Masala/Gutka - contention of the exporter that the declaration requirement of the exception notification is applicable only if the exported goods are included in the list of items enumerated in paragraph 4.55.3 was not accepted by the Hon’ble High court - HELD THAT:- No doubt the show cause notice in the present case has been issued after a period of expiry of two years as mentioned in the said section. But the show cause notice itself has alleged the suppression of facts on part of the exporter. The same has even been confirmed by the original adjudicating authority as in Para-21 of the order dated 04.06.2015 it is appreciated that the n....... + More

Restoration of mistake - recall of the order - HELD THAT:- In the order dated 04.12.2013 while disposing the stay application filed by the various appellants including the present appellant, this Tribunal directed pre-deposit 10% of the penalty imposed on each of them. Thereafter, time and again, the appellant filed modification applications repeating the same grounds of financial difficulty. Each of the said modification application had been rejected on merit by this Tribunal. Also, while rejecting the respective modification applications, extension of time of deposit was granted to the appellant for compliance of the stay order. Instead of complying with the directions, the appellant indulged on dilatery tactics to avoid the deposit of the directed amount by filing modification applications time and again repeating the same grounds. The....... + More

Reallocation of Raw Petroleum Coke to the Petitioner commensurate to its total installed capacity - grievance of the applicant/petitioner is that it has a certificate reflecting its production capacity issued in November, 2018 but has other available documents relating to July, 2018 establishing that its enhanced capacity existed from July and was not created after 09.10.2018, i.e. after the judgment of the Supreme Court - HELD THAT:- In agitating this issue qua the Public Notice dated 17.04.2018, it is in effect seeking a variation of this condition relating to the production capacity, as on 09.10.2018, so that when a decision is taken in the future for allocation of 1.4 LMT of imported RPC, the higher capacity is considered, to its benefit. Clearly, such a relief cannot be claimed by means of an application in a writ petition which is c....... + More

Contempt petition on Customs Broker (CB) alongwith several official enquiry - applicability of Section 147(2) of the Customs Act, 1962 - principles of natural justice - HELD THAT:- Section 147(2) of the Customs Act, 1962 is applicable to the exporter and not applicable to the agent. The petitioners are the agent and they are nothing to do with the exporters obligations. However, the respondents issued time barred show-cause notice, without jurisdiction - petitioners further submit that the time to reply the show cause notice was expired. The petitioners are permitted to canvass all those points before the adjudicating authority, by way of proper reply, on or before 31.03.2020, and thereafter, the 1st respondent shall complete the adjudication proceedings in respect of show-cause notice dated 25.02.2020 and pass appropriate order, in accordance with law, on or before 31.04.2020 - Petition allowed by way of remand.

Maintainability of appeal - present appeal was filed by the assessee himself whereas the proper remedy was to file revision petition before the appropriate authority - condonation of delay caused due to filing of this appeal before the wrong forum - HELD THAT:- The assertion of the Learned Advocate for the appellant is found to be true since the appeal has been filed wrongly before this forum whereas the proper remedy was to approach the Revisional Authority. Hence, the appeal is required to be rejected as not maintainable before this forum. The Hon’ble Supreme Court in the case of MP. STEEL CORPORATION VERSUS COMMISSIONER OF CENTRAL EXCISE [2015 (4) TMI 849 - SUPREME COURT] has categorically held that the principles of Section 14 of the Limitation Act, 1963 would apply to the proceedings even before quasi-judicial authorities an....... + More

Confiscation of goods - imposition of redemption fine - redemption fine imposed on the ground that the appellant have not complied with the requirement of Stainless Steel Products (Quality Control) Order, 2016 in as much as the appellant is required to affix the BIS Mark on the imported goods at the time of shipment - HELD THAT:- This case there is no dispute between assessee and the revenue. Admittedly the goods were shipped in the month of January, 2017. At that point of time Stainless Steel Products (Quality Control) Order, 2016 had not come into force, same came into force on 07.02.2017 only. In terms of the Para 2.17 of the Foreign Trade Policy,2015-2020 the date of import has to be reckoned, as per the date of shipment/dispatch from the supplying country. The date of shipment that is Bill of Lading which is in month of January, 2017....... + More

