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Showing 501 to 520 of 16576 Records

2021 (12) TMI 1029

Demand u/s 201 (I) - AO treated the assessee as an assessee in default for non-deduction of tax u/s 201 - Form Nos.15G/15H not filled in properly - Assessee submitted that once the appellant bank has obtained the declarations forms from the depositors. it has no option but not to deduct the tax at source. The appellant bank has no legal obligation to deduct tax at source on the payments made to depositors - HELD THAT:- As decided in own case [2016 (5) TMI 1566 - ITAT HYDERABAD] once the assessee obtained Form 15I from the sub-contractors whose contents are not disputed or whose genuineness is not doubted, then, the assessee is not liable to deduct tax from the payment made to sub-contractor. Once, assessee is not liable to deduct tax disallowance u/s 40(a)(ia) cannot be made. The assessee’s breach of the requirement to furnish details to the income tax authority in the prescribed form within the prescribed time may attract other consequences but cannot result in a section 40(a)(ia) disallowances. Hence, addition made on this count is deleted. - Decided in favour of assessee.

The facts and findings recorded therein, has substance over the order passed by the ITO(TDS) u/s 201(1) & 201(1A) of the Act. Considering the observations of the Tribunal in the assessee’s own case as quoted supra, we allow the grounds raised by the assessee on this issue.
2021 (12) TMI 1028

Late payments towards EPF and ESI under section 36(1)(va) - payment before furnishing the return of income under section 139(1) - HELD THAT:- Since the facts involved in the present case are identical to the facts involved in the case of Mohangarh Engineers and Construction Company and in the case of Bikaner Ceramics Private Limited, Bikaner [2021 (9) TMI 1319 - ITAT JODHPUR] the impugned additions made by the Assessing Officer and sustained by the Ld. CIT(A) on account of deposits of employees contribution of ESI & PF prior to filing of the return of income u/s 139(1) of the Act, in both the years under consideration prior to the amendment made by the Finance Act, 2021 w.e.f. 1.4.2021 vide Explanation 5, are deleted - Decided in favour of assessee.
2021 (12) TMI 1027

Addition u/s 68 - unsecured loan obtained by the assessee from three directors - addition on the ground that the assessee failed to substantiate with evidences to his satisfaction regarding creditworthiness of the three directors and the genuineness of the transactions - CIT(A) sustained the addition as the assessee did not appear before her to substantiate the creditworthiness of the directors and the genuineness of the transactions - as assessee submitted that adequate opportunity was not granted by the learned CIT(A) and given an opportunity, the assessee is in a position to substantiate with evidences to the satisfaction of the learned CIT(A) regarding the creditworthiness of the Directors and the genuineness of the transactions -

HELD THAT:- Considering the totality of the facts of the case and in the interest of justice, we deem it proper to restore this issue to the file of the learned CIT(A) with a direction to grant one final opportunity to the assessee to substantiate its case and decide the issue as per fact and law - Appeal filed by the assessee is allowed for statistical purposes
2021 (12) TMI 1026

Drug trafficking - concealment of contraband goods - admissibility of statements u/s 67 of NDPS Act - HELD THAT:- A reading of Section 37 of the NDPS Act indicates that bail can be granted only when there are reasonable grounds for believing that the accused is not guilty of an offence and that he is not likely to commit any offence when released on bail.

In Union of India v. Rattan Mallik, [2009 (1) TMI 844 - SUPREME COURT], the Supreme Court had held that while considering an application for grant of bail under the NDPS Act, the Court was not called upon to record a finding of “not guilty”, but to see whether there was any reasonable ground for believing that the accused was not guilty of the offence(s) that he was charged with and further that he was not likely to commit an offence under the said Act while on bail.

In the instant case, the quantity of contraband recovered is 151.980 kgs of ketamine, which is a commercial quantity. In Gurdev Singh v. State of Punjab, [2021 (4) TMI 286 - SUPREME COURT], the Supreme Court had discussed the deleterious impact of narcotic drugs on society, and how the menace of drug addiction did not only have the ability of destroying the life of just one individual, but how it could destroy the lives of generations to come. Therefore, the consequences of dealing of drugs and drug abuse can be experienced across the board, from causing economic issues to societal disintegration. The purpose of enacting the NDPS Act was to curb this menace, and this purpose must be borne in mind while considering the grant of bail pertaining to the NDPS Act.

