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Showing 401 to 420 of 1564 Records
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2024 (8) TMI 1164
Deduction u/s. 80IA(4) - claim denied as assessee is not a developer of any infrastructure project, but a simple works contractor executing civil construction work for various government and semi-government departments -
Arguments of the assessee is that, the AO has simply disallowed claim of deduction u/s. 80-IA(4) for the impugned assessment year based on the findings of the AO for the assessment year 2009-10 and nature of agreement entered into by the appellant in the assessment year 2009-10 and for the impugned assessment year may be different and further, on the basis of agreement entered by the appellant for the assessment year 2009-10, conclusion cannot be drawn against the assessee to hold that the assessee is a works contractor, but not a developer.
HELD THAT:- We find merit in the arguments of assessee, because in order to ascertain the nature of works executed by the assessee, the basic documents required to be examined is an agreement entered into with the principals. The terms and conditions and the nature of work specified in the agreement can only decide whether the assessee is a developer of an infrastructure project or a simple work contractor who executes civil construction work for a developer.
Since, the AO has not examined the agreement entered into by the appellant with various government and semi-government departments, in our considered view, the matter needs to go back to the file of the AO for fresh examination. Thus, we set aside the order of the CIT(A) on this issue and restore the issue back to the file of the AO and direct the AO to re-examine the claim of deduction u/s. 80IA(4) of the Act, in light of necessary evidences including agreement entered into by the appellant with various departments and ascertain the nature of works executed by the assessee, in order to consider for the purpose of section 80IA(4) - Appeal filed by the assessee is allowed for statistical purposes.
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2024 (8) TMI 1163
Maintainability of appeal when alternative remedy u/s 264 already availed - HELD THAT:- No doubt, the assessee vide letter has waived his right of appeal but Hon’ble Madras High Court in the case of CIT vs. D. Lakshminarayanapathi [1998 (12) TMI 12 - MADRAS HIGH COURT] has considered this issue and held that the provisions dealing with appellate jurisdiction do not bar an appellant from invoking the appellate jurisdiction for filing of appeal before CIT(A), even though the assessee had invoked revisional jurisdiction u/s.264.
Thus set aside the order of CIT(A) holding the assessee’s appeal as not-maintainable and direct him to re-decide the appeal as per law on merits. In term of the above, appeal of the assessee is allowed for statistical purposes.
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2024 (8) TMI 1162
Quantum of penalty - use of his IEC code for import to be made by Sh. Rajan Arora - it was held by High Court that 'We note that it is the undisputed position that the appellant had lent the Importer Exporter Code [“IEC”] for the purposes of facilitating import. Bearing in mind the fact that there was no connivance, the CESTAT had found it fit to reduce the penalty imposed on the appellant from Rs. 12 lakhs to Rs.50,000/-.'
HELD THAT:- It is not required to interfere with the impugned judgment and order passed by the High Court of Delhi at New Delhi - appeal dismissed.
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2024 (8) TMI 1161
Seeking release of seized goods (Edible Oil) - reasons to believe - Section 110 of the Customs Act, 1962 - These goods were stated to be under transit from Sitamarhi to Dubhi (Indo-Nepal Border)- HELD THAT:- “Reasons to believe” words incorporated under section 110 of the Customs Act, 1962 has been interpreted by this Court in the case of M/S OM SAI TRADING COMPANY AND M/S MAA KAMAKHYA TRADERS, VERSUS THE UNION OF INDIA, THE COMMISSIONER OF CUSTOMS AND ORS. [2019 (9) TMI 1283 - PATNA HIGH COURT ] and it was subject matter of litigation before the Hon’ble Supreme Court, however, having regard to the facts of the case interpretation of “reasons to believe” has not been examined and it was left over to be examined in some other cases. Para-4 of the circular dated 08.02.2017 stipulated that at the time of seizure Panchnama was required to be drawn clearly mentioning the reasons to believe that goods are liable for confiscation.
There is disputed issue as to whether driver of the vehicle had produced relevant documents at 21.00 hrs. on 19.06.2021 or not. In fact, at para 13 of the writ petition, petitioner has admitted that documents have been produced in the office of customs department, therefore, one has to draw inference that driver of the vehicle was not carrying the documents in respect of transportation of seized goods and other ancillary papers. Further, RUD-05 E-way Bill generated on 19.06.2021 9.26 pm and seizure is at 9.30 pm on 19.06.2021, some alleged discrepancies are reflected. Be that as it may, under Article 226 Court cannot examine disputed issues among the parties.
The petitioner has not made out a case. Accordingly, the present writ petition stands dismissed.
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2024 (8) TMI 1160
Seeking grant of bail - recovery of contraband items - Submission of applicant is that the applicant has been falsely implicated in the case - HELD THAT:- Looking into the fact that the applicant does not have any criminal history and considering the facts and circumstances including that the counsel for the respondent did not dispute that the applicant is at flight risk and he is not in a position to influence any witness or tamper with the evidence; coupled with the fact that all contentions issues are yet to be tested in trial.