Establishment of Special Economic Zone (SEZ) - Cancellation of Co-developer status of the petitioner - Challenge to approval granted by the respondent No.1-Board to the proposal to grant co-developer status to the respondent No.4 in the SEZ at Dahej - Auction of plot by the bank after the default in payment of the loan taken from SIDBI by the petitioner - HELD THAT:- Though the petitioner was granted approval of co-developer and a co-developer agreement was executed between the petitioner and the respondent No.3, who is a developer.the petitioner did not pay the due outstanding service charges from 2013 onwards. Moreover, thereafter plot allotted to the petitioner was sold in auction and sale certificate was issued in favour of the four persons, who are directors of the respondent No.4-Company. The Board of Approval- respondent No.1 was j....... + More

Release of Bank Guarantees - import of Gold Granules - exemption from payment of Customs duty in terms of Sl.No.966 of the table to Notification No.82 of 2018- Cus dt.31-12-2018 amending Notification No. 46/2011 dt. 01-06-2011 - retroactive check of the certificate of origin - HELD THAT:- It is the duty of the respondents to complete the provisional assessment and also return the Bank Guarantees given by the petitioner towards the exports made by it under the Bills of Entry referred to above since there is no dispute now about the Country of origin of the goods in question - respondents are directed to (i) release six Bank Guarantees furnished by the petitioner on or before 4.5.2020 since the petitioners have given Bonds for the goods covered by the 6 Bills of Entry, and (ii) also complete the provisional assessments in respect of the sai....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Maintainability of appeal - Possession of the four flats with Official Liquidator - police protection granted - protection under Section 53A of the Transfer of Property Act - the Ex-Management submits that the present appeal is not maintainable as it is in the nature of a second appeal - HELD THAT:- The present appeal is maintainable as it is not in the nature of a statutory second appeal. In the present case, the initial claims were decided not by the Official Liquidator but by a Committee appointed by a Division Bench - Consequently, the preliminary objection raised by the learned counsel for the Ex-Management is rejected. The appellants had failed to prove their ownership to the flats in question as they had not produced any original title documents, but only photocopies. Even during the course of hearing, it was admitted before us ....... + More

Voluntary Liquidation - no default committed - HELD THAT:- As per section 59 of the Code, "A Corporate Person, who intends to liquidate itself voluntarily and has not committed any default, may initiate voluntary liquidation proceedings under the provisions of Chapter V of the Code subject to fulfilment of conditions are prescribed thereunder. The Liquidator has complied with all the conditions and procedural requirements as specified under various provisions of section 59 of the Insolvency and Bankruptcy Code, 2016 and also Regulation 3 of IBBI (Voluntary Liquidation Process) Regulations, 2017 before initiating Voluntary Liquidation Process of the Corporate Person. The Liquidator has followed due process of law, and thus affairs of the Company were completely wound up, and its assets were completely liquidated - the instant Petition/Application deserves to be allowed - M/s. Viyes Consultancy Private Limited, Corporate Person is hereby dissolve with immediate effect.

Registering the transfer of shares - issuance of original share certificates in the name of the Appellant - rectification in the Register of Members - HELD THAT:- The individual who has purchased the shares is trying hard from 1998 to get the shares transferred and what has been raised by the NCLT that the matter to be adjudicated by appropriate Civil Court. Now NCLT is appropriate court and NCLAT is the appropriate Appellate Authority. This reflect the attitude of the Respondent No.1 by not intimating to the Appellant at least to provide the document if they have not received instead of approaching various courts and putting mental agony and hardship to the Appellant. The Appellant has provided the details of certificate numbers, registered folio of all these shares and the company should have responded immediately in 1998 if they have n....... + More