Deprivation of personal liberty without the assurance of speedy trial contravenes the principles enshrined in our Constitution under Article 21, and is, therefore, unconstitutional to its very core. In such cases, in absence of the pronouncement of conviction, the process itself becomes the punishment. Nine years cannot be said to be a short period of time.

This Court is of the opinion that the instant case is fit for grant of bail - bail is granted subject to conditions imposed - application allowed.
2021 (12) TMI 1025

Disposal of the goods imported by the petitioner - Import of Dates - Country of origin - Goods were seized on the ground of evasion of duty - Jurisdiction of criminal court for issuing direction for disposal of goods are which are perishable in nature and kept in the custody of the respondent in accordance with the Disposal Manual 2019 - HELD THAT:- The Customs Act provides for a comprehensive framework governing the import and export of goods, articles into the country with an objective to curb smuggling of goods into the country through seaports and airports. The Customs Act is a complete code in itself and it being a special legislation, it has its own powers, procedures, rules and mode of operation including the powers of arrest, investigation, examination of persons, inspection, seizure, confiscation, adjudication, imposition of penalty, appellate mechanisms, the settlement commission. These reasons in itself confer vast powers on the customs department for it being a statute which aims at preventing the proliferation of a parallel economy which is askew from the normal economy and which allows the spreading of all illegal and banned activities including terrorism, illegal money transfers, trafficking of vulnerable groups and the derailment of the normal economy thereby shifting the balance of demand and supply and creating an artificial shortage or excess of goods.

While dealing with the Foreign Exchange Regulation Act, the Supreme Court in CBI V. State of Rajasthan, [1996 (7) TMI 461 - SUPREME COURT], held that the Foreign Exchange Regulation Act was a self-contained code which was governed by its special trappings and that a police officer could not make an application under Section 155(2) CrPC to the Chief Judicial Magistrate to obtain permission to investigate offences committed under the FERA.

A perusal of the disposal manual does not indicate that provision under Section 451 Cr.P.C can be invoked for disposal of the goods confiscated under the Customs Act. This Court does not find any reason to differ from the view expressed in Directorate of Revenue Intelligence V. M/s PRK Diamonds Pvt. Ltd. [2019 (5) TMI 88 - DELHI HIGH COURT] where it was held that the goods confiscated under the Customs Act cannot be disposed of under Code of Criminal Procedure.

Petition allowed.
2021 (12) TMI 1024

Smuggling - gold bullion of foreign origin - notified goods or not - burden to prove - sufficient evidence present or not - contravention of provisions/conditions of notification no. 12/2012 dated 17.03.2012 read with section 3 of Foreign Trade (Development & Regulation) Act, 1992 - HELD THAT:- Though M/s DI Gold designer jewellery and M/s Ridhi Sidhi did not make them available before the investigating officer in furtherance of summon issued to them but from the time & date chart as mentioned in the appeal, it is abundantly clear that the notices were served for just five to seven days time for both these appellants to appear and in fact, most of them were received by these appellant after the date of hearing mentioned therein use to expire. In such circumstances, the findings of the adjudicating authority below that both these appellants failed to co-operate the investigating agency are held to be false on the face of it - out of the gold weighing 1255.3 gms as purchased from said Shreenath Corporation, the gold weighing 351.54 gms was mentioned to have been sent to M/s Ratuaria Jewellers for making jewellery. Accordingly, the work order dated 15/10/2014 stands corroborated in view of this letter of M/s. DI Gold Designee Jewellery. It was also corroborated that Ratusaria since could not get the jewellery made, hence, returned the said gold quantity of 351.54 gms. vide delivery note of 30/10/2014. It has been found clarified that it was not necessary to return the gold of same marking.

