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2024 (4) TMI 717
Disparity between the petitioner's GSTR 1 and GSTR 3B returns - error occurred on account of reflecting an amount of Rs. 59,430.68/- each wrongly towards CGST and SGST instead of IGST - HELD THAT:- On examining the petitioner's reply dated 17.03.2023, it appears prima facie that the disparity was on account of wrongly specifying higher amounts in the GSTR 3B returns as regards output CGST and output SGST. This aspect was not duly taken note of while issuing the impugned order. At the same time, it should be noticed that the impugned order was issued in June 2023 and the petitioner has approached this Court belatedly. On instructions, learned counsel for the petitioner agrees to remit 10% of the disputed tax demand as a condition for remand.
The impugned order calls for interference albeit by putting the petitioner on terms. Therefore, the impugned order dated 09.06.2023 is quashed subject to the condition that the petitioner remits 10% of the disputed tax demand within fifteen days from the date of receipt of a copy of this order. Upon being satisfied that the above mentioned amount was received, the respondent is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh order within two months from the date of receipt of a copy of this order.
The petition is disposed off.
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2024 (4) TMI 716
Pre-show cause notice - impugned proceedings has been issued by the second respondent - proper Officer and adjudicating authority as contemplated under Sections 73 and 74 of the CGST Act or not - HELD THAT:- The respondents have conducted an inspection on the petitioner's premises. During the inspection, they found that during the period from 22.09.2017 to 20.08.2019, the petitioner company has effected outward supply of taxable goods viz., certain grocery items, under the unregistered brand name, but, they have not paid the appropriate GST and not fulfilled either one of the conditions prescribed in the Notification No.27/2017-Central Tax (Rate) dated 22.09.2017 to avail exemption. Therefore, the impugned proceedings has been issued.
As per the Circular dated 09.02.2018 issued by the Central Board of Indirect Taxes and Customs, Central Government of India, the officers of Director General of G.S.T. (Intelligence) shall exercise the power to issue show cause notice. Therefore, this Court is not inclined to accept the submission of the petitioner that the impugned proceedings has been issued by the incompetent authority - Moreover, the impugned proceedings is only a pre-show cause notice.
The writ petition is dismissed.
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2024 (4) TMI 715
Validity of Faceless Assessment - demand notice was issued without furnishing a draft order to the Petitioners - violation of principles of natural justice in not furnishing a draft order to the assessee and affording the assessee an opportunity to file its objection to the same - HELD THAT:- An opportunity must be given to the Department to follow the correct procedure and proceed with the matter in accordance with the law. In short, the error on the part of the Department was corrected, but the Department was allowed to proceed after such correction, thereby affording the assessee sufficient opportunity consistent with the principles of natural justice and fair play.
Secondly, M/S CWT India Pvt. Ltd. (2023 (9) TMI 438 - BOMBAY HIGH COURT), though rendered after the decision of the Hon'ble Supreme Court in Mantra Industries Ltd. [2023 (5) TMI 498 - SC ORDER], does not appear to have taken cognisance of the decision (supra). Perhaps this decision may not have even been cited before the Bench.
Instead, the reference can usefully be made to the decision in Faqir Chand [2021 (8) TMI 488 - DELHI HIGH COURT], Kottex Industries Pvt. Ltd. (2022 (10) TMI 1134 - GUJARAT HIGH COURT], Piramal Enterprises Ltd. (2021 (8) TMI 48 - BOMBAY HIGH COURT] where the impugned assessment orders were quashed but liberty was granted to the Department to proceed further in accordance with law and after complying with principles of natural justice and fair play.
Thus, for all the above reasons, we quash and set aside the impugned assessment order and notice and remand the matter to the Assessing Officer/ Department to take corrective measures and pass a fresh order.
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2024 (4) TMI 714
Rectification of mistake - period of limitation - whether the limitation period for the remand by the ITAT would have to be strictly construed to begin from the date when the order of the ITAT is “received” by the concerned authority through an appropriate mechanism, particularly in light of the provisions of Section 254 r.w.s.153(3) of the Act and the judgment rendered by this Court in Odeon Buildwell [2017 (3) TMI 1266 - DELHI HIGH COURT]?
