|
Advanced Search Options
Case Laws
Showing 341 to 360 of 1484 Records
-
2025 (3) TMI 1144
Admission of Section 7 application - existence of debt and default or not - appellant has taken various opportunities and has prolonged the hearing of the appeal after obtaining an interim order due to which the Corporate Insolvency Resolution Process (CIRP) against the corporate debtor could not proceed any further - HELD THAT:- There is no dispute between the parties regarding financial facilities extended by the SBI. The amount disbursed by the SBI to the corporate debtor. The accounts were declared NPA by the financial creditor on 26.07.2017. Loan recall notice was issued by the SBI on 11.01.2019 and on behalf of the all the consortium lenders demanding a payment of amounts of ₹2078.04 Crore. Section 7 application was filed by the SBI for a default of ₹1049.72 Crore. Before the Adjudicating Authority itself, the corporate debtor pleaded that corporate debtor has submitted one-time proposal before the lenders.
Before this Tribunal the appellant pleaded that they have given OTS proposal to the financial creditors. In order dated 25.10.2024, it is noticed the submissions of the counsel for the SBI that SBI has not accepted the proposal. Even after 25.10.2024, appellant took time to bring settlement on record in which appellant miserably failed. The sequence of the event in the appeal as noted above clearly proves that debt and default is an admitted fact. From the facts brought on the record, it is clear that corporate debtor is unable to clear its debt and it is fit case where insolvency resolution process against the corporate debtor be proceeded.
Conclusion - The debt and default were established, arbitration proceedings did not impact the insolvency process, and the lack of an accepted OTS did not justify halting the proceedings.
Appeal dismissed.
-
2025 (3) TMI 1143
Termination of lease during the moratorium period imposed under Section 14 of the Insolvency and Bankruptcy Code, 2016 (IBC) - jurisdiction of NCLT to entertain the application filed by the Resolution Professional (RP) against the termination of the lease by GIDC - HELD THAT:- There is no dispute between the parties that Resolution Plan came to be approved by the CoC with requisite majority in 17th CoC Meeting held on 10.02.2020 and Letter of Intent was issued to SRA, who has also submitted Performance Bank Guarantee. An IA was filed by the RP for approval of Resolution Plan being IA No.159 of 2020 immediately after approval of the Resolution Plan, which remained pending.
The Resolution Plan could not be considered at an earlier point of time on account of certain litigations with respect to eligibility of SRA. The Adjudicating Authority has also extended the time for completion of CIRP. In IA No.461 of 2022 filed by the RP challenging the order dated 07.04.2022 issued by GIDC, by which lease was terminated and further Show Cause Notice was issued for eviction of the CD. Both these orders were challenged in IA No. 461 of 2022. There is no dispute between the parties that moratorium which commenced on admission of Section 7 Application in the year 2019, continued to operate. The Resolution Plan, which was approved, for which IA No.159 of 2020 was filed, remained pending before the Adjudicating Authority. Thus, order dated 07.04.2022 was passed during continuance of the moratorium.
The Hon’ble Supreme Court in Embassy Property Developments Pvt. Ltd. vs. State of Karnataka and Ors. [2019 (12) TMI 188 - SUPREME COURT] recorded its conclusion that NCLT did not have jurisdiction to entertain an application against the Government of Karnataka for a direction to execute supplemental lease deeds for the extension of the mining lease.
The application for approval of Resolution Plan was pending consideration during which period GIDC had issued an order, terminating the lease and issuing Show Cause Notice for eviction of the CD. We are of the view that action of the GIDC by issuing Show Cause Notice of terminating the lease dated 07.04.2022 was clearly hit by Section 14 of the IBC and the Adjudicating Authority committed error in not allowing the IA, which was filed by the RP being IA No.461 of 2022. Although, interim order was passed by Adjudicating Authority for maintaining the status quo, but Adjudicating Authority directed the RP to approach the Appellate Authority of GIDC. When order passed by GIDC is clearly hit by Section 14(1), it was well within the jurisdiction of NCLT within the meaning of Section 60, sub- section (5) (c) of the IBC to entertain the application.
Conclusion - When order passed by GIDC is clearly hit by Section 14(1), it was well within the jurisdiction of NCLT within the meaning of Section 60, sub-section (5) (c) of the IBC to entertain the application.
