|
Advanced Search Options
Case Laws
Showing 501 to 520 of 18686 Records
-
2022 (12) TMI 1064
Maintainability of appeal - non-compliance of the statutory provisions of section 129E of the Customs Act, 1962 regarding pre-deposit of the amount - power of Tribunal/Commissioner (Appeals) to waive the requirement of pre-deposit - HELD THAT:- The Supreme Court in NARAYAN CHANDRA GHOSH VERSUS UCO BANK [2011 (3) TMI 1478 - SUPREME COURT], examined the provisions contained in section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 relating to pre deposit in order to avail the remedy of appeal. The provisions are similar to the provisions of section 129E of the Customs Act. The Supreme Court emphasised that when a Statue confers a right to appeal, conditions can be imposed for exercising of such a right and unless the condition precedent for filing appeal is fulfilled, the appeal cannot be entertained. The Supreme Court, therefore, held that deposit under the second proviso to section 18(1) of the Act, being a condition precedent for preferring an appeal, the Appellate Tribunal erred in law in entertaining the appeal. The Supreme Court also held that the Appellate Tribunal could not have granted waiver of pre-deposit beyond the provisions of the Act.
A Division Bench of Delhi High Court in M/S. VISH WIND INFRASTRUCTURE LLP, M/S. J.N. INVESTMENT & TRADING CO. PVT. LTD. VERSUS ADDITIONAL DIRECTOR GENERAL (ADJUDICATION) , NEW DELHI [2019 (8) TMI 1809 - DELHI HIGH COURT] examined the provisions of section 35F of the Central Excise Act, 1944 which are pari materia to section 129E of the Customs Act and held that every appeal filed before the Tribunal after the amendment made in section 35F of the Excise Act and section 129E of the Customs Act on 06.08.2014 would be maintainable only if the mandatory pre-deposit was made.
The appellant has not made the pre-deposit. As the law relating to pre-deposit has been settled by the Supreme Court and the High Courts, the appeal would have to be dismissed for non-compliance of the statutory mandatory requirement - appeal dismissed.
-
2022 (12) TMI 1063
Eligibility for exemption Notification No. 1/2017-IT Integrated Tax (Rate) dated 28.06.2017 - imported Fertilizer Grade Phosphoric Acid - HELD THAT:- We prima facie find that there is no difference in the fact regarding the nature of the goods imported in the present bill of entry and the bills of entry wherein the adjudication order was passed vide order dated 24.06.2021. In this development, we are of the view that the matter needs to be re-considered, considering the order in original dated 24.06.2021.
The matter remanded to the Adjudicating Authority for passing a fresh order - appeal allowed by way of remand.
-
2022 (12) TMI 1062
Conspiracy - omission and commission of misconduct by official of Pune Municipal Corporation in connivance with appellants filed a detailed information application before the CCI - levy of penalty - HELD THAT:- On examination of entire material we are of the opinion that sufficient evidence were brought on record to show forming cartelisation by the appellants in influencing tender. It was specific case of contravention of Section 3(3)(d) of the Act read with Section 3(1) of the Act. Besides evidence by way of filing leniency application all the appellants have already accepted their guilt. Most of the appellants on the strength of their leniency application have also got reduction in the penalty which is reflected from the relevant portion of the impugned order which we have quoted in the present order. We are of the opinion that disclosure made in leniency application admitting involvement amounts to confession. If confessional statement is also corroborated even by some sort of evidence one is precluded to assail an order imposing penalty/punishment on such confession. Moreover, in the present case at the time of admission itself it was admitted by the appellants that the appeal may be heard on the point of penalty only.
Now coming to the discretionary jurisdiction of the CCI in considering the turnover on the higher level i.e. 10% which is maximum percentage prescribed under Section 27(b) of the Act is concerned we are of the opinion that though CCI is empowered to take turnover upto 10% but while taking up such percentage i.e. maximum as prescribed in the Act it was required for the CCI to elaborately assign reason for coming to the conclusion for maximum penalty. It may not be held that CCI in no case can impose higher penalty upto 10% but in such situation it would be required for the CCI to afford full opportunity to the concerned party to address the CCI as to why such higher penalty may not be imposed - On going through the impugned order we find no indication as to whether the appellants were asked to explain regarding exemplary penalty i.e. maximum 10% or detailed reasons has been assigned for the same. It is true that in respect of imposing penalty discretion has been given to the CCI, but at the same time it is settled that discretion may not be exercised indiscreet manner.
Though discretionary jurisdiction may not be interfered with but in view of facts and circumstances particularly the fact that discretion by the CCI in the present case has not been exercised in a reasonable manner it would be a fit case for remanding back the matter to CCI to examine the issue to afford opportunity to the appellants to address on the point as to whether instead of exemplary penalty i.e. upper limit of 10%, the appellants are entitled to get the said percentage reduced or not.
In the present case it has been noticed that in the information petition which was filed by the informant it is evident that the informant had alleged that conspiracy and collusion by Accused No.1 and 2 alongwith technically ineligible company (nevertheless qualified) on the one hand and personnel of PMC Accused No.3 on the other hand as a result and by giving effect to this fraud Accused No.2 became L1 in 5 tenders in 2014 bagging contracts for worth of Rs.14,82,94,580/- while the internal estimate was Rs.11.45 crores i.e. 30% lower. Even during investigation DG had examined the role of PMC in its report.