HELD THAT:- The legal landscape in the present lis relates to sub-Section 3 to Section 153 of the Act which stipulates that an order for fresh assessment pursuant to an order u/s 254 or Section 263 or Section 264 of the Act may be made at any time before the expiry of a period of nine months. The said provision further encapsulates that the aforesaid period has to be calculated from the end of the financial year in which the order u/s 254 is received by the authorities mentioned in the said Section.
Evidently, from the extract of the relevant portion of the judgment in Odeon Buildwell (supra) in the preceding paragraph, it is seen that the contextual interpretation of the phrase “received” postulates the time when are the parties notified about the pronouncement and are represented at that instant in the open court. As held that the solitary reason of non-receiving of the order by the concerned authority cannot consequently make the period of limitation cease to run.
Court further noted that once a responsible authority including the Department’s Representative is aware of the order, the communication of the order is purely an administrative arrangement which has to be carried out internally within the Department.
Recently, in the case of Lakhpatrai Agarwal [2023 (2) TMI 533 - BOMBAY HIGH COURT] has held that the legislative intent behind the enactment of Section 254(3) of the Act does not prescribe shifting of the onus of proving the receipt of the order under the said provision on the assessee.
As safely concluded that the expression “received” employed in Section 153(3) of the Act would not strictly mean that a certified copy of the order of the ITAT, in the given facts and circumstances, ought to have been necessarily supplied to the concerned authority through an appropriate mechanism devised by the respondents.
Further, sub-Section 3 to Section 254 of the Act casts a duty upon the ITAT to send the copy of the orders passed under Section 254 of the Act to the assessee as well as to the Principal Commissioner or Commissioner. A conspectus of Section 254 read with Section 153(3) of the Act would reveal that the said provisions cannot be made applicable to the detriment of the petitioner in the case at hand.
There is no force in the argument put forth by the respondents that the order was not received by the concerned authority through appropriate channel. In any case, as decided in Odeon Buildwell (supra), the ground raised by the respondents is only an internal arrangement of the Department and the same cannot be stretched to mean that it is a valid ground for the extension of the limitation period. The underlying rationale of the Legislature behind the enactment of Section 153(3) and setting the limitation therein, cannot be envisaged to expand the time limit for passing of a fresh assessment. Rather, the said provision entails a strict adherence to the time period within which the remand order in the present case should have been complied with by the respondents.
Taking into consideration the ITAT’s response that the concerned order was sent on 24 October, 2018, the Department ought to have passed the order to give the appeal effect within twelve months from then. However, the same has not been done by the Department till date.
Since the respondents have failed to comply with the order of the ITAT in passing a fresh assessment order within the stipulated time, the instant writ petition is allowed.
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2024 (4) TMI 713
Violation of provisions of Sections 276B and 278B - not depositing the TDS amount for the Financial Year 2019-20 within the statutory period prescribed under law and delay caused by them remained unexplained - petitioners have delayed in depositing the amount collected on behalf of the govt. ranging from 15 days to 394 days - HELD THAT:- The maximum delay of 394 days for depositing the TDS amount to the revenue account have been well explained by the petitioners, therefore, the authorities ought to have been taken into consideration same, particularly for the reasons that the petitioners-company has suffered the I.B. proceeding and the restriction imposed during the COVID-19 pandemic, the petitioners case is directly covered by the judgments cited in the case of Dev Multicom Pvt. Ltd. [2022 (3) TMI 1038 - JHARKHAND HIGH COURT]and M/s. D.N. Homes Pvt. Ltd. Khurda & another [2023 (11) TMI 447 - ORISSA HIGH COURT] because the prosecution indeed has been initiated by the opposite parties against the petitioners after having received the TDs amount along with the interest. Therefore, the entire proceeding arising qua the petitioners stands quashed.