Section 123 of Customs Act cannot be resorted to otherwise also as already discussed above, there is ample evidence for discharging the said burden by the appellants in terms of said Section 123. The present, therefore becomes a clear case where department has failed to established that the seized foreign marked gold was smuggled one. Merely because the foreign marked gold is involved, the same is wrongly held to be smuggled one - In the present case, when apparently, the show cause notice proposing confiscation of goods seized under Section 110 of Customs Act was issued after one year from the date of seizure. The show cause notice itself gets hit by limitation as the show cause notice was mandatorily to be issued within the six months time of the seizure. The show cause notice has been objected since beginning to have been hit by time still the adjudicating authority failed to take cognisance thereof. Accordingly, the show cause notice itself is held to be barred by time and as such being void ab initio.

As far as DI Gold Designee Jewellery & M/s. Ridhi Sidhi are concerned, the order against them has been passed to holding them to fail to appear and respond but from the date chart as relied upon by the appellants with respect to the date of issue of summons the date of receipt thereof and the date of hearing mentioned in summons it is abundantly clear that the absence of these appellant was not at all intentional but because of too short time as was given to them to make themselves available before the investigating officer. Absence of reasonable time for seeking presence amounts to absence of reasonable opportunity and is definite violation of Principles of Natural Justice.

Show cause notice under Section 124 of Customs act confirming confiscation of seized gold being issued beyond six months of the date of seizure is held to be barred by limitation - Lack of appropriate and reasonable opportunity of hearing to the appellant amounts to violation of natural justice, the findings against them are liable to be set aside on this score as well.

The appellants have sufficiently discharged their burden of proof in terms of Section 123 of Custom Act by proving the licit possession of the impugned gold which was delivered for job work through approved mode of the Trade for transfer of Gold and Jewellery - the department has failed to show any cogent reason to believe that the goods were the smuggled one.

The Order-in-Appeal is nothing but the outcome of presumption on part of the authority - Appeal allowed - decided in favor of appellant.
2021 (12) TMI 1023

Condonation of delay in filing appeal before the Commissioner (appeals) - EPCG License - head race tunnel - EPCG License / authorization for duty saved value for import of capital goods - non-compliance with the requirement to furnish prescribed documents for the same within 3 months from the expiry of the block years - N/N. 97/2004-Cus dated 17.09.2004 - HELD THAT:- The EPCG authorization was issued in favour of the appellant way back in the year 2004. Under the said authorization, appellant imported a machine by saving a custom duty of ₹ 9,56,32,082/- which was against the license value of ₹ 76,50,566.56. However, it is apparent that the completion of export obligation was never brought to the notice of the concerned Department during the time stipulated in the Notification No.097/2004-Cus dated 17.09.2004, as is apparent from the letter dated 21.04.2015 as produced by the appellant. Perusal of this letter, in addition, clarifies the acknowledgment of the appellant about receiving the Show Cause Notice dated 25.03.2013 on 30.03.2015. Hence the appellant’s own document is sufficient to falsify the appellant’s submission that Show Cause Notice was never received by the appellant. By the time of reply dated April 21, 2015 even the O-I-O dated 21.03.2014 was passed.

There is no cogent evidence about the proof of service, nor there is cogent explanation as to why the O-I-O was served upon Delhi address despite that the address mentioned by the appellant for its registered office was that of Bangalore. It is further observed that there is no denial about the date of receipt of recovery proceedings and receipt of O-I-O by the appellant on 6th January, 2017. Commissioner (Appeals) is observed to have been silent about any cogent reason for not considering 6.01.2017 as the date of receipt. Accordingly, matter is remanded back to the Commissioner (Appeals).

In accordance whereof the Commissioner (Appeal) has no authority to condone the delay of more than 90 days from the date of communication of the order assailed before him. There is no infirmity in the order under challenge but in view of the discussion and keeping in view that the appeal before Commissioner (Appeals) was filed well within the period of 90 days from 6th January, 2017, the date of communication of Order-in-Original to the appellant, the matter is remanded back to Commissioner (Appeals) directing him to rehear the matter after condoning the delay of 28 days and to adjudicate denovo on the merits of the case - appeal allowed by way of remand.
2021 (12) TMI 1022