Moreover, the co-accused Ameer Ahmad, Mohd. Rafeeq, Mohd Alkama, Mohd. Ahad and Mohd. Kashif have been enlarged on bail vide orders dated 07.05.2024, 27.05.2024 and 25.05.2025 passed in Criminal Misc. Bail Application nos.4723 of 2024, 4914 of 2024, (5768 of 2024, 5662 of 2024 and 5664 of 2024 respectively. Copies of the bail orders of Ameer Ahmad and Mohd. Rafeeq have been annexed as Annexure nos.5 and 6 of the bail application.
Looking into the severity of the punishment if convicted and the period of incarceration as well as the fact that no apprehension has been expressed by the learned counsel for the Customs that the applicant is at the risk of fleeing justice or that he would tamper with evidence or influence any witness, hence, at this stage, without expressing any opinion on the merits of the case, this Court is of the view that the applicant is entitled to be released on bail.
Let the applicant Zareef Ahmad involved in the aforesaid FIR/Case Crime Number be released on bail on his furnishing a personal bond with two reliable sureties each in the like amount to the satisfaction of the court concerned - application allowed.
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2024 (8) TMI 1159
Absolute Confiscation of prohibited goods - Undeclared counterfeit goods - Mis-declared goods other than counterfeit - rejection of transaction value of the remaining goods under Rule 12 and re-determining their value under Rule 9 of the Valuation Rules - levy of penalty.
Branded goods - HELD THAT:- The appellant abandoned these goods and had also explained the reason for abandoning them that they did not belong to him at all and that he had not placed any order for them - It is not only a clear a case of relinquishing the title to the goods but, in fact, he went one-step further to claim that he had never placed had any order for them and that the goods did not belong to him. He had not responded to the show cause notice or participated in the personal hearing. It is found impermissible to the appellant to now take U-turn and claim those goods which did not belong to him at all. Therefore, the absolute confiscation of the counterfeit goods needs to be sustained.
Valuation of other goods - HELD THAT:- The show cause notice proposed to reject the declared transaction value under rule 12 for this reason. In paragraph 17 of the show cause notice, it was indicated that valuation could not be done under rule 4, 5, 7 and 8 of the Valuation Rules and that there was no contemporaneous data of identical or similar goods. For this reason, it was proposed to conduct a market survey or inquiry as per rule 9 ( Residual Method). The market survey was conducted after taking the representative samples of the goods in the presence of Pankaj Gupta, proprietor of the appellant firm and others to ascertain their market value in India. From the prices found in market inquiry, abatement of 60% was given in lieu of the duty and profit margin and other expenses to arrive at the assessable value - It is recorded in the show cause notice that this method of valuation was accepted by the importer and its Customs Broker and importer had paid duty on the enhanced value. In respect of certain other items such as wind cheater, PU ball, baby car, PVC table cover, PU wheel cover and resin show piece, the declared values were accepted - the total assessable value was proposed to be re-determined in the show cause notice.
The total unbranded goods were valued at Rs. 1,65,49,893/- and a redemption fine of the same value was imposed by the Commissioner in the impugned order. He also confiscated 2880 of reading glasses/ sun goggles valued at Rs. 11,42,993/- and allowed them to be redeemed on payment of an redemption fine of an equal amount. In other words, the amount of redemption fine imposed by the Commissioner in the impugned order is equal to the value of the goods itself - this is harsh and the amount of redemption fine must be reduced.
The penalty imposed on Sh. Pankaj Gupta, the proprietor of the appellant is Rs. 94,51,763/- under section 112(a) read with Section 114A and section 114AA of the Act. No breakup is given on the amount of penalty imposed under the three sections. We find section 114A provides for penalty but if a penalty is imposed under that section no penalty can be imposed under section 112 also. Section 114AA provides for penalty for a person knowingly or intentionally making, signing, using or causing to be made signed or used any declaration, statement of documents which is false or incorrect in any material particular in the transaction of any business for the purposes of Act - it would meet the ends of justice if penalty under section 114A and 114AA are set aside and the penalty under section 112(a) is reduced to Rs. 9,00,000/-.
Appeal allowed in part.
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2024 (8) TMI 1158
Refund of the Special Additional Duty of Customs (SAD) - rejection on the ground that description of the imported goods does not match - non-compliance with N/N. 102/2007-Cus dated 14.9.2007 - HELD THAT:- The fact remains that the appellant has produced a Chartered Accountant’s Certificate along with the reconciliation statement as required by Boards Circular. In such a case the decision to discard the certificate should be based on certain incriminating and reliable documents and the reasons for disbelieving the certificate should be clearly spelt out. In the absence of such action the claim cannot be rejected.
In Chowgule & Company Pvt. Ltd. v. Commissioner of Customs & C. Ex., [2014 (8) TMI 214 - CESTAT MUMBAI (LB)], a Larger Bench of this Tribunal examined a reference of a related matter as to ‘whether to avail the benefit of N/N. 102/2007, the condition 2(b) of the Notification is mandatory for compliance being a trader who cleared the goods on the strength of commercial invoices.’ The judgment went on to examine the genesis and object of the levy and the role of the exemption notification, which is very useful in understanding the issue.