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2024 (4) TMI 712
Income tax proceedings against company dissolved / insolvent - Jurisdiction or authority to reopen or assess income for any period prior to the approval of the Resolution Plan - respondents chose to commence proceedings referable to Section 144B
HELD THAT:- Resolution Plan once approved would bring the curtains down on any claims pertaining to a period prior to the approval of the RP is no longer res integra.
We note that while dealing with an identical issue, we had in Ireo Fiverriver Pvt. Ltd [2024 (4) TMI 665 - DELHI HIGH COURT] as held successful resolution applicant cannot be foisted with any liabilities other than those which are specified and factored in the Resolution Plan and which may pertain to a period prior to the resolution plan itself having been approved.
Section 144B power entails proceedings for assessment, reassessment or re-computation being initiated in terms of the faceless procedure of assessment as prescribed therein. Any effort to assess, reassess or re-compute could tend to lean towards a re-computation of liabilities which otherwise stands freezed by virtue of the Resolution Plan having been approved.
Such an action or recourse would clearly be barred by Section 31 of the IBC which binds all creditors of the corporate debtor, including the Central and State Governments or any other local authority to whom a debt is owed. A Section 144B action is what the Supreme Court frowned upon and chose to describe as the “hydra head” and thus being contrary to the clean slate principle which the IBC advocates. We, consequently, find ourselves unable to sustain the impugned action.
We find ourselves unable to sustain that line of reasoning bearing in mind the undisputable legal position which obtains in light of the scheme of the IBC and which fails to incorporate any distinction between voluntary and involuntary corporate insolvency. As we read the provisions of the Act, the IBC does not erect different levels of protection or insulation dependent upon whether corporate insolvency had been initiated voluntarily or on the basis of a petition referable to Section 7 of the IBC.
In our considered opinion, the purport of Section 31 of the IBC stands conclusively settled by the Supreme Court in terms of the judgments rendered in Essar Steel India Ltd. Committee of Creditors v. Satish Kumar Gupta and Ghanashyam Mishra [2019 (11) TMI 731 - SUPREME COURT].
We also bear in mind that upon commencement of CIRP, the petition is duly advertised in terms of the provisions made in Regulation 6 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and which would thus constitute due public announcement. The respondents, therefore, cannot sustain the invocation of Section 144B based on their own failure to lodge a claim within the time stipulated.
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2024 (4) TMI 711
Validity of Reopening of assessment - “tangible material” as may ever give rise to a “reason to believe" - Justice M.B. Shah Commission submitted its Report and only suggested possibility of under invoicing of Iron Ore extracted from mines and exported from the State of Goa - HELD THAT:- Undisputed between the parties that the present re-assessment proceeding has arisen under the unamended law i.e. the law that was in force upto 31.03.2021. Under the law as it then existed, no re-assessment proceedings could ever be initiated except against a valid “reason to believe” recorded by the assessing authority.
Second, even in a no assessment case, re-assessment could rise only after such “reason to believe” had been recorded in writing before issuance of notice u/s 148. Thus, recording of “reasons to believe” in writing was a sine qua non for valid assumption of jurisdiction to re-assess an assesse.
As to what amounts to a “reason to believe,” the law has remained settled over long decades. In S Ganga Saran and Sons (P) Ltd. [1981 (4) TMI 5 - SUPREME COURT] in the context of the then existing Section 147(a) of the Act, yet, in the context of initiation of reassessment proceedings upon recording of “reasons to believe”, it was established in law that those words were stronger than “is satisfied”; the “belief” must be based on “reasons” that are “relevant and material”.
For initiation of reassessment proceedings, there must exist “tangible material” indicating some income had arisen either on accrual or actual/ cash basis and that it has escaped assessment. Merely because the invoices issued by the petitioner were below the international price, it could never be alleged that there was any income on accrual basis as the petitioner earned no legal right to receive any higher amount. Therefore, we have to examine if there exists any material indicating receipt of any income on actual/ cash basis, over and above the invoice price.