We are of the opinion that while remitting back the aforesaid appeals to CCI to reconsider the penalty a direction can be issued to the Director General of Police Maharashtra/Director General, Anti-Corruption, Maharashtra to conduct an enquiry in respect of role played by the Pune Municipal Corporation in relation to Tender No.34, 35, 44, 62 and 63 of 2014. It goes without saying that if during enquiry any cognisable offence comes to fore in that event it would be necessary to register FIR for its statutory investigation to its logical end.
Let a copy of this order be sent to Director General of Police, Maharashtra/Director General, Anti Corruption, Maharashtra.
-
2022 (12) TMI 1061
Extension of period of insolvency resolution proceeding, beyond limit - whether upon an insolvency resolution proceeding being not completed within the period granted which also includes an extension, whether a subsequent extension would be permissible under the law? - whether the non-obstante provision in Section 60 (5) also includes the other provisions of the IBC of 2016? - whether irrespective of the provisions of the IBC of 2016 a subsequent extension can be granted on a resolution of approval by a majority of the members of the COC?
HELD THAT:- A reading of the afore-extracted minutes of the resolution of the COC dated 12.08.2022 makes it discernible that there is a revised resolution plan submitted by the resolution applicant and circulated in the meeting and further that one of the secured creditor Bank has insisted upon to make an application to the adjudicating authority requesting for further extension of 30 days and in the said situation, the COC through its resolution had required the RP to approach the adjudicating authority for extension of the CIRP process by another 30 days.
It is stated that the provisions in the resolution plan are being projected to be a part of the resolution proceeding to put the corporate debtor back on its feet. A reading of the afore-extracted portion of the resolution plan makes it discernible that the resolution plan is more of corporate takeover by means of lease/rent of the corporate debtor rather than it being a plan to bring the corporate debtor back to its feet. Taking over a corporate management under the law is governed by a different set of provision and it cannot per-se be said to be a part of a resolution plan to bring the corporate debtor back to its feet - as the reading of the resolution plan produced before the Court does not make it discernible that it is a resolution plan to bring the corporate debtor back to its feet, it cannot be accepted.
A reading of section 60(5) makes it discernible that it is a provision with a non-obstante clause that ‘notwithstanding anything contrary contained in any other law’ gives a jurisdiction to the NCLT to entertain or dispose of any application or proceeding by or against the corporate debtor or corporate person; any claim made by or against the corporate debtor or corporate person including claims by or against any of its subsidiaries situated in India; or any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corporate person under this Code - section 60(5) of the IBC of 2016 would now have to be understood that an application under section 60 (5) to be maintainable notwithstanding anything contained in any other law would not also mean notwithstanding anything contained in the other provisions of the IBC of 2016 itself, but any other law other than the IBC of 2016. From such point of view when there is a specific provision on the question of maintainability of a claim for subsequent extension under the first proviso to section 12, the provisions of section 60(5) cannot be invoked to take advantage of the non-obstante clause to make an application for subsequent extension maintainable in spite of the specific bar on its maintainability provided in the first proviso to section 12.
Petition allowed.
-
2022 (12) TMI 1060
Seeking appointment of a sole arbitrator for the resolution of disputes between the parties - Section 11 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- To answer this issue, it is necessary to go into the effect of the said order staying the institution or continuation of suits or other proceedings by any party or person or bank or company against IL&FS and its 348 Group Companies in any Court of law, tribunal, arbitration panel or arbitration authority. In this regard the plea of Mr. Mehta is that during the resolution process of a company, its creditor is obligated to necessarily lodge claims before a resolution professional, as a successful resolution applicant cannot suddenly be faced with undecided claims after the resolution plan submitted by him has been accepted. This would amount to a “hydra-head popping up” which would throw into uncertainty amounts payable by a prospective resolution applicant who successfully takes over the business of the corporate debtor.
The purpose and rationale behind granting a moratorium is to ensure that the assets of the corporate debtor are protected, with an intention to keep the company a going concern and to use the period to strengthen its financial position. It means, the intent of the order of the NCLAT is to protect the assets of IL&FS and its group companies in order to make the resolution process effective/purposeful.
In any case, the legality of the order dated March 12, 2020 confirming the order dated October 15, 2018 has been challenged before the Supreme Court. Since, the matter is pending before the Supreme Court and there is no stay of the NCLAT order, the petitioner has to await adjudication of the proceedings before the Supreme Court.
Petition dismissed.
-
2022 (12) TMI 1059
Condonation of delay in filing appeal - Sufficient Cause for not preferring an Appeal was provided or not - HELD THAT:- It comes to be known that the Leased Period of 15 years got expired on 16.01.2022 and the Corporate Debtor had lost his right to remain in possession of the property. But the Leased Premises was neither vacated nor the enhanced rent (which is outstanding) was paid to the Appellant till date - In the above background, the Appellant, had filed the application, seeking to direct the Respondent to vacate the Leased out premises immediately, in view of the expiry of lease, as on 16.01.2022. Alternatively, upon calculation of the CIRP period directed the Respondent to pay all the leased rental dues of Rs.2,82,63,305/- as on 28.02.2022 to the Appellant forthwith.
