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Showing 281 to 300 of 1570 Records
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2024 (5) TMI 1290
Validity of reassessment proceedings - notice issued beyond four years - unexplained credit u/s. 68 - as per AO capital gain on “Sale of Vehicles” had escaped assessment - scope of change of opinion - additions made u/s 68 in the original assessment are different from additions made u/s 50 or 41(2) in the re-assessment proceedings - HELD THAT:- As absolutely clear that during the original assessment proceedings, the AO had enquired in the issue of “Sale of Vehicles”. Assessee had filed copies of sale agreements for vehicles, copy of ledger accounts, copy of balance sheet. AO had reproduced these facts in the original assessment order. Subsequently, AO made an addition u/s 68 of the Act with reference to the outstanding liability which was emanating from “Sale of Vehicles”. During the original assessment proceedings, the AO had applied mind to the issue of Sale of Vehicles, which is absolutely clear from the assessment order and details filed by the assessee during the assessment proceedings.
Thereafter, after four years without bringing any new evidence on record the AO issued notice under section 148 of the Act. Here, in the reasons recorded, AO has not alleged that assessee failed to disclose all material facts. In the reasons recorded for reopening, the AO stated “on verification of the agreements, it is noticed that as per the agreement, purchase cost receivable by the seller will be adjusted against the existing liabilities.”
Therefore, AO stated that he had reason to believe that capital gain on “Sale of Vehicles” had escaped assessment. Thus, it is very much clear from the reasons that AO is referring to the same agreements which were examined by the AO during original assessment proceedings and which has been mentioned in the original assessment order. The issue of “Sale of Vehicles” is discussed in the original assessment order. In these facts, the reasons recorded are nothing but change of opinion. Therefore, we are of the opinion that AO has reopened assessment merely on the basis of change of opinion.
Revenue has not proved that assessee has failed to disclose fully and truly all material facts. The AO has not uttered a single word in the “reasons recorded” regarding any failure of the assessee to disclose any material facts necessary for deciding the issue. Rather, it is on record that assessee had filed copies of sale agreements for “Sale of Vehicles”.
AO had raised queries on this issue, during the original assessment proceedings. The AO had mentioned all these facts in the original assessment order. Revenue has not brought any new evidence on record. Therefore, as per proviso to section 147, there was no new material on record for issuing notice under section 148
As observed from reasons recorded, the AO has not uttered a single word regarding assessee’s failure to disclose all true facts. Once the reasons recorded does not allege any failure of the assessee to disclose material facts, as per proviso to section 147 after four years AO does not have any jurisdiction to reopen the case. In this case, AO has not alleged any failure of the assessee to disclose all material facts. Admittedly, the reopening is after four years. - Decided in favour of assessee.
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2024 (5) TMI 1289
Validity of reassessment proceedings - reasons to believe - independent application of mind or borrowed satisfaction - bogus LTCG - as argued reasons recorded by the AO lacks the individual application of mind by the AO and recorded in a mechanical manner without carrying out any enquiry and were in fact based upon the borrowed satisfaction - HELD THAT:- AO has discussed the information received from the ITBA data that assessee was having transactions from trading in penny scrip during the F.Y. 2014-15 and thereafter in third paragraph the AO has noted that the assessee has claimed an exempt income.
Though the scrutiny was done in this case on the basis of information available in the e-filing records. It was earned much more LTCG but did not disclose such exempt income which indicates the intention of the assessee conceal this fact from the eye of the department.
Thereafter, the AO re- assessed the income of the assessee under the provisions of section 147 of the Act making an addition in the hands of assessee which is not sustainable according to ld. AR.
We find merit in the contentions of the ld. AR that the AO has recorded the reasons based on the borrowed satisfaction without application of mind and without carrying out any enquiry into case. We also note that assessee filed Schedule-EI which contained the details of exempt income earned during the year by the assessee disclosing sum as long term capital gain from the transaction. Thus the AO noting in the reasons that the assessee has not disclosed the capital gain in the return of income is also not correct by making an addition in the hands of assessee.