Adjournment of conducing Annual General Meeting (AGM) - stay on result of election and/or voting - Ex parte ad­interim or interim order - scope of an appeal - three appeals are against ad­interim orders when only the parties to the testamentary suit were present before the Court - Order 41 Rule 22 of the Code of Civil Procedure, 1908 - HELD THAT:- The impugned order dated 2nd August, 2019, as clarified by the order dated 5th August, 2019, is, therefore, not sustainable in view of the fact that orders and/or directions were passed interfering with the holding of AGM by Companies which are separate juristic entities without first deciding the issue of jurisdiction. Even if the deceased held shares in such Companies, which are subject matter of the bequest under the Will in question, the jurisdiction to pass orders in respect thereof....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make payment of dues - existence of debt and dispute or not - HELD THAT:- In annexure P18 dated July 5, 2015 of the respondent-corporate debtor written to the petitioner, categorically admitted and acknowledged the debt of ₹ 3,72,19,060 due to the petitioner. Thereafter, after adjusting the amount paid by the respondent-corporate debtor, the debt due was ₹ 2,66,82,849 and after adding the interest thereon the total amount of debt due and in default was ₹ 6,36,10,875. Annexure P5/A of the petition, i. e., the certificate under section 9(3)(c) of the IBC Code, 2016 issued by the State Bank of India also confirms the admission and part payment of various amounts by the respondent-corporate debtor to the petitioner - The petitioner proved the de....... + More

Duties of IRP - collation of claims of "financial creditors", "operational creditors", etc., both domestic and international - control and custody of all the assets over which the "corporate debtor" has ownership rights - HELD THAT:- In view of such duties empowered on the "interim resolution professional", he is required to collate the claim of all "offshore creditors" or take control and custody of the assets of the "corporate debtor" situated outside India (in Holland) or other places, but for giving it effect the "resolution professional" is required to reach an arrangement/agreement with the administrator appointed pursuant to the proceeding initiated at Holland. The question as to whether the "committee of creditors" have any role to play is left open....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Provisional Attachment of property - money laundering - proceeds of crime - reasons to believe - issuance of show‐cause notice under Section 8(1) of the PMLA - It is argued that the “reasons to believe” under Section 8(1) was a necessary pre‐requisite of the notice and had to be disclosed to the petitioner for the latter to effectively give a reply - HELD THAT:- Although Section 5 specifically mentions that the reason for such belief is to be recorded in writing, such requirement is absent in Section 8. Section 8 stipulates that if the AA has reason to believe that any person has committed an offence under Section 3 or is in possession of proceeds of crime, it may serve a notice of not less than thirty days on such person calling upon him to indicate the sources of his income, earning or assets, out of which or by ....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ex parte ad interim order - as directed by WTM of SEBI in the second part of direction no. (iv) the NSDL and NSE were doing their due diligence and in consultation with SEBI effected the transfer of securities to the clients who have paid in full and who were the real beneficial owners of those securities - HELD THAT:- No dispute with the interpretations of the provisions of the Depositories Act and Regulations thereunder. However, while dealing with a case of alleged fraud the implications of the same have to be factored in. The very purpose of an ex parte ad interim order is to deal with the eventualities arising from such alleged fraud or similar major violations. This ex parte ad interim order was issued on [2019 (12) TMI 477 - SECURITIES APPELLATE TRIBUNAL, MUMBAI] . Even an oral mentioning was made by the Appellants before this Trib....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Non-compliance with the direction for pre-deposit - Offence under FEMA - HELD THAT:- The learned counsel for the respondent had earlier taken exception to the maintainability of these appeals at the outset, his submissions having been recorded in the proceedings on 11.07.2019 to the effect that the appellants are belated with reference to the order dated 15.11.2018 which, even otherwise, had not been challenged, the orders sought to be impugned by these appeals being only consequential. At the hearing, the counsel for the appellants was asked if they are now willing to make the pre-deposits as was directed by the appellate tribunal by its order dated 15.11.2018. The counsel answered in the negative taking the position that the appeals at hand raise questions of law. The order dated 15.11.2018 having attained finality, the appellate ....... + More

Hawala transactions - Contravention of provisions of Section 3(b) and Section 3(c) of FEMA, 1999 - allegation based on statement of various persons - submission of the appellant was that the appellant has been wrongly implicated in the case and nothing was seized or recovered from his possession - HELD THAT:- The impugned order has alleged that he received money (Indian currencies) from some other people some of whose name are Poonam, Getha, Raja Ram, Devidoss, Jaloor etc. who in turn has arranged this money from people from abroad. Thus, it appears that the impugned order has not established the appellant receiving the money directly from abroad. Moreover, there is no restriction on circulation of Indian money within the country, at least under FEMA - the department has not investigated those people who are Indians and who have delivered....... + More