Considering the fact, that a Lease, more than 12 months has to be registered in the manner known to Law and in accordance with Law and an unregistered Lease / Documents cannot be looked into by a Court of Law / Tribunal even for a collateral purpose, this Tribunal comes to a resultant conclusion that the Adjudicating Authority (Tribunal) had in the impugned order had mentioned that Dr. A.M. Arun had already paid the amount towards the Lease Rental and came to the right conclusion that IA/434(CHE)/2022 in CA/1/IB/2017 is not maintainable but had directed the Resolution Professional to pay the rent at Rs.2,25,000/- till the continuation of the ‘Corporate Insolvency Resolution Process’ (CIRP), which was agreed to be paid.
Appeal dismissed.
Application dismissed.
-
2022 (12) TMI 1058
Approval of Resolution Plan - Section 31 of the Insolvency and Bankruptcy Code, 2016 - Appellants raised several objections against the Resolution Plan, as approved by the CoC, being discriminatory towards ‘Operational Creditors’ - HELD THAT:- In the instant case, what has to be kept in mind is that the ‘Corporate Debtor’ is a Real Estate Company involved in construction of Housing and Commercial Units and the land on which the construction is to be completed belongs to GMADA. As the nature of the activity of the ‘Corporate Debtor’ is dependent on the land owned by GMADA, the commercial decision taken by the CoC to make a provision in the Resolution Plan with respect to the Statutory Dues owed to GMADA, cannot be faulted with, though GMADA has failed to make the requisite claim, as provided for under the Code, but has been in communication with the RP - We do not appreciate the act of GMADA not having filed their claim, the fact remains that the ‘Real Estate Project’ is being constructed on GMADA land and all approvals, permits and licences involves GMADA, which is a ‘Secured Creditor’. Further, the nature of business and the ground realities were kept in mind by the CoC before taking a commercial decision. In approval of the Resolution Plan, the CoC takes a business decision ‘based on ground realities, by a majority which binds all stakeholders including dissenting Creditors’.
Keeping in view the peculiar facts of the instant case that the Resolution Plan was approved by the CoC way back in 2019 and the Adjudicating Authority has approved the Plan on 01.06.2021 after a period of two years and the Plan has already been implemented, we do not see it a fit case to set the clock back, specifically keeping in view the ratio of the Hon’ble Supreme Court in the aforenoted Judgements. It is hoped that the IBBI & the Government may take effective steps to make necessary amendments/frame Regulations to protect the class of ‘Financial Creditors’/Homebuyers from imposition of any haircuts, and likewise take essential measures to safeguard the interest of ‘Operational Creditors’ in the ‘Structure of the Resolution Plans’.
Appeal dismissed.
-
2022 (12) TMI 1057
Seeking replacement of Resolution Professional (RP) - HELD THAT:- There was no consensus in the name of the Resolution Professional and it was open for the Adjudicating Authority to appoint any Resolution Professional. However, there being no consensus between the parties, Memo filed by ‘Indiabulls Housing Finance Ltd.’ could not have been taken notice or Resolution Professional appointed on the basis of said Memo. Out of three Applicants, two Applicants had filed Joint Memo namely- ‘SREI Equipment Finance Ltd.’ and ‘IIRF India Realty XII Ltd.’ recommending the name of Mr. Avil Jerome Menezes. Why the Adjudicating Authority did not choose the name suggested by two Applicants and accepted the name suggested by one Applicant- ‘Indiabulls Housing Finance Ltd.’ has not been dealt with the order.
When the clear intent of the order dated 28.11.2022, is that unless the Applicants mutually agree on any name of the Resolution Professional, Resolution Professional will be appointed by the Adjudicating Authority, and it was clear that there was no consensus with regard to the name of the Resolution Professional between three Applicants, the Adjudicating Authority ought to have appointed Resolution Professional on its own without referring to or relying to any prayer made by the Applicant- ‘Indiabulls Housing Finance Ltd.’.
The Adjudicating Authority committed error in appointing Mr. Sapan Mohan Garg as Resolution Professional whose name was submitted by Memo filed by ‘Indiabulls Housing Finance Ltd.’. The order dated 28.11.2022 (in order sheet) insofar as it appoints Mr. Sapan Mohan Garg as Resolution Professional is set aside and the Adjudicating Authority is directed to pass an order appointing any Resolution Professional from the eligible Resolution Professional as it deem fit and proper.
The Order passed insofar as it appoints Mr. Sapan Mohan Garg as Resolution Professional is set aside - Appeal allowed in part.
-
2022 (12) TMI 1056
Replacement of Liquidator of the Corporate Debtor - Appellant submitted that the 2nd and 3rd Respondent condoned the lapse of the Appellant for taking assignment in the present case without having Authorisations for Assignment (AFA) by imposing fine of Rs. 10,000/-.
