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2024 (7) TMI 1262
Seeking dissolution of company and that the Official Liquidator be discharged as its Liquidator - Section 481 of the Companies Act, 1956 - HELD THAT:- This Court is of the opinion that these liquidation proceedings warrant a quietus, and the company (in liquidation) should be dissolved as the Official Liquidator cannot proceed any further with the winding up process.
It would be expedient to invite reference to the decision of the Supreme Court in Meghal Homes (P) Ltd. v. Shree Niwas Girni K.K. Samiti & Ors. [2007 (8) TMI 447 - SUPREME COURT] where it was held that 'When the affairs of the Company have been completely wound up or the court finds that the Official Liquidator cannot proceed with the winding up of the Company for want of funds or for any other reason, the court can make an order dissolving the Company from the date of that order. This puts an end to the winding up process.'
Thus, relying on the decision of the Supreme Court in Meghal Homes as also the import of Section 481 (1) of the Act, besides the facts and circumstances of the present case, these liquidation proceedings warrant to be brought to an end - The company (in liquidation) – M/s. Spack Tunrkey Projects (P) Ltd., stands dissolved and the Official Liquidator is hereby discharged as its Liquidator.
The present application is allowed.
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2024 (7) TMI 1261
Impleadment as a party to the proceedings - necessary party to the proceedings or not - whether the Impleadment Application, as it has been preferred by the Respondent No.1 could at all have been allowed without there being a notice issued to him, who was sought to be impleaded in order to enable him to put forth his views on whether at all he happens to be the necessary party to the proceedings or not?
HELD THAT:- As far as the aspect of impleadment is concerned from the perspective of the Appellant, that there was no prior notice given to him, it is an aspect which has already been dealt with, coupled with the fact since the issue of impleadment being exclusive prerogative of the court because it is the court which has to determine the necessity of the party to be introduced in the proceedings as to whether if at all it is the necessary party to decide the case effectively, there are no error in the Impugned Judgment under challenge allowing the Impleadment Application.
The Appeal lacks merits and the same is accordingly dismissed.
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2024 (7) TMI 1260
Doctrine of necessity - Seeking stay of order directing liquidation of the Corporate Debtor and the appointment of the liquidator, in order to enable the Appellant to deposit the balance amount into the liquidation account of the Corporate Debtor - directing the liquidator to put on hold the liquidation proceedings was rejected - HELD THAT:- Looking at the concept of the ‘doctrine of necessity’, which has to be read in accordance with the provisions contained under section 60(5) of I & B Code, 2016, it provides for meeting out such inevitable circumstances in form of the powers vested with the Tribunals and particularly the NCLT as referred to in sub-section (5) of section 60 of I & B Code, 2016, to pass any appropriate order for fruitfully disposing of any application or proceedings in order to meet the purpose of CIRP, as against the Corporate Debtor. In the instant case owing to the Resolution Plan which was submitted by the Appellant and approved by NCLT, the Corporate Debtor was expected to revive back in and to reach the status of being a going concern.
When the provisions contained under section 60 sub-section (5) of I & B Code, 2016, it starts with a non-obstinate clause, that means it has an overriding effect to any of the provisions to the contrary, of the Code as contained therein and that the exercise of inherent powers have been vested with the Tribunal to carry out the exceptions in order to meet out the objective of the Code in order to avoid liquidation and to enable the Corporate Debtor to transition into position of being a going concern.
In that eventuality, though admittedly the law is not in favour of the Appellant, because he has not put a challenge to the order of appointment of liquidator, but since the liquidator himself supports the contention of the Appellant, the Appellant is granted a last opportunity to deposit the amount, which is to be positively deposited within a period of one month and if the said deposit is not made by the Appellant within the aforesaid time frame, the relaxation which has been granted to the Appellant in the light of the provisions contained under section 60(5) of I & B Code, 2016, will automatically lapse and it will open for the liquidator to seek for an appropriate alternate buyer by resorting to the procedure prescribed under law.
Appeal disposed off.
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2024 (7) TMI 1259
Maintainability of the writ petition - Contravention of the FEMA laws - Declaring Petitioner guilty of contravention of the provisions u/s 10(6) of the Foreign Exchange Management Act - penalty imposed - HELD THAT:- In respect of preliminary objection as to the maintainability of the writ petition, the learned Senior Panel Counsel appearing for the first respondent relied upon the judgment of the Hon'ble Supreme Court of India reported in the case of Raj Kumar Shivhare Vs. Assistant Director [2010 (4) TMI 432 - SUPREME COURT] - Therefore, the writ petition itself is not maintainable since, there is alternative remedy provided u/s 16(1), 19(1) and 35 of the FEMA.