Challenge to order of the Adjudicating Authority remanding the Resolution Plan to the CoC - HELD THAT:- Learned Counsel for the Financial Creditor is correct in its submission that Adjudicating Authority has not returned any finding that Resolution Plan submitted by SRA was not in compliance of sub- section (2) of Section 30. No such shortcomings in the Resolution Plan has been pointed out, due to which the Resolution Plan suffers from any infirmity as required by Section 30, sub-section (2).
The law is well settled, the Adjudicating Authority in paragraph-17 has already noticed the judgment of the Hon’ble Supreme Court K. Sashidhar vs. Indian Overseas Bank and Ors. [2019 (2) TMI 1043 - SUPREME COURT], where it was observed that Adjudicating Authority has ample power to remit the Resolution Plan for reconsideration by the CoC when there is violation of Section 30, sub-section (2) of the IBC. There can be no quarrel to the above proposition that Resolution Plan can be sent back for reconsideration of the CoC, if there is violation of Section 30, sub-section (2). Any violation of Section 30, sub-section (2) gives ample jurisdiction to NCLT to interfere with the decision of CoC approving the Resolution Plan or remit the Plan for making it compliant with Section 30, sub-section (2). But in the present case, there is no finding by the Adjudicating Authority with regard to non-complaint of Resolution Plan as per Section 30, sub-section (2).
Conclusion - Without recording a finding of non- compliant of Section 30, sub-section (2), the Resolution Plan could not have been returned back to the CoC for reconsideration.
Appeal allowed.
-
2025 (3) TMI 1142
Maintainability of petition - operational debt of a sum exceeding rupees one crore due and payable by the respondent to the petitioner exists as on the date of filing of this petition or not - pre-existing dispute as to the subject debt between the parties or not - initiation of Corporation Insolvency Resolution Process (CIRP) against the respondent is barred under section 10A of the Insolvency & Bankruptcy Code, 2016 or not.
Whether an operational debt of a sum exceeding rupees one crore due and payable by the respondent to the petitioner exists as on the date of filing of this petition? - If so, whether the respondent defaulted in repayment of the same? - HELD THAT:- The answer is unequivocally yes because admittedly by as per the statement of account of the financial year 2020-2021 and financial year 20212022, the due at the end of respective financial year is shown as Rs.1,00,49,270/- (Rupees One Crore Forty Nine Thousand and Two Hundred and Seventy only). Further, it is seen that the debt due is not hit by limitation as the date of default being 14.03.2020, as claimed by the Operational Creditor, or, 15.12.2020 as the demand notice falls within 3 years of the filing of application.
Whether there is a pre-existing dispute as to the subject debt between the parties? If so, whether the petition is maintainable? - HELD THAT:- The issue has also been dealt with correctly by the Ld. Adjudicating Authority by holding that the Corporate Debtor has accepted the supplies made by the Operational Creditor without any goods being returned and without raising any issues, that since the payment for supplies are to be made within 30 days from the date of invoice, he should have raised disputes if any for each supply within such or reasonable period, that no record have been placed by the Appellant before the Ld. Adjudicating Authority to show that he has raised quality complaints as per the general practice in the business and therefore the claim of a pre-existing dispute with respect to the debt cannot be accepted for the purpose of rejecting the Section 9 application of the Operational Creditor.
Whether the initiation of Corporation Insolvency Resolution Process (CIRP) against the respondent is barred under section 10A of the Insolvency &Bankruptcy Code, 2016? If so, whether the Company Petition is maintainable? - HELD THAT:- In the present case, the debt which due remained to be paid on 11.11.2022 was Rs.1,00,49,270/-, consisting of the amounts relation to in 28 invoices that were raised by the Operational Creditor and were not paid by the Corporate Debtor within the period of 30 days of raising of each invoice till the date of filing of the Section 9 application. Out of these 28 invoices, 27 invoices fell due for payment and were defaulted on, in the period 25.03.2020 to 25.03.2021, that is Section 10 A period, if 30 days added to the date of raising of each invoice. Thus, clearly the debt due on these 27 invoices will attract the provision of Section 10 A of the Code.
It is to be seen that this is a running account of goods received and payments made by the Corporate Debtor and though the payments have not been made invoice-wise it is clear that the Corporate Debtor has cleared about Rs. 74.95 lakhs out of Rs.1,05,08,583/- being the opening balance of the dues to be paid as on 01.04.2020 and that the amounts pending to be paid pertain to invoices that were raised during Section 10 A period, that is during the period 25.03.2020 to 25.03.2021.