In our opinion, AO has acted on the borrowed satisfaction without recording his own satisfaction and belief that income of the assessee has escaped assessment. The case of the assessee finds support from the decision of Meenakshi Overseas (P) Ltd. [2017 (5) TMI 1428 - DELHI HIGH COURT]
We are inclined to quash the assessment framed by the AO as the same lacks of any independent application of mind and is based upon the borrowed satisfaction of the Investigation Wing.
Appeal of the assessee is hereby allowed.
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2024 (5) TMI 1288
Disallowance of contribution made to LIC Group Gratuity Scheme u/s. 36(1)(v) - alternatively, assessee has claimed a deduction for this contribution as allowable u/s. 37(1) - HELD THAT:- It is a fact on record that assessee had made an application for approval of gratuity fund long back i.e. on 10.12.2002. Assessee had also entered into an agreement with LIC by obtaining Master Policy as stated above which was effective from 01.11.2002. Payment made to LIC towards group gratuity scheme are also not in dispute. Order granting approval to the gratuity fund issued by the office of CIT is dated 04.10.2023 wherein it is stated that the approval takes effect from 03.01.2023.
We fail to understand for such a prolonged delay in disposing the application of the assessee without any fault at its end in granting the said approval. During all these years, assessee had been making payments to the LIC towards group gratuity scheme and claimed it as deduction. Its employees have also received payments from LIC for their gratuity as and when the occasion arose. Similar claim has been allowed by Ld. CIT(A) in AY 2011-12 not contested by the Department before the Tribunal.
Part C of the 4th Schedule relating to Approved Gratuity Fund, we note that Rule 5 provides for treating gratuity fund to an employee during his lifetime as salary paid to the employee for the purpose of this Act.
As undisputed fact that assessee had applied for the approval of the Gratuity Fund in the year 2002 which remained pending by the Department without any justifiable reasons. The approval has been granted by the Ld. Pr. CIT recently vide order dated 04.10.2023 which also states that the approval takes effect from 03.01.2023. The assessee cannot be put to an adverse situation when it has taken all the required steps for the compliance prescribed under the Act and the Rules. LIC has paid gratuity fund to the employees of the assessee in the past. We also note that in the preceding AY 2011-12, ld. CIT(A) has dealt with the same issue in para 4.1 in its order and has allowed the claim of the assessee.
Accordingly, applying principles of reasonable construction for giving effect to the purpose and intention of the provisions of the Act as established in the decision of Textool Co. Ltd. (2009 (9) TMI 66 - SUPREME COURT) coupled with Rule 5 of Part C of the 4th Schedule wherein gratuity is treated as salary which is an allowable expenses u/s. 37(1) of the Act, we find it proper to allow the claim of the assessee. Accordingly, grounds taken by the assessee on this issue are allowed.
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2024 (5) TMI 1287
Addition u/s 56(2)(vii)(c) - bonus shares received - AO found that the assessee has sold only the original shares and not the bonus shares received by him - HELD THAT:- DR was trying to do what neither the AO nor the CIT(A) has done, which means that the DR was trying to improve the assessment order, as if he was the Assessing Officer and guiding that how the assessment should have been done by the AO. In our considered opinion, this is not acceptable, the Bench cannot go beyond the plaint and the issue before the Bench is very simple whether the provision of section 56(2)(vii)(c) of the Act applied on the facts of the case. The answer lies in the order of the Tribunal in the case of the wife of the assessee Smt. Aruna Chandhok whose assessment was also done by the same Assessing Officer, and in whose case also, the addition has been made on identical set of facts on the sale of shares of the same company.
Tribunal in SMT ARUNA CHANDHOK [2023 (9) TMI 330 - ITAT DELHI] held that AO had not disputed the fact that the overall wealth of a shareholder post bonus or pre bonus remains the same. Having held so, it is wrong on his part to invoke the provisions of section 56(2)(vii)(c ) of the Act on the ground that there is an double benefit derived by the assessee due to bonus shares.
When there is an issue of bonus shares, the money remains with the company and nothing comes to the shareholders as there is no transfer of the property and the provisions of Section u/s 56(2)(vii)(c) of the Act are not attracted to the fact situation of the case. Appeal of the revenue is dismissed.