That apart, the petitioner was not granted any immunity from the adjudication proceedings initiated under the provisions of FEMA. Whereas as per the order passed by the NCLT, the company had immunity from regulatory or administrative proceedings but not adjudicating proceedings as per Section 43 of FEMA. Further the proceedings arising in relation to the provisions of Section 13 of FEMA shall not abate by the reason of insolvency of the person liable under that Section. Further, the adjudication proceedings were initiated by way of issuing show cause notice dated 31.03.2017. It is much before the corporate insolvency resolution process.
Though the learned Senior Counsel appearing for the petitioner relied upon the judgment of M/s. Commercial Steel Limited [2021 (9) TMI 480 - SUPREME COURT] in respect of maintainability of the writ petition, which held that when the existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution of India. But the writ petition can be entertained in exceptional circumstances where there is a breach of fundamental rights, a violation of principles of natural justice, an excess of jurisdiction or a challenge to the vires of the statute of delegated legislation. But none of the exceptions as stated above is applicable to the petitioner herein, since there is no breach of fundamental right and the petitioner was duly served with show cause notice and given opportunity of hearing. Further the first respondent has power to impose the penalty.
Second respondent submitted that the recovery of penalty amount by the proceeding dated 28.02.2020 was challenged before this Court in [2024 (1) TMI 1305 - MADRAS HIGHT COURT]. Subsequently, the recovery of penalty proceeding was withdrawn and therefore, the writ petition was also dismissed as withdrawn by this Court, by an order. However, insofar as the penalty imposed on the petitioner has not been withdrawn so far. Therefore, this Court finds no infirmity or illegality in the order passed by the first respondent. This writ petition is devoid of merits and liable to be dismissed. WP dismissed.
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2024 (7) TMI 1258
Condonation of delay in filing appeal - sufficient reasons for delay or not - Demand of service tax on ross-border transactions - place of provision of services - remittances made to their branches and offices abroad - consideration for taxable service procured from outside the taxable territory - the CESTAT set aside the demand - HELD THAT:- There is a gross delay of 371 days in filing this civil appeal. The explanation offered in order to seek condonation of delay is not satisfying.
There are no merit in this civil appeal - the civil appeal stands dismissed both on the ground of delay as well as on merits.
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2024 (7) TMI 1257
Refund/ rebate of CENVAT credit - rejection on the grounds that the refund claims are time barred under Notification No.27/2012 - whether the appellants were supplying merely “Intermediary Services”?
Time Limitation - HELD THAT:- It is found that the appellants have complied with the conditions laid down under N/N. 27/2012 in a substantial manner. Refund claims cannot be held to be barred by limitation merely because certain documents have not been appended, more so, for the reasons beyond their control. It is opined that filing of the initial refund claim, substantially complying to the provisions of law and placing on record their claim before the Department, is in time; therefore, it is found that in the instant case, the refund claims are not barred by limitation.
Whether the services provided by the appellant fall under “Intermediary Services”? - HELD THAT:- The learned Commissioner (Appeals) in the impugned order has not given any findings on the issue; he has simply remanded the case back to the original authority with a direction to give findings on the issue despite the fact that the original authority has given elaborate findings on the issue - the learned Commissioner (Appeals) has deprived this Bench of an opportunity to analyse the legality of his findings on the issue. Since the Commissioner (Appeals) has not given any findings on the issue, it will be in the interest of justice that the case should travel back to the Commissioner (Appeals) to go through the findings given by the original authority and to decide the issue on merits on the basis of his own interpretation of law by giving findings on the issue.
Both the appeals are partly allowed holding that the refund/ rebate claims filed by the appellants are not barred by limitation; the appeals are remanded back to the Commissioner (Appeals) with a direction to give his own findings on the issue as to whether the appellants have “Exported Services” or have merely provided “Intermediary Services”.
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2024 (7) TMI 1256
Failure to discharge appropriate service tax on the consideration received by them for the various projects - appellant discharged service tax under Commercial or Industrial Construction Services (CICS) upto 30.06.2012 and thereafter paid the service tax under Works Contract Service (WCS) - HELD THAT:- The department has confirmed demand for the period 01.07.2012 to 31.03.2013 under the category of CICS. Undisputedly, the appellant has availed the benefit of Notification No.1/2006 and 30/2012 for the reason that they have used materials for providing the construction services.