In the instant case, each unpaid invoice gives rise to a distinct & separate default. Further, only Rs.2,86,762/- is the amount that is in default from the pre-section 10A period. Even though the Corporate Debtor has acknowledged the debt that has accumulated in the period 25.03.2020 to 16.09.2020, it cannot be taken as a continuation of the default claimed to have been committed on 14.03.2020, for the reason being that the Corporate Debtor had repaid a total of Rs.79,54,973/- of the amount due as on 01.04.2020 during the period of 01.04.2020-31.03.2021. Thus there will be a bar on including the amount involved in the 27 invoices that fell due during the Section 10 A period to the total debt due for the purpose of initiating CIRP as per the proviso to Section 10 A of the Code. Accordingly, the threshold limit of Rs. 1 crore as stipulated in Section 4 will not be met and as a result, the order of the Ld. Adjudicating Authority admitting the Corporate Debtor into CIRP will have to be set aside.
There are no hesitation in saying following the decision of the Hon’ble Apex Court in the matter of Ramesh Kymal [2021 (2) TMI 394 - SUPREME COURT], that the amount represented by these 28 invoices will remain a debt due and that they will not be extinguished but they cannot be used as a basis to initiate CIRP proceedings.
The Respondent will continue to have the right to recover the said dues by all the means available to him including approaching commercial courts except resorting to proceedings under the I & B Code.
Conclusion - i) The operational debt claimed exceeded Rs. 1 crore, but the inclusion of invoices that fell due during the Section 10A period was barred, reducing the debt below the threshold required for CIRP initiation. ii) The alleged pre-existing dispute was not substantiated, and thus did not bar the CIRP initiation. iii) The application of Section 10A barred the inclusion of debts that arose during the specified period, and the remaining debt from the pre-Section 10A period did not meet the threshold limit under Section 4 of the Code.
Appeal allowed.
-
2025 (3) TMI 1141
Offence under FEMA - appellant was involved and played vital role in preparing the forged documents submitted in the bank and was assisting the exporter in supplementing the goods in the consignments of M/s Prominent Exim - HELD THAT:- The facts on record does not show any material to implicate and prove a case for contravention of the provisions quoted above by the appellant Manoj Arjun Gore. He was Custom Clearance Agent and used to process papers for export of the materials.
The commission for it was to be received by Vinod Chitalia to the extent of 40% of DEPB and was passing it to the appellant to the extent of 15%. The amount received for process of the export documents cannot make out a case for contravention of Section 3(b) and 3(d) of the Act of 1999.
Respondents could not refer to the evidence to show that appellant made contravention to Section 3(b) and 3(d) of the Act of 1999. The penalty of Rs.4,00,000/- and Rs.6,00,000/- has been imposed on the appellant but finding no material to prove contravention of Section 3(b) and 3(d) of the Act of 1999 by the appellant, we cause interference in the impugned order and is set aside qua the appellant. Appeal is allowed with aforesaid.
-
2025 (3) TMI 1140
Contraventions of FEMA provisions - liability for the failure to realize and repatriate export proceeds under Section 7 and 8 of FEMA - Whether the appellants can be absolved of liability for the contraventions due to their retirement and the provisions of the Family Arrangement cum Compromise Deed and Indemnity?
HELD THAT:- The Appellants therefore cannot escape the rigours of law with respect to their failure in realization of the pending export proceeds with respect to the 07 GRs totaling USD 3,93,094.63 as mentioned above. We observe that with respect to the 07 GRs for amount of USD 3,93,094.63, the statutory period of six months for realization and repatriation of the full export value of the goods exported had expired between 02.05.2000 to 13.08.2000, that is much before the date of resignation of the two Appellants w.e.f. 01.09.2000.
The pleadings made with respect to the efforts of contacting the buyers through letters, faxes and telephones etc. to be regarded as reasonable steps cannot be accepted as observed in the preceding paragraphs of this Order.
Appellants too have failed to produce material available to corroborate that they had taken effective steps to recover /repatriate the foreign exchange dues.
We therefore, find that the resignation of the two Appellants from M/s Rosecut Diamonds would not absolve them from the charge of contraventions of FEMA r/w Section 42 of FEMA with respect to the 07 GRs totaling USD 3,93,094.63.
