Classification of service - Cargo handling service or construction service - Cargo handling service or manpower supply service? - Demand of service tax construction services rendered by the assessee - Penalties under Sections 77(1)(a), 77(1)(b) and 77(1)(c) of the Finance Act, 1994 as well as Rule 7C of the Service Tax Rules, 1994 - assessee have failed to take registration and not filed returns in respect of the services rendered.
Cargo handling service or construction service - HELD THAT:- The entire demand has been raised only on ‘cargo handling service’ and there is no separate demand raised for ‘construction service’. It is a settled law that no service tax liability can be fastened on unidentified service. It is observed that the Notice in this case was issued without specifying the nature of activity carried out by the appellant-assessee and without classifying the service under any particular category of taxable service.
The entire demand has been raised in the Notice on the basis of comparison of the figures as reflected in their Balance Sheet, profit and loss account and S.T.-3 Returns, for the period from 2008-09 to 2012-13. The demand of Service Tax by comparing the turnover found in the Profit & Loss Accounts/Balance Sheets/Bank Statements with that of the ST-3 Returns, without proper inquiry/investigation carried out by the Revenue and without any admissible evidence, is not sustainable - the submission of the appellant-assessee agreed upon that the demands confirmed in the impugned order without quantifying the service tax liability under each category of taxable service is not sustainable.
Demand of Service Tax under the category of ‘cargo handling service’ - Cargo handling service or manpower supply service? - appellant-assessee contended that they have only supplied manpower for the purpose of loading of cement in the trucks and wagons - HELD THAT:- A similar issue, in their own case for the earlier period, has already been decided by this Tribunal in M/S. SEN BROTHERS VERSUS COMMR. OF CGST & CENTRAL EXCISE, BOLPUR [2023 (12) TMI 1345 - CESTAT KOLKATA] wherein this Tribunal held that the activity of supply of manpower for loading of cement would not be classifiable under the category of 'Cargo Handling Service' - the activity of supply of manpower for loading of cement in trucks and wagons is not liable to be classified under the category of ‘cargo handling service’ - the demand of Service Tax under the 'category of cargo handling service is not sustainable.
Demand of service tax construction services rendered by the assessee - HELD THAT:- The ld. adjudicating authority has excluded the value of construction services rendered to IIT - Kharagpur, NIT- Durgapur and M/s. BIT, Mesra also. The ld. adjudicating authority has arrived at the balance Service Tax payable by the appellant-assessee as Rs.2,46,75,336/-. However, the ld. adjudicating authority has not mentioned under which category the appellant-assessee is liable to pay Service tax. It is already observed that the demand of Service Tax confirmed in the impugned order is not sustainable, without specifying the category under which Service Tax is liable to be paid. In view of the above the demand of service tax under the category of 'Construction service' is not sustainable. Since the demand of Service Tax itself is not sustainable, the question of demanding interest and imposing penalty on this demand does not arise.
Penalties under Sections 77(1)(a), 77(1)(b) and 77(1)(c) of the Finance Act, 1994 as well as Rule 7C of the Service Tax Rules, 1994 - assessee have failed to take registration and not filed returns in respect of the services rendered - HELD THAT:- As the services rendered by the assessee have been held to be not liable to Service Tax under the category of ‘cargo handling service’, we hold that no penalty is imposable under Sections 77(1)(a), 77(1)(b) and 77(1)(c) and Rule 7C ibid.
Rejection of appellant’s preliminary objections - Appellant had raised a preliminary objection that the pre-deposit made by the Electronic Credit Ledger was not valid as due compliance to Section 83 of the Finance Act, 1994 read with Section 35F of the Act - HELD THAT:- The preliminary objections by revenue was rejected because the CESTAT rightly concluded that the circular had come into force only on 28th October 2022 and the appeal had been filed much before the circular came into force. Relying upon the judgment of the Hon’ble Apex Court in COMMR. OF C. EX., BANGALORE VERSUS MYSORE ELECTRICALS INDUSTRIES LTD. [2006 (11) TMI 202 - SUPREME COURT] the CESTAT held that the circular would apply only prospectively.