In the case of Bhayana Builders [2018 (2) TMI 1325 - SUPREME COURT], the Hon’ble Apex Court held that even if free materials are provided, the abatement would be eligible. The Department has taken a view that the appellant has not furnished evidence to show that materials were used for providing construction service for which reason abatement has been denied.
The Ld. Counsel submitted that the appellant would be able to furnish sufficient evidence to establish that the contracts are composite in nature and would not fall under the category of CICS. From the submissions made by both sides, it is opined that the matter requires to be remanded to the adjudicating authority who is directed to consider all issues afresh. Needless to say that if the contracts are composite in nature, the appellant would be eligible for the abatement.
The original authority is directed to consider the applicability of the Tribunal’s decision in the case of R.R. Thulasi Builders (I) Pvt. Ltd. Vs CGST & Central Excise, Salem [2024 (7) TMI 1067 - CESTAT CHENNAI] as well as Real Value Promoters Pvt. Ltd. Vs CGST & Central Excise, Chennai [2018 (9) TMI 1149 - CESTAT CHENNAI] and Jain Housing & Construction Ltd. Vs CST, Chennai [2023 (2) TMI 1044 - CESTAT CHENNAI] which is maintained by the Hon’ble Apex Court in [2023 (9) TMI 816 - SC ORDER]. The appellant shall be given opportunity of hearing as well as liberty to furnish evidence.
The appeal is allowed by way of remand to the adjudicating authority.
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2024 (7) TMI 1255
Levy of service tax - incentives / discounts received by the appellant from the manufacturer of cars and lubricants viz. Volkswagen - requirement to pay an amount collected @ 5% / 6% / 7% of the value of trading activity under Rule 6 of CENVAT Credit Rules, 2004, when the appellant had paid the entire credit attributable to input services utilized for trading activity - CENVAT Credit on various input services - levy of penalty.
Levy of service tax - incentives / discounts received by the appellant from the manufacturer of cars and lubricants viz. Volkswagen - HELD THAT:- The facts not in dispute are that the appellant are authorized dealers of Volkswagen brand cars and also providing services of cars of the said brand. On purchase of the cars from the manufacturer Volkswagen Limited, they received various discounts / incentives on achieving the sales target during the relevant period. Applicability of service tax on trade discount / incentives received by an authorized automobile dealer from the manufacturer, is no more res integra and covered by a recent judgment of this Tribunal in the case of M/S PREM MOTORS PRIVATE LIMITED VERSUS COMMISSIONER, CENTRAL EXCISE & CGST-JAIPUR [2023 (2) TMI 990 - CESTAT NEW DELHI] wherein the Tribunal scrutinizing the case laws on the subject observed 'the activity undertaken by the appellant is for the sale and purchase of the vehicle and the incentives are in the nature of trade discounts. The incentives, therefore form part of the sale price of the vehicles and have no correlation with the services to be rendered by the appellant. That in terms of the dealership agreement, the appellant purchases the vehicles from MSIL and sells the same to its end customers.'
Applicability of 5% / 6%/7% of the value of the trading activity under Rule 6(3)(i) of Cenvat Credit Rules, 2004 - HELD THAT:- The appellant has reversed the total credit attributable to input services that had been used in providing trading activity; therefore considering the Notification No.13/2016-CE(NT) dated 01.03.2016 issued subsequently, wherein it is prescribed that in the event an assessee pays the amount of cenvat credit attributable to exempted products calculated as per Rule 3A of the CENVAT Credit Rules, the appropriate officer competent to adjudicate the case may allow the manufacture or provider of output services to follow the procedure and pay the amount referred to in clause (ii) of sub-rule (3), calculated for each of the month with interest. Therefore, to ascertain the amount of cenvat credit attributable to input services used in trading activity be determined along with interest - Taking note of the argument of the appellant that they have already paid/reversed Rs.42,30,802/- against Challan No.00244 dated 08.01.2018which is in excess of Rs.10,42,813/-, the matter needs to be remanded to the adjudicating authority to ascertain the said fact and recompute the liability with interest.