Acquiring and transferring foreign exchange equivalent to ₹ 208 crores without the prior general or special permission of the RBI - Section 8(1) of FERA, 1973 - allegation is made that M/s. THL have not provided any documents to prove the source of funds which they have invested/remitted to M/s. Sterlite Industries (India) Limited etc. in India and because some of the Directors are common to both the companies, it has been held that this money has actually been funded by M/s. Sterlite Industries (India) Limited to M/s. THL and then back to M/s. Sterlite Industries (India) Limited. HELD THAT:- There is no prima facie evidence, documentary or otherwise on which the adjudicating authority has relied upon to conclusively prove the above charges. Whether there is a round tripping of funds, the interests of the common Directors in each....... + More

Restoration of appeal - appeal was dismissed on time limitation as well as for non-compliance with the pre-deposit - HELD THAT:- That Delhi High Court’s order, clearly mentions only two appeals i.e. 475 and 543 of 2004 of having being remanded to the AT. There is no such order with regard to the other two appeals i.e. 473 and 488 of 2003 and hence it was legally required for the appellants to have filed, if they so desired, a proper restoration of appeal applications with valid grounds and reasons. As discussed above, they have failed to do so either in their applications or during the hearing - the restoration of appeals applications in appeal No. 473 & 488 of 2003 is dismissed as rejected as is without any grounds and substance. Other two appeals i.e. 475 & 543 of 2004 which has been remanded by the Hon’ble Delhi ....... + More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Refund of CENVAT Credit - rejection for the reason that there is mismatch between the invoices, the service tax amount is not mentioned in the invoices etc. - HELD THAT:- The learned counsel has submitted that the appellant did not appear for personal hearing and, therefore, they could not furnish necessary documents to establish their contentions. The appellant has to be given a further chance to establish their claim for refund. The appeals are remanded to the adjudicating authority who shall reconsider the issues arising in these appeals afresh - Appeal allowed by way of remand.

Club and association Service - co-operative society - provision of service from one to person to another, or not - mutuality of interest - suppression of facts or not - time limitation - HELD THAT:- The issue that whether the club, association or cooperative society are liable for service tax on services provided by these entities to their members was under litigation before various courts and judgments given by various High Courts in favour of the assessee that whenever there is service from such entities to its members, since the principle of mutuality is involved, it cannot be said that there is a provision of services. Time Limitation - HELD THAT:- Subsequently, the issue has been decided by the larger bench of Supreme Court. In this background, it cannot be said that the appellant had any malafide intention to evade the service t....... + More

Nature of activity - sale or service - photography service - use of the paper upon which an image is printed using certain consumables and chemicals - interpretation of term ‘sale’ appearing in exemption Notification No.12/03-ST dated 20.06.2003, is to be given the same meaning as given by Section 2(h) of the Central Excise Act, 1944, read with Section 65(121) of the Finance Act, 1994 - deemed sale - HELD THAT:- Identical substantial questions of law have been answered in favour of the assessee [2020 (4) TMI 799 - MADHYA PRADESH HIGH COURT] The Supreme Court in the matter of Safety Retreading Company [2017 (1) TMI 1110 - SUPREME COURT] has considered the similar issue. The Apex Court set aside the majority view of the Special Bench of the Tribunal and held that component of gross turnover in respect of which assessee had p....... + More

Classification of Services - Port Services or CHA services - transport of export goods to the custom station or import goods from custom station to the importers’ premises in their own trucks - charges collected as stevedoring charges - It is the case of the Revenue that the transportation activities undertaken by them is an ancillary service which is part of the composite service of “CHA Service” - HELD THAT:- The stevedoring activity is loading and unloading of cargo. He explained that this activity is rendered by the appellant on his own behalf. He is actually directly dealing with the party. The appellant is only licensed by the port to undertake the stevedoring activity and these activities had not been done on behalf of the port neither they had been authorized by the port to do any port services. CHA Services -....... + More

Refund of Swachh Bharat Cess - the cess paid on the input services used for providing export service - rejection of refund on the ground that there is no provision for refund of Swachh Bharat Cess paid on the input services used for providing export service - HELD THAT:- The issue involved in this appeal is no more res integra in view of the decision of this Tribunal in M/S. STATE STREET SYNTEL SERVICES PVT. LTD. VERSUS COMMISSIONER OF CGST, NAVI MUMBAI [2019 (6) TMI 859 - CESTAT MUMBAI] in which this Tribunal while discussing Section 119 of the Finance Act, 2015 and various case laws, by a detailed order allowed the Appeal filed by the Appellants therein and held that the Swachh Bharat Cess paid on input services has to be available as Cenvat Credit and the same can be discharged by utilizing Cenvat Credit and the appellant therein are e....... + More