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2024 (5) TMI 1286
Penalty u/s 271FA - non-filing of return/Statement of Financial Transaction (SFT) u/s 285BA(1) - no reportable transaction and no return of AIR was filed by the assessee - HELD THAT:- On perusal of the Tax Audit Report, it is noticed that the assessee has reported that there are no reportable transaction and there is no requirement of filing Form No. 61, Form No. 61A and Form No. – 61B. On perusal of the orders of the authorities below, AO as well as the CIT(A), we could not find that any reportable transactions have been identified in this case requiring the assessee to file SFT within the due date as prescribed u/s 285BA(1) of the Act read with Rule 114E of the Income Tax Rules. We noticed that penalty were levied ignoring the submissions of the assessee that there are no reportable transaction and therefore the provision of Section 285BA(1) of the Act are not applicable simply because the assessee did not file return of SFT.
As relying on M/S GUNTUR DISTRICT CO-OPERATIVE CENTRAL BANK LTD. [2019 (2) TMI 43 - ITAT VISAKHAPATNAM] we are of the view that the assessee had a bonafide belief that no return is required to be filed when there are no reportable transactions which is a reasonable cause u/s 273B of the Act for not levying the penalty u/s 271FA - Assessing Officer is not justified in levying penalty u/s 271FA of the Act and we direct the AO to delete the penalty levied u/s 271FA - Ground raised by the assessee is allowed.
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2024 (5) TMI 1285
Seeking Bail application for the offence punishable u/s 135 - smuggling - Seizure of gold - HELD THAT:- Without going into the merits of the case, the complaint itself indicates that the same is to be established based upon the evidence which are six in numbers; the complaint has been filed in the month of April, 2024 and the trial has not even started, the gold seized is in the possession of the Department. The applicant has no criminal antecedents, prima facie, the offence appears to be compoundable by virtue of Section 137(3) of the Customs Act and there is nothing on record to demonstrate that the applicant if enlarged on bail, would in any way adversely affect the trial, I am of the view that the applicant is entitled to be released on bail.
Accordingly, the bail application is allowed.
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2024 (5) TMI 1284
Proceedings against the Customs Broker - Smuggling of Red Sander Logs - Forfeiture of Security Deposit - Barred by Limitation - Issuance of notice within 90 days from the date of receipt - No Opportunity for Cross-Examination - Violation of Regulation 11(n) of CBLR 2013 - HELD THAT:- From the record, it is clear that the alleged incident occurred in September 2013, the order prohibiting the appellant from executing work at the Chennai Customs Commissionerate under the jurisdiction of Chennai Customs Zone was issued by the Commissioner of Customs Imports Chennai on 05.12.2014 and the Occurrence Report was received by the parent Commissionerate on 16.12.2014. The show cause notice was issued on 02.03.2015, thus the notice was issued within 90 days from the date of receipt of the Occurrence Report which is within the specified limit as per Regulation (20) of CBLR 2013.
As seen from record, it is clear that 3 dates were given to Shri Loganathan to appear for the cross-examination, which he failed to do so. Hence, the applicants claim that they are not provided an opportunity to cross-examine the persons concerned fails.
Section 11(n) of CBLR, 2013 reads as ‘verify antecedent, correctness of Importer Exporter Code (IEC) number, identity of his client and functioning of his client at the declared address by using reliable, independent, authentic documents, data or information; From the above clause it is very clear that it is the responsibility of the Custom House Agent and his employees to ensure that the antecedents and other particulars of the Exporter are verified before signing any of the relevant documents. From the statements of the Managing Partner of the appellant and one of the employee, it is an admitted fact that the appellant fail to adhere to the provisions u/s 11 (n) of the CBLR 2013. Therefore, there is no doubt that the appellants have violated Section Regulation 11 (n) of the CBLR.
In fact taking into overall allegations and based on the inquiry report observed that there is no finding to the effect that the Customs Broker, the appellant had conspired in the attempted smuggling operation and based on this observation he finds it improper to revoke the license of an entire firm on account of the failure of one employee in discharging his obligations with required diligence and sincerity. Hence for violation of regulation 11(n) the Commissioner penalised the appellant by forfeiture of the security deposit only to the extent of Rs.25000/-.
