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- 2019 (11) TMI 778
Advance Authorization scheme - SION - allegation that the party had mis-declared that the exported product has been manufactured out of LSFO - exemption denied on the ground that the said import had been made in violation of para 4.1.15 of the Foreign Trade Policy - It was alleged that the respondent had not used LSFO as an input in the export goods but has used VGO (Vacuum Gas Oil) generated during the refining of crude oil and had subsequently imported permissible input LSFO without payment of customs duty HELD THAT:- Insofar as the parameter of acidity is concerned, there is no inorganic acid present in the crude oil. There is no addition, use or generation of inorganic acids like HCl, H2SO4, HNO3, etc., during the refining process. Thus, there is no possibility of inorganic acid being present in the stream. Moreover, the FCC feed boil....... + More
- 2019 (11) TMI 777
Direction to issue a fresh certificate for unused value of the said Duty Free Credit Entitlement Certificate - Benefits under SFIS - HELD THAT:- It is undisputed fact that the petitioner is an Indian Company, incorporated under the provisions of the Indian Companies Act, 1956, which is engaged in providing healthcare services at its hospital to patients to patients in India and also to patients who come to the petitioner’s hospital for medical treatment in India from abroad. It is the specific case of the petitioner that in pursuance to ‘Served from India Scheme’ to avail benefits enumerated in the “Foreign Trade Policy, 2004- 2009’ of the Government of India has filed an application on 22.03.2012 for issue of Duty Free Credit Entitlement Certificate in respect of eligible transactions of the petitioner durin....... + More
- 2019 (11) TMI 776
Exemption under Rule 26 of the SEZ Rules, 2007 - import of New Garments in the name of "old and used clothing rags" - goods accompanied by Pre-shipment Certificate as per Public Notice no. 12 (RE-2001)/1997-2002 dated 03/05/2001 or not - it is alleged that the unused T-shirts were being sought to be cleared as old and used clothing rags - Confiscation - penalties - HELD THAT:- It is seen that the Bill of Entry describes the goods as old and used clothing rags. In the instant case, the new clothes cannot be called rags and, therefore, there is a mis-declaration to this extent. Nonetheless, the said goods are covered by the letter of permission granted by the Development Commissioner and the appellants are entitled to take the same to the SEZ without payment of duty. The impugned order comes to the conclusion that the T-shirts imp....... + More
- 2019 (11) TMI 775
Interrogation of petitioner - Pre-arrest bail - service of SCN - recording of statements - power to arrest the petitioner - HELD THAT:- The petitioners would be interrogated in presence of an advocate at a visible, but not audible distance in relation to the interrogation by the Officers of DRI in accordance with the direction given in the case of VIJAY SAJNANI & ANR. VERSUS UNION OF INDIA & ANR. [2012 (4) TMI 706 - SUPREME COURT]. Petition allowed.
- 2019 (11) TMI 774
Maintainability of application - initiation of CIRP - Corporate Debtor defaulted in repayment in amount - HELD THAT:- The amount of default exceeds ₹ 1,00,000/- as per the requirement under section 4 of the Code, 2016. Hence, this application is within the purview of section 9 of the IBC, 2016. The present application is complete and the Applicant is entitled to claim its dues, establishing the default in payment of the operational debt beyond doubt, and fulfilment of requirements under section 9(5) of the Code - the present application is admitted. Application admitted - moratorium declared.
- 2019 (11) TMI 773
Admissibility for appeal - initiation of CIRP - Corporate Debtor failed to pay outstanding debt - Section 9 of the Insolvency and Bankruptcy Code, 2016 - principles of natural justice - HELD THAT:- The Respondent - ‘Corporate Debtor’ has also not disputed that no notice was issued or served by ‘Operational Creditor’ or the Adjudicating Authority before admission of the application under Section 9. The impugned order also shows that the ex-parte order was passed by the Adjudicating Authority. As the impugned order dated 6th March, 2019 has been passed in violation of the rules of ‘natural justice’, we set-aside the order - However, the matter is not remitted to the Adjudicating Authority as in the meantime the Appellant has settled the matter with the Respondent. However, this will not come in the way of the other creditors to move before appropriate Forum, if any amount is due from the ‘Corporate Debtor’. Appeal allowed.