Valid Authorisations for Assignment (AFA) on the date of appointment as the Liquidator of the Corporate Debtor is there or not - AFA was deemed to have been issued in terms of Regulation 12A of the Insolvency and Bankruptcy Board of India (Model Bye -Laws and Governing Board of Insolvency Professional Agencies) Regulations, 2016 Vide Notification No. IBBI/2016-17/GN/REG001, dated 21st November, 2016 or not? - AFA issued subsequent to taking up assignment by the Appellant, absolve Appellant of meeting requirement of Regulation 7A of IBBI Insolvency Professional Regulation 2016 or not - Whether, the Regulation 12A of the ‘Insolvency and Bankruptcy Board of India (Model Bye -Laws and Governing Board of Insolvency Professional Agencies) Regulations, 2016 Vide Notification No. IBBI/2016-17/GN/REG001, dated 21st November, 2016 will prevail over Regulation 7A of IBBI Insolvency Professional Regulation 2016?
HELD THAT:- The Appellant himself admitted that application for AFA was filed on 31.12.2019 and the same was rejected on 14.01.2020 hence this Appellate Tribunal feels that the argument the Appellant that he has deemed to have been received the AFA or renewed within 15 days does not seems to be correct - the appellant cannot claim that there was no requirement of issue of fresh AFA for his assignment as the Liquidator. The assignment as the Liquidator to which the Appellant got confirmed on 29-05-2020, is beyond the prescribed threshold date i.e. 31-12-2019. Therefore, this is non-compliance of the regulatory provisions.
The ‘Appellant’ got authorized and valid AFA by the 3rd Respondent only on 30.12.2020 which is way beyond the date of his appointment/assent as liquidator. Therefore, it is clear that as per Regulation 7A of IBBI (Resolution Professional) Regulation 2016, the Appellant did not hold valid AFA on the date of acceptance of the Assignment and the AFA cannot be ratified retrospectively in the absence of any such provisions in the law - this Appellate Tribunal considers that the Appellant did not possess the legally required AFA on the date of the acceptance of the assignment and the Appellant thus fails to meet the legal bar. Therefore, there is no error in the impugned order on these accounts.
The Interim injunction order passed by the Hon’ble Madras High Court confines only to the order with regard to action arising out of proceedings of the Disciplinary Committee and is silent on the issue of requirement of AFA by the Appellant, compulsory requirement of AFA as per Regulation 7A of IBBI (Insolvency Professional) Regulation 2016 and any stay on removed of the Appellant from Liquidator of the Corporate Debtor - this Appellate Tribunal do not find prima-facie any restrain on the Adjudicating Authority to adjudicate in this case and no conflict is found.
Whether the Adjudicating Authority can remove the Liquidator? - HELD THAT:- No Liquidator has any personal rights, to continue in Liquidation and the Adjudicating Authority, can order for Replacement of the Liquidator, recording sufficient reasons, as per Law - Further, since the Adjudicating Authority, is vested with the power, to appoint a Liquidator, under Section 33 and 34 of the I & B Code, 2016. It is by the virtue of the Section 16 of the General Clauses Act, 1897, that an Adjudicating Authority, who also, has the power, to remove the Liquidator.
This Appellate Tribunal without any ambiguity / simmering doubt, finds that there was no error in the impugned order. The Appeal, is devoid of merits and stand dismissed.
-
2022 (12) TMI 1055
Validity of Sale Confirmation Letter and Sale Certificate - stand of the 1st Respondent / Resolution Professional is that the Appellant/ 1st Respondent / Financial Creditor, had issued a Sale Certificate on 20.01.2021. during the Moratorium Period which is impermissible, as per Section 14 of the I & B Code, 2016 - HELD THAT:- Before the Adjudicating Authority, the 1st Respondent / Resolution Professional, had prayed for passing of an Order in Setting aside, the Sale Certificate, issued by the Appellant / Financial Creditor, to and in favour of the 2nd Respondent and to pass an Order, in directing the Respondents in Interlocutory Application No. 124 of 2021 therein, to handover the Properties of the Corporate Debtor, including Company’s entire fixed and current assets, including stocks and receivables, which include Plant and Machinery, on the lease hold land admeasuring Plant and Machinery on the lease hold land admeasuring Ac. 11.37 guntas in Sy. No. 334 / A, 3 / 1A, 3 / 1B, 5 and Ac. 10.27 guntas in Sy. No. 332 / A, 333/A, 7, 8B, 8A, are situated at Kaveli Village, Kohir Mandal, Sangareddy District (erstwhile Medak District) and (d) to pass an Order, in directing the Commissioner of Police, Sangareddy at Office of the Superintendent of Police, Sangareddy to provide necessary assistance to him and his team, to takeover the Control and Custody of the Properties of the Corporate Debtor etc.