A similar view is also relevant for discrepancies noticed in the description of goods between the sales invoice and the Bill of Entry in the impugned case. Grounds such as minor mismatch in description of goods in the invoice, and clerical errors in dates do not go to the root of the validity of the refund claim and are curable. The CA’s Certificate along with the reconciliation statement has been prescribed in Boards Circular to provide a ledger/ document-based scrutiny of the claim and should ordinarily be relied upon to sanction the claim - Regular cash inflows are the lifeline of a trade / business and blocking legitimate claims on half-baked reasons does a great dis-service and should be avoided.
The Hon’ble Madras High Court in its judgment in PP PRODUCTS LTD. VERSUS COMMISSIONER OF CUSTOMS, CHENNAI SEAPORT COMMISSIONERATE-IV [2019 (5) TMI 830 - MADRAS HIGH COURT], examined whether the Tribunal, in the face of documentary evidence produced by the appellant, was correct in setting aside the order of the Appellate Authority, holding that there was no correction between the imports and subsequent sales? It held that 'the adjudicating authority has not come to a conclusion that the product sold was entirely different. In fact, there was nothing on record to disbelieve the Chartered Accountant’s certificate which certified that both products are one and the same. If the adjudicating authority had to disbelieve such certification, then there should have been material to do so. However, the larger question would be whether at all such jurisdiction is vested with the adjudicating authority, when there is no allegation of any fraud or misrepresentation against the appellant.'
The impugned order rejecting the refund claims is not proper. The same is hence set aside - The appeal is allowed.
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2024 (8) TMI 1157
Validity of the sale of immovable property by the National Company Law Tribunal - transmission of shares under SARFAESI Act - Inability to sell its flats due to lack of permission from its lessor MHADA - crux of appellant is the shareholder of the appellant company does not have any title or ownership in the property of the appellant - HELD THAT:- Admittedly Respondent No.1 had acquired shares under share certificate No.23 and a flat viz. bearing No.101 situated at Satsang Building for valuable consideration pursuant to an enforcement proceedings initiated by the Bank under the SARFAESI Act. The said acquisition tantamounts to transmission of shares in favour of Respondent No.1 by operation of law and hence Respondent No.1 had acquired, shares and flat through valid SARFAESI proceedings.
In Dinesh Nagindas Shah & Ors Vs. Pankaj Aluminium Industries Pvt Ltd [2010 (7) TMI 288 - HIGH COURT OF BOMBAY] it was held an award passed by an Arbitrator would fall in the ambit of transmission by operation of law and such transfer would not be based upon volition of the parties but by operation of law.
Instead of effecting transmission of shares, the appellant No.1 vide letter dated 19th September, 2018 sought inspection of documents despite having complete details and all documents in its possession and with a view to frustrate the rights of Respondent No.1 had filed the petition before the NCLT Mumbai. There is no delay in filing the present company petition by Respondent No.1. The Ld. NCLT has held the protracted correspondence at the instance of the appellant constitutes sufficient reason to condone the delay in filing of this present company petition.
In Akal Spring Limited & Ors V Amrex Marketing Pvt Ltd, [2019 (11) TMI 1131 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI], it was held the Ld. NCLT has powers to condone the delay under Section 58 of the Companies Act, 2013. Further in Sesh Nath Singh & Anr V Baidyabati Sheoraphuli coop Bank Ltd and anr Civil Appeal No.9198 of 2019, it was held a delay can be condoned by Tribunal without a formal application as Section 5 of the Limitation Act does not envisage the requirement of formal application for condoning of delay.
There is no reason to interfere with the reasoned order of Ld. NCLT. There being no force in the appeal - Appeal dismissed.
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2024 (8) TMI 1156
Maintainability of the interim Application seeking Summary Judgment under Order XIII-A, Rule 1 read with Order XII Rule 6 of the Code of Civil Procedure, 1908 - seeking to enforce claims arising out of supplies of bunker made to the Defendant-Vessels - proceeding in rem against res - Section 14 of the IBC - HELD THAT:- The Plaintiff though claiming Defendant No. 2 to be a party liable in personam in respect of the Plaintiff’s claim has stated in paragraph 31 of the Plaint that the Plaintiff is entitled to arrest any vessel in the ownership of Defendant No. 2 as per the provisions of Section 5 (2) read with Section 5 (1) (a) of the Admiralty Act. Thus, the Plaintiff has proceeded in rem against a res i.e. against the Defendant No. 1 vessel claimed to be beneficially owned by Defendant No. 2 in respect of defined class of maritime claim against the vessels viz. M.V. Sea Jaguar and M.V. ATH Melody under Section 4 of the Admiralty Act.
In the present case, the Plaintiff had supplied bunkers to the vessels M.V. Sea Jaguar and M.V. ATH Melody and which had not been paid for by Defendant No. 2 (the time charterer of the aforementioned vessels). Accordingly, the Plaintiff has sought to enforce its maritime claims under Section 4(1) (h) of the Admiralty Act, against the Defendant No. 1 Vessel, (against whom separate claim arises for bunker supplied) which the Plaintiff claims is beneficially owned by the Defendant No. 2. Thus, the contention of the Defendant No. 2 that the Plaintiffs’ claim is an in personam claim against Defendant No. 2 and that precludes the Plaintiff from proceeding in rem against the res cannot be accepted.