In fact, this court in OASIS REALTY, ROMA BUILDERS PVT LTD. AND MACROTECH DEVELOPERS LIMITED, VERSUS THE UNION OF INDIA, THROUGH THE SECRETARY, (REVENUE) MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI THE JOINT COMMISSIONER OF STATE TAX, (APPEAL) – V, THE DEPUTY COMMISSIONER OF STATE TAX, MUMBAI – LTU THE STATE OF MAHARASHTRA [2022 (10) TMI 42 - BOMBAY HIGH COURT] has held that assessee may utilize the amount available in the Electronic Credit Ledger to pay 10% of the amount of tax in dispute under Section 107 (6) of the Maharashtra Goods and Services Tax Act, 2017.
Area based exemption under the provisions of the N/N. 50/2003-CE dated 10.06.2003 - denial of benefit on the ground that the khasra numbers on which the appellant unit is situated, is not notified in the Annexure II or III appended to the said Notification dated 10.06.2003 - benefit of cum-duty price - HELD THAT:- An identical issue pertaining to the previous period has been decided by the Division Bench of this Tribunal in M/S PARVATIYA PLYWOOD PRIVATE LIMITED AND AKHILESH PRATAP MD VERSUS COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX-MEERUT-II AND COMMISSIONER OF CENTRAL GOODS AND SERVICE TAX, CUSTOMS AND CENTRAL EXCISE-DEHRADUN [2022 (12) TMI 451 - CESTAT NEW DELHI] where it was held that 'the appellant is entitled to the benefit of recalculation of demand on cum- duty basis in accordance with explanation to Section 4(1)(b) of the Central Excise Act. We find that admittedly appellant have not collected Central Excise duty in addition to the sale price, in view of their claim of Area based exemption. Thus, the appellant shall be entitled to benefit of calculation of duty on cum-duty-price.'
Cum duty benefit - HELD THAT:- It is also noted that the impugned order has allowed the benefit of cum-duty and has denied the benefit of CENVAT credit on inputs.
The matter to the original authority for verifying the claim for availing Cenvat credit on the duty paid inputs, giving an opportunity to the appellant to produce all relevant invoices/ledgers and other relevant documents before the adjudicating authority to substantiate their claim for CENVAT credit - Appeal allowed by way of remand.
CENVAT Credit - inputs - whether Cenvat credit availed on inputs such as HR Plates, Shape & Section, Channels under Tariff Chapter No.72 & 73 and Welding Electrode under Tariff Heading No.8311 would be admissible or not? - HELD THAT:- In the impugned order demand has been confirmed only on the basis of the Larger Bench decision in the case of VANDANA GLOBAL LTD. VERSUS CCE [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] which is no longer a correct law and which has been set aside by the Hon’ble High Court in the decisions cited supra by the Appellant.
Further, it is found that this issue is no more res integra and it has been consistently held by the High Court that the decision of the Larger Bench in Vandana Global is not a good law and once the decision in the case of Vandana Global has been held to be not a good law, therefore, the Appellant is entitled to avail the Cenvat Credit on various steel items and welding electrodes.
The impugned orders are not sustainable - the impugned order is set aside - appeal allowed.
Reversal of SAD in terms of Rule 3 (5) of Cenvat Credit Rules, 2004 - applicability of Section 11D when the SAD credit has been reversed but shown in the invoice - HELD THAT:- From the above rule 3 (5) it is clear that when any input is cleared as such whatever credit is availed on such input is required to be reversed. Therefore, the appellant have rightly reversed the amount equal to cenvat credit on such input. From the provision Section 11 D it is clear that any amount collected in excess of the duty assessed or determined and paid on any excisable goods under this Act or the rules made thereunder from the buyer of such goods in any manner as representing duty of excise, shall forthwith pay the amount so collected to the credit of the Central Government. This shows that any amount showing as excise duty collected but not paid shall be paid to the credit of Central Government.