- 2019 (11) TMI 772
Maintainability of application - initiation of CIRP - Corporate Debtor has committed default for a total outstanding amount - Existence of dispute or not - HELD THAT:- The Petitioner failed to substantiate the alleged outstanding amount by producing relevant documents to prove that the materials in question were supplied in required standard - Therefore, we are of the considered opinion that the Petitioner failed to establish its claim with regard to Principal amount and interest as claimed in the Petition and it is filed only to recover the alleged outstanding amount. Therefore, it is not a fit case for admission and is liable to be dismissed. Application dismissed.
- 2019 (11) TMI 771
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment - debt due and payable - existence of dispute or not - HELD THAT:- This adjudicating authority is of the considered view that operational debt is due to the Applicant. That, Applicant is an Operational Creditor within the meaning of sub-section (5) of Section 20 of the Code. From the aforesaid material on record, petitioner is able to establish that there exists debt as well as occurrence of default and service is complete. Application filed by the Applicant is complete in all respects - Application admitted - moratorium declared.
- 2019 (11) TMI 770
Maintainability of application - initiation of CIRP - Corporate Debtor defaulted in making payment - Section 9 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It is evident that the issues in respect to break downs cropped up subsequent to the letter dated 05.01.2018 and the same was brought to the notice of the Operational Creditor long before issual of Section 8 notice i.e., on 26.02.2018 itself. Thereafter, since there is no material from the side of the operational creditor disclosing that the Operational Creditor already resolved those issues, except filing this case basing on the section 8 notice sent by the Operational Creditor, it is to be construed that dispute in respect to the break downs has remained in existence as on the date the Creditor issued Section 8 notice. When there is material disclosing existence of dispu....... + More
- 2019 (11) TMI 769
Maintainability of application - initiation of CIRP - Corporate Debtor defaulted in repaying the outstanding amount of due and payable - HELD THAT:- As the Financial Creditor has proved existence of debt and default against the Corporate Debtor by showing various documents and the certificate issued by the DRT-II, Chennai, this Bench hereby holds that this Financial Creditor has proved existence of debt as well as default against the Corporate Debtor. Since the Corporate Debtor counsel has not come out with an argument stating that debt is not in existence or default is not in existence, we are of the considered view that this case is fit for admission. Petition admitted - moratorium declared.
- 2019 (11) TMI 768
Classification of goods - fusible interlining cloth partially coated with plastic which is used for shirt collars, cuffs, pant belts etc. - whether classifiable in Chapters 50 to 55 or under Chapter Note 2(a) to Chapter 59 of the Tariff Act? - CBEC issued Circular No. 24/Coated Fabrics/88-CX.1 dated 02/09/1988 - N/N. 1/2017-CT (Rate) dated 28/06/2017 - HELD THAT:- Chapter Note 2(a)(4) to Chapter 59 says that fabrics partially coated or partially covered with plastics and bearing designs resulting from these treatments are excluded from Heading 5903 and are usually covered in Chapter 50 to 55, 58 or 60, depending on the materials used. At the same time, according to the Explanatory Notes to the HSN Code, textile fabrics which are spattered by spraying with visible particles of thermoplastic material and are capable of providing a bond to o....... + More
- 2019 (11) TMI 767
Release of confiscated goods alongwith vehicle - the petitioners has submitted that the petitioners are ready and willing to pay the amount of tax and penalty as computed by the respondents - section 130 of the Gujarat GST Act, 2017 - HELD THAT:- Issue Rule returnable on 28th November, 2019. By way of interim relief, the respondents are directed to forthwith release truck together with the goods contained therein, subject to the petitioners depositing an amount of ₹ 1,06,352/- as computed by the respondents towards tax and penalty.