It has been held in Raj Shipping Agencies [2020 (5) TMI 450 - BOMBAY HIGH COURT] that an action in rem against the ship and / or sale proceeds thereof is not an action against the owner of the ship who may be corporate debtor as defined under the IBC. Further, the principle that an action in rem continues as an action in rem notwithstanding that the owner may have entered appearance, if the security is not furnished for release of the vessel. Thus, it is a settled position of law that Section 14 of the IBC does not prohibit an action in rem or continuation of in rem proceedings against the maritime vessel.
In order to affect an arrest under Section 5 (1) (a) read with Section 5 (2), the owner of the vessel must be liable for a maritime claim and must be the owner of the vessel sought to be arrested when the arrest is effected. There is no restriction in so far as a time charterer is concerned who is liable for a maritime claim provided that the time charterer is the owner of the other vessel when the arrest is affected. Accordingly, the defence raised by the Defendant No. 2 that a vessel owned by a time charterer cannot be arrested is rejected.
The Plaintiff cannot seek summary judgment in respect of supplies II and III without evidence being led and a full fledged trial for establishing that the Defendant No. 2 is the real owner of the Defendant No. 1 vessel - the Summary Judgment must fail against Defendant No. 2 in respect of Supplies II and III for which the Plaintiff has a maritime claim. The Suit shall continue against Defendant No. 2 in respect of Supplies II and III.
Interim Application is accordingly disposed of.
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2024 (8) TMI 1155
Challenge to an interim award under Section 31 (6) of Arbitration and Conciliation Act, 1996 - rejection of the respondent/petitioner’s application under Section 16 of the 1996 Act operates as res judicata in respect of the impugned interim award - alleged future losses covered by the counter claim could be dismissed at the outset on the ground of approval of the Resolution Plan in respect of the claimant/company or not.
Whether the rejection of the respondent/petitioner’s application under Section 16 of the 1996 Act operates as res judicata in respect of the impugned interim award? - HELD THAT:- The basis of the decision turning down the objection to the arbitrator’s jurisdiction under Section 16 of the 1996 Act was the moratorium under Section 14 of the IBC which attends a CIRP mandatorily. The learned Arbitrator held that since the claim and the counter claim were interconnected, the moratorium did not prevent the Arbitrator from taking up the counter claim as well. There was no adjudication, nor was any issue raised in respect of the effect of approval of a Resolution Plan on the counter claim. The subsequent approval of the Resolution Plan, which extinguished the rights of the creditors, altered the scenarioaltogether, furnishing a fresh cause of action for the interim award. Hence, there cannot arise any question of the previous rejection of the Section 16 application operating as a bar to the learned Arbitrator deciding independently on the application for interim award - this issue is decided in the negative, holding that the earlier order of rejection of the claimant’s application under Section 16 of the 1996 Act did not operate as res judicata or prevent the impugned award from being passed.
Whether the alleged future losses covered by the counter claim could be dismissed at the outset on the ground of approval of the Resolution Plan in respect of the claimant/company? - HELD THAT:- It has been repeatedly held, time and again, by different authorities including the Supreme Court that all claims, even if pending on the date of the Resolution Plan stand extinguished upon its approval. The convoluted arguments advanced by the petitioner on the meaning of future losses are not relevant in the context of the IBC, since even if the losses continue to occur prospectively, the seed of the said losses already came into existence in a nascent form on the date of making of the claim - in terms of Section 31 of the IBC and as per the ratio laid down in Ghanashyam Mishra [2021 (4) TMI 613 - SUPREME COURT], the claims incorporated in the petitioner’s counter claims pending before the learned Arbitrator stood finally extinguished with the approval of the Resolution Plan and need not or could not have been further adjudicated by the Arbitral Tribunal - the issue is decided against the petitioner and it is hereby held that the alleged future losses covered by the counter claim could be dismissed at the outset on the ground of approval of the Resolution Plan in respect of the claimant/company.
Hence, the learned Arbitrator was perfectly justified in dismissing the counter claims of the respondent/petitioner at the inception in view of the approval of the Resolution Plan in respect of the claimant-Company - no ground for interference with the impugned interim award passed under Section 31 (6) has been made out under Section 34 of the 1996 Act, since this Court does not find any patent illegality or anything to shock the conscience sufficiently to set aside the said interim award. The learned Arbitrator arrived at quite plausible and legally correct findings in dismissing the counter claims.
Petition dismissed.
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2024 (8) TMI 1154
Suspension of AFA pending adjudication of the show cause notices - Restoration of Authorization for Assignment -validity of Clause 23A provided in the Schedule to the Insolvency and Bankruptcy Board of India (Model Bye-Laws and Governing Board of Insolvency Professional Agencies) Regulations, 2016 - Clause 23A of the Bye-Laws of ICSI Institute of Insolvency Professionals - HELD THAT:- Clause 23A provides for suspension of the AFA on initiation of disciplinary proceedings by the agency or by IBBI as the case may be. The Explanation to Clause 23A states that the date of issuance of a show cause notice till its disposal would amount to pendency of a disciplinary proceeding. In other words, issuance of a show cause notice amounts to initiation of such disciplinary proceedings.