In the present case, admittedly the amount was determined and paid in terms of Rule 3 (5) of Cenvat Credit Rules, 2004. Therefore, the provisions of Section 11 D is not applicable.
In the case of UNISON METALS LTD. VERSUS COMMISSIONER OF C. EX., AHMEDABAD-I [2006 (10) TMI 171 - CESTAT, NEW DELHI-LB], the larger bench of this tribunal held that 'The scheme of the law is that manufacturers shall not collect amounts falsely representing them as central excise duty and retain them, thus, unjustly, benefiting themselves. In the present cases, (irrespective of whether the 8% payments were duty or not) since the 8% amount remain already paid to the revenue, and no amount is retained by the assessee, Section 11D has no application.'
In view of the above judgment, it is clear that once the amount of duty has been paid to the Government and the same is charged in the invoice, provisions of Section 11 D will not apply. The similar facts are available in the present case also in as much as the appellant have paid the amount shown in the invoice by reversing the credit in their Cenvat account. Therefore, in this fact the demand under Section 11 D is not sustainable.
Remission of excise duty on the goods destroyed in fire - requirement to pay the Cenvat credit in respect of the inputs contained in the finished goods which were destroyed in fire.
Remission of duty - HELD THAT:- There is no dispute that the goods were destroyed in fire . The fire accident was unavoidable and on the entire fire accident the Insurance Company also processed the insurance claimed and the same has been sanctioned to the appellant. In such case the appellant is clearly entitled for the remission of the duty in respect of the goods destroyed in fire as provided under Rule 21 of the Centra Excise Ryles, 2002 - From the plain reading of the rule 21, the objective of the Rule is that if the goods have been lost or destroyed by natural cause or by unavoidable accident at any time before the removal , the commissioner may remit the duty payable on such goods subject to conditions as may be imposed by him by order in writing.
In the present case, there is no dispute that the goods have been destroyed in fire which is an unavoidable accident and there is no evidence of any mis-chief or malafide intention of the appellant in the fire accident. Therefore, as per the facts and circumstances on record, the appellant ‘s case is clearly covered by Rule 21 of the Central Excise Act, 2002.
Reversal of Cenvat credit on input as such destroyed in the fire - HELD THAT:- The appellant is not contesting as the same as has been reversed by the appellant. Accordingly, the said reversal is maintained.
In the present case also the period involved is January-2006 during which there is no specific provision for reversal of credit which was brought by Rule 5 (D) (C) of Rule 3 of Cenvat Credit Rules, 2004 vide Notification No 33/2007 – CE (NT ) dated 07.09.2007. Therefore, prior to September, 2007 there was no requirement of reversal of Cenvat Credit as held in the above judgments. Therefore, the appellant is not required to reverse the Cenvat credit in respect of inputs contained in the finished goods which were destroyed.
The impugned order stands modified - Appeal allowed.
Availment of credit on jumbo bags and after printing and repacking these jumbo bags cleared for export - printing of the supplier’s name on the jumbo bags - process amounting to manufacture or not - Extended period of limitation - suppression of facts or not.
CENVAT Credit - process amounting to manufacture or not - HELD THAT:- The jumbo bags received by the appellant even after printing remains as jumbo bags and the same are marketable even without printing. Hence, printing cannot be incidental or ancillary to the completion of a manufactured product as is held in the case of BRAKES INDIA LTD. VERSUS SUPERINTENDENT OF CENTRAL EXCISE [1997 (3) TMI 120 - SUPREME COURT] where the Hon’ble Supreme Court clearly held that 'When adopting a particular process, if a transformation takes place, which makes the product have a character and use of its own, which it did not bear earlier, then the process would amount to manufacture within the meaning of Section 2(f) irrespective of the fact whether there has been a single process or have been several processes.'
Therefore, availing cenvat credit on the jumbo bags as inputs which have been received for the purpose of printing is irregular in as much as the jumbo bags remains the same even after printing.