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

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

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

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

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

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

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

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

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

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

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

CENVAT Credit - input services - exempt services or not - denial for the reason that the activity of machining operations is an exempted service as per Notification No.25/2012-ST dt. 20.06.2012 (Sl.No.30) - HELD THAT:- When the semi finished gods are received by the job worker under challans as per Rule 4 (5) (a), it can be understood that the activity undertaken by the appellant is also part of the manufacturing activity. In other words, the job worker manufactures on behalf of the principal manufacturer. The notification No.214/86 helps to decide as to who has to pay Central Excise duty on the finished goods when manufacturing activity is carried out using job work facility. Since the appellants are doing part of the manufacturing activity, it cannot be said that the activity undertaken by them is service which is exempted under Noti....... + More

CENVAT Credit - exempt goods - denial of CENVAT Credit on capital goods on the ground that the amendment to Rule 6(4) does not have retrospective effect - HELD THAT:- As per the submissions made by Appellant before the Adjudicating Authority, they have paid duty in the month of April 2017 and June 2017. The Adjudicating Authority has decided on the interpretation of amendment and no verification was done as regards the payment of duty. If on verification if it is found that appellant have cleared goods on payment of duty, from the date of taking credit they will be entitled for Cenvat credit, subject to condition that dutiable goods should be cleared within two years from the date of commencement of production of goods or installation of such capital goods, as the case may be. The matter is remanded to the Adjudicating Authority to decide the matter afresh - Appeal allowed by way of remand.

Classification of goods - car matting - classified within Chapter 57 of the First Schedule to the Central Excise Tariff Act, 1985 under the heading “Carpets and Other Textile Floor Coverings” or they would be classified under Chapter 87 thereof, which relates to “Vehicles other than Railway or Tramway Rolling-Stock and Parts and Accessories Thereof”? HELD THAT:- Three cases have been decided by the Tribunal in COLLECTOR OF C. EX., BOMBAY-II VERSUS STERLING INDIA [1999 (7) TMI 704 - CEGAT, NEW DELHI], COLLECTOR OF CENTRAL EXCISE VERSUS SWARAJ MAZDA [1993 (7) TMI 186 - CEGAT, NEW DELHI], and JYOTI CARPET INDUSTRIES VERSUS COMMISSIONER OF CENTRAL EXCISE, JAIPUR-I [2001 (4) TMI 316 - CEGAT, NEW DELHI] which obviously has no precedent value for us - We however, discussed these cases only for the purpose of ascertaini....... + More

Maintainability of appeal - non-prosecution of the case - HELD THAT:- Office objections to be removed within a period of two weeks, failing which, the concerned matter shall stand dismissed for non-prosecution.

Stay of impugned order during pendency of the appeal - impleadment as a respondent - SSI Exemption - clubbing of clearances - HELD THAT:- The court is of the view that a prima facie case has been made out for grant of exparte interim relief. Issue Notice, returnable on 29th January, 2020 - By way of ad-interim relief, the operation of the impugned order M/S JOLLY ELECTRICAL INDUSTRIES AND NILESH V SHAH VERSUS C.C.E. & S.T. VADODARA-II [2019 (10) TMI 95 - CESTAT AHMEDABAD] is hereby stayed.

Permission for withdrawal of appeal - Compounding of duty under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - HELD THAT:- The present appeal is dismissed as withdrawn - Application allowed.

Process amounting to manufacture or not - repacking of goods (DVDs) and affixing MRP stickers on them - denial of credit by invoking extended period of limitation - denial of CENVAT Credit subsequently on the ground that the there was no manufacture in the first place - HELD THAT:- The packing and repacking, labelling or relabelling amounts to ‘manufacture’ in respect of the goods which are listed in the Third Schedule to the Central Excise Tariff Act, 1985. This is a legal fiction created by the statute and applies only to such goods which are listed in the third schedule and not to others - In the present case, the DVDs which they have imported were classified under 85234080. This tariff heading is not included in the third schedule. Evidently labelling or relabelling these DVDs will not make them classifiable under a differ....... + More