The subject Asset, over which the Security Interest, was created to and in favour of United Bank of India (under SARFAESI Act, 2002), by the Borrower, was purportedly assigned, in favour of the Appellant / 1st Respondent, through Assignment Deed, dated 04.04.2019 - The Appellant / 1st Respondent, had caused a Notice, as per Section 13 (1) of the SARFAESI Act, 2022, requiring the Borrower, to wipe out the Liability, within the time prescribed therein and owing to the failure of the Borrower, in fulfilling the conditions of the Demand Notice, the Secured Asset, was taken possession by means of the Possession Notice dated 27.09.2019 and subsequently, the Property, was sold, based on a Private Treaty, to the 2nd Respondent for a Monetary Consideration of Rs.9,75,00,000/- - As a matter of fact, the Sale, was affirmed on 20.01.2021, and was Registered on 04.03.2021 in the Office of the Sub-Registrar, Zaheerabad, Medak District, in favour of the 2nd Respondent.
There is no second opinion of the fact that the Moratorium, declared by the Adjudicating Authority, (National Company Law Tribunal, Hyderabad Bench – I, Hyderabad), was published on 22.01.2021, and later the Sale Certificate, dated 20.01.2021, in favour of the 2nd Respondent, was Registered by the Appellant / 1st Respondent, which is in Negation, of the ingredients of Section 14 (1) (a) of the Code. Therefore, the Plea, taken on behalf of the Appellant / 1st Respondent, that the Registration of Sale Certificate, is only a Ritualistic Formality, is not acceded to, by this Tribunal, especially, the Registration of Sale Certificate, was made in breach of the Order of Moratorium, declared by the Adjudicating Authority, in the main Company Petition, on 18.01.2021.
As far as the present case is concerned, the Sale, by an Authorised Officer, pursuant to a Private Treaty, between the Appellant / 1st Respondent and the 2nd Respondent, is to be Compulsorily Registered, and also the Requisite Stamp Duty, is to be paid, in terms of Article 18C, read with Article 23 of Schedule I of the Stamp Act, 1899’, as held by this Tribunal. As such, the contra plea taken on behalf of the Appellant / 1st Respondent, is unworthy of acceptance.
One cannot remain in Oblivion, as to the crystalline fact, that the Appellant / 1st Respondent, had Registered the Sale Certificate, to and in favour of the 2nd Respondent, in utter disregard to the Order of Moratorium, declared by the Adjudicating Authority, in the main CP (IB) No. 673 / 7 / HDB / 2019 dated 18.01.2021. Viewed in that perspective, the availing of remedy, under ‘Section 17 (1) of the SARFAESI Act, 2002, by the Aggrieved, before the Debts Recovery Tribunal – I, Hyderabad, is an Otiose one and the same is Negatived, by this Tribunal, considering the fact that the provisions of I & B Code, 2016, overrides the SARFAESI Act, 2002.
This Tribunal, on a careful consideration of divergent contentions and also on going through the impugned order dated 23.12.2021, in IA No. 124 of 2021 in CP (IB) No. 673 / 7 / HDB / 2019, passed by the Adjudicating Authority, (National Company Law Tribunal, Hyderabad Bench – I, Hyderabad), comes to a clear cut conclusion that the same is free from legal infirmities - Appeal dismissed.
-
2022 (12) TMI 1054
Validity of approval of Resolution Plan - Dues of EPF - Seeking entire claim to be allowed on priority - the ‘Petitioner’ / ‘Appellant’ is ‘not a Party’ to the ‘Proceedings’ - It is the stand of the Petitioner / Appellant that it is the Statutory Authority and Creditor to the Corporate Debtor and the grievance of the Petitioner/ Appellant is that its Claim, was not paid, in entirety and in priority, in the Resolution Plan - HELD THAT:- The Resolution Plan of the 2nd Respondent / Successful Resolution Applicant, was voted by 97.18% voting share of Committee of Creditors and the 2nd Respondent / Successful Resolution Applicant, was declared as the Successful Resolution Applicant, in terms of the ingredients of Section 30 (2) of the Insolvency & Bankruptcy Code, 2016. The 1st Respondent/ Resolution Professional had evaluated the Resolution Plan of the 2nd Respondent and, affirmed, that it fulfills the requirements of the Insolvency and Bankruptcy Code, 2016.
It is axiomatic principle, in Law, that before approving the Resolution Plan, the Adjudicating Authority, (National Company Law Tribunal, Hyderabad Bench, Hyderabad) is to apply his mind and come to a conclusion, that the same satisfies the requirements adumbrated under Section 30 (2) of the I&B Code, 2016 - Undoubtedly, an approval of Resolution Plan, is to be Judged, with due diligence, by an Adjudicating Authority. In fact, the Resolution Plan is not a Sale / Auction/ Not Recovery / Not Liquidation. The Creditors will be bound by the Sums, stated to be Payable, under the Resolution Plan, of course, in accordance with Section 31, of the Insolvency & Bankruptcy Code, 2016.
The pros and cons of the Scheme / Resolution Plan, is required to be thoroughly scrutinised, regarding a subjective satisfaction, being arrived at, by an Adjudicating Authority. A Resolution Professional is to find out, whether the Resolution Plan of a Resolution Applicant, satisfies the requirements, mentioned in Section 30 (2) of the I&B Code, 2016 - In the instant case, the Adjudicating Authority, (National Company Law Tribunal, Hyderabad Bench, Hyderabad) came to the conclusion, that the Resolution Plan, satisfies the requirements of the I&B Code, 2016, and approved the said Plan, through an Order dated 10.01.2022 in IA No.746/2021 in CP (IB) No.326/7/HDB/2020.