Seeking approval of scheme of amalgamation - seeking exemptions from and/or seeking directions for convening/holding of the meetings of Shareholders and/or Creditors of the Appellant 1/Company and Appellant 2/Company - Section 230-232 of the Companies Act, 2013 - HELD THAT:- Having regard to the fact that the Scheme of Amalgamation is already approved with most of the stakeholders assenting, with Equity Shareholders representing 100% in number and 100% in value of Appellant 1/Company who had given their consent on affidavit; the Secured Creditors of Appellant 1/Company representing 100% in number and 100% in value have given their consent and no objection to the Scheme in Affidavit, the Appellant Companies had sought for direction to dispense with the meeting before the NCLT. The direction in the Impugned Order with respect to fixing of the Quorum by 10 % of Shareholders i.e. 440 and minimum of 50 Unsecured Creditors is hereby set aside. The meetings may be conducted within 8 weeks from the date of this Order.

Appeal allowed.
2021 (12) TMI 1021

Approval of the Scheme of Amalgamation - Seeking to dispense with the meeting of Shareholders and Creditors in relation to the Transferor Companies, dispensing with the meeting of Shareholders of the Transferee Company and convening the meeting Unsecured Creditors and dispensing the meeting of Secured Creditors of the Transferee Company - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- It is seen from the record that the Board of Directors of the Applicant Companies vide separate meetings held on 31.05.2021 have approved the proposed 'Scheme of Amalgamation'.

Since there are no Secured Creditors in any of the Applicant Companies. Therefore, the requirement of convening their meeting does not arise - That more than 90% in value' of unsecured creditor of all Transferor Companies have given 'no objection' to the Scheme on respective affidavits. Therefore, the requirement of convening the Meetings of Unsecured Creditors in respect of all the Transferor Companies is dispensed with.

Application allowed.
2021 (12) TMI 1020

Sanction of Scheme of Amalgamation - section 230-232 of Companies Act, 2013, and other applicable provisions of the Companies Act, 2013 read with Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Various directions with regard to holding, convening and dispensing with various meetings issued - directions with regard to issuance of various notices also issued.

The scheme is approved - application allowed.
2021 (12) TMI 1019

Reduction of share capital - HELD THAT:- Since the requisite statutory procedure has been fulfilled, the company petition is made absolute in terms of the prayer clause of the petition.

All concerned regulatory authorities to act on certified copy of the order and the form of minutes forming part of the petition, duly certified by the designated Registrar, National Company Law Tribunal. The petitioner- company undertakes to file the same with the Registrar within 30 days from the date of the receipt of the order.

Application allowed.
2021 (12) TMI 1018

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - Time Limitation - Adjudicating Authority rejected the submission of acknowledgment observing that Appellant has not placed any law before it that amount mentioned in the Balance Sheet comes under the definition of acknowledgment of debt under Section 18 of the Limitation Act, 1963 - HELD THAT:- The Balance Sheet for the Financial Year 2016-17 having been signed on 01.09.2017 and the above Application having been filed on 20.03.2020, it is well within three years’ period from acknowledgment of debt as claimed by the Appellant. It is now well settled that acknowledgment in the Balance Sheet is sufficient acknowledgment under Section 18 of the Limitation Act, 1963.

In recent judgment of the Hon’ble Supreme Court in DENA BANK (NOW BANK OF BARODA) VERSUS C. SHIVAKUMAR REDDY AND ANR. [2021 (8) TMI 315 - SUPREME COURT], after referring to the judgment of ASSET RECONSTRUCTION COMPANY (INDIA) LIMITED VERSUS BISHAL JAISWAL & ANR. [2021 (4) TMI 753 - SUPREME COURT], the Hon’ble Supreme Court again reiterated that Section 18 of the Limitation Act, 1963 is fully applicable to proceedings under ‘I&B Code’ and entries in books of accounts and/ or balance sheets of a Corporate Debtor would amount to an acknowledgment under Section 18 of the Limitation Act.

The Adjudicating Authority having not examined the balance sheet for Financial Year 2016-17 ending on 31.03.2017. In the interest of justice, the Adjudicating Authority has to examine the balance sheet to find out as to whether it contain acknowledgment within the meaning of Section 18 of the Limitation Act or not.