Thus, we find that the two Appellants, have contravened Section 7 and 8 of the FEMA, 1999 read with Regulations 8, 9 and 13 of the FEMA Regulations, 2000 read with Section 42(1) of FEMA, 1999 with respect to the 07 GRs of the amount USD 3,93,094.63.]
Penalty imposed for failure to realize and repatriate US $ 10,24,967.32 with respect to 19 GRs - Adjudicating Authority has imposed penalty of Rs, 1,00,00,000/- on Shri Ketan A Shah who was the Partner of the Export Firm throughout the relevant period for the aforementioned contraventions in terms of Section 42 (1) of FEMA. In view of these circumstances and factors, we reduce the penalty imposed on the two Appellants to Rs 10,00,000/- (Rs Ten Lakhs Only) each. Since, Sh. Mehul R Shah and Sh. Ashwin H Shah in Appeals have paid Rs. 5,00,000/- as pre-deposit of the penalty amounts, the amount of pre-deposit made by the two Appellants are to be adjusted against the aforementioned reduced penalty amounts.
-
2025 (3) TMI 1139
Classification of services - Commercial Coaching and Training Services or not - training provided by M/s. Bombay Flying Club in Aircraft Maintenance Engineering - Doctrine of mutuality - HELD THAT:- There is a clear cut distinction is made out between acquirement of qualification to be declared eligible in completing certain course and the requirement of issue of licence to practice on the basis of the said qualification to enable a person to take up the profession accordingly. On the basis of said finding of the Hon'ble Delhi High Court in M/S INDIAN INSTITUTE OF AIRCRAFT ENGINEERING VERSUS UNION OF INDIA & ORS [2013 (5) TMI 592 - DELHI HIGH COURT] that has struck down the said clarification Circular of the CBEC issued on dated 11.05.2011, and this Tribunal has rendered consistent decisions on the issue which is also referred in the written submission filed by learned Counsel for the Appellant, as noted below, we are of the considered view that judicial precedent as set by Hon'ble Delhi High Court and by this Tribunal with several decisions as passed in the case of Hindustan Institute of Aeronautics [2015 (2) TMI 140 - CESTAT NEW DELHI], Star Aviation Academy [2016 (1) TMI 1376 - CESTAT NEW DELHI] and also by Hon'ble Allahabad High Court in the case of Garg Aviations Ltd. [2014 (5) TMI 955 - ALLAHABAD HIGH COURT] on the issue has to be followed by parallel or subordinate judicial forums.
The certificate issued by Appellant can be treated as certificate ‘issued in accordance to law’ so as to cover it under exception clause of imparting commercial and educational training. The portion of statute regarding issue of certificate that was deleted from Section 65(27) with effect from 01/05/2011 was brought into force by way of its introduction through Notification No. 33/2011-ST, that covers the period of the order passed by the Commissioner (Appeals), also would meet the same result.
Conclusion - i) Training provided by institutions issuing certificates recognized by law is exempt from Service Tax under Section 65(27) of the Finance Act, 1994. ii) The doctrine of mutuality exempts services provided by a club to its members from Service Tax, as there is no taxable transaction.
Appeal allowed.
-
2025 (3) TMI 1138
Dismissal of appeal on the ground of being time barred - scope of definition of "service" as per Section 65B(44) of the Finance Act, 1994 - HELD THAT:- The order in original dated 04.09.2020 was apparently and admittedly received by the appellant on 10.09.2020. Hence the appeal would have been filed by 10.11.2020 (within two months of receiving order) by 10.12.2020 (within further period of 30 days of proviso to Section 85). But the appeal before Commissioner (Appeals) was filed on 22.08.2022. No doubt, Hon’ble Supreme Court in suo moto writ petition No. 3 of 2020 decided on 10.01.2022 had ordered exclusion of time i.e. from 01.03.2020 to 28.02.2022) while calculating the period of limitation. But from the dates as mentioned above, it is clear that appeal filed before Commissioner (Appeals) on 28.02.2022 was still beyond the said excluded period as it was filed beyond a period of six months of expiry of said period. Hence, the appeal was filed even beyond the condonable period.
Commissioner (Appeals) statutorily couldn’t condone the delay of over a month beyond two months from date of receipt of order-in-original - It has held by Hon’ble Supreme Court in the case of Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur [2007 (12) TMI 11 - SUPREME COURT] it is held that 'there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period.'