The validity of Clause 23A was questioned before the Madras High Court in CA V. Venkata Sivakumar [2024 (1) TMI 1284 - MADRAS HIGH COURT]. After considering the challenge in detail, the Division Bench held that Clause 23A of the 2016 Regulations was valid and there was no illegality in providing for suspension of an AFA on initiation of disciplinary proceedings.
It is found that (a) the 2016 and 2017 Regulations have been framed pursuant to the power conferred by the provisions of the Code and especially Sections 196 and 217 to 220 read with Section 240 of the Code. The same having been laid before both the Houses of the Parliament, they have got statutory force thus empowering the IBBI to take necessary action in accordance therewith. The power includes issuance of a show cause notice by the IBBI for taking any action under Section 220 of the Code. (b) the show cause notices dated 26th October 2023 and 10th April 2024 were preceded by reports of the investigating authority which undertook investigation after being duly authorised by orders passed under Section 218 of the Code. (c) Clause 23A of the 2016 Regulations as well as Clause 23A of the Bye-laws framed by the ICSI Institute of Insolvency Professionals are valid.
The suspension of the petitioner’s AFA is legal as it is the consequence of initiation of disciplinary proceedings against him. The same is duly provided by Clause 23A of the 2016 Regulations and the Bye-Laws in that regard.
Thus, no exceptional case is made out to interfere with the issuance of show cause notices dated 23rd October 2023 and 10th April 2024. The same do not suffer from any jurisdictional infirmity. It is clarified that the observations made in the judgment are only for the purposes of considering the validity of the show cause notices.
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2024 (8) TMI 1153
Rejection of the settlement proposal under Section 12A of IBC - whether the decision of the CoC, not to accept the settlement proposal submitted by the Appellant, can be said to be an arbitrary decision? - HELD THAT:- The settlement proposal submitted by the Appellant was with the condition that on approval of the same, liability of CD, Promoter and Guarantors shall stand extinguished, meaning thereby that the Bank has to release the personal guarantees of Promoter and Guarantors, which part of the proposal was duly considered in the 14th CoC meeting and relevant extract from 14th CoC meeting has already been extracted above, which indicates that the settlement proposal in which the Bank has to release the guarantees held with the Bank is not in compete with the Resolution Plan received. It is, thus, noted by the CoC that when the Resolution Plan of the SRA is approved, the personal guarantees be still with the Bank and it is submitted by the learned Counsel for the Bank that total amount due is Rs.238 crores, hence, CoC after due deliberations decided not to accept the settlement proposal and approved the Resolution Plan.
The decision of the CoC, which was taken through e-voting declared on 08.01.2023, was well considered and deliberated decision, in which Appellant was given full opportunity. The decision, which was taken with 100% vote share on 08.01.2023 to reject the settlement proposal of the Appellant, can in no manner be held to be arbitrary.
The Hon’ble Supreme Court in Arun Kumar Jagatramka vs. Jindal Steel and Power Limited and Anr. [2021 (3) TMI 611 - SUPREME COURT] has held that a withdrawal under Section 12-A is distinguishable both from a Resolution Plan, which is approved under Section 31 and a scheme which is sanctioned under Section 230 of the Companies Act, 2013.
The Adjudicating Authority did not commit any error in rejecting IA No.2594 of 2023 filed by the Appellant. There is no error in the judgment of the Adjudicating Authority, the Appeal being devoid of merit is dismissed.
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2024 (8) TMI 1152
Prayer for for extension of period of Pre-Package Insolvency Resolution Process (PPIRP) for 60 days has been rejected - whether maximum time period of 120 days provided for completion of process is mandatory and on completion of the time period, the PPIRP has to be terminated and after 90 days in event, the Resolution Plan was not approved, RP has to file an Application for termination of the proceeding?
HELD THAT:- Section 54D and Section 54N which we have noted above clearly indicates that termination of PPIRP happens after an Order is passed by the Adjudicating Authority. The statute makes one thing clear that there is no concept of automatic termination of PPIRP after expiry of 120 days. No exception, can be taken for providing 120 days of completion of PPIRP. Since all IBC process have timelines, which have its own importance. Completion of process in a timeline has its own object and purpose - the Application which was filed by the RP before the Adjudicating Authority was on the strength of resolution passed by the CoC in its 3rd CoC Meeting held on 30.04.2024. The CoC, in its 3rd CoC Meeting has noticed that revised base Resolution Plan submitted by the Corporate Debtor is under consideration of the CoC.
The Hon’ble Supreme Court had occasion to consider the said second proviso in `Committee of Creditors of Essar Steel India Ltd.’ [2019 (11) TMI 731 - SUPREME COURT]. The second proviso which provided for mandatory completion of CIRP within 330 days came for consideration before the Hon’ble Supreme Court in the above case and Hon’ble Supreme Court has struck down the word “mandatorily”. It was held by the Hon’ble Supreme Court that in appropriate case even after 330 days, Adjudicating Authority or Appellate Tribunal can extend the period - The above Judgment of the Hon’ble Supreme Court clearly indicates that where legislature provided for mandatorily completion of CIRP within 330 days the word “mandatory” was struck down and it was held that in appropriate cases, Adjudicating Authority shall have jurisdiction to extend the time beyond 330 days.