The entire opinion of the Commission and the recital made in the “reasons to believe” recorded by the petitioner as also reasons recorded by that authority while rejecting the objections raised by the petitioner are directed and confined solely to the observations made by the Commission. The Report is not before us in entirety. To the extent it has been relied by the assessing authority, it only admits of a possibility of higher realizations having been made. Even that possibility exists not on the strength of any material discovered by the commission of higher realizations made by exporters (including the petitioner) but on a presumptuous basis solely by comparing the invoice price with the prevailing international price. Hence, that presumption/ opinion howsoever considered is not based on any hard evidence (either oral or documentary) of any higher price realized. Rather, it is conjectural and in any case on suspicion. Report remains a pure subjective opinion and nothing more.
The vital fact of value/ price realized by the petitioner against the invoice issued, was neither gone into nor any definite opinion was expressed thereto. In any case, no material was discovered by the Commission, as may support that “belief”.
Thus we find reassessment proceedings initiated against the petitioner for the AY 2011-12 were wholly without jurisdiction. It also being beyond the pale of doubt- unless jurisdiction is first clearly established, the reassessment- proceedings may not survive and an assessee may not be forced to participate in the same. Decided in favour of assessee.
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2024 (4) TMI 710
Disallowance of ESIC contribution - delayed remittance - HELD THAT:- It an admitted fact that due ESIC contribution is remitted beyond the due date prescribed under the relevant law. As rightly submitted by the Ld. AR that, this issue of disallowance has been settled by the Hon’ble Apex Court in ‘Checkmate Services’ [2022 (10) TMI 617 - SUPREME COURT] wherein their Hon’ble Lordship have held that the due date for depositing/remittance of PF/ESIC contribution etc., shall be governed by the respective PF/ESIC Act and assessee shall not be eligible for deduction if such contribution to respective fund is remitted beyond the due date prescribed therein.
Consequently such delayed remittance shall not be eligible to shelter under the extended period as prescribed by section 43B of the Act. In view thereof, the disallowance towards delayed remittance of ESIC made in the assessment and confirmed in appellate proceedings stands errorless. The ground raised challenging the disallowance thus stands meritless, hence dismissed.
Ad-hoc disallowances - ingenuine sale incentive/expenditure - HELD THAT:- On careful consideration of records it transpired that, neither of the lower tax authorities had pin-pointed any voucher where genuineness of sale incentive/expenditure claimed to have been incurred by the assessee wholly and exclusively for the purpose of its business did not inspire any confidence, nor it was the case of the revenue that any part of the expenditure in question was either found bogus or fictitious, nor was found to have not been incurred by the appellant wholly and exclusively for the purpose of its business. Indeed, it showcased an exercise of running around the circle. Further we neither could come across any provision in Income Tax Statute nor it has been brought to our notice by either parties any provision which subscribes vis-à-vis empower the tax authorities to arrive at this logic of subscribing ad-hoc disallowances.
Evidently, there have been no clear findings as to number of vouchers requiring denial of allowances with the amount of expenditure and nature of defects therein or therewith. If the Ld. AO had any doubt with regard to the genuinity of any one of the vouchers produced he could have drawn sample vouchers and called upon the assessee to establish its genuineness. Moreover department could not bring out any deprecative material on record to substantiate its conclusion as logical.
We couldn’t even remotely see there is any mention of rationale in arriving at the percentile of disallowance in the present case. For the reasons we find force in the claim of the assessee that, devoid of any specific infirmity in the claim for deduction for sales incentives debited to profit & loss account, the ad-hoc disallowance is arbitrary and could by no means be held to be justified in given situation where books of accounts are subjected to audits.
Hon'ble High Court of Madras in ‘V.C. Arunai Vadivelan [2021 (2) TMI 501 - MADRAS HIGH COURT] wherein if the AO had any doubt with regard to the genuinity of any one of the vouchers produced he could have drawn sample vouchers and called upon the assessee to establish its genuineness. Without doing so, making an adhoc disallowance by not specifically assigning any reason to a voucher or bunch of vouchers is not legally tenable.’
Thus in the absence of clear finding about non-genuineness or fictitiousness of portion of expenditure disallowed, we find no favour with the arbitrary view of the tax authorities below. For the reason we vacate the ad-hoc disallowance in its entirety and thereby allow this ground.