There is an apparent delay in filing the appeal before Commissioner (Appeals) - appeal dismissed.
-
2025 (3) TMI 1137
Reduction of penalty imposed u/s 78 of FA - Disallowance of CENVAT Credit - extended period of limitation - HELD THAT:- Once it was admitted by the learned counsel for the appellant during the course of hearing of the appeal before the Commissioner (Appeals) that the appellant was not disputing the confirmation of demand of service tax amounting to Rs. 1,07,52,629/-, it is not open to the appellant to contend in this appeal that confirmation should be set aside as the extended period of limitation could not have been invoked in the facts and circumstances of the case.
It is clear from the order passed by the Commissioner (Appeals) that the only submission that was made was that the penalty should be reduced to 50% in view of the provisions of section 78 of the Finance Act. The Commissioner (Appeals) has recorded a categorical finding that the Books of Accounts did not reveal the transactions, and it is only the Tally software that was recovered from the premises of the appellant that mentioned the aforesaid amount. There is, therefore, no error in the finding recorded by the Commissioner (Appeals).
Regarding the recovery of CENVAT credit, the contention raised on behalf of the appellant that the credit could not have been disallowed under the provisions of the CENVAT Credit Rules, 2002, as the CENVAT Credit Rules, 2004 were applicable has not been accepted by the Commissioner (Appeals) for the reason that the show cause notice clearly mentions the invocation of rule 14 of the CENVAT Credit Rules, 2004 and a mere mention of a wrong rule in the impugned order would have no effect. There is no error in the finding passed by the Commissioner (Appeals).
Conclusion - The appellant have not been able to establish that the transactions in respect of which service tax was evaded was duly reflected in the specified books of account such as audited financial statements. The Tally software cannot be considered as a specified record for the purpose of attracting the proviso to Section 78.
Appeal dismissed.
-
2025 (3) TMI 1136
Levy of service tax - lease agreements for fitouts constituted a deemed sale or service - renting of immovable property service or not - HELD THAT:- The Commissioner examined all the relevant factors required be examined for determining whether a “deemed sale” had taken place or not in the light of the decision of the Supreme Court in Bharat Sanchar Nigam Ltd [2006 (3) TMI 1 - SUPREME COURT]. The Commissioner noted that the goods were available for delivery and that the goods were also identifiable. The Commissioner also noted that the fitouts and equipments were leased out to TATA Consultancy Service and CMC Limited for the use and enjoyment to the exclusion of the right of ASF Buildcon. The Commissioner also noted that these fitments and equipments were essential to the use/occupation/ enjoyment of the leased premises.
Conclusion - The lease agreement under consideration for fitouts would amount to a “deemed sale” contemplated under article 366(29A) of the Constitution and indeed ASF Buildcon had also paid VAT on this amount. Once a “deemed sale” took place, the issue of dominant nature as raised by learned authorized representative appearing for the department would not arise, and this fact has also been examined by the Commissioner in the impugned order.
There is, therefore, no infirmity in the impugned order - The appeal filed by the department deserves to be dismissed and is dismissed.
-
2025 (3) TMI 1135
Classification of services - Erection, Commissioning and Installation Service or Works Contract service - suppression of facts or not - extended period of limitation - HELD THAT:- There has been a substantial litigation on the applicability of the various tax entries and in case of composite works contract the position got clarified only after the decision of the Supreme Court in Larsen & Toubro [2015 (8) TMI 749 - SUPREME COURT]. Hence the non-payment/partial payment was due to prevalent confession about nature of such services where the transfer of goods is agreed for rendering service i.e. in case of Composite Contracts. In such cases the non-payment of tax cannot be called as intentional evasion nor suppression of facts. In view of this, demand of the period up to 31.03.2009 is hit by limitation.
The SCN dated 21.10.2010 proposing the demand for the period 2005-2006 to 2009-2010 is held barred by time. No demand arising out of such show cause notice can be confirmed.
Conclusion - Composite works contracts cannot be taxed under service categories meant for service contracts simpliciter.
The impugned order confirming demand even for the abated amount is not sustainable also for the reason that demand is confirmed under ECIS whereas the service rendered was WCS - Appeal allowed.