Second ground given by the Adjudicating Authority for rejecting the Application i.e. that there is no document to show that any interest has ever been paid to the Petitioner by the Corporate Debtor in lieu of the amount, hence, Appellant is not covered in the definition of ‘Financial Creditor’ - HELD THAT:- The definition begins with the expression ‘financial debt’ means a debt alongwith interest, if any. Thus a financial debt may be with interest, if any. The definition, thus, clearly contemplates that debt along with interest is not mandatory to be there it to be a financial debt. Interest will be a part of the debt only if there is interest in the transaction. Words ‘if any’ after the word interest clearly indicates that it is not mandatory that debt should be alongwith interest in all cases - the consideration of the balance sheet for Financial Year 2016-17 may also be relevant for determining as to whether there was a financial debt or not. Thus, by taking into consideration the Balance Sheet, the Adjudicating Authority can re-consider the question of Applicant being Financial Creditor or not.

Matter remanded to the Adjudicating Authority for fresh consideration of the Application under Section 7 after issuing fresh notice to the Corporate Debtor and after giving opportunity to the Corporate Debtor also - appeal allowed by way of remand.
2021 (12) TMI 1017

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - dishonor of cheque which was issued in discharge of the liability - existence of debt and dispute or not - HELD THAT:- It is seen from the petition that the Corporate Debtor has admitted its liability towards Financial Creditor as it has issued the cheques in discharge of its liability and those cheques were dishonoured which clearly shows that there is default in payment. The evidence placed by the financial creditor is sufficient to establish the existence of debt as well as default in payment on the part of the Corporate Debtor.

The Hon'ble Apex Court has clearly stated in M/S. INNOVENTIVE INDUSTRIES LTD. VERSUS ICICI BANK & ANR. [2017 (9) TMI 58 - SUPREME COURT] that the moment it is established that there is a default in payment of financial debt by the corporate debtor, which is due and payable and the application is complete and no disciplinary proceedings is pending against the proposed RP then the adjudicating authority has no option but to admit the application.

The Financial Creditor has fulfilled all the requirements of law - this Adjudicating Authority is inclined to admit this application and initiate the process of CIRP of the Corporate Debtor - application admitted - moratorium declared.
2021 (12) TMI 1016

Seeking dissolution of the Corporate Debtor - Section 54 of the Insolvency and Bankruptcy Code, 2016 (for brevity 'Code') read with Regulation 14 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 - HELD THAT:- It is seen from the record that no assets are left with the Corporate Debtor and no other business operation is being carried. Hence, it is of no use to keep alive the Corporate Debtor as legal entity in existence.

For the purpose of pronouncement of Dissolution of the Corporate Debtor it is necessary to peruse Section 54 of the Code along with Regulation 14 of the Regulations.

The present Application is allowed as the dissolution is the last step to wind up the proceedings of the Corporate Debtor as per the provisions of law - decided in favor of applicant.
2021 (12) TMI 1015

Refund of tax paid - rents charged on the space which remained unregistered as premises from which ‘output service’ was rendered - after examining the two claims for refund, the file was sent for ‘pre-audit’ and objection, of wrongful availment of credit of tax on rentals paid by the assessee, originating there prompted rejection of the claims- rule 5 of CENVAT Credit Rules, 2004 - HELD THAT:- The scheme of rule 5 of CENVAT Credit Rules, 2004 is abundantly clear. To the extent of eligibility, the assessee cannot be denied refund and the disallowed portion, if any, remains in the credit of the assessee for debit of future tax/duty liability. Therefore, denial of refund does not extinguish the credit but restores it in the account. In the impugned order, there is no finding of disallowance and, on the contrary, the denial has been on the ground of ineligibility for CENVAT credit which is permissible to be ordered only in proceedings initiated under rule 14 of CENVAT Credit Rules, 2004 after issuing notice to the assessee. Neither of the two is evident in the records.

The denial of refund CENVAT credit is incorrect in law in the absence of recovery of credit for ineligibility - Appeal allowed - decided in favor of appellant.
2021 (12) TMI 1014

Dropping of demand under Rule 6 of the CCR, 2004 - appeal against the option of reduced penalty of 25% given by the Ld.Commissioner (Appeals) - reversal of Rule 6 of CCR, 2004 on the abated value of Restaurant Services by taking the same as exempted services and applying 6% on the value of exempted services so determined to raise the demand of recovery of common Cenvat credit - HELD THAT:- The issue is no more res-integra in view of CBIC’s CIRCULAR NO 213/3/2019-Service Tax, dated July 05, 2019 wherein it has been clarified by the board that there is no requirement of reversal under Rule 6 of the CCR, 2004 for provision of restaurant services. Thus, the Revenue’s appeal to that extent is liable to be dismissed.