Imposition of penalty - HELD THAT:- The major part of the demand has been set aside and on the issue of applicability of Rule 6, it is observed that the appellant had already reversed the attributable cenvat credit which is in excess of Rs.10,42,813/- than the amount payable by them as claimed by them; therefore imposition of penalty under Section 78 of the Finance Act or Rule 15(3) of the CENVAT Credit Rules, is unwarranted and accordingly set aside.
The confirmation of demand of Rs.3,03,50,663/- on various incentives / discounts with interest and penalty and the amount of Rs.3,84,28,721/- confirmed under Rule 6(3) of Cenvat Credit Rules, 2004 being 5%/6%/7% of the value of the exempted services are set aside - the penalties imposed on the appellant are set aside - the matter is remanded to the adjudicating authority for the purpose of verification/scrutinization.
Appeal disposed off by way of remand.
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2024 (7) TMI 1254
Method of Valuation - section 4 (on the transaction value) or under section 4A (on the RSP minus abatement)? - bulbs sold by the appellant to EESL - what should be reckoned as the RSP - it was held by CESTAT that 'The issue is found in favour of the appellant and against the Revenue, both on merits and on limitation' - HELD THAT:- There are no merit in the appeal and the same is accordingly dismissed.
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2024 (7) TMI 1253
Levy of of the central excise duty - sale of the old machinery (sold by the appellant) as scrap - Rule 3(5A) in CENVAT Credit Rules, 2004 - eligibility of the cenvat credit of the service tax availed on outward freight under GTA services - place of removal - Extended period of limitation - penalty.
Levy of Central Excise Duty - sale of the old machinery (sold by the appellant) as scrap - Rule 3(5A) in CENVAT Credit Rules, 2004 - HELD THAT:- The machinery sold was ‘capital goods’ and the provisions of Rule 3(5A)(b) clearly provides that if the capital goods are cleared as waste and scrap, the manufacturer shall pay an amount equal to the duty leviable on the transaction value - as observed by the Authorities below, the purchase bill and the sale bill, which are annexed along with the appeal here, do not show any correlation between the goods purchased and sold. The sale bill i.e. invoice no.180 dated 09.07.2016 do not provide any description as to the nature of the capital goods being sold. Though the appellant in the appeal has quoted the affidavit filed by Shri P.K. Mehra, Director of the appellant company to say that the said old and used machinery was sold in the year 2016 through the invoice no.180 dated 09.07.2016. However, neither the affidavit has any date nor does it specifies the period during which Shri P.K. Mehra was working as Director of the appellant company to show his bonafides as to his awareness of the sale and purchase. In any event, the appellant is liable to pay the duty in terms of the statutory provisions of Rule 3(5A)(b).
Availing the cenvat credit of service tax paid on outward freight and utilizing the same towards the payment of duty - Place of removal - HELD THAT:- The Adjudicating Authority has observed that the appellant had availed the cenvat credit of an input service in ER-I Returns for the month of August, 2014, Feb. 2015, March, 2015, April, 2015, June, 2015, July and August, 2015, however, there was no reversal entries in the ER-I Returns and the service tax payable ledger accounts. Hence, the cenvat credit on outward freight was not admissible to the appellant and is liable to be recovered under the provisions of Rule 14 of CCR, 2014. The appellant having failed to pay the central excise duty and wrongly availed the cenvat credit is liable to pay the interest under Section 11AA of the Central Excise Act, 1944.
Extended period of limitation - penalty - HELD THAT:- The cenvat credit of service tax taken by the appellant on the outward freight “beyond the place of removal” was knowingly and deliberately suppressed from the Department with intent to evade payment of duty and hence, the extended period of limitation has been rightly invoked and the penalty imposed thereon.
There are no reason to interfere with the impugned order and the same is hereby affirmed - appeal dismissed.
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2024 (7) TMI 1252
Levy of Penalty u/r 26(2) of the Central Excise Rules, 2002 - it is alleged that the second stage dealers based in Jaipur were issuing cenvatable invoices to M/s. Amar Pratap Steel Pvt. Ltd. (main noticee) [APSPL] without delivering the goods - goods purchased from the first stage dealers and manufactured by non-existent or non-working manufacturers - HELD THAT:- In the given factual situation of the case, categorical findings have been recorded by the Commissioner (Appeals) in the case of APSPL, particularly that APSPL had duly received the goods as mentioned in the impugned invoices after making payment of duty, there is no justification in taking a contrary view on the same fact, which have been accepted by the Department and no appeal has been filed to challenge the same. In the circumstances, there is no reason to differ with the said order insofar as the appellant is concerned, who has been saddled with penalty of Rs.3,63,778/- under the Rule. When the demand in respect of the cenvat credit itself is not maintainable, there is no justification to affirm the penalty imposed on the appellant.