-
2025 (3) TMI 1134
Refund of unutilized CENVAT credit - closure of factory - rejection of refund on the ground that there was no export clearance made by the appellant - HELD THAT:- Since the appellant does not export the goods refund of CENVAT credit shall be allowed as he does not fullfill the conditions above. Further due to the absence of exports ‘the ratio of export turnover to the total turnover’ cannot be determined.
The Honorable Supreme Court UNION OF INDIA & ORS. VERSUS VKC FOOTSTEPS INDIA PVT LTD. [2021 (9) TMI 626 - SUPREME COURT] held that, refund is not a constitutional right but a statutory right and therefore, the legislature, in its wisdom, and through statute, can decide how the refund is to be granted.
The judgment of the Hon’ble Bombay High court in GAURI PLASTICULTURE [2019 (6) TMI 820 - BOMBAY HIGH COURT], discusses the legal issues and the judgments cited by the appellant, comprehensively. It thus merits to be followed. Thus, it is concluded that rule 5 of CCR read with N/N. 05/2006-CE(N.T.), as it then stood, i.e. prior to 01.04.2011, does not permit the refund of credit which is not on account of the export of goods. Section 11B(2)(c) of CEA is to be read with the rules or notification issued under the Act, and would hence necessarily involve Rule 5 of CCR and N/N. 05/2006-CE(N.T.). The refund claim of the appellant has thus been correctly rejected in the impugned order.
Conclusion - The legal framework, as interpreted by the relevant precedents, did not support the appellant's claim for a refund of unutilized CENVAT credit in the absence of export activities.
Appeal dismissed.
-
2025 (3) TMI 1133
Process amounting to manufacure or not - activities of cutting / slitting of H.R. Coils, etc. - applicability of C.B.E.C. Circular No. 811/08/2005-CX. dated 02.03.2005 - procedure laid down in Rule 3(4) (b) of the CENVAT Credit Rules, 2004 followed or not - non-imposition of penalty under the provisions of Rule 15(1) of CENVAT Credit Rules, 2004 - Extended period of limitation - suppression of facts or not.
Process amounting to manufacture - HELD THAT:- The Respondent are engaged in cutting/slitting of H.R.Coils and conversion of the same to M.S. Plates. The said process does not amount to manufacture. Since the process does not amount to manufacture, the Respondent took recourse of Rule 16 of the Central Excise Rules, 2002, i.e. they used to bring the H.R. Coils under Rule 16(1) of the said rules and availed CENVAT Credit in terms of the said rules. After the conversion i.e., cutting/slitting of the goods, the resultant products, i.e. M.S. Plates were removed by debiting an amount as prescribed under Rule 16(2) of the said rules. This procedure adopted by them was known to the Department as the said procedure was advised by the jurisdictional Assistant Commissioner.
Extended period of limitation - suppression of facts or not - HELD THAT:- There is no suppression of facts with intention to evade the duty established against the Respondent in this case. Hence, the ld. adjudicating authority has rightly held that the extended period is not invocable in this case and dropped the demand raised in the notices by invoking extended period of limitation.
Non-imposition of penalty under Rule 15(1) of the CENVAT Credit Rules, 2004 - HELD THAT:- In the instant case, the Respondent has paid an amount equal to the credit taken while clearing the goods after processing. The Department has accepted the equal amount of credit paid by the Respondent under Rule 16(2) of the Central Excise Rules, 2002.
In a catena of decisions it has been held that though the process does not amount to manufacture, credit on inputs cannot be denied as the manufacturer paid duty on the final products.
The Respondent has rightly availed credit on the inputs and paid an amount equal to the credit taken at the time of clearance of the goods as provided under Rule 16(2) of the Central Excise Rules, 2002. Thus, we observe that the allegation of irregular availment of credit against the Respondent does not survive. Once, the credit availed by the Respondent is found to be regular, there is no irregularity in utilising the same to discharge the payment as per Rule 16(2) of the Central Excise Rules. Since the availment of credit and subsequent utilisation of the same for paying the amount as per Rule 16(2) of the Central Excise Rules,2002 are found to be regular, no penalty imposable on the Respondent. Consequently, there are no infirmity in the impugned order passed by the Ld. adjudicating authority.
Conclusion - The duty paid by the appellants has been accepted by the department which is admittedly more than the CENVAT credit availed by the appellants. The appellants are not required to reverse the credit.
Appeal of Revenue dismissed.