On looking into the provisions of Section 54D, it is clear that the provision does not contemplate any automatic termination of the PPIRP, the provision contemplates for filing of an Application by RP seeking termination of the process. The discretion of the Court is very well contemplated in the Scheme of the Statutory Scheme and Adjudicating Authority is free to exercise its statutory discretion while ordering termination of the proceeding. Thus, even if period of 120 days has been passed and the question of termination of proceeding comes for consideration before the Adjudicating Authority. Adjudicating Authority on sufficient reason can refuse termination and the proceeding and extend the period, which shall be within its jurisdiction. The Adjudicating Authority has taken the view in the Impugned Order that when the Resolution Plan is not approved within 90 days, RP was obliged to pray for termination of the proceeding and after expiry of 120 days, proceedings have to be terminated.
The Adjudicating Authority committed an error in rejecting the Application filed by the Appellant for extension of PPIRP for 60 days.
The impugned order is set aside - appeal allowed.
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2024 (8) TMI 1151
Refund of the amount deposited twice as service tax - relevant date for time limitation - whether one year period would be determined mechanically or from the date of knowledge of mistake of wrong deposit? - HELD THAT:- Section 11B of the Act, 1944 was made applicable to service tax by Section 83 of the Finance Act, 1994.
In the present case, service tax has been paid twice and the service provider has claimed the said amount from the appellant company which cannot be passed on since the appellant company itself has deposited the amount with the state exchequers. It is a case of dual payment. The other party namely TDS Management has not moved any application for refund. In the circumstances, the refund of the appellant-company cannot be denied solely on account of delay which has actually not occurred as it is from the date of knowledge.
The respondents are directed to refund the amount of Rs. 4,46,187/- deposited by the appellant-company along with interest. The refund shall be released within six months from today - appeal allowed.
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2024 (8) TMI 1150
Refund of an amount along with interest paid for the period from April 2007 to September 2008 on the ground that it was paid by him under mistake of law - time limitation - principles of unjust enrichment.
Time limitation - HELD THAT:- It is observed that the second refund application was filed by the appellant after five years from the date of CESTAT order and therefore show cause notice rightly been issued; not submitted any proof that they approached the department to adjudicate the matter in 5.5 years; Further, CESTAT directed to examine availability of common facility within the approval layout, in terms of statutory definition of the work executed the appellant, and therefore, onus of providing the documentary evidence w.r.t. said details was on the claimant within in time limit os Section 11B, which they failed to do. Accordingly, there are no infirmity in the order under challenge when refund claim is held to be barred by time.
Principles of unjust enrichment - HELD THAT:- The appellant failed to submit any evidence which show that constructed house is not part of any apartment/township developed by the Rajasthan Housing Board; the work order was inclusive of service tax and the assessee have not produced any evidence that they have refunded the same to the service receiver. Accordingly, no infirmity found in the order under challenge when refund claim is rejected on the ground of unjust enrichment. In light of discussion the findings that services rendered by appellant are taxable also do not suffer any infirmity. The findings in the Order-in-Appeal are sustainable.
The appellant has deposited the impugned amount considering it to be his service tax liability. Nothing has been produced by the appellant to show that the burden of the amount deposited has not been passed on. Hence there are no infirmity in the findings arrived at by the commissioner (Appeals) on this aspect.
Appeal dismissed.
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2024 (8) TMI 1149
Recovery of service tax - service tax short/not-paid due to non-incorporation of entire amount of income from commission, Brokerage, Processing Fees, Locker Rent, etc. - non-payment of service tax on Finance Leasing/Hire Purchase income.
Rs.4,97,545/- has been confirmed as service tax short/not-paid due to non-incorporation of entire amount of income from commission, Brokerage, Processing Fees, Locker Rent, etc., in the taxable value of service - HELD THAT:- The appellant gave a comparative chart showing the figures as adopted by the auditing officials and confirmed by the Ld. Commissioner, and the figures as per audited statement of accounts of the relevant period. It is observed that the ld. adjudicating authority has not given any finding in the impugned order on the above submissions made by the appellant. Thus, it is found that the issue is to be referred back to the adjudicating authority to examine the claim of excess payment made by the appellant as reflected in the table reproduced. Accordingly, this issue is remanded back to the adjudicating authority to give a clear finding on the claim made by the appellant.
Rs.98,33,759/- has been confirmed towards non-payment of service tax on Finance Leasing/Hire Purchase income - HELD THAT:- This demand has been confirmed under the category of the taxable service 'Finance Leasing/Hire Purchase' u/s.65(12)(a)(i) of the Finance Act, 1994.However, the appellant claimed that this income pertains to ‘Interest on Loan' which is exempted from payment of service tax. It is observed that the contract is for lending of money for acquiring any asset and not for lease of any specific asset, their use and occupation. Terms of payment is calculated to cover the money borrowed and interest thereon and not for to cover full cost of asset together with interest charges as the money borrowed may or may not cover the full cost of asset. The borrower is entitled and becomes owner of the asset immediately on purchase of the asset with the help of borrowed money and he need not wait till the lease period comes to an end.