The impugned order was upheld, and the appeal was dismissed. The forfeiture of the security deposit of a‚ 25,000/- was confirmed,
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2024 (5) TMI 1283
Exemption of goods of foreign origin imported for repairs and return under Notification No.153/1994 - Imports aircraft parts meant for repair / overhaul of aircraft engines - Notification No.21/2002-Cus. for spare parts of aeroplanes under specific conditions - Whether the appellant is eligible for the benefit of Notification No.153/1994 - HELD THAT:- As seen from the Notification, the goods that can be imported are not specified but only states that they should be articles of foreign origin which are being imported for repairs and return. The appellant’s letter dated 22.02.2011 clearly stated that spare parts would be cleared under ex-bond Bill of Entry for being used for repairing the engine which is imported under Notification No.153/1994 and these engines along with the spares are being exported. The observation by the original authority that the above Notification is applicable only to import of goods of foreign origin which themselves were to be repaired and returned after repairs and not for goods imported to be used for carrying out repairs cannot be inferred from the said Notification.
As seen from the Notification No.21/2002-Cus., the spare parts imported for repair/replacement of the engines were otherwise also exempted even if they were cleared for home consumption; hence, the question of demanding duty does not arise.
In the instant case, admittedly, the goods were bonded and after repairs were exported. Accordingly, we find that the appellant was eligible for the benefit of the Notification No.153/1994 13.07.1994 even for the spares which were being imported and used in the engines which are exported.
Thus, the impugned order is set aside and the appeals are allowed.
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2024 (5) TMI 1282
Seizure of imported waste paper consignments - confiscation - Penalty - Prohibited wastes found imported in contravention of import policy as well as the provisions of Hazardous Waste Management Rules including Office Memorandum dated 11.05.2010 - HELD THAT:- After going through the decision of this Tribunal in the case of Emami Paper Mills Limited [2024 (5) TMI 1261 - CESTAT KOLKATA], we are agree with this decision and in the interest of justice, we are of the view that principles of natural justice is required to be followed by us for strong contest raised by the Appellant on the issue of challenge for the Examination Report. In view of this, we pass the following Order:-
Coming to the option of joint re-examination afresh, as given above, if the appellant chooses to opt for re-examination, the decision of the Tribunal would be as under :-
(A) In case the re-examination results in a different conclusion by the examining authority holding that there is no violation of statutory provision of Pollution and Hazardous materials in the imported consignment, the confiscation ordered in the impugned Order-in-Appeal, would be treated as set aside.
(B) If the re-examination result confirms the earlier conclusion arrived at by the Revenue, in such a case, the appellant would be required to re-export the offending prohibited goods.
(C) The appellant would be bound by the final decision of the re-examining authority as already held.
The Appeals are disposed in the above terms.
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2024 (5) TMI 1281
Demand of duty - Capital goods destroyed by villagers and subsequent clearance as scrap - challenged the show-cause notices invoking extended period under proviso to Section 28 (1) / 28 (4) of the Customs Act, 1962 - HELD THAT:- From the facts, it is clear that the appellant had intimated about the riots and taken the necessary permissions from the authorities concerned for de-bonding the burnt capital goods as per the Customs procedures and to pay duty on the scrap value on the highest bidder of the scrap. Since permission was granted by the customs, the question of suppression of facts or misrepresentation of facts does not arise and hence, the show-cause notice cannot invoke extended period of limitation.
It is also pertinent to mention that the Commissioner (A) in the impugned drops the penalty imposed under Section 114A stating that “in the instant case, there had been continuous correspondence between the appellant and the department on this issue and there is no suppression of facts”.
It is also observed that in the impugned Order-in-Appeal, the Commissioner (A) upholds the demand under Sections 72 (1) of the Customs Act, 1962 in terms of B17 bond executed by the appellant; while the order in original confirmed the demand Section 28 (8) of the Customs Act, 1962. The show-cause notice dated 13.12.2012, the demand was under Section 28 (1) and 28 (4) of the Customs Act, 1962.
As rightly submitted by the appellant, the order cannot traverse beyond the show-cause notice and hence, the demand confirmed by the Commissioner (A) in the impugned order under Section 72 of the Customs Act, 1962 is not sustainable in view of the decision in the case of CCE vs. Gas Authority of India Ltd.[2007 (11) TMI 276 - SUPREME COURT].