Extended period of limitation - suppression of facts or not - HELD THAT:- The revenue was aware of the irregular of availment of credit in the month of August 2008 itself. Having not issued show-cause notice during the first audit they cannot allege suppression at the time of second audit - unless there is evidence to show there is wilful suppression on the part of the appellant the demand cannot be sustained beyond the normal period.
The impugned order is set aside on limitation and the appeal stands allowed.
Method of valuation - to be valued on MRP basis under Section 4 A or under Section 4 of Central Excise Act, 1944 - sugar confectionery falling under chapter heading under 1704.90 and 1804.90 being manufactured by the appellant, the individual piece weighing less than 10 grams per piece and the same are packed in 500 grams pack - HELD THAT:- The same issue decided in the appellant’s own case SWAN SWEETS PVT LTD VERSUS C.C.E. & S.T. -RAJKOT [2023 (7) TMI 538 - CESTAT AHMEDABAD]where it was held that 'In the identical facts in the appellant’s own case SWAN SWEETS PVT. LTD. VERSUS COMMISSIONER OF C. EX., RAJKOT [2006 (1) TMI 269 - CESTAT, MUMBAI] it was held that wholesale pack of 500 grams to 1 kg is not retail pack and therefore taking the weight of individual piece of confectionery which is less than 10 grams will not be governed under Section 4A.'
In view of the above decision in the appellant’s own case the issue is no longer res-integra - the impugned orders are not sustainable and the same are set aside - appeal allowed.
Classification of goods - Salmonella Antigens Sets - to be classified under Central Excise Tariff Heading No. 3822 as claimed by the Revenue or 3002 as declared by the Appellant? - HELD THAT:- The identical issue decided in the appellant’s own case RECKON DIAGNOSTICS P LTD VERSUS C.C.E. & S.T. -VADODARA-I [2023 (11) TMI 718 - CESTAT AHMEDABAD] and RECKON DIAGNOSTICS P LTD VERSUS C.C.E. & S.T. -VADODARA-I [2023 (11) TMI 884 - CESTAT AHMEDABAD] for the previous period, this Tribunal has passed order dated 17.11.2023 & 27.09.2023, holding that 'the classification of product ‘WIDAL-SALMONELLA ANIGENS KIT’would be correct by classified under Chapter heading 30.02, as claimed by the assessee.'
The issue in the appellant’s own case stand settled and the same is no longer res-integra - Appeal allowed.
Time limitation for issuance of SCN - relevant date in terms of section 11A of the Central Excise Act - levy of penalty under the provision of section 11AC (1) (c) of the Central Excise Act - HELD THAT:- There is no error in the finding recorded by the Commissioner (Appeals) that the relevant date in terms of section 11A of the Central Excise Act would the date on which the Supreme Court delivered the judgment i.e. 24.09.2014. If that be so, the show cause notice was issued within the normal period of limitation and there was no necessity at all of taking recourse to the extended period of limitation.
Though the impugned order proceeds to impose penalty under the provision of section 11AC (1) (c) of the Central Excise Act but as it has been found that the notice was issued within the normal period of limitation, penalty can be imposed under section 11AC (1) of the Central Excise Act which would not exceed 10% of the duty or Rs. 5,000/- whichever is earlier.
When the duty was levied pursuant to the directions issued by Supreme Court and the appellant was under an impression that the judgment is prospective in nature, it would be appropriate to reduce the penalty to Rs. 10,000/-.
The order impugned dated 22.03.2018 is modified to the aforesaid extent only - Appeal allowed in part.
Appropriation of amount that was due and payable to the Petitioner after the adjustment of the tax liability of the Petitioner for various assessment years - HELD THAT:- The challenge to the Impugned Order is unsustainable. However, the appropriation made in the Impugned Order is unsustainable. If the amounts are due and payable to the Petitioner after adjustment of the tax they have to be refunded back to the Petitioner.