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2024 (4) TMI 709
Deduction u/s 80P(2)(a)(i) - denial of deduction as no return had been filed within the time stipulated by the Assessing Officer in furtherance to his sec. 142(1) notice - HELD THAT:- As the amended provision herein i.e., sec. 80AC of the Act imposing such a stipulation of filing of sec. 139(1) return within the “due” date, has been substituted by the Finance Act, 2018 w.e.f. 01.04.2018 whereas the impugned assessment year herein is 2017-2018 only. There is no indication in the statute that this substituted sec. 80AC carries any retrospective effect. Thus find no merit in Revenue’s instant preliminary argument going by stricter interpretation as per Commissioner of Customs (Imports), Mumbai vs. M/s. Dilip Kumar And Co. & Ors. [2018 (7) TMI 1826 - SUPREME COURT]
As per sec. 80A(5) of the Act that the assessee had not made the impugned claim even in it’s alleged belated return - DR failed to rebut the clinching fact emerging from the assessee’s pleadings in Form-35 that the assessee had indeed raised the impugned claim in it’s return filed on 11.12.2019. It is reiterated that sec. 80AC of the Act has already been held as not applicable in light of the detailed discussion in preceding paragraph(s). Faced with this situation,we reject the Revenue’s instant second substantive argument while placing reliance on sec. 80A(5) of the Act.
Assessee has derived it’s impugned interest income from both nominal as well as regular members - This last issue is found to be no more res integra once hon’ble apex court’s recent landmark decision in Mavilayi Service Co-operative Bank Ltd., [2021 (1) TMI 488 - SUPREME COURT] has rejected the Revenue’s very stand. Faced with this situation, thus accept the assessee’s impugned sec. 80P(2)(a)(i) deduction claim in very terms. Necessary computation shall follow as per law. Ordered accordingly.
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2024 (4) TMI 708
Penal proceedings for misreporting of income u/s 270A - Excess exemption claimed on Gratuity u/s 10(10)(i) and Leave Encashment receipts u/s 10(10AA)(ii) - HELD THAT:- Levy of penalty in this case in our considered view was not warranted for the reasons that; (i) admittedly for part of the service the appellant was State Government employee whose employment by enforcement of electricity Act, 2003 and MSEGCL employee Service Regulation 2005 was converted into non-governmental service/employment. Therefore, the belief under which full/extended exemption of retirement benefit claimed in the ITR filed was in first not incorrect in its entirety and certainly it was bonafied and not synthetic one (ii) secondly, the explanation offered by the appellant in support of his mistaken but bonafied belief and disclosed all material facts of his service & the circumstance which swayed to claim full exemption in his ITR in our considered view squarely falls within clause (a) of s/s (6) of section 270A, therefore pardonable (iii) and finally, the imposition of penalty is at the discretion of Ld. AO, since s/s (1) of section 270A of the Act, refers to the word 'may' and not as ‘shall’.
The tax authorities below in our considered view were failed to appreciate the facts and circumstance of the present case holistically and further in right spirit of law, but dealt therewith without application of mind and perfunctory imposed / confirmed the penalty @ accelerated rate of 200% u/s 270A of the Act in unwarranted case like this.
In respect of penalty in fiscal laws the principle followed is more like the principle in criminal cases. That is to say the benefit of doubt is more easily given to the assessee, and this finds expounded in VV. IYER VERSUS COLLECTOR OF CUSTOMS [1972 (9) TMI 52 - SUPREME COURT].
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2024 (4) TMI 707
Fees levied u/s 234E - delay in filing TDS statement for various quarters - HELD THAT:- Following the judicial precedents laid in ‘Fatheraj Singhvi Vs UOI’ [2016 (9) TMI 964 - KARNATAKA HIGH COURT] NFAC has rightly allowed the appeal of the assessee and deleted the fees levied by the respondent u/s 234E of the Act wherein as held when the amendment made under Section 200A of the Act which has come into effect on 1.6.2015 is held to be having prospective effect, no computation of fee for the demand or the intimation for the fee under Section 234E could be made for the TDS deducted for the respective assessment year prior to 1.6.2015.