Thus, the impugned orders are set aside and the appeals are allowed.
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2024 (5) TMI 1280
Liquidation of Corporate Debtor - CoC’s decision to liquidate was tainted with material irregularity and arbitrariness or not - it was held by NCLAT that 'The CoC has taken a commercial decision, basis their discussion within the lenders and also with the Appellant and they have come to a conclusion for liquidation of the CD. Commercial wisdom of the CoC has been exercised in a clear and forthright manner' - HELD THAT:- There are no reason to interfere with the impugned order dated 8 February 2024 passed by the National Company Law Appellate Tribunal - appeal dismissed.
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2024 (5) TMI 1279
Approval of the resolution plan - e-mail not considered - Challenge to issuance of EOI. - Appellant has not submitted any plan with regard to first EOI, appellant has participated in the second EOI.
Non-consideration of e-mail - HELD THAT:- The submission of the appellant that e-mail which was sent on 05.06.2023 has not been considered whereas documents submitted by SRA has been considered is belied from the record itself where the decision was taken to consider the plan exclusive of the submission dated 05.06.2023. Thus, there are no substance.
Challenge to issuance of 2nd EOI - HELD THAT:- After receipt of the plan, CoC took a decision to invite fresh EOI in pursuance of which appellant participated in the process and his plan was considered. It was open for the appellant to challenge the issuance of 2nd EOI which was never done. Further as submitted by counsel for the appellant, decision was taken by the CoC to invite fresh EOI as plan value was much below the liquidation value.
The appellant cannot be allowed to challenge the issuance of 2nd EOI on this ground - there are no error in the impugned order - appeal dismissed.
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2024 (5) TMI 1278
Classification of services of civil construction for taxation - Demand of service tax on construction services provided to government entities - invocation of extended period of limitation for recovery of tax - HELD THAT:- We find that as per the fact of the case the appellant have provided service along with the material and VAT has been paid. Accordingly, the services are correctly classifiable under works contract service. It is settled law that even though the activity of the assesse is taxable but if the assessee is not put to notice for demand of Service Tax specifying the correct classification, show cause notice proposing demand for under wrong head the demand cannot be sustained.
Since, the issue involved is interpretation of classification of service and admittedly service work provided to the Government Authority and Public Sector undertaking, the appellant’s bona fide belief that the activity is not liable to Service Tax cannot be doubted with. The service were provided to Government Agency the transaction cannot be hidden hence the suppression of fact with mala fide intention to evade payment of Service Tax does not exist in the present case. Accordingly, the demand for the extended period is also hit by limitation.
Thus, the demand of Service Tax and consequential interest and penalties confirmed by the Adjudicating Authority will not sustain.
Consequently, the impugned order was set aside, and the appeal was allowed
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2024 (5) TMI 1277
Non-payment of service tax - Penalty based on show cause notices - consideration received on mobilization advance - services provided as a sub-contractor - HELD THAT:- This appeal, as noticed, arises out of two subsequent show cause notices dated 24.05.2013 and 07.08.2015 for the subsequent period and it is pointed out by learned counsel for the appellant that the show cause notices are based on the same allegations as are contained in the first two show cause notices that were the subject matter of the order passed by the Tribunal. It is, therefore, submitted by the learned counsel for the appellant that an order in the same terms as earlier passed by the Tribunal [2017 (12) TMI 386 - CESTAT NEW DELHI] held that:
''The mobilization advance is liable to be service tax, as the provisions of Section 67 are clear to the effect that any money received for the taxable service to be provided is to be taxed at the time of receipt itself. The appellants, though claimed to have discharged the service tax later, subject to verification of the same, the liability for the interest on the late payment will arise''
Thus, for the reasons stated by the Tribunal in the decision dated 06.10.2017, the order dated 31.03.2017 passed by the Commissioner is set aside.
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2024 (5) TMI 1276
Renting of Immovable Property Services or business support service - Service tax on the amount retained for allowing use of infrastructure by contracted doctors - Confirmation of demand for renting of immovable property to specialized clinics/agencies - Service tax on "miscellaneous receipts" - HELD THAT:- In view of the categorical findings recorded by the Tribunal in Sir Ganga Ram Hospital [2018 (8) TMI 249 - CESTAT NEW DELHI], the findings recorded in the impugned order that the appellant provided “renting of immovable property‟ service cannot be sustained and will have to be set-aside.