The Adjudicating Authority, is empowered to turn down the Resolution Plan, when it does not satisfy the parameters mentioned in Section 30 (2) of the I&B Code, 2016. A Judicial Review, of the approved Resolution Plan, by the Committee of Creditors is limited, by the Adjudicating Authority, (Tribunal).
In the instant case, the Appellant, was paid a sum of Rs.46,400/- through a Cheque dated 10.02.2022, although its Claim in Form B dated 29.01.2021, in respect of the Corporate Debtor was Rs.40,09,102/-. Be that as it may, in view of the fact that in the impugned order, the Adjudicating Authority, (National Company Law Tribunal, Hyderabad Bench, Hyderabad), had clearly observed that the Resolution Plan, furnished by the 2nd Respondent / successful Resolution Applicant is in conformity with the requirements of Section 30 (2) of the I & B Code, 2016 and the other requirements, prescribed by the Insolvency & Bankruptcy Board of India, and this Tribunal, keeping in mind an important fact that the Resolution Plan came to be approved with a majority of 97.18% Vote, by giving a due consideration and weightage to the commercial wisdom of the Committee of Creditors, this Tribunal comes to a resultant conclusion, that the impugned order dated 10.01.2022 in IA No.746/2021 in CP (IB) No.326/7/HDB/2020 in allowing the IA No.746/2021, by approving the Resolution Plan, is free from any Legal Flaws.
Appeal dismissed.
-
2022 (12) TMI 1053
Levy of Service tax - Construction of Complex Service - exemption by Government of India vide Notification No. 28/2010 dtd. 22.06.2010 - HELD THAT:- The complex which is constructed with an intention for personaluse as residence by a person who is directly engaging any other person for designing/planning of layout and the construction of such complexes out of the ambit of such construction and thus from taxability.
We draw the support from the case of COMMISSIONER OF CENTRAL EXCISE, AURANGABAD VERSUS MALL ENTERPRISES [2015 (11) TMI 333 - CESTAT MUMBAI] wherein it was held that not only residential complex is designed or laid out by another person are excluded from the definition but also the ones intended for personaluse of such person i.e. the owner of the complex - In another case titled as NITHESH ESTATES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, SERVICE TAX AND CUSTOMS BANGALORE-II [2015 (11) TMI 219 - CESTAT BANGALORE] wherein it was held that the construction of residential complex for ITC (in that case) intended to provide accommodation built for own employees, activity was covered by definition of personaluse in Explanation to Section 65(91A) of Finance Act, 1994. Hence, the assessee‟s activity falls under exclusion of that Section and as such is excluded from levy of Service Tax.
In the present case, the quarters/residential complexes were got constructed by the AMC and AUDA for urban poor people for their residential use, the same amounts to “personal use‟. The confirmation of demand qua these services by the Commissioner is therefore not sustainable.
In the case in hand in as much as in both the cases the construction service was provided to Jawaharlal Nehru National Urban Renewal Mission and Rajiv Awaas Yojana. It was held that the service tax is not leviable to such project. Hence, the ratio of the above judgment is directly applicable in the present case.
Appeal allowed.
-
2022 (12) TMI 1052
Denial of CENVAT Credit - Manpower Agency service - services of transport of goods by transporters - period from April 2014 to August 2014 and September 2014 - reverse charge mechanism - HELD THAT:- There was an issue with the availing of the CENVAT Credit in question, which requires to be ironed out after verifying the records; that there was also an issue as regards the verification of ST-3 returns for the subsequent period and not the one for the relevant period in dispute, from which the issue was flagged by the Audit Commissionerate and for the same, a speaking order is required, for which reason the matter has to be restored to the file of the Adjudicating Authority.
The impugned order, to the extent it is appealed before this forum, is set aside and the matter is restored to the file of the Adjudicating Authority, who shall afford reasonable opportunity to the appellant and then pass a de novo order after verifying the relevant documents that may be furnished by the appellant, if so advised. The appellant shall cooperate with the Adjudicating Authority without seeking unnecessary adjournments. All the contentions in this regard are left open.
Appeal allowed by way of remand.
-
2022 (12) TMI 1051
Time Limitation - demand of service tax raised against the appellant M/s. Gujarat Engineering Research - HELD THAT:- In the present case the demand of service tax pertains to the period March/July 2007, 2003 to May 2007 and the show cause notice was issued on 11.01.2009. Therefore, the entire demand is under the extended period of limitation. This Tribunal, considering the status of the appellant and facts of the case which are absolutely identical to the facts of present case, vide order No. A/10270-10271/2019 dated 03.01.2019 [2019 (2) TMI 1303 - CESTAT AHMEDABAD] held that the demand is time-barred and appeal was allowed on limitation.
The demand raised in the present case for extended period is not maintainable on the ground of limitation itself - Appeal allowed.