Validity of changes brought in Rule 6(3) (i) of Cenvat Credit Rules, 2004 - main contention of the counsel for the appellant is that the adjudicating authority as well as the Tribunal failed to appreciate the significant change brought in Rule 6(3) (i) of Cenvat Credit Rules, 2004 w.e.f. 1.3.2008 vide Notification No.10/2008 C.E.(N.T.) dated 1.3.2008 - HELD THAT:- The adjudicating authority and the Tribunal erred in not appreciating the significant change brought in Rule 6(3) of Cenvat Credit Rules, 2004, w.e.f. 1.3.2008 vide Notification No.10/2008 C.E.(N.T.) dated 1.3.2008 which as noticed in the OIO with reference to sale of goods, was deleted and in its place the emphasis was shifted to the payment of an amount equal to 10% of the 'value' of exempted goods - In the absence of any findings to this effect that the provisions pre....... + More

100% EOU - Demand of Differential Cost Recovery Charges paid - Claim of refund of excess MOT charges paid - The case of the appellant is that they have paid both the Merchant Overtime Charges and also cost recovery charges on sharing basis till the time of debonding, when application was made on 08.12.2014. Prior to this, vide their application dated 01.04.2014, they filed option with the appropriate officer on 01.04.2014 that they shall be paying only MOT charges. HELD THAT:- The Commissioner (Appeals) have erred in holding that the appellant have not raised the issue initially. Admittedly, from the facts it is evident that such issue was never raised by the appellant earlier and it was raised for the first time on 28.03.2014. As regards the allegation of short recovery of ‘cost recovery charges’, admittedly such charges (....... + More

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

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

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

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

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

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

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

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

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

Refund of compounding amount/fee paid for release of the goods detained - levy of compounding fee - contention of the respondent is that since the petitioner did not have registration for the site office, the transportation was improper and without payment of duty - HELD THAT:- The goods in question were directly dispatched by the manufacturer to the Petitioner’s site in Tirunelveli for being installed along with the other wind energy equipment at a later point time - The petitioner had not affected any sale of the goods when the goods was detained by the 1st respondent at the Paranoor Check Post near Chengalpet. It is at a later stage, a sale would have taken place by the petitioner to its customer. The detention of the goods on the assumption that the petitioner had already effected sale and that no tax was paid when the goods ....... + More

Levy of compounding/composition fees - release of detained goods - It is the case of the petitioner that the 1st respondent erred in passing the impugned order which are titled as “Notice” by calling upon the petitioner to pay the aforesaid amounts as compounding/composition fee in lieu of prosecution as the 1st respondent has no jurisdiction to pass such orders under section 72 of the Tamil Nadu Value Added Tax Act, 2006 - HELD THAT:- As per Section 67(4) of the Act, if the tax is paid or the security is furnished, then the goods so detained shall be released forthwith. Thus, the officers at the check post/barriers are the proper officers empowered to call upon the driver or the person in charge of the vehicle/boat to pay tax or to furnish adequate security in such form and in such manner and to such authorities as may be pre....... + More

Compounding of tax - sale of purchased goods - Ceramic Tiles - violation of Section 71(3) (a), 71(3)(d) and 71(7) of the TNVAT Act, 2006 - HELD THAT:- The respondent is the prescribed authority under Section 67 of the Tamil Nadu Value added tax Act, 2006. Therefore, it is for the petitioner to take advantage of the aforesaid option given by the respondent. If the respondent do not prosecute the petitioner for the violation of the provisions of the Act, the option given in the impugned proceeding is redundant.. In any event, the goods at the time of their detention at Vikravand Check post had accompanied the relevant invoice evidencing the sale and the tax payable thereon by the petitioner. Therefore, the respondent was in detaining the goods at the Check Post and in demanding the tax from the petitioner - there are no merits in the presen....... + More

Maintainability of petition - recovery of input tax credit availed by the petitioner on the strength of invoices issued by dealers whose registrations were retrospectively cancelled - discharge of burden to prove - TNVAT Act - HELD THAT:- The issue with regard to maintainability of petition is answered in favour of the petitioner even though the petitioner has an alternate remedy before the Appellate Deputy Commissioner by way of appeal under section 51 of the Tamil Nadu Value-Added Tax Act, 2006 as it would be unfair to dismiss the writ petition straightaway after having admitted it in 2016 - this is a fit case for making certain observations on merits. Recovery of input tax credit availed by the petitioner on the strength of invoices issued by dealers whose registrations were retrospectively cancelled - HELD THAT:- The issue is no mo....... + More