Regarding the “miscellaneous receipts‟, the Commissioner (Appeals) has remanded the matter to the adjudicating authority to decide the issue on the basis of documentary evidence. This part of the order passed by the Commissioner (Appeals) does not call for any interference in this appeal.
The impugned order dated 15.02.2018 passed by the Commissioner (Appeals) is set-aside to the extent it upholds the order of the adjudicating authority confirming the demand of service tax under “business support service” and “renting of immovable property‟ service. The remaining part of the order by which the Commissioner (Appeals) has remitted the matter to the adjudicating is maintained. Consequently, the penalties imposed on the appellant cannot be sustained and are set-aside.
The appeal is accordingly allowed to the extent indicated above.
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2024 (5) TMI 1275
Levy of interest and penalty on the late payment of Central Excise duty as envisaged in Rule 8(3) and Rule 8(3A) of the Central Excise Rules, 2002 - goods exempted for payment of duty under N/N. 20/2007-CE dated 25.04.2007 - Interpretation of taxing statutes and procedural rules.
Interest and penalty - HELD THAT:- Apparent, that once the goods cleared by an eligible industrial unit have been exempted from payment of duty subject to the limitation specified in the Notification, the question of payment of any duty by an eligible industrial unit does not arise and consequently, no interest and/or penalty can be charged for non-payment of such duty within time. The provisions for payment of duty and the time prescribed for such payment of duty in the Central Excise Act, 1944 are applicable in respect of goods which are excisable to Central Excise duty and the manufacturer is liable to pay such duty. The said provision cannot be made applicable in respect of duty which is exempted by issuance of Notifications under Section 5A of the Central Excise Act, 1944.
Since in the present case, the petitioner was entitled to exemption by virtue of Notification No. 20/2007 read with Notification 20/2008, the question of payment of any such duty and consequently, the levy of interest for the purported delay in payment of duty does not arise.
In the present case, the petitioner has no liability of payment of any duty because of Notification No. 20/2007 read with Notification No. 20/2008. Therefore, the petitioner cannot be saddled with the liability of payment of interest and penalty for delayed payment of duty which was exempted.
Interpretation of taxing statutes and procedural rules - HELD THAT:- The Assistant Commissioner failed to consider that Rules are framed to carry out the purposes of an Act. Interest is a substantive provision of the taxing statute and unless there is any provision in the Act for levy and charge of interest, no interest can be charged on the basis of any Rules framed under the Act. Since no interest is payable in respect of duty which is exempted under the Act, the liability of interest and penalty cannot be fastened on an eligible unit which is exempted from payment of duty by virtue of Notification No. 20/2007 read with Notification No. 20/2008.
Apparent that the Assistant Commissioner failed to appreciate that the refund of duty paid is also an exemption from payment of duty. Since in the present case, Notification Nos. 20/2007 read with 38/2008 provided for refund of duty paid after verification of the same by excise authority, the same will not make the duty leviable or payable under the Act so as to attract levy of interest and penalty for delay in making payment of the same - It is a well settled law that taxing statutes are to be interpreted strictly and while interpreting the taxing statue, one must have argued to the strict letter of law and not merely to the spirit of law and one cannot be taxed by inference or by analogy.
In the present case, the provision of Sections 11AA and 11AC of the Central Excise Act, 1944 are very clear and there is no ambiguity in the provisions of the Act. However, even for the sake of argument, if there is an ambiguity, the benefit of the same must be extended to the tax payer - Rule 8(3) and 8(3A) of the Central Excise Rules, 2002 cannot be made applicable in support of the levy of the interest and penalty, for delayed payment of duty which is exempted in terms of notification issued under Section 5A of the Act. As discussed above, Rules are framed to carry out the purposes of the Act. If there is no substantive provision in the Act for levy of interest and penalty, the interest and penalty cannot be levied on the basis of any provisions of Rules.