Imposition of penalty on the amounts of Service Tax already paid by the Respondent during the course of audit before issuance of SCN - HELD THAT:- Both the lower authorities have erred in confirming the penalty as it is a settled principle that when tax is paid along with interest before issuance of SCN (other than cases of suppression or willful mis-statement), the Department cannot issue SCN in terms of section 73(3) of the Finance Act, 1994 - In the instant case of the Respondent, the Department has mechanically issued SCN alleging suppression of facts without according any reasons for such allegation.

The appeal of the Revenue to the extent of imposition of penalty on the Respondent is also dismissed - The Departmental appeal is dismissed in entirety and the order of the first appellate authority is modified to the extent of deleting the imposition of penalty - decided against Revenue.
2021 (12) TMI 1013

Appropriate forum - High Court or Supreme Court - issue of limitation - Decision in rem or in personam - maintainability of appeal before this Court when there is no dispute with regard to the rate of duty and / or valuation as arrived at by the Tribunal (both parties accept the decision of the Tribunal on that issue) and challenge the impugned order only to the extent of the demand being barred by limitation - whether the only issue of limitation which is subject matter of the Central Excise Appeal would lie before this Court under Section 35G or before the Hon’ble Supreme Court under Section 35L of the said Central Excise Act? - HELD THAT:- A comparative reading of Sections 35G and 35L of the said Act would clearly indicate that the order passed by the Appellate Tribunal on the issue of determination of any question in relation to the rate of duty of excise or to the value of goods for the purposes of assessment is maintainable under Section 35-L before the Hon’ble Supreme Court only. Under Section 35L(2), it is expressly clarified that the determination of any question having a relation to the rate of duty shall include the determination of taxability or excisability of goods for the purposes of assessment.

It was also observed in the said case of STEEL AUTHORITY OF INDIA LTD. VERSUS DESIGNATED AUTHORITY, DIRECTORATE GENERAL OF ANTI-DUMPING & ALLIED DUTIES & OTHERS [2017 (4) TMI 881 - SUPREME COURT] that before admitting an appeal under Section 130E(b) of the Customs Act, 1962 (which is pari materia to Section 35L of the Excise Act), the question raised or arising must have a direct and/or proximate nexus to the question of determination of the applicable rate of duty or to the determination of the value of the goods for the purposes of assessment of duty and that this is a sine qua non for the admission of the appeal before this Court and such question must involve a substantial question of law which has not been answered or on which there is a conflict of decisions. It was further held in this case that if the tribunal, on consideration of the material and relevant facts, had arrived at a conclusion, the same must be allowed to rest even if this Court is inclined to take another view of the matter.

Any decision on the issue whether the revenue could have invoked the extended period of limitation for recovery of the excise duty, or would not have any bearing or impact on the rate of duty of excise or to the value of goods for the purposes of assessment. Such determination on the issue of limitation would also have no bearing on the issue of determination of taxability or excisability of goods for the purposes of assessment - the issue of limitation in this case being purely question of fact or atmost mixed question of fact and law disclosed in decision of the Tribunal would thus not be a decision in rem but has to be in personam. No appeal against the order of the Tribunal in this situation would lie before the Hon’ble Supreme Court under Section 35L of the said Act.

Upon careful perusal of the said exclusion to Sections 35G and 35L minutely, it can be noticed that expression ‘determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment’ prescribed under Sections 130 and 130E of the Customs Act is in pari-materia to Sections 35G and 35L of the said Central Excise Act. Interpretation of both these provisions i.e. Sections 130 and 130E of the said Customs Act fell for consideration before the Hon’ble Supreme Court in case of NAVIN CHEMICALS MFG. & TRADING CO. LTD. VERSUS COLLECTOR OF CUSTOMS [1993 (9) TMI 107 - SUPREME COURT] wherein it is held that the phrase ‘relation to’ is ordinarily, of wide import but, in the context of its use in the reading Section 129C, must be read to mean a direct and proximate relationship to the rate of duty and to the value of goods for purposes of assessment. The Hon’ble Supreme Court held that the questions relating to the rate of duty and to the value of goods for purposes of assessment are questions that squarely fall within the meaning of the expression ‘a dispute as to the classification of goods and as to whether or not they are covered by an exemption notification relating directly and proximately to the rate of duty applicable thereto for purposes of assessment’.