In the event, the present appeal filed against the impugned order seeking reversal in our considered view calls for no adjudication, hence deserves to be dismissed as infructuous. Thus, ordered accordingly.
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2024 (4) TMI 706
Levy of late fee u/s 234E for the delay in filing E-TDS return - contention of the assessee before the CIT (A) was that no late fee could be levied on the belated filing of the E-TDS return for the period prior to 01.06.2015, since the amendment to section 200A of the Act was made w.e.f. 01.06.2015 - HELD THAT:- With due respect to the judgement of Conceria International Ltd. Cited [2023 (12) TMI 281 - MADRAS HIGH COURT] the issue has been considered by the jurisdictional High Court in the judgement reported in Fatehraj Singhvi Vs. UOI [2016 (9) TMI 964 - KARNATAKA HIGH COURT], which was followed in the judgement reported [2022 (3) TMI 303 - KARNATAKA HIGH COURT], wherein the jurisdictional High Court has held that the levy of late fee for the belated filing of the e-TDS return for the assessment year prior to 01.06.2015 is not warranted.
When there is a judgement of the jurisdictional High Court, we have to follow the same and therefore, we hold that the levy of late fee could not be imposed for the disputed assessment year 2013-14 as held by the Hon’ble Karnataka High Court in the case of Fatehraj Singhvi Vs. UOI cited (supra). Accordingly, we delete the late fee levied under section 234E of the Act and allow the appeal of the assessee.
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2024 (4) TMI 705
Delay in filling appeal before the Tribunal - appeal is time-barred by 24 days - HELD THAT:- Punishment in the shape of taxes and penalty could be disproportionate to the negligence of assessee for not appearing before the AO or before the ld. 1st and 2nd Appellate Authority, but failure of the assessee to plead its case on merit do exhibit that it is a Company which is on papers only. The shadow prosecutor of the proceeding do ensure procedural compliance of filing appeals before the Appellate Authority in time.
Our experience of more than twenty years in adjudicating such type of litigation do suggest that this type of stand is being taken intentionally so that the time limit to take action in the case of those share applicants could be expired and a plea be raised before the Higher Appellate Forum that matter be remitted back for deciding afresh on merit. After expiry of six years earlier prior to 2021 and now ten years, action in the case of share applicant would not be taken up by the Income Tax Authorities. When we examine these facts and try to strike a balance between the adjudicatory process, then sometime it gives us pain and disappointment. But nevertheless, we have to resolve this dispute according to the material available on record.
A perusal of the application filed for condonation of delay, we are of the view that neither an affidavit of the Director is being filed nor exact details are submitted as to how this delay has happened. The assessee has not filed any confirmation from Ms. Devuani Dutta showing that appeal papers were submitted to her within time and she was busy in other tax matters and, therefore, could not file the appeal. Appeal of the assessee is dismissed.
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2024 (4) TMI 704
Territorial jurisdiction of Court - Confiscation of gold - levy of penalty on the petitioner - burden lies on the respondents to establish that the seized gold was smuggled in nature and there was violation of the Customs Act, 1962 by the petitioner or not - seeking release of seized gold - HELD THAT:- This Court observes that the preliminary objection of the respondent regarding the territorial jurisdiction of this Court deserves acceptance and the same is hereby accepted, because after a perusal of the record as a whole, it is clear that the entire proceedings, including confiscation, recording of the statements, hearing of the case etc. were conducted at Shillong (Meghalaya), and that, the gold biscuits i.e. the articles in question, never reached the territory of the State of Rajasthan.
Therefore, only on count of the fact that the residence of the petitioner is situated in the State of Rajasthan, the territorial jurisdiction does not lie with this Court. While making such observations, this Court is conscious of the fact that the present matter is quite old, but the same also cannot persuade this Court to hear and decide the case on its own merits, for lack of jurisdiction, and that, in reiteration, not even a fraction of the cause of action arose in the State of Rajasthan, so as to persuade this Court to make the effective adjudication of the case. Moreover, no interim order is operating in the present case.