-
2022 (12) TMI 1050
Seeking remand of the case - Service tax was paid in excess - excess amount may be adjusted against the interest liability - invocation of Section 73(3) of FA - HELD THAT:- There is no dispute that the appellant have paid the Service Tax in excess as claimed by them, and it was submitted that the excess amount shall be taken care of liability of interest. If this be so the Commissioner(Appeals) should have considered this issue. However, the Commissioner (Appeals) has not given any finding on the claim of the appellant to settle the case under Section 73(3) of Finance Act, 1994.
The matter needs to be reconsidered in the light of Section 73(3) of Finance Act, 1994 - appeal allowed by way of remand.
-
2022 (12) TMI 1049
Demand of differential duty - reliance on statement of employee - ‘significant’, statement - Classification of goods manufactured and cleared by appellant - presence of fertilizing element - Vasundhara - Jalpurti - Purti - Rasna Chelated - Rasna Plus - other fertilisers - examination of statement / employee in accordance with section 9D of Central Excise Act, 1944 - HELD THAT:- It is seen from the test report there is no doubt about the presence of the said fertilizing elements in the impugned goods. Though it is the contention on behalf of Revenue that the statement of the employee is clear enough evidence that presence is questionable which, according to Learned Senior Counsel, required that the statement of the said employee, being in total variance with the test reports that indicate presence of the fertilizing elements, should be discarded. It is his submission that the relevancy of the said statement had not been examined by the adjudicating authority in the manner mandated in section 9D of Central Excise Act, 1944.
Section 9D of Central Excise Act, 1944 appears to have been observed in its breach and must be remedied. To enable that, we set aside the impugned order and remand the matter back to the original authority for subjecting the statement of Mr Sanjay Shembekar, considered to be of particular relevance in determining the outcome of the impugned order, to the prescriptive mandate of section 9D of Central Excise Act, 1944. Needless to say, the adjudicating authority shall afford the appellant herein sufficient opportunity, in accordance with the principles of natural justice, to rebut the contents of the show cause notice both by submission as well as through documents.
Appeal allowed by way of remand.
-
2022 (12) TMI 1048
Refund by way of re-credit in cenvat credit account - amount was paid as pre-deposit - transition to GST regime - HELD THAT:- The Commissioner (Appeals) have erred in dismissing the appeal, as appellant was before the Adjudicating Authority for correction of mistake of law in the adjudication order. Thus, there is no deliberate delay and the appellant have filed appeal within thirty days from the date of receipt of communication dated 09.04.2018 of the Adjudicating Authority. Secondly, I find that the order of the Court below directing to take credit of Rs. 6,60,016/- in the cenvat account vide Order-in-original dated 16.08.2017, is directly in conflict with the transitional provision, particularly in Section 142(6)(a) of the CGST Act.
The order of the Court below is modified to the effect that the refund of the amount of Rs.6,60,016/-, which was a pre-deposit during pendency of appeal, be refunded in cash to the appellant-assessee alongwith interest from the date of deposit till the date of refund at the prescribed rate under Section 35FF of the Central Excise Act - appeal allowed.
-
2022 (12) TMI 1047
Valuation - non-inclusion of value of Bought Out items received at site and used in the Erection of Boilers have in the assessable value of the Boilers - contravention of provisions of Rule 4, Rule 5, Rule 6, and Rule 8 of the Central Excise Rules, 2002 - short paid excise duty - extended period of limitation - HELD THAT:- The finding of the Commissioner that all the systems received at the site of the erection of the Boiler, do not essentially constitute as essential parts of the boiler required for the erection and commissioning of the boiler. Certain parts as noted by the Hon’ble Apex Court will be in nature of auxiliaries etc., however they in view of the HSN explanatory note continue to be classified as Boiler under heading 8402.10 and not under the heading 8402.90.
Undisputedly the goods which have been cleared by the Appellants have to be assessed in the form in which they were cleared by the appellant. In the case of RELIANCE TEXTILE INDUSTRIES LTD. VERSUS UNION OF INDIA [1992 (3) TMI 86 - HIGH COURT OF JUDICATURE AT BOMBAY], Hon’ble High Court held It is not in dispute that when base yarn undergoes texturising process to bring into existence texturised yarn, then separate excise duty is leviable for the process of manufacture. In these circumstances, it is impossible to accede to the submission urged on behalf of the department that at the time of clearance of base yarn, the petitioners are liable to pay excise duty which is required to be paid after the texturised yarn comes into existence. The provisional assessment made by the department, therefore, is unsustainable.
Having held so we also find merits in the submission made by the appellant that the goods as per the turnkey contract entered by them emerged only at the site of customer which do not fall within the jurisdiction of the Pune Commissionerate. Accordingly the issues relating to excisablity and valuation of the goods as per the turnkey contract could not have been determined by the Commissioner Pune, having jurisdiction over the factory/ factories of the appellant.