Demand of tax and compounding/composition fee - Section 72 of TNVAT Act - detention of goods alongwith vehicle - It is the case of the petitioner that the exercise of power under section 72 of the Tamil Nadu Value Added Tax Act, 2006 for alleged violation of section 71 of the said Act was arbitrary and illegal and without jurisdiction - HELD THAT:- Mere entry of the goods from another state into Tamil Nadu ipso facto does not attract levy under the provisions of the Tamil Nadu Value Added Tax Act, 2006 unless there was a prior sale within the State of Tamil Nadu and no tax was paid or charged - Therefore 1strespondent as the “prescribed authority” under section 67 of the Tamil Nadu Value Added Tax Act, 2006 was competent to detain goods and vehicle and verify the records and documents which accompanied the goods. For the same ....... + More

Refund of excess Input Tax Credit - refund of claim denied on the ground that the petitioner was still in business and was adjusting the amount regularly - Sections 19(17) and 19(18) of the TNVAT Act, 2006 - whether in the light of changed scenario after the implementation of TNGST Act, 2017, the petitioner is entitled to refund? - HELD THAT:- As per the Rules prescribed, excess of Input Tax Credit has to be refunded back to the dealer. There was no provision for carrying forward of such Input Tax Credit for adjustment of tax liability for the subsequent period - merely because the petitioner was a going concern by itself did not mean that the petitioner was not entitled to such refund of the excess of Input Tax Credit which the petitioner accumulated over a period of time. Merely because the TNVAT Act, 2006 was substituted with Tamil ....... + More

Levy of purchase tax payable - purchase of turmeric - Section 12 (2) of the Tamil Nadu Value Added Tax, 2006 - contention of the petitioner is that that turmeric purchased by the petitioner from dealers, who were exempted from payment of tax in terms of Section 15 read with Item 18, Part B of the 4th Schedule of the Tamil Nadu Value Added Tax Act, 2006 were also exempted in the hands of the petitioner and therefore the petitioner cannot be saddled with tax liability under Section 12(1) of the Tamil Nadu Value Added Tax Act, 2006. HELD THAT:- While under Section 7A of the TNGST Act,1959, tax was payable at the rate mentioned in Section 3 or 4 as the case may be of the Act. However, under Section 12(1) of the Tamil Nadu Value Added Tax Act,2006, tax is payable at the rate specified in the Schedules to this Act - Both Section 8 of the TNG....... + More

Rejection of Stay application - application for waiving the mandatory 1/3rd deposit - applicant states that the substantial question of law involved in the Revision is that an Appellate Court could not have rejected a Stay Application as cursorily as it had done in the present case - HELD THAT:- This Court is of the view that simply depositing 1/3rd of the mandatory deposit would not mean that the applicant was economically sound. Further the fact that the prima-facie case was not looked into by the Tribunal also can be seen from the order itself. The contention of learned counsel for the applicant in the Revision has force. The applicant in the Revision has made the deposit which was required to be made. The appeal shall now be disposed of within a period of three months from the date of presentation of a certified copy of this order and till the disposal of the appeal, no coercive action shall be taken against the applicant - Revision allowed.

Principles of Natural Justice - Validity of assessment order - main grievance of the petitioner before this Court is that before passing the orders of assessment, the petitioner was not served with any notice of proposal - HELD THAT:- Going by the facts and circumstances and considering that one of the issues before the Assessing Officer is mismatch issue and that the same has to be dealt with in accordance with the guidelines/directions issued in JKM Graphics [2017 (3) TMI 536 - MADRAS HIGH COURT], further considering the fact that the petitioner was not heard before passing the orders of assessment and that the orders of assessment themselves were served on the petitioner only recently, this Court is of the view that interest of both parties will be protected if the matter is remitted back to the Assessing Officer to redo the assessment....... + More