In the case of Drolia Electrosteel P. Ltd. [2023 (11) TMI 10 - CESTAT NEW DELHI], Learned Division Bench of this Tribunal was dealing with an identical situation, where the cenvat credit was denied and penalty was sought to be imposed on the allegations that DGCEI had investigated several manufacturers and traders including those who supplied the invoices, where the manufacturers indicated, either did not exist at all or had only supplied the documents to enable the manufacturers of the final products to take cenvat credit without actually supplying the goods.
Following the principles enunciated by the Division Bench in the case of M/s. Drolia Electrosteel P.Ltd., which is binding on me and also in the given circumstances, when the department has accepted the findings as recorded by the Commissioner (Appeals) in the order dated 11.12.2019, there is no justification to uphold the imposition of penalty on the appellant.
The impugned order, therefore, deserves to be set aside - The appeal is accordingly allowed.
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2024 (7) TMI 1251
Valuation of goods - value adopted by the 1st appellant for payment of duty on clearance of the goods to the 2nd appellant - requirement to discharge duty under Section 4 (1) (b) of Central Excise Act, 1944 read with Rule 10A (ii) of Central Excise Valuation (Determination of Retail Price of Excisable Goods) Rules, 2000 - Extended period of limitation - penalty.
Valuation of goods - HELD THAT:- The Department has not done any inspection or verification at the premises of the 2nd appellant to conclude that further testing or repacking is being carried out on the products meant for exports. Without such investigation, the department cannot mechanically reject the consistent plea put forward by both appellants. In para 7 of the OIo No.12/2013 dated 26.4.2013 the statement given by the Senior manager of 2nd appellant (Sri Parthaarathy) is referred. It is deposed by him on 25.8.2009 before the Superintendent That their quality control department would carry out inspection of the products and then packing, palletization and shrink packing were done. As per section 2(f) of Central Excise Act, 1944, ‘manufacture’ includes any process, incidental or ancillary to the completion of a manufactured product”. Without quality control check, and inspection, the product cannot be said to be marketable. However, these aspects have not been considered by the original authority or the Commissioner (Appeals), Merely on the basis of difference in assessable value of the goods cleared by the 2nd appellant for export, the department has proceeded to issue SCN and confirm the demand.
Extended period of limitation - revenue neutrality - HELD THAT:- The situation is entirely revenue-neutral. Even if the 1st appellant discharges duty as confirmed by the Department, the 2nd appellant would be eligible to avail credit of such duty. The SCN has been issued invoking extended period alleging suppression of facts. There is no positive act of suppression established by the Department. Further, both appellants have paid duty during the disputed period. This itself would show that the 1st appellant had no intention to evade payment of duty - The entire demand falls within the extended period. The appellants succeed on the ground of limitation.
Penalty imposed under Rule 25 of Central Excise Rules, 2002 - HELD THAT:- Since it is already found that the demand of duty on 1st appellant does not sustain, the penalty imposed on the 2nd appellant is also unwarranted. The view is supported by the fact that the 2nd appellant would be eligible to avail credit of the duty paid by the 1st appellant and is a revenue neutral situation. In such circumstances, penalty imposed on the 2nd appellant is also set aside.
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2024 (7) TMI 1250
Dishonour of Cheque - issuance of summons - Cheque furnished as a security is covered under the provisions of Section 138 of N.I. Act or not? - Scope and limited jurisdiction of High Court under Section 482 of Cr.P.C.
HELD THAT:- The entire dispute is based on the books of accounts. It needs to be noted that, at the time of filing the complaint, the complainant submitted 128 documents which are in the form of invoices, ledger accounts, agreement etc. In the affidavit-in-reply, it has been specifically contended that, upon the instructions, the cheques were retained so as to enable the complainant to recover the outstanding. The complainant has placed on record five blank cheques, drawn by the accused, in favour of complainant company to substantiate the stand taken by the accused that the questioned cheques were not given as a security. The said blank cheques were given as a security against the payment and same still in the custody of the complainat and they are not presented for encashment.