The borrower purchases the assets with the help of the borrowed money and ownership and title of the asset immediately passes on to the borrower, and also remains with the borrower at all times and it never lies with the lender, and the lender has no control over the said asset, and the borrower has not to wait till payment of last instalment to become the owner of the assets - the contract entered in this case is meant for lending of money and not for leasing or hire purchase - the demand of service tax confirmed in the impugned order on this count is not sustainable and hence the same is set aside.
Disallowance of CENVAT Credit - HELD THAT:- The appellant claims that though CENVAT Credit of Rs.22,60,357/- for the year 2010-11 and of Rs.17,48,644/- for the year 2011-12 were recorded in the books of account, those CENVAT amounts were never availed and utilized by them and as such, the appellant had not shown the same in ST-3 return for the respective period - it is observed that the adjudicating authority has not given any finding in the impugned order on the above submissions made by the appellant. Thus, the issue is to be referred back to the adjudicating authority to examine the factual position. Accordingly, this issue is remanded back to the adjudicating authority to give a clear finding on the claim made by the appellant.
Disallowance of CENVAT credit of Rs.8,21,910/- - HELD THAT:- It is observed that the appellant made some investment along with 60 other member banks in the Consortium for Food Credit under leadership of State Bank of India. For the period from October 2011 to March 2012, State Bank of India charged service tax of Rs.8,21,910/-. During the said period, the appellant had taxable service of Rs.8,27,787/- and service tax liability including Education Cess and Higher Education Cess of Rs.85,263/-, and the appellant utilized Rs.85,263/- out of the aforesaid CENVAT Credit of Rs.8,21,910/- for payment of service tax, Education Cess and Higher Education Cess. Subsequently the appellant came to know that the said CENVAT Credit is not available to them as the interest income from Food Credit Consortium is an exempted service on which no service tax is payable. So, subsequent to return period from October 2011 to March 2012, the appellant stopped to claim and avail CENVAT Credit for the said service and also not carried forward the unutilized CENVAT Credit for the period from October 2011 to March 2012 to the next return period.
The service tax liability, including Education Cess and Higher Education Cess, of Rs.85,263/-, has been paid by the appellant by utilizing the aforesaid CENVAT Credit of Rs.8,21,910/-. The appellant claimed that they have not carried forward the balance credit. This fact also needs to be verified. Thus, the issue is to be referred back to the adjudicating authority to examine the factual position. Accordingly, this issue is remanded back to the adjudicating authority to give a clear finding on the claim made by the appellant. However, the appellant is liable to pay back credit of Rs.85,263/- which has been wrongly utilized by them.
Penalty - HELD THAT:- It is observed that they have regularly paid their service tax liability as per books of accounts and as per the Provisions of Finance Act, 1994, as amended. None of the conditions precedent for imposing penalty under section 78 of the Finance Act, 1994 read with Rule 15 of CENVAT Credit Rules, 2004 as amended, are applicable in the case of the appellant. Accordingly, no penalty is imposable on the appellant. Hence, we set aside the penalty of Rs.1,51,50,155/- imposed on the appellant in the impugned order.
Appeal disposed off.
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2024 (8) TMI 1148
Appropriate forum - Jurisdiction of the High Court under Section 35G of the Central Excise Act, 1944 regarding excisability of goods - whether the activity of Respondent-Assessee is manufacturing activity for the purpose of levy of excise duty under the said Act? - HELD THAT:- On a conjoint reading of Section 35G(1) read with 35L, there are no doubt that since the issue involved in the present appeal relates to whether the activity of Respondent-Assessee is manufacturing or not so as to be liable for excise duty, it is a question relating to excisability of goods and, therefore, the appropriate Court for filing the appeal to challenge the Tribunal’s order would be Supreme Court and not this Court.
The reliance placed by counsel for Appellant-Revenue on the decision of Andhra Pradesh High Court and the Supreme Court in the case of COMMR. OF C. EX., HYDERABAD-IV VERSUS SHRIRAM REFRIGERATION INDUSTRIES [2008 (5) TMI 290 - ANDHRA PRADESH HIGH COURT] and COMMR. OF C. EX., HYDERABAD VERSUS SHRIRAM REFRIGERATION INDUSTRIES [2023 (2) TMI 213 - SUPREME COURT] is not appropriate. The Andhra Pradesh High Court and the Supreme Court in Shriram Refrigeration Industries (supra) were considering the provisions of Sections 35G and 35L as existing prior to insertion of sub-section (2) in Section 35L by Finance (No. 2) Act 2014 with effect from 6th August 2014 and amended provision was not the subject matter of consideration.
The appeal is not maintainable before this Court - the Appellant is permitted to present the same before the Supreme Court.
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2024 (8) TMI 1147
Penalty on co-noticee for goods purchased from main noticee - case of appellant is that only because the appellant had not filed declaration under the scheme, the penalty imposed against them cannot sustain on the ground that the penalty against the main noticee has been set aside - HELD THAT:- The main appellant M/s. Ogun Steel Rolling Mills (P) Ltd. has opted for SVLDR Scheme and have been issued Discharge Certificate. As per Section 124 (1) (b) of the Finance Act, 1994, if only penalty is in dispute and the duty demand is NIL, then such penalty shall be waived under the scheme. The relief under Section 124 (1) (b) is not subject to the satisfaction of the Designated Committee and it is as per the provisions of the scheme. In case, the appellant had filed declaration, the Committee would not have any option but to grant relief under Section 124. The filing of declaration is only procedural option to be made by the appellant.