There is no question of lapsing of the aforesaid amount so as to enable the Government to appropriate the amounts of refund that is/was due and payable to the Petitioner under the provisions of the PVAT Act, 2007 and CST Act, 1956.
The Respondent is directed to refund a sum of Rs. 5,89,030/- to the Petitioner. Since the amount is refundable, the Respondent is directed to refund the amount by crediting the amount in the Electronic Cash Register in terms of Section 142(8)(b) of the CGST Act.
Existence of valid mortgage entitling appellant to sue for a mortgage decree or not - HELD THAT:- Quite evidently, the Division Bench did not account for Section 58(f) of the Act. Indubitably, the respondent pleaded threat and coercion whilst executing/signing the Agreement, yet having accepted that he did sign the same in his own hand, the burden was on him to prove such threat/coercion. Looked at from any angle, the First Impugned Order suffers from legal errors, and cannot withstand the scrutiny of law.
How and why the appellant went into slumber? - HELD THAT:- A ‘fantastic’ plea was taken that the appellant had engaged a counsel only for the delay condonation MP and not to argue the main appeal. Such a contention is noted only for the purpose of outright rejection. This ‘fantastic’ plea has been dealt with correctly by the Division Bench and no legal infirmity can be found therein.
It is already indicated that the First Impugned Order has to be set aside. In order to do justice, quashing of the First Impugned Order would necessarily mean that the effect of the Second Impugned Order would get nullified, for all practical purposes, despite this Court being of the view that on its own merits, the Second Impugned Order cannot be faulted. However, for such legal misadventure resulting in wastage of precious judicial time of the High Court, which could have been better spent answering the call of justice raised by the teeming millions, we impose costs of Rs.1,20,000/- on the appellant. Such cost shall be deposited within 6 weeks with the Registry of the High Court, to be utilised as follows:
i. Rs.40,000 for juvenile welfare in a manner to be decided by the Juvenile Justice Monitoring Committee;
ii. Rs.40,000 for welfare of the Advocate-Clerks in a manner to be decided by Hon’ble the Acting Chief Justice, and;
iii. Rs.40,000 for legal aid in a manner to be decided by the High Court Legal Services Committee.
Maintainability of the complaint of the respondent-claimant on the plea that it is not a consumer under the Consumer Protection Act, 2019 or not - deficiency in service or unfair trade practice on part of the appellant in the matter of allotment of the flat in question in favour of the respondent and in its cancellation resulting in the forfeiture of the amount deposited.
Maintainability of the complaint of the respondent-claimant on the plea that it is not a consumer - HELD THAT:- The issue is no longer res integra. It is more or less covered by the two decisions which have been relied upon by the NCDRC. In LILAVATI KIRTILAL MEHTA MEDICAL TRUST VERSUS M/S. UNIQUE SHANTI DEVELOPERS & ORS. [2019 (11) TMI 1824 - SUPREME COURT], the Medical Trust that had purchased houses for the nurses was held to be a ‘consumer’ under the Act and its action in purchasing the houses was not held to be a commercial activity. In CROMPTON GREAVES LIMITED AND ORS. VERSUS DAIMLER CHRYSLER INDIA PRIVATE LIMITED AND ORS. [2016 (7) TMI 1700 - NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI], the services availed for the personal use of the director of the company were not held to be for commercial purposes.
In the case at hand, the complainant specifically mentions that the flat was being purchased for the purpose of residence of one of its Directors and his family and that the company is a family owned company. The mere fact that the respondent-company is a real estate company, it does not mean that the flat was purchased by it for commercial purpose or for resale so as to earn profits. It is the appellant who is contending that the respondent is not a consumer and as such the complaint is not maintainable, therefore, the burden lies heavily upon it to lead evidence to prove that the respondent in purchasing the flat in question is indulging in real estate business. There is no evidence on record to show that the flat so purchased by the respondent was in any way connected with the real estate business rather than for personal use of its Director and his family.
There are no error or illegality in the finding of the NCDRC that the purchase of the aforesaid flat was for personal use and not as part of the commercial activity and as such the complaint filed by the respondent was maintainable.