In the facts of this case, order of Tribunal holding that the revenue could not have invoked the extended period of limitation for recovery of excise duty from the respondent-assessee purely based on the finding of facts inter-se and would not fall within the purview of public importance falling under Section 35L of the said Act. In this case, it is not the case of the respondent-assessee that the issue of limitation decided by the Tribunal would involve the question of any general/public importance - the issue as to whether the revenue could have invoked the extended period of limitation for recovery of excise duty being a question of fact and/or a mixed question of fact and law, only such order cannot be impugned before the Hon’ble Supreme Court under Section 35L of the said Central Excise Act.

The issue of limitation raised in this Central Excise Appeal has no direct or proximate relationship to the rate of duty and the value of goods for purposes of assessment. Only such questions which relate to the rate of duty and the value of goods for purposes of assessment would squarely fall within the meaning of the said expression ‘determination of any question having relationship to the rate of duty and to the value of goods for the purposes of assessment - the adjudication on the said issue of limitation in the Central Excise Appeal filed by the revenue under Section 35G before this Court even remotely, would not determine either the rate of duty of excise or the value of goods for the purposes of assessment. The order, if any passed in appeal under Section 35G would also not determine the taxability or excisability of the goods for the purposes of assessment. The provisions of Sections 130 and 130E of the Customs Act are in pari-materia to Sections 35G and 35L.

A party may seek to challenge only that part of the order of the Tribunal which relates to questions other than those relating to the rate of duty or the value of the goods for the purposes of assessment. In the facts of this case, the revenue could challenge only part of the order having aggrieved on the issue of limitation. The appeal thus filed by the revenue is maintainable under Section 35G of the said Act before this Court. In this case, the issue of recovery of excise duty and issue of rate and classification of dispute decided by the Tribunal against the respondent-assessee has attained finality. It is not the case of the revenue of challenging any portion of the order selectively though aggrieved by the larger part of the order or entire order.

An appeal under Section 35G(1) of the Act would be maintainable before this Court when there is no dispute with regard to the rate of duty and / or valuation as arrived at by the Tribunal (both parties accept the decision of the Tribunal on that issue) and challenge the impugned order only to the extent of the demand being barred by limitation.

Appeal is maintainable against the respondent in this Court - Appeal allowed - decided in favor of appellant.
2021 (12) TMI 1012

Clandestine Removal - three fake invoices - absence of any evidences regarding transport of goods - corroborative evidences produced or not - HELD THAT:- The findings in the order under challenge are held to be nothing but presumptive. There is observed absolute ignorance of the statement in cross-examination of alleged kin-pin Shri Amit Gupta and the transporter Shri Sanjeev Maggu. There is no other relevant evidence to prove the Departments case. Rather there is statement of Shri D.P. Sharma, Senior Manager of M/s. Aggarwal Metals Pvt. Ltd. as was reorded on 24.05.2017 which is relevant w.r.t. the impugned three invoices of M/s. V.K. Enterprises. He specifically deposed that M/s. Agrawal Metals used to purchase copper scrap from V.K. Enterprises against the payments either by RTGS or by Cheques. He has outrighly denied the invoices to be mere cenvatable without delivery of goods. He also denied receiving any cash from M/s.V.K. Enterprises of the amount sent by them through RTGS/Cheque. This deposition clearly falsifies the presumptive alleged modus-operandis.

Law has been settled that mere statements are not sufficient to prove clandestine removal - Admittedly, there is no other evidence on record so as to relate to the clandestine activities of the assessee.