From the reading of the order of the Hon’ble Apex Court in COMMISSIONER VERSUS SIEMENS LTD. [2003 (5) TMI 535 - SC ORDER]it is quite evident that Hon’ble Supreme Court has not recorded any finding in respect of the issue of the inclusion of the value of the brought out items in the value of the boiler. On the contrary Hon’ble Supreme Court has not taken up the issue for consideration as that question was not raised in the show cause notice which was the foundation for the entire proceedings. Hon’ble Supreme Court order cannot be said to declaration of law on the subject, when Supreme Court itself observes for the deletion of the para 10 and 11 (b) if the there is no demand made in respect of the brought out items in the show cause notice. Commissioner has in the impugned order not recorded any finding in this respect in the impugned order, as to whether any demand was made in the show cause notice in that case or not. Hence we do not find any merits in the sole reliance placed in the impugned order on the said decision of the tribunal and Hon’ble Supreme Court.
In the present case by the impugned order, revenue has not sought to add the value of the brought out items in the assessable value but has sought to add the some value which they have determined. Impugned order records that there is difference in value which has been shown by the appellant while raising the invoices on the customer and the value at which these brought out items had been invoiced by the supplier of the brought items. Further impugned order also has sought to add certain undetermined charges under the category of design and engineering head, in the garb of brought out items. The charge of undervaluation of the goods has been made even without reference to the supplier of these brought out items. If there was any undervaluation of these items then the demand of duty should have been made on the supplier of these brought out items. Admittedly and undisputedly these brought out items were not even brought into the premises of appellant - Undisputedly after erection of the goods manufactured and cleared by the appellant and other brought out items at the site of Customer, what emerges is a immovable property which as such is not excisable.
As we find that impugned orders cannot be sustained on grounds of jurisdiction and merits, we do not consider the other grounds urged by the appellant in appeals and during course of argument - there are no merits in the impugned orders so as to sustain them.
Appeal allowed.
-
2022 (12) TMI 1046
Entitlement of interest subsidy under West Bengal State Support for Industry Scheme, 2008 - Fixation of Capital Investment Subsidy (FCIS) in full - seeking total waiver of electricity subsidy in terms of the Scheme - HELD THAT:- In the matter of BHAI JASPAL SINGH AND ANOTHER VERSUS ASSISTANT COMMISSIONER OF COMMERCIAL TAXES AND OTHERS [2010 (10) TMI 899 - SUPREME COURT] considering the exemption notification for sales tax and VAT under the West Bengal Sales Tax Act, 1954, Hon’ble Supreme Court has held that the exemption provision should be construed strictly against the person claiming exemption and that before an exemption can be recognized, a person or property claiming exemption must come clearly within language apparently granting the exemption.
We are conscious of the fact that the aforesaid judgment have been rendered by the Hon’ble Supreme Court considering the statutory notifications relating to tax exemption whereas the notification in question concerning WBSSIS – 2008 is not a statutory notification but the broad principles stated by the Hon’ble Supreme Court will be attracted in respect of the present notification also - The above judgment make it clear that the concession notification should be strictly construed to ascertain whether the subject falls in the notification or in the exemption clause, but once the subject is found to be eligible, then liberal interpretation is to given for extending the benefit. It is also settled that while determining the entitlement, the purpose of the scheme or notification should not be defeated.
Claim relating to fixed capital investment subsidy - HELD THAT:- The writ petitioner was granted the registration certificate for assistance under the WBSSIS – 2008 dated 22nd of May, 2012 in respect of general eligibility to receive benefit under the scheme. The writ petitioner is undisputedly a unit with investment under Scale 1 and is not an ineligible unit under clause 9.1.1 - The denial of fixed capital investment subsidy on the ground that it will lead to granting of double benefit to the petitioner, cannot be sustained, as under the Scheme of subsidy, WBIDC was acting in two different and separate capacities as ‘Authorized Agent’ and as ‘Financial Institution’. Hence, we find no error in the order of the learned Single Judge in allowing the prayer for grant of fixed capital investment subsidy.
So far as the grant of total waiver of electricity duty in terms of clause 9.3 of WBSSIS – 2008 is concerned, no serious challenge has been advanced before this Court, no infirmity has been pointed out, therefore, we find no reason to interfere in that part of the order of the learned Single Judge.
Thus, no case is made out to interfere in the order of the learned Single Judge - Application dismissed.
-
2022 (12) TMI 1045
Refund the amount of excess tax paid by the appellant - HELD THAT:- It would have been well open to the writ Court to grant permission to the appellant to withdraw the proceedings before the Tribunal by making necessary submission in the writ petition. In any event, there is nothing on record to point out that there was an order of assessment under both the enactments, which had culminated in a demand. There is also nothing placed on record before the Tribunal or before this Court to show that the demand was pending prior to the issuance of the refund order in Form – 27 or subsequent to the said order. The respondents are not justified in linking both the proceedings. After the issuance of Form – 27 in which it has been clearly recorded that the appellant had paid excess tax, it is the duty of the department to refund the said amount and if the amount is not refunded within time, the appellant / assessee would be entitled to interest on the same as the department seeks to recover alleged tax dues with interest. The same principle will equally apply to the department as well when they have withheld the refund though Form 27 was issued as early as on 4th August, 2016.
The sanction and payment of the excess tax collected is an independent proceedings to the proceedings that the department may initiate for any alleged tax dues either under the provisions of the WBVAT Act or under the CST Act.
Appeal allowed.
............
|
9911796707