Imposition of compounding/composition fees under Section 72 of the Tamil Nadu Value Added Tax Act, 2006 - allegation is that the goods transport accompanied defective an therefore, there was contravention of 71(5) of the Act - revision petition was dismissed by the 2nd respondent holding that the goods moved and the details in invoice No.0415 did not match - HELD THAT:- Though the petitioner claims that 7 logs were purchased by the petitioner on 06.08.2010 from M/s.New Patel Saw Mills, Shengottah, it is noticed that the petitioner has produced yet another commercial invoice dated 31.08.2010, wherein also, a transaction in respect of 7 logs has been shown for a total value of ₹ 13,50,318/- (₹ 12,00,283/- + ₹ 15,00,035/-). The petitioner has also enclosed the copy of another delivery Form JJ dated 03.09.2010 to show that t....... + More

Validity of assessment order - petitioner claims to have filed a petition under Section 84 of the Tamil Nadu Value Added Tax Act, 2006 already on 20.03.2020 before the respondent. The learned counsel for the petitioner submitted that the said application filed under Section 84 of the TNVAT Act, 2006 is still pending - HELD THAT:- Since this Court is not inclined to entertain the writ petition by going into the merits of the impugned order, suffice to dispose the writ petition only with the following directions, which, in the considered view of this Court, would protect the interest of both parties. If any such application under Section 84 of the TNVAT Act, 2006, as claimed by the petitioner, is filed on 20.03.2020 and the same is pending as on today, the same shall be considered by the respondent on its own merits and an order shall be passed on the same in accordance with law, within a period of 8 weeks from the date of receipt of a copy of this order.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dishonor of Cheque - insufficiency of funds - summon of applicant to face trial under Section 138 of NI Act - HELD THAT:- The present complaint was filed in 2006 after the amendment has came into force. Thus according to the proviso if the complainant has put forth the reason in the complaint itself for not filing the complaint within time and the learned Magistrate is satisfied that delay has been explained can take cognizance of the offence as such the said case is not applicable in the present facts and circumstances of the case. It is not incumbent upon the opposite party no.2 to file separate application for condoning the delay in filing the complaint in view of the proviso to Section 142 of the Act. The complainant had satisfied that she had sufficient cause for not making a complaint within the prescribed period as there is an expl....... + More

Dishonor of Cheque - summon order - rebuttal of presumption - HELD THAT:- A dishonour would constitute an offence only if the cheque is returned by the bank ‘unpaid’ either because the amount of money standing to the credit of the drawer’s account is insufficient to honour the cheque or that the amount exceeds the amount arranged to be paid from that account by an agreement with that bank. Now, for an offence under Section 138 NI Act, it is essential that the cheque must have been issued in discharge of legal debt or liability by accused on an account maintained by him with a bank and on presentation of such cheque for encashment within its period of validity, the cheque must have been returned unpaid. The payee of the cheque must have issued legal notice of demand within 30 days from the receipt of the information by hi....... + More

Dishonor of Cheque - non-bailable warrant - offence u/s 138 of NI Act - validity of order of summon - HELD THAT:- A dishonour would constitute an offence only if the cheque is returned by the bank ‘unpaid’ either because the amount of money standing to the credit of the drawer’s account is insufficient to honour the cheque or that the amount exceeds the amount arranged to be paid from that account by an agreement with that bank. Now, for an offence under Section 138 NI Act, it is essential that the cheque must have been issued in discharge of legal debt or liability by accused on an account maintained by him with a bank and on presentation of such cheque for encashment within its period of validity, the cheque must have been returned unpaid. The payee of the cheque must have issued legal notice of demand within 30 days f....... + More

Dishonor of Cheque - stay of fine - effect of amendment in Section 148 of the N.I. Act - HELD THAT:- With the objective of reducing delay in proceedings pertaining to dishonour of cheques and to provide interim relief to the payee in such cases, the Negotiable Instruments (Amendment) Bill of 2017 was tabled before the Lok Sabha. In the wake of current scenario, The Negotiable Instruments (Amendment) Act, 2018 passed by both the Houses (Lok Sabha on July 23, 2018; Rajya Sabha on July 26, 2018; and notified on August 02, 2018) has come as a breather for the aggrieved Drawees. Nonpayment because of cheque dishonor contribute majorly towards business inconsistencies leading not only to an cash flow, but also chain of inconveniences/incalculable losses forced upon them involuntarily - Further, delayed justice owing to lengthy court procedur....... + More