Appeal allowed - decided in favor of appellant.
2021 (12) TMI 1011

CENVAT Credit - both manufacture of taxable goods and provision of exempted service - proper procedure of Rule 6 of the CCR, 2004 not followed - Rule 6(3) of the CCR, 2004 - period 2012-13 to 2016-17 - extended period of limitation - HELD THAT:- It is seen that the Range Superintendent vide its report dated 23/07/2019 at page number 395 of the appeal paper book had provided a detailed report as to the compliance of Rule 6 of CCR, 2004 by the Appellant for the period covered in the SCN and it has been held that the Appellant was in compliance with the procedures laid down and that there has been excess reversal in the years 2014-15 to 2016-17 by the Appellant - the SCN was issued by the Audit Commissionerate to verify the contentions of the Appellant and accordingly the ld. Commissioner adjudicating the case should have taken into account the submissions of the Appellant from pre SCN stage and the report dated 23/07/2019.

It is found from the records that the Appellant has complied with all the provisions of Rule 6 of the CCR, 2004 and that there is no further reversal required for the period under dispute. It is also noted that for 2012-13 and 2013-14, the entire Cenvat credit of the Appellant stood reversed and adjudicated vide OIO dated 21/06/2016 which had attained finality as no appeal against the same had been preferred by the Department.

Extended period of limitation - HELD THAT:- Also for the period 2014-15, the department had issued a spot memo for Rule 6 of CCR, 2004 on 29/09/2015 wherein the SCN has been issued on 04/09/2018 much after the expiry of normal period of limitation. There is no ground on which the demand can be raised by invoking extended period of limitation as all the documents were at the disposal of the Department since 2015 itself and hence the entire demand also fails on the ground of limitation.

The demand of Cenvat credit cannot be sustained both on merits and on limitation and is accordingly set aside. Since demand of Cenvat credit is set aside, penalty and interest are also not sustainable - appeal allowed - decided in favor of appellant.
2021 (12) TMI 1010

Clandestine removal of the finished excisable goods from the factory - MS bars and rods - MS angles - MS flats - MS rolls - rolling waste - allegation mainly based on the statement of employees - corroborative evidences present or not - wilful misstatement and suppression of facts - period 18.12.2011 to 31.08.2012 and from 01.10.2012 to 23.07.2013 - HELD THAT:- The entire plank of the case rests on the private loose documents/ Papers which were recovered and seized during searches on 24.07.2013 and the statements of Sri Vijay Kumar Sinha, Sri Prabhat Kumar Singh (both being employees of Appellant no.1) and Shri Sudhir Kumar Garg Appellant no. 2. It is an admitted position that the premises of Alok Raj Associates located at 212, Ashiana Tower, Exibition Road, Patna which is being referred to by the department as the “secret office‟ of Appellant no.1, belongs to Shri Alok Chaudhary. Private documents were recovered and seized from this premises, but no statement of Shri Alok Chaudhary was recorded either on 24.07.2013 or at any point of time subsequent to the search - There is nothing on record to suggest or indicate that attempts were made to record the statement of the said Shri Alok Chaudhary who was available.

Although these documents contain verifiable clues, no attempts appear to have been made to make inquiries with the persons whose names appear on them. No inquiries appear to have been made with regards to the vehicle numbers featuring on them. No transporter was called to affirm the quantity and the description of the goods transported by the vehicle numbers found mentioned on those private documents - The appellants requested for cross-examination of all those persons whose statements were recorded as well as the Panchas, which were relied upon by the Revenue. However, none of them could be presented by the Revenue for cross examination by the appellants.

No positive independent tangible evidence have been produced by the Revenue to substantiate the statements recorded during investigation and the entries made in the private documents which are undoubtedly unsigned, bearing no indication in any form that they relate to the appellant No.1 - specific description of the finished excisable goods alleged to have been clandestinely removed are also not found mentioned on the unsigned handwritten loose private records/documents, and as a result of which the amount of duty alleged to have been evaded and confirmed by the impugned order appears to be vague, in the realm of conjecture.

On a careful evaluation of the submissions and arguments put forth by both the sides, it can be held that the Revenue has failed to discharge the burden to prove the case of clandestine removals of finished excisable goods by the appellants beyond doubt by collecting and producing independent corroborative tangible evidences to sustain their claim/findings - appeal allowed - decided in favor of appellant.