This Court is of primafacie opinion that, at this stage, it is difficult to examine the disputed question of facts which are in the form of defences, cannot be examined and therefore, the issue as to whether the cheques which were sent along with the purchase order can be considered to be in discharge of an outstanding amount or not is a subject matter of trial, because on 17.04.2021, the total outstanding dues was Rs.2,08,68,924/- and therefore, prima-facie, it can be said that, there was an outstanding liability subsisting on the date of issuance of cheques - entertaining the quashing petition at this stage will result in finality without giving the parties an opportunity to adduce the evidence as merely on the basis of pleadings and the stand taken by the parties and considering the presumption in favour of the complainant and the burden of the accused to disprove the fact that on the date of issuance of cheques, there was no legal debt, legally it would be required to be determined by the trial court after evaluation of the evidence.
This Court do not find substance in the submission made by learned counsel for the applicants-accused that the ingredients of Section 138 are not made out and the complaint under Section 138 of N.I. Act is not maintainable - no case is made out to exercise extraordinary jurisdiction and inherent powers of this Court to quash the Criminal Case pending on the file of Judicial Magistrate Court at Surat.
The petition stands dismissed.
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2024 (7) TMI 1249
Dismissal of appellant’s petition preferred under Section 34 of the Arbitration and Conciliation Act, 1996 - levy of liquidated damages on account of failure to plead and demonstrate legal injury - HELD THAT:- The learned Arbitrator has rightly concluded that there was no legal justification for the levy of liquidated damages on account of failure to plead and demonstrate legal injury. Liquidated damages, in law, are no different from unliquidated damages that an aggrieved party may claim. In both instances, the aggrieved party is required to demonstrate legal injury.
Liquidated damages, as agreed to between the disputants, represents the maximum amount that can be paid to an aggrieved party. Since damages for breach of contract is paid as compensation, the law requires the defaulting party to pay, even under Section 74 of the Contract Act, reasonable compensation - no interference is called for with the judgment of the learned Single Judge.
Since there are no pleadings on record concerning the imposition of liquidated damages by NTPC, no leave can be granted at the second stage of scrutiny.
The appeal is dismissed. Costs are quantified at Rs. 20,000/-.
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2024 (7) TMI 1248
Dishonour of Cheque - challenge to summoning order and the complaint pending before the learned Trial Court - exercise of jurisdiction under Section 482 of Cr.P.C. - HELD THAT:- The principles of exercising the jurisdiction under Section 482 of Cr.P.C. were laid down by the Hon’ble Supreme Court in Supriya Jain v. State of Haryana, [2023 (7) TMI 1436 - SUPREME COURT] wherein it was observed that 'Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.'
It was laid down in CBI v. Aryan Singh, [2023 (4) TMI 1330 - SUPREME COURT], that the High Court cannot conduct a mini-trial while exercising jurisdiction under Section 482 of Cr.P.C. The allegations are required to be proved during the trial by leading evidence.
In the present case, the learned Magistrate passed an order after going through the cheque, notice, preliminary evidence in the form of an affidavit and other documents attached to the complaint. He was satisfied that there existed sufficient ground to proceed against the accused under Section 138 of N.I.Act. Hence, the accused was ordered to be summoned.
It is apparent from the order that the learned Magistrate had not passed the order simply based on evidence but he has satisfied him by going through the documents, which is sufficient compliance with the provisions of Section 202 of Cr.P.C. as laid down in In re: Expeditious Trial of Cases [2021 (4) TMI 702 - SUPREME COURT]. Hence, the submission that there was noncompliance with section 202 of Cr.P.C. is not acceptable.
The present petition fails and the same is dismissed.
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2024 (7) TMI 1247
Renewal of cash credit facility for MSME Unit - Section 13(4) of the SARFAESI Act - loan account classified as NPA - HELD THAT:- The petitioner submitted Ext.P12 representation before the respondents for immediate arrangement for regularization of credit facility. While Ext.P12 representation was pending before the respondents, the 2nd respondent issued Ext.P13 possession notice. The action of the respondents is high handed and against fundamental rights guaranteed to the petitioner under Article 14 of the Constitution India, contends the petitioner. The writ petition has been filed under Article 226 of the Constitution of India for issuance of proper directions for regularization of the loan account maintained with the 1st respondent and to stay further proceeding to Exts.P4 and P13 in the interest of justice.