- 2019 (11) TMI 766
Recovery of amount on account of tax, cess, interest and penalty from the account maintained by the petitioner - invocation of section 79 of GST Act - It is the specific case of the petitioner that no proceedings whatsoever, was issued against the petitioner for determining either the tax, cess or interest or penalty - principles of natural justice - HELD THAT:- It is evident that the statement said to have been given on 19.06.2019 claims to be so called admission by the petitioner, is not available before the Revenue anymore and on the other hand, it is for them to determine the tax liability by resorting to the procedures in accordance with law, instead of issuing the impugned proceedings straightaway under Section 79 based on the so called admission which is subsequently retracted. The impugned proceedings issued under Section 79 is no....... + More
- 2019 (11) TMI 765
Provisional attachment of Bank Accounts - period ending January 2019 - HELD THAT:- The learned counsel appearing for the first respondent does not dispute that the entire amount due and payable, for which the provisional attachment under Section 83 of the CGST Act was issued has been paid by the appellant. The impugned communication dated 03rd April 2019 (Annexure-A to the writ petition) is hereby quashed and set aside - Appeal allowed.
- 2019 (11) TMI 764
Best judgment assessment - Admission of additional evidence - HELD THAT:- Application for oral hearing in Court is rejected. We have carefully gone through the review petitions and the connected papers. We find no merit in the review petitions and the same are accordingly dismissed.
- 2019 (11) TMI 763
Disallowance under section 40A(3) - whether fall within the ambit of undisclosed income within the meaning of Section 158B(b) - HELD THAT:- Leave granted.
- 2019 (11) TMI 762
Presumption u/s 132(4A) raised in the assessment proceeding - Whether apart from from section 132(4A) the burden to explain the documents seized from the possession of the assessee during search is upon him and if it so, then has he discharge the burden ? - HELD THAT:- Section 132(4A) of the Act provides that any books of account, documents, money, bullion, jewellary or other valuable articles or things found in possession or in control of any person in course of search may be presumed to be belonging to such person, and further, contents of such books of account and documents are true. But this presumption is not provided in absolute terms and the word used is “may” and not “shall”, as such the revenue has to corroborate the entries made in the seized documents before presuming that transactions so entered were ma....... + More
- 2019 (11) TMI 761
Reopening of assessment u/s 147 - HELD THAT:- This Court is inclined to dispose the present writ petition without touching upon the merits of the claim made by the petitioner against reopening only with a direction to the Assessing Officer to pass appropriate orders on merits and in accordance with law on the request made by the petitioner dated 27.08.2019 within a period of three weeks from the date of receipt of a copy of this order. Based on the communication received from the AO, the petitioner shall work out their remedy in the manner known to law. With the above observation, this Writ Petition is disposed of, accordingly. Since this Court has directed the Assessing Officer to dispose of the representation dated 27.08.2019 within a period of three weeks from the date of receipt of a copy of this order, the Assessing Officer is direct....... + More
- 2019 (11) TMI 760
Reopening of assessment u/s 147 - assessee is not being supplied with information/ documents by the AO - third party confidential information - HELD THAT:- So far as the petitioner’s challenge to the reopening of the proceedings is concerned, this Court has already rejected the same by observing that it shall be open to the petitioner to raise all its pleas before the AO. AO is now carrying on further investigation, for which purpose notices u/s 142(1) have been issued to the petitioner. It is for the petitioner to comply with the said investigation. AO has already given an assurance to the petitioner that the petitioner would be confronted with whatever material is sought to be relied upon during the course of re-assessment, and that the petitioner would be granted ample opportunity in the matter. No reason to assume, at this stage....... + More
- 2019 (11) TMI 759
Withholding of TDS at the rate of 0.5% - Order u/s 197 - grievance of the Petitioner is that the impugned certificate dated 29.05.2019 has arbitrarily fixed the rate of deduction of tax at source at 0.5% even though under the DTAA, the Petitioner’s income is not liable to be taxed in India - Indo- German DTAA - HELD THAT:- Court quashed the order under Section 197 of the Act allowing deduction of the tax at source @ of 5% from the payments made to the Petitioner by its Indian Customers. We may note that the situation in the present case is, in fact, even better for the Petitioner inasmuch as the total income of the Petitioner has been assessed in the return filed by the Petitioner Assessee as NIL. In this regard, the Petitioner has placed on record the assessment orders for the Assessment Years 2013-14 to 2015-16. A perusal of the f....... + More