Deficiency in service or unfair trade practice on part of the appellant in the matter of allotment of the flat in question in favour of the respondent and in its cancellation resulting in the forfeiture of the amount deposited - HELD THAT:- The appellant instead of refunding the amount deposited by the respondents, forfeited the same vide letter dated 18.11.2017. Since the very cancellation/ termination of the allotment of the respondents in the facts and circumstances of the case is not justified, consequently the forfeiture is also bad in law. The NCDRC upon consideration of the above facts and circumstances, irrespective of the fact that the appellant may have the power to advance the date of delivery of possession of the flat allotted or offer possession on the basis of part occupancy certificate, rightly held that the appellant was guilty of adopting unfair trade practice and since there was double allotment of the flat, there was deficiency in service.
Thus, the complaint of the respondents was maintainable and that since the services rendered by the appellant were held to be deficient. It has thus rightly issued directions to refund the forfeited amount of Rs. 7,16,41,493/- along with the delay compensation @ 6% per annum from the date of deposit till refund within two months, failing which the interest would be payable @ 9% per annum.
The appellant is directed to refund a sum of Rs. 3,00,00,000/- (Rupees Three Crore only) out of the total amount, as directed to be refunded, within a period of two weeks from today and the balance be refunded on or before 31st December, 2024 either in lump sum or in piecemeal, failing which it will be open for the Collector concerned to recover the entire amount as arrears of land revenue.
Dishonour of Cheque - compounding of offence u/s 138, N.I. Act - core contention of the appellant is that an offence under Section 138 of the N.I. Act is not compoundable under Section 320 Cr.P.C., and in such circumstances, the application was rightly dismissed by the Trial Court. Ergo, invoking the power under Section 482 Cr.P.C., coupled with those under Section 147, N.I. Act - HELD THAT:- A bare perusal of Section 482, Cr.P.C., and Section 147, N.I. Act would reveal they are different and distinct. The former being the inherent power of High Court exercisable even suo motu to give effect to any order under Cr.P.C., or to prevent abuse of the process of any court or otherwise to secure the ends of justice. However, the provision for compounding every offence punishable under the N.I. Act, under Section 147, N.I. Act, is not a power available to a Court to exercise without the consent of the complainant.
It is thus well-neigh settled position that the inherent powers under Section 482, Cr.P.C., are invocable when no other efficacious remedy is available to the party concerned and not where a specific remedy is provided by the statute concerned.
The High Court had clearly fallen in error in invoking the power under Section 482, Cr.P.C., as also the power under Section 147, N.I. Act, to compound the offence under Section 138 of the N.I. Act qua the respondent-accused. Hence, the impugned judgment to the extent it compounded the offence under Section 138, N.I. Act invoking the inherent power under Section 482, Cr.P.C. and the power under Section 147, N.I. Act stands quashed and set aside.
There is no point in restoring the proceedings and to permit their continuance before the trial Court - Appeal disposed off.
Dishonour of Cheque - existence of legally payable debut supporting the cheque or not - main contention of the revisionist is that the Revisionists has claimed that only a sum of Rs. 1,03,660/- had been paid by the complainant while the cheque amount has been claimed to be Rs. 2,40,000/- which was taken by the Complainant under duress - HELD THAT:- In M/S. KUMAR EXPORTS VERSUS M/S. SHARMA CARPETS [2008 (12) TMI 682 - SUPREME COURT], the Apex Court had observed that the accused in a trial under Section 138 of the Act has two options viz. either to prove that the consideration/debt did not exist or that under the facts and circumstances of the case the non-existence of consideration and debt was so probable that no prudent person would suppose that there was a consideration or the debt that existed.
Similar observations had been made in MS NARAYANA MENON @ MANI VERSUS STATE OF KERALA & ANR. [2006 (7) TMI 576 - SUPREME COURT], wherein the Apex Court had observed that the standard of proof is preponderance of probabilities and such an inference can be drawn not only from the material on record, but also with reference to the circumstances upon which the parties reply. The standard of reasonability is that of a prudent man.