This Court does not find it a fit case so as to grant any relief to the petitioner in the present petition - petition disposed off.
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2024 (4) TMI 703
Jurisdiction - DRI - proper officer to issue SCN - power of assessment under Section 17 - When Section 28(11) of Customs Act, 1962, envisages that all persons appointed as officers of Customs under sub-Section (1) of Section 4 before the 6th day of July 2011, shall be deemed to have and always had the power of assessment under Section 17 and shall be deemed to have been and always had been the proper officers for the purpose of this Section, whether CESTAT is correct in disputing/questioning the jurisdiction of the DRI to issue show-cause notice?
HELD THAT:- The issue raised in this appeal had already been dealt with by this Court in THE COMMISSIONER OF CUSTOMS VERSUS SHRI SANKET PRAFUL TOLIA [2021 (6) TMI 432 - MADRAS HIGH COURT] where the same substantial question of law has been raised, and it was held that The appeals are restored to the file of the Tribunal with a direction to keep the appeals pending and await the decision of the Honourable Supreme Court.
The impugned order is set aside - appeal allowed.
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2024 (4) TMI 702
Summons issued to attend the office of the DRI - seeking permission for videography of the Petitioner’s interrogation - HELD THAT:- We have perused the Judgment of this Court passed in Ronak Kumar, Jasraj Jain and Chetan Kumar [2022 (2) TMI 470 - BOMBAY HIGH COURT] as well as the Judgment passed by this Court in Gagan Jot Singh [2024 (3) TMI 747 - BOMBAY HIGH COURT] Considering the prayers made in the Petition, we do not find any impediment in permitting the Petitioner’s advocate to remain present when the Petitioner is summoned for interrogation by the Respondent No. 2. The Petitioner’s advocate to remain present at a visible but not audible distance. We also permit videography of the said interrogation, however, at the cost of the Petitioner.
We make it clear that if the Petitioner’s advocate is unable to remain present or if the person video graphing is not present, that will not be a ground for the Petitioner, not to remain present, before the Respondent No. 2–DRI, when summoned.
Writ Petition is accordingly allowed and is accordingly disposed of.
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2024 (4) TMI 701
Seeking to change the classification of the product imported by the appellant - WAXSOL-911(A) grade - to be classified under the heading 2710 or under 3405? - HELD THAT:- The dispute involved in the instant case is identical to the dispute involved in the case decided in PANOLI INTERMEDIATES INDIA PVT LTD AND OTHERS VERSUS C.C. -KANDLA [2023 (6) TMI 317 - CESTAT AHMEDABAD]. In the said decision after examining the dispute the tribunal observed A detailed examination about the nature of product, its usage and its proper classification based upon exclusion clauses of HSN explanatory note is warranted including of consideration of chapter 2712. In view of claim of product being in the nature of Slag wax, same needs elaborate discussion and findings from the authority below.
It is seen that the matter was remanded to the original adjudicating authority for fresh adjudication on the ground that the adjudicating authority needs to give his own finding on the issue of classification and also various other issues mentioned - it is felt that this matter should also be remanded back to the original adjudicating authority or identical terms as in order above, to be decided a fresh.
Appeal allowed by way of remand.
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2024 (4) TMI 700
Absolute Confiscation - Imposition of penalty under Section 112 of the Customs Act, 1962 - Smuggling of Gold - foreign origin Gold - non-recording of statements to corroborate the allegation of smuggling of gold - HELD THAT:- It is observed that nowhere appellants, namely, Shri Rupam Ghosh and Shri Vijay Bhagat, during the course of interrogation or thereafter, have denied their implication in the case. Only at the time of appellate stage, they are claiming that they have been falsely implicated in the case - As gold has been recovered from the possession of Shri Vijay Bhagat and Shri Rupam Ghosh, therefore, they cannot claim that they have been falsely implicated in this case and recovery of the gold was made on the basis of foreign marking, having a reasonable belief that gold is of foreign origin.
The gold in question has been rightly confiscated absolutely by the ld. adjudicating authority. As recovery of gold has been made from Shri Vijay Bhagat and Shri Rupam Ghosh, therefore, they cannot be exonerated. Accordingly, the penalty imposed on them of Rs.3,00,000/- each is confirmed.