The Respondent Authorities committed a manifest error in law in levying penalty and interest relying on the provisions of Rules 8(3) and 8(3A) of the Central Excise Rules, 2002 in the absence of a substantive provisions of the Act - this Court is of the opinion that interest and penalty cannot be levied for late payment of duty on goods which is exempted from payment of duty.
The impugned orders levying interest and penalty on the late payment of exempted duty were set aside and quashed - Petition allowed.
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2024 (5) TMI 1274
Maintainability of petition - availability of alternative remedy - requisite documents relied upon, not supplied - opportunity of hearing not provided - violation of principles of natural justice - Recovery of short paid Central Excise Duty.
Maintainability of petition - availability of alternative remedy - HELD THAT:- It hardly needs to be stated that the rule of alternate remedy is not a Thumb Rule to non-suit every litigant approaching the writ Court. It all depends upon the facts and circumstances of each case and the requirement of doing justice to the party aggrieved.
This Court finds support in its view by the judgment passed in the case of M/S GODREJ SARA LEE LTD. VERSUS THE EXCISE AND TAXATION OFFICERCUM- ASSESSING AUTHORITY & ORS. [2023 (2) TMI 64 - SUPREME COURT] wherein it has been observed that availability of alternative remedy does not operate as an absolute bar to the 'maintainability' of a writ petition and that the rule, which requires a party to pursue such remedy provided by a statute, is a rule of policy, convenience and discretion evolved by the judiciary rather than a rule of law. Therefore, in all the cases, the entities answering Article 12 of the Constitution of India cannot press into service the doctrine of alternative remedy as the China Wall against the invocation of writ jurisdiction.
Failure to supply documents reled upon - opportunity of hearing not provided - violation of principles of natural justice - Recovery of short paid duty - HELD THAT:- Undisputedly, the petitioner has not been supplied with the documents, on the basis of which show cause notice was issued and despite repeated communications from the petitioner, the said documents were not provided due to which the petitioner would not be in a position to give reply to the show cause notice which culminated into passing of final order and judgment of recovery - even on remand, the respondent no.2 without adhering to the directions of Commissioner (appeals) i.e. without providing requisite documents and in the absence of affording opportunity of hearing has again proceeded to pass a final order of recovery alongwith levying of penalty thereby again violating the principles of natural justice. Under such circumstances, the final order of recovery dated 29.03.2024 is not allowed to stand.
The matter is remanded back to the respondent no.2 for fresh adjudication - Petition allowed by way of remand.
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2024 (5) TMI 1273
Penalty on other co-noticee u/r 8(3A) of Central Excise Rules, 2002 - whether after acceptance of application of the main applicant under SVLDRS, 2019 regarding the duty liability and penalty imposed, the personal penalty imposed on other noticees would survive? - HELD THAT:- This issue has been dealt by the Tribunal in the case of M/S JPFL FILMS PRIVATE LIMITED, JALAN JEE POLYTEX LTD., KAVITA INTERNATIONAL AGENCY, KULDEEP SINGH, DP SINGH, R KNITFAB, PERFECT DESIGNER, VK KALRA, RELIANCE INDUSTRIES LIMITED, KANPUR WOOL INDUSTRIES, SWASTIK TRADING CO., APEX CORPORATION AND MANSA TRADERS VERSUS COMMISSIONER OF CENTRAL EXCISE, LUDHIANA [2023 (12) TMI 304 - CESTAT CHANDIGARH] where it was held that 'the benefit of the Scheme cannot be denied to the appellants just because they did not file the declaration under SVLDR Scheme.'
There are no reason not to follow the aforesaid precedent of this Tribunal - appeal allowed.
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2024 (5) TMI 1272
CENVAT Credit - inputs and capital goods which were claimed to have been destroyed in fire at the job workers premises - insurance claim restricted to the value of goods only - penalty u/s 11AC - HELD THAT:- On perusal of the records, it is seen that the insurance claim was settled at Rs.3,01,00,921/- as against the claim of Rs.4,27,32,599/-. From the insurance claim by the appellant, it is seen that the amount of Rs.4,27,32,599/- is inclusive of cenvat credit and therefore, it can be inferred that the claim was restricted to the value of the goods only. From this insurance claim reproduced below, it is clearly seen only item no.1 to 4 deals with inputs which were destroyed in the fire. Item no.5 is for finished goods and Item No.6 is for replacement cost of equipment. Therefore, the inputs which have been destroyed before putting it to use the benefit of cenvat credit cannot be extended. As per the cenvat credit rules only those inputs which are used in the manufacture of final products are eligible for cenvat credit.