Before this Court as well, the Revisionists have not been able to agitate any ground creating a doubt in the case of the complainant about the manner in which the cheque had been issued by the Revisionists in discharge of their existing liability. It would not be out of place to observe that admittedly the cost of tour per person was Rs. 1,20,000/- which explains why Rs. 2,40,000/- were paid to the Revisionists, in respect of which the cheque was issued on account of the tour having been cancelled - the Ld. MM and Ld. ASJ have rightly observed that the Revisionist failed to rebut the presumption under Section 139 and held that the cheque had been duly issued by Bhavna Chopra for and on behalf of the Revisionist Firm, in discharge of the Legal Liability.
The second aspect agitated by the Revisionists is that Amit Chopra had no concern with the cheque in question. However, it is not in dispute that M/s A & B Tour & Travels was a partnership Firm of which both the Revisionists were partners. The cheque had been issued by Bhavna Chopra as one of the partners of the Firm; the liability being of the Firm - Since the cheque was issued for and on behalf of the Firm of which both the Revisionists are admittedly the partners, Amit Chopra cannot avoid his liability.
The third ground on which the impugned judgment has been challenged is that no valid Cheque Return Memo has been produced by the complainant. The perusal of the record shows that the cheque in question Ex.CW1/A dated 13.03.2014 got deposited in ICICI Bank by pay-in slip dated 11.06.2014 Ex.CW1/B. The cheque got rejected vide Rejection Memo Ex.CW1/C. It is correct that the said Rejection Memo neither mentions the cheque number nor the date, but it bears the stamp of the ICICI Bank. It is but natural that if the cheque got deposited on 11.06.2014, the dishonour had to be subsequent to it.
The fourth aspect agitated on behalf of the Revisionists is that in the absence of the date of service of Legal Notice, it cannot be said that the complaint has been filed within the time frame as provided under Section 138 N.I Act.
Thus, it is held that there is no jurisdictional error in the judgment of the learned ASJ in upholding the conviction of the Revisionist under Section 138 of N.I. Act. Learned ASJ has already taken a lenient view by reducing the compensation amount to Rs. 4 lakhs and sentencing them to only a default sentence of three months in case of payment of compensation not been made within one month.
There is no merit in the present Revision which is hereby dismissed.
The High Court of Allahabad allowed the withdrawal application in Civil Misc. Withdrawal Application No. 5 of 2024. The writ petition was dismissed as withdrawn. The State had no objection to the withdrawal. The order on the petition was dismissed as withdrawn.
Provisional attachment of petitioner’s Bank account - Invocation of jurisdiction of this Court under Article 226 of the Constitution of India - Seeking discretionary reliefs in relation to the attachment notice as issued under Section 83 of the CGST Act - HELD THAT:-In rejoinder, petitioner has stated that his permanent address is at Rajasthan and at the time of filing rejoinder he is at Mumbai whereas in paragraph 1 of the petition he has stated that he is carrying on business at the address mentioned in cause title which is at Dahisar, Mumbai. This contradiction coupled with what is stated by respondents in their reply on petitioner being non-genuine goes on to indicate that petitioner is playing fraud not only on the Revenue but also on this Court and, therefore, it is not required to exercise discretionary jurisdiction in the present matter.
Appeal dismissed on the ground that they had been filed beyond limitation - Applicability of Section 29 (2) of the Limitation Act, 1963 in relation to the period of limitation - HELD THAT:- In the case of Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur and Ors. [2007 (12) TMI 11 - SUPREME COURT], the Hon’ble Supreme Court considered the applicability of Section 29 (2) of the Limitation Act to the provisions of Section 35 of the Central Excise Act. Section 35 of the Central Excise Act provided for an appeal to be filed, before the Commissioner (Appeals), within 60 days from the date of communication, of the decision against which the appeal is being filed. The proviso to Section 35 permitted the Commissioner (Appeals), if he was satisfied that sufficient cause is made out, to permit filing of an appeal within a further period of 30 days beyond the statutory provisions of the Limitation Act. It was held that, the affected party cannot invoke Section 5 of the Limitation Act.