Although the name of Shri Suresh Patil has been given by Shri Rupam Ghosh and Shri Vijay Bhagat during the course of investigation, but no corroborative evidence has been produced by the Revenue apart from the statement of the co-accused to allege that Shri Suresh Patil or Shri Balaji Abaso Patil (appellants herein) were involved in the activity of smuggling of the gold in question - As no evidence has been produced by the Revenue against Shri Suresh Patil and Shri Balaji Abaso Patil, therefore, no penalty can be imposed on the said two appellants.
Appeal disposed off.
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2024 (4) TMI 699
Seizure of Gold - Extension of time u/s 110 (2) of the Customs Act for issuance of SCN - Absolute Confiscation of gold recovered during the course of search - imposition of penalties - failure to submit the documents of procurement of gold bars of foreign origin at the time of seizure in terms of Section 123 of the Customs Act, 1962 - Admissibility of statements.
Extension of time under Section 110 (2) of the Customs Act - HELD THAT:- It is found that during the course of investigation, Panchanama was drawn and in Panchanama while seizing the gold, some papers were also recovered from the possession of the Appellant No. (2), but the details of those papers were neither supplied or mentioned in the Panchanama nor recorded in the relied upon documents - further the fact noted is that as per the examination report of CRCL, the purity of gold was found 99.5%. Although the gold is having a foreign markings that does not establish that the gold is foreign gold as the foreign marking gold contains purity of 99.9%. In that circumstances, the Revenue has failed to make the reason to believe that the gold in question is smuggled in nature.
Applicability of provisions of Section 123 of the Customs Act, 1962 - HELD THAT:- As the purity of gold was 99.5%, although there is an inscription of gold being of foreign origin, which does not establish that the gold in question is of smuggled in nature. Moreover, one of the gold bar is having marked as “MMTC PAMP” that the gold bar cannot be of foreign origin and smuggled one, which itself breaks the case of the Revenue. The Revenue is also relying the marking of “MMTC PAMP” Indian marks, therefore, how can it be alleged that the gold in question is of foreign origin and smuggled one, therefore, the Revenue has failed to make out a case of reasonable belief that the gold in question is smuggled one. Consequently, the provisions of Section 123 of the Customs Act, 1962 are applicable to the facts of the case.
Admissibility of statements - HELD THAT:- The case of the Revenue is based only on the basis of statement of the Appellant No.(2) during the course of interrogation on 19.06.2016, no further corroborative evidence has been produced by the Revenue in support of their allegation that the gold in question is of foreign origin and smuggled one. Without corroborative evidence, the statement of the Appellant No.(2) dated 19.06.2016 is inadmissible.
Thus, the gold in question cannot be held liable to be confiscated. Consequently, the order for confiscation of gold in question is set aside. As the gold in question is not liable for confiscation, therefore, no penalties can be imposed on the appellants.
The impugned order is set aside - appeal allowed.
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2024 (4) TMI 698
Town Seizure - Absolute confiscation of gold - imposition of penalties on the firm as well as on the appellants - onus to prove u/s 123 of CA - HELD THAT:- It is found that it is a case of town-seizure. Moreover, the gold bars recovered were having no markings and having purity of 99.96%. In that circumstances, the Revenue has failed to discharge their onus how they form an opinion that they have a reasonable belief that the gold is of foreign origin and smuggled one. Moreover, the appellants have been able to prove by producing various documentary evidences, like, their Books of Accounts and certification from M/s G.N.H. & R [P] Ltd., Kolkata and the appellants have also produced certain “Hall Marking” issued by them from time to time. In that circumstances, the appellants were able to discharge their onus of procurement of gold through licit means in terms of Section 123 of the Customs Act, 1962.
The gold in question cannot be held liable to be confiscated. Consequently, the order for confiscation of gold in question is set aside and as the gold in question is not liable for confiscation, therefore, no penalties can be imposed on the appellants.
The impugned order set aside - appeal allowed.
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