-
2025 (3) TMI 1132
Challenge to N/N. 56/2023-Central Tax dated 28th December, 2023 and N/N. 56 of 2023 dated 16th January, 2024 issued by Respondent No. 1 - HELD THAT:- In Writ Petition No. 5146 of 2024 as well as Writ Petition No. 2616 of 2025, this Court has issued Rule and granted interim relief to the Petitioners in both these Writ Petitions on the prima facie ground these Notifications could not have been issued without the recommendation of the GST Council. Considering these facts, in the present case also similar reliefs ought to be granted to the Petitioner. In these circumstances, Rule issued.
A Strong prima facie case is made out for granting interim relief to the Petitioner - Petition allowed.
-
2025 (3) TMI 1131
Confiscation of seized goods - Inordinate delay of over 11 years in the adjudication of the Show Cause Notice (SCN) - Sufficient ground to quash the Orders-In-Original (OsIO) issued on 30.12.2022 and 02.03.2023 or not - Sufficient cause for delay or not - HELD THAT:- This court, in Vos Technologies India [2024 (12) TMI 624 - DELHI HIGH COURT], had the opportunity to consider the effect of inordinate delay and failure on the part of the tax authorities to conclude the adjudication proceedings within a reasonable period of time (arising out of the Customs Act [Custom Act], 1962, the Finance Act, 1994 [Finance Act] and the CGST Act) and held that such delay/ failure to act within a reasonable period of time, constituted sufficient ground to quash such proceedings. This Court also held that the authorities are bound and obliged in law to make endeavors to conclude adjudication with due expedition.
The relevant portion of Section 11A of the Act is pari materia to the corresponding provisions of the Customs Act, the Finance Act and the CGST Act, and thus, the mandate of the said judgement is applicable to the present cases.
The Respondents in the impugned OsIO have not given any explanation as to why the SCN could not be decided finally for over 11 years. However, in the counter affidavits, the Respondents have endeavored to give a feeble justification for the delayed adjudication premised on (a) the advent of the CGST Act in 2017 & its shortfall in the administrative functioning subsequently, (b) COVID-19 and (c) the delay caused by the Petitioners by not filing reply on time or filing belated reply to the SCN and by avoiding joining the physical hearings.
In Vos Technologies India, this Court categorically held that, matters having financial liabilities or penal consequences cannot be kept unresolved for years; and the phrase “where it is possible to do so” cannot be a license to keep matters pending for years. The flexibility provided by the legislation is not meant to be overused or construed as sanctioning indolence. The statutory leverage cannot be brought into play routinely and in an unfettered manner for years, without any due justification or explanation.
Conclusion - The statutory authorities must conclude adjudication within a reasonable time and cannot rely on statutory flexibility to justify indefinite delays.
The impugned OsIO quashed due to the unjustified delay in adjudication and ordered the release of the Bank Guarantee furnished by the Petitioners - petition allowed.
-
2025 (3) TMI 1130
Entitlement to benefit of Amnesty scheme under Section 128A of the CGST Act, post-reassessment - respondent No. 4 did not consider the claim of the petitioner qua Circular bearing No. 123/42/2019-GST dated 11.11.2019, Circular No. 183/15/2022-GST dated 27.12.2022 and Circular No. 193/05/23/GST dated 17.07.2022 on the sole ground that the petitioner had not produced relevant documents in this regard - HELD THAT:- A perusal of the impugned order will indicate that respondent No. 4 has referred to specific submission/contention of the petitioner that he places reliance upon the aforesaid three circulars in support of its claim. However, the said contention/claim had been rejected on the sole ground that the petitioner had not produced relevant documents in this regard as can be seen from page No. 45 of the impugned order at paragraph 30, wherein respondent No. 4 has come to the conclusion that the details, invoices, debit notes etc., have not been furnished by the petitioner. However, in the light of the specific assertion on the part of the petitioner that if one more opportunity is provided to the petitioner, the petitioner would file additional pleadings, documents etc., without expressing any opinion on the merits/demerits of the rival contentions, it is deemed just and appropriate to set the impugned order and remit the matter back to the concerned respondent for reconsideration afresh and pass appropriate order, within a stipulated time frame, in accordance with law.
In so far as the submission made on behalf of the petitioner that they intend to avail the benefit of Amnesty scheme under Section 128A of the CGST Act is concerned, immediately upon respondent No. 4 passing appropriate orders as stated supra, the petitioner would be entitled to make an application for the benefit under the earnesty scheme, which shall be considered by the concerned respondent, in accordance with law.