Though Section 29 (2) requires an express exclusion to be found in the special or local law, the Hon’ble Supreme Court, in Union of India v. Popular Construction Co. [2001 (10) TMI 1044 - SUPREME COURT]had held that where the language of the legislation, excluded the applicability of the provisions of the Limitation Act, by necessary implication, any benefit under the provisions of the Limitation Act cannot be claimed. In view of this ratio, it is not necessary that there should be an express exclusion of the provisions of section 4 to 24 of the limitation Act.
Where a special or local law, by express statement excludes all or any of Sections 4 to 24 of the Limitation Act, they cannot be applied to any proceedings under such special or local law. Where such exclusion is to deduced, by way of necessary implication, each provision would have to be considered separately and exclusion of one provision would not result in exclusion of the other provisions of section 4 to 24 of the limitation Act.
In the present case, Section 107, which provides for an appeal against orders passed under the APGST Act, stipulates that (A) an appeal, under Section 107 (1), by a dealer against any order of an adjudicating authority, can be filed within three months from the date on which the order is communicated; (B) an appeal, under Section 107 (2), by an authority under the Act, against any order of an adjudicating authority, can be filed within six months from the date on which the order of the Chief Commissioner directing the filing of such an appeal is received by the said authority.
The Hon’ble Supreme Court, while considering similar provisions, in Union of India v. Popular Construction Co and Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur and Ors. [2007 (12) TMI 11 - SUPREME COURT] had held that the restriction of the additional period, for which delay may be condoned, in the special statute, effectively excluded Section 5 of the Limitation Act.
Since the period of limitation available, under Section 107 of the APGST Act, cannot be extended beyond the period stipulated therein, Section 5 of the Limitation Act would stand excluded - The appellate authority under Section 107 of the APGST Act would not have any power to condone the delay in filing an appeal, under Section 107 of the APGST Act, beyond the period of 30 days set out in Section 107 (4) of the APGST Act.
Refund of amount deposited under compulsion - provisional attachment of bank accounts - HELD THAT:- It is considered apposite to issue any directions for refund of the deposit in these proceedings. However, it is clarified that the petitioners would be entitled to apply for refund of the same in accordance with law without waiting for the adjudication of the show cause notice.
Insofar as the petitioner’s request for return of the articles and documents seized during the course of the proceedings are concerned, the respondent states that all hard disks and other articles have been returned except two laptops. He submits that two laptops have been stolen from the office of the GST Authorities and an FIR in this regard had been lodged.
Seeking cancellation of bail granted in favour of the respondent, invoking Section 439(2) of Cr.P.C. - Whether the State has made out any grounds for cancellation of bail granted in favour of the respondent? - HELD THAT:- Admittedly, the respondent was apprehended, subjected to interrogation, later he was enlarged on bail subject to conditions. Initially, while filing the petition, it is not the contention of the petitioner that the respondent has violated any of the conditions imposed on him, but later additional grounds were pleaded to contend that there is violation of conditions. Simply because the respondent has not produced the documents that are called for by the Investigating Officer, it will not amount to violation of any of the conditions imposed while granting bail. If the petitioner is of the opinion that certain documents are withheld by the respondent deliberately or it is of the opinion that concocted documents are relied on by the respondent, it can still proceed further by making such grounds against the respondent to speed up the investigation and pass the assessment order.
It is well settled proposition of law that denying bail to the accused is entirely different from cancellation of bail already granted by the Court as it amounts to withdrawing the liberty granted in favour of the accused which requires strong grounds. No such strong grounds are made out to seek cancellation of bail which is already granted.
The Court has taken into consideration the facts of the case and has assigned valid reasons for enlarging the respondent on bail - there are no compelling reason for cancellation of bail granted in favour of the respondent - Criminal Petition is dismissed.
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