When the writ petition came up for admission, this Court passed an interim order dated 09.11.2023, staying all further proceedings against the petitioner for a period of one month on condition that the petitioner remits an amount of ₹20 lakhs within a period of one month. The petitioner submits that though the petitioner could not remit the amount within the stipulated period of one month. The amount has been remitted by 01.01.2024.
The writ petition is therefore disposed of permitting the petitioner to prosecute his application before the Debts Recovery Tribunal-II, Ernakulam.
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2024 (7) TMI 1246
Seeking to levy and collect Goods and Services Tax on the same transaction twice along with interest and penalty - HELD THAT:- This Court is of the opinion that the petitioner has already paid IGST but the Power Corporation has not taken benefit of ITC and, therefore, the dispute has not been settled as claimed by the petitioner. It would be appropriate that the appellate authority shall consider the grievance regarding payment of penalty and interest in case it has made a bona fide mistake in making payments of IGST and not CGST and SGST.
This petition is disposed of with the direction to the petitioner to approach the appellate authority under Section 107 within two weeks from today along with an application for interim relief. If such an application is filed along with the appeal, the same shall be considered by the appellate authority within two weeks of filing of the appeal and an appropriate reasoned and speaking order shall be passed thereon.
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2024 (7) TMI 1245
Levy of GST - It is the specific case of the petitioner that no GST has to be paid for the work completed prior to 30.06.2017 and that even if the payment was made, subsequently as per the transitional provisions, no tax was payable under GST Act, 2017 - HELD THAT:- If it is the case of the petitioner that the petitioner was liable to pay VAT for the works contract for the period prior to 01.07.2017, it was incumbant on the part of the petitioner to have explained that the tax liability was under VAT and not GST and that the petitioner has already discharged tax liability under VAT. If there was any variance in the rate of tax, the tax can be either collected or refunded from/to the petitioner.
The impugned order is set aside and the case is remitted back to the respondent to pass fresh orders by allocating the amounts due payable by the petitioner from and out of the amounts deposited, under the VAT Act and under the GST Act - Petition disposed off by way of remand.
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2024 (7) TMI 1244
Cancellation of GST registration of petitioner - no reason for cancelling the petitioner’s GST registration - violation of principles of natural justice - HELD THAT:- The submission that the impugned SCN and the impugned cancellation order are liable to be set aside. The impugned SCN does not contain any specific allegation other than alleging that there was non-compliance of “any specified provision in the GST Act or the Rules made thereunder”. The impugned SCN does not mention any specific provision, which is alleged to have been violated. It is impossible to ascertain as to which provisions of the Central Goods and Services Tax Act, 2017 (CGST Act) and the Delhi Goods and Services Tax Act, 2017 (DGST Act) are allegedly not complied with by the petitioner
This Court has in several decisions held that such cryptic show cause notices fail to meet the requisite standards of a show cause notice. A show cause notice must clearly specify the allegations on the basis of which an adverse action is proposed. The entire object of a show cause notice is to enable the noticee to respond to such allegations and set out why the proposed adverse action should not be taken. The impugned SCN fails to clearly specify the allegations capable of eliciting any meaningful response. Such mechanical exercise of issuing the show cause notice serves little purpose.
The impugned cancellation order is also unreasoned and fails to disclose the grounds on which the Proper Officer has cancelled the petitioner’s GST registration. Therefore, apart from falling foul of the principle of natural justice, the impugned order is also liable to set aside as not being informed about any reason - the impugned SCN and impugned cancellation order are set aside.
Petition allowed.
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2024 (7) TMI 1243
Cancellation of GST registration number - activity of passing fake Input Tax Credit - HELD THAT:- There are merit in the petitioner’s contention that the petitioner that the impugned SCN is vulnerable as it does not set out the allegations on the basis of which the petitioner’s GST registration is proposed to be cancelled.
It is relevant to note that the object of a show cause notice is to enable the noticee to respond to the allegations. In the present case, the petitioner is now duly informed about the allegations on the basis of which his GST registration is proposed to be cancelled. Although, a copy of the Memo, which is referred to in the impugned SCN has not been provided to the petitioner, the learned counsel for the respondent has, in unambiguous terms, stated that the allegations as noted in the counter-affidavit and as noted above, are the only allegations set out in the Memo.
In the given facts, setting aside the impugned SCN would serve little purpose apart from the requiring the respondent to once again carry out the exercise of issuing a show cause notice.
Petition disposed off.
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9911796707