The very same issue has been considered 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]. It was held by the Tribunal that when the main appellant has been granted immunity and relief from penalty under Section 124 of the SVLDR Scheme, the assessee, against whom penalty has been imposed in the very same proceedings, cannot be denied relief of penalty merely because they have not filed declaration under the scheme.
Taking note of the fact that the main appellant has settled the dispute under SVLDR Scheme and only penalties have been imposed against these appellants, the penalty imposed against these appellants also require to be set aside.
The impugned orders are set aside to the extent of setting aside the penalty imposed against these appellants - Appeal allowed.
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2024 (8) TMI 1146
100% EOU - Non-compliance with the conditions of the Notification No.31/2007--CE (NT) dt. 2.8.2007 for supply of the items to the DTA unit - non-submission of CT--1 certificate as required under Notification No.31/2007 dt. 2.8.2007 - time limitation - penalty on Managing Director - HELD THAT:- From the conditions and procedure of the notification explained above, it can be seen that the condition is to make sure that the finished goods which are manufactured by the duty free inputs are used for export only. In the present case, the appellant has cleared the hangers to the DTA customers who have exported the goods along with garments. The Department has not made any allegation that the goods manufactured by the appellants have not been exported. The only allegation is that they have not complied with the procedure of removal of goods on the basis of CT--1 certificates. The appellant has explained the difficulty of procuring the CT1 certificate during the disputed period - the appellant has furnished Form--H which is sufficient to prove that the goods cleared from the factory have been sold to the DTA customers only for the purpose of export. The document in the nature of Form--H establishes that sale of the goods is in the course of transaction of export of goods.
The very same issue in respect of clearances of hangers to the domestic exporters and non--production of CT--1 certificates was examined by the Tribunal in the case of RAMANI PLASTICS PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE CHENNAI-I [2015 (1) TMI 988 - CESTAT CHENNAI] where it was held that 'The Commissioner (Appeals) observed that there is procedural lapse in so far as the goods were not directly exported but through merchant exporter. The Board has clearly clarified that this facility is not available to the supplies made to any other domestic manufacturer who may or may not export its finished products. In the present case, it is observed from the record that the merchant exporter exported the goods which was not disputed at any point of time.'
Time Limitation - HELD THAT:- The entire allegation is with regard to non--compliance of the procedure. There were audits conducted who have not objected to the clearances made to DTA exporters. The appellant has been making repeated representations to higher authorities informing inability to furnish CT1 certificates. Later, the notification No.20/2015(NT) dt.24.09.2015 was issued wherein the requirement of CT--1 certificate was omitted. All these would go to show that there no ingredients for invoking the extended period. The show cause notices are time--barred. The issue on limitation is also answered in favour of the appellant.
Penalty on Managing Director - HELD THAT:- The penalty imposed on Shri Atul Bhayani, Managing Director is set aside.
The impugned orders are set aside - Appeal allowed.
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2024 (8) TMI 1145
Supply of gear boxes to Mega Power Projects - Availing exemption benefit without fulfilling the conditions stipulated in the exemption Notification No. 06/2006-C.E. dated 01.03.2006 - appellant could not produce evidence to confirm that the contracts were entered into under international competitive bidding and the appellant has not submitted the certificates issued by the appropriate authority for availing the benefit of the exemption Notification - HELD THAT:- The documents as required under the conditions of Notification No. 06/2006-C.E. have been submitted. In respect of all these projects, the appropriate authority has certified that they are Mega Power Projects. There is no dispute regarding receipt of the goods by the concerned projects. Appropriate certificate, as required under the Notification, has been submitted. Wherever there is some variation in the certificate issued, they have submitted additional evidence to establish that the goods were supplied to Mega Power Projects as certified by the Project Authority. Thus, the appellant has fulfilled the conditions stipulated in the Notification No. 06/2006-C.E. dated 01.03.2006.
Another ground raised by the ld. adjudicating authority in the impugned order to deny the benefit of the exemption Notification is that the goods manufactured by the appellant do not fall under Heading 98.01 as mentioned in the Notification No. 21/2002. In this regard, it is observed that Notification No. 21/2002 exempts all goods supplied against international competitive bidding. The goods cleared by the appellant under Chapter Heading 8483 are also covered within scope of the Notification No. 21/2002. Thus, the appellant fulfilled all the conditions as stipulated in the Notification No. 06/2006-C.E. dated 01.03.2006, as amended, for availing the benefit of the said Notification.
The appellant is eligible for the exemption and they have rightly cleared the goods without payment of duty by availing the benefit of the exemption Notification No. 06/2006-C.E. dated 01.03.2006. Thus, the demand of central excise duty confirmed in the impugned order by denying the benefit of the exemption Notification is not sustainable and hence, we set aside the same - Since the demand of duty itself is held to be not sustainable, the question of demanding interest and imposing penalty does not arise.
The impugned order is set aside - appeal allowed.
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