With regard to capital goods also, one needs to verify whether they were put to use or destroyed before the same was used in the manufacture of the final products. If the capital goods were not used then the question of extending the benefit of cenvat credit does not arise.
In the case of COMMISSIONER OF C. EX., BANGALORE VERSUS TATA ADVANCED MATERIALS LTD. [2011 (4) TMI 1124 - KARNATAKA HIGH COURT], this was a case where the capital goods were used in the manufacture of the final products for three long years and later, these capital goods were destroyed in the fire as seen from the observations of the Hon’ble High Court of Karnataka. The facts cannot be compared with the instant case where the goods were not put to use at all, hence not applicable.
In the case of M/S VFC INDUSTRIES PVT. LTD. VERSUS COMMISSIONER OF C. EX. & S. TAX, VADODARA [2016 (9) TMI 1020 - CESTAT AHMEDABAD], the Tribunal has categorically held that inputs lying in stock which were not put to use and which were not used in the manufacture of final products the benefit of cenvat credit cannot be extended.
There are no reason to interfere with the order of the Commissioner demanding reversal of cenvat credit on the inputs and the capital goods which were not used in the manufacture of the final products. However, for the limited purpose of verifying whether the capital goods were put to use in the manufacture of the final products, the matter is being remanded and accordingly, the penalty needs to be re-determined based on the final determination of the reversal of cenvat credit.
Appeal allowed by way of remand.
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2024 (5) TMI 1271
Refund in cash - appellant's request for refund filed beyond time limit - Nature of the communication from the Assistant Commissioner - order/decision against which remedy of appellant to Commissioner (Appeals) has been provided as per Section 35 of the Central Excise Act or not - Maintainability of the appeal before the Commissioner (Appeals) - applicability of Section 142 (3) and 142 (6) of the CGST Act, 2017.
Refund in cash - appellant's request for refund filed beyond time limit - HELD THAT:- The appellant claimed they requested the refund on 20.09.2017, but records show the approach was made on 21.05.2018, approximately 9 months later. The Assistant Commissioner clarified that the refund was sanctioned on 10.08.2017, and no further action could be taken as the appellant did not utilize the remedy u/s 35 of the Central Excise Act, 1944, within the stipulated time.
Nature of the communication from the Assistant Commissioner - order/decision against which remedy of appellant to Commissioner (Appeals) has been provided as per Section 35 of the Central Excise Act or not - HELD THAT:- The view of the Commissioner (Appeals) that this is not an appealable order this is in any way not justifiable in view of the decisions referred to by the learned counsel - reliance placed in the case of Gujarat Ambuja Cement Ltd. [2005 (3) TMI 375 - CESTAT, NEW DELHI] has held that 'On hearing both the sides, we accept the contention of the appellants that the communication dated 24-2-2005 is in the nature of an order affecting the rights of the party for the reason that the claim to avail the exemption has been denied and hence the communication is an order and an appeal very much lies before the Commissioner (Appeals). '
Applicability of Section 142(3) & 142(6) of the CGST Act, 2017 - HELD THAT:- The refund claim was filed by the appellant prior to the introduction of GST in the country (From 01.07.2017) the order allowing the refund claim by way of CENVAT credit has been passed on 10.08.2017 when there was no CENVAT credit account in existence - the Order-In-Original dated 10.08.2017 should be read in conjunction with these provisions, implying the refund should be in cash.
Maintainability of the appeal before the Commissioner (Appeals) - HELD THAT:- The Commissioner (Appeals) erred in holding the appeal as non-maintainable and directed the jurisdictional authorities to implement the refund order in cash as per the provisions of Section 142(3) and 142(6) of the CGST Act, 2017.
The Jurisdictional Authorities are directed to implement the Order-In-Original in the light of the provisions contained under Section 142 (3) and 142 (6) of the CGST Act, 2017 - Appeal allowed.
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