Conclusion - The petitioner is entitled to apply for the Amnesty Scheme benefits post-reassessment.
The impugned order is set aside, and the matter remitted for fresh consideration.
-
2025 (3) TMI 1129
Violation of principles of natural justice - non-application of mind - failure to consider the petitioner's objections and responses to the SCN - Opportunity of hearing not provided - HELD THAT:- The petitioner filed its reply on 28.10.2023, 21.11.2023, 29.11.2023 and 18.12.2023. However, the impugned order has been passed without affording an opportunity of personal hearing to the petitioner nor even referring to the reply which amounts to gross violation of principles of natural justice. Thus the impugned order suffers from non-application of mind to the material on record.
Conclusion - There is merit in the submission of the learned counsel for petitioner that the impugned order suffers from the vice of non-application of mind inasmuch as there is not even a reference to the replies referred above, in the impugned order of assessment.
Petition disposed off.
-
2025 (3) TMI 1128
Violation of principles of natural justice - non-consideration of the petitioner's defense reply to the SCN - recovery of service tax with interest and penalty, given the petitioner's claim of exemption under the Mega exemption N/N. 25/2012 - HELD THAT:- The impugned order as contained in Annexure ‘P/8’ suffers from violation of principles of natural justice. The reply submitted by the petitioner seems to have been forgotten and not considered by the competent authority while passing the impugned order as contained in Annexure ‘P/8’.
Matter remanded back to the competent authority who will consider the reply submitted by the petitioner, give an opportunity of hearing and shall pass a fresh order in accordance with law - application allowed.
-
2025 (3) TMI 1127
Attachment of petitioner's bank property - Due service of pre-intimation notice and SCN under the CGST/KGST Act, 2017 - Failure to respond to the notices - time limitation - HELD THAT:- Having regard to the specific assertion on the part of the petitioner that his inability and omission to submit replies and contest the proceedings was due to bona fide reasons, unavoidable circumstances and sufficient cause, it is deemed just and appropriate to adopt a justice oriented approach and provide one more opportunity to the petitioner by setting aside the impugned order dated 08.11.2023 and remitting the matter back to the first respondent for reconsideration of the matter afresh in accordance with law to the stage of petitioner submitting reply to the impugned show-cause notice by imposing cost of Rs.10,000/- on the petitioner payable to the High Court Advocate Welfare Fund.
The matter is remitted back to the first respondent for reconsideration afresh in accordance with law - petition alowed by way of remand.
-
2025 (3) TMI 1126
Scope of “plant and machinery” in the explanation appended to Section 17 of the CGST Act applies to the expression “plant or machinery” used in clause (d) of sub-section (5) of Section 17 or not - constitutional validity of clauses (c) and (d) of Section 17 (5) and Section 16 (4) of the CGST Act - the issue is similar to the issue in Safari Retreats (P.) Ltd. [2024 (10) TMI 286 - SUPREME COURT], which is not considered properly - HELD THAT:- In the instant case, a perusal of the impugned order in original at Annexure-P dated 09.12.2024 will indicate that the aforesaid judgment of the Apex Court in Safari Retreats (P.) Ltd., has not been considered in its right perspective.
Under these facts and circumstances, it is deemed just and appropriate to dispose of the petition by remitting the matter back to the respondent for reconsideration afresh in accordance with law.
Matter is remitted back to respondent No.1 for reconsideration afresh in accordance with law - petition allowed by way of remand.
-
2025 (3) TMI 1125
Inaction on the part of the respondents in not refunding the amount of GST collected from the petitioner in the course of the execution of the contract that was awarded to the petitioner - grievance of the petitioner is that inspite of repeated approach being made to the respondents, there is a total inaction on the part of the respondents so far as refund of GST is concerned - HELD THAT:- The writ petition as of now stands disposed of directing the State Authorities to immediately process the claim of the petitioner so far as refund of GST is concerned, after due verification of facts and also the entitlement part of the petitioner is concerned. Let an appropriate decision be taken keeping in view the earlier order of the State Government dated 10.10.2018 in this regard and all subsequent orders also passed in this regard by the State. The State Authorities shall also keep in mind the contention of the petitioner that in many of the similar cases, the govt. itself has refunded the GST.
Petition disposed off.
............
|
9911796707
