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Showing 221 to 240 of 16524 Records
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2023 (12) TMI 1098 - DELHI HIGH COURT
Cancellation of GST registration of petitioner - SCN did not specify the reasons for proposing to cancel the petitioner’s GST registration - whether the petitioner was carrying on its business from the declared principal place of business?
There is a controversy whether the petitioner had informed the visiting team as to his then current address. Whereas, the petitioner claims that he has informed the visiting team regarding his new address, the same is disputed by the respondents as there is nothing on record to substantiate the same.
HELD THAT:- It is apparent that no physical verification had been carried of the petitioner’s earlier premises during the period 14.10.2022 to 31.05.2023. Any such verification was required to be carried in accordance with the Rules, which also mandates the petitioner to be issued a notice for the same.
It cannot be accepted that the Appellate Authority could have taken a definite view of the petitioner being non- functional from its declared place of business prior to 31.05.2023. It is also apparent that there is no contest that the petitioner had furnished evidence of his leasing another premises with effect from 31.05.2023. Undisputedly, the petitioner has not been unable to upload his application for change of its earlier place of business as the petitioner’s GST registration stood suspended with effect from 25.01.2023.
The concerned official of the respondents shall visit the petitioner’s current premises (336/26, Onkar Nagar-B, Tri Nagar, Delhi-110035), within a period of one week from date, to verify whether the petitioner is occupying the same - In the event the petitioner is found occupying and operating from the aforesaid premises, the petitioner’s GST registration shall be restored immediately thereafter - The petitioner shall file the requisite application regarding shifting to his new place of business. The concerned official shall verify whether the petitioner has filed the requisite returns as well as application for updating its current place of business on the record.
Petition disposed off.
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2023 (12) TMI 1097 - CALCUTTA HIGH COURT
Principles of natural justice - valid SCN or not - non-application of mind - availment of irregular input tax credit - HELD THAT:- At the first blush, on perusal of the show cause dated 16th August, 2023, it appears that the submissions made by the appellants in their reply to the pre-show cause notice appears to have been considered. However, on a closer scrutiny of the show cause notice dated 16th August, 2023, it is seen that except extracting the reply given by the appellants, the authority has not dealt with the contentions, which were placed by the appellants in the reply to the pre-show cause notice. Thus, this would be sufficient to hold that the show cause notice dated 16th August, 2023 has been issued without due application of mind.
Be that as it may, this Court is satisfied that since the show cause notice dated 16th August, 2023 has been issued without due application of mind, without considering the reply to the pre-show cause notice and without conducting any inquiry or investigation at the supplier’s end, the show cause notice would call for interference. Thus, the Court is satisfied that the case on hand falls within one of the exceptional circumstances, where the Court will exercise its jurisdiction to interdict a show cause notice.
The appeal is allowed and consequently, the writ petition is allowed and the show cause notice dated 16th August, 2023 is set aside and the matter is remanded back to the adjudicating authority to the stage of pre-show cause notice dated 31st March, 2023 - appeal allowed by way of remand.
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2023 (12) TMI 1096 - CALCUTTA HIGH COURT
Recovery of short paid service tax - post GST era - Refusal to entertain a challenge to the show cause notice issued by the 1st respondent - direction to respondent authorities to issue a fresh notice for personal hearing to the appellant/assessee in response to the impugned show cause-cum-demand notice - time limitation - HELD THAT:- The averments in the notice give a different picture. Being alerted by the TDS deposited with the income-tax department, authority concerned initiated an independent investigation into the matter. In the course of the investigation it examined the records and documents of the firm including its audited balance-sheet etc. On the basis of these materials the authorities concerned was of the view that there was a short deposit of service tax for the financial years to the tune of 7,43,625/- for the financial years 2014-15, 2016-17 and 2017-18.
Time Limitation - HELD THAT:- There are substance in the submission of the learned counsel for the respondent authorities that the proceedings for recovery of service tax under the prior legislation (since repealed) is saved by operation by section 174 sub-clause (2) of the Act of 2017. Sub-section 2 of section 174 of the Act of 2017, inter alia, provides that the promulgation of the Act of 2017 shall not affect any right, privilege, obligation, liability accrued under the repealed law and/or any investigation, enquiry adjudication or recovery proceedings of duty, tax, penalty, interest under the repealed law may be instituted or continued as if the earlier law had not been repealed.
The demand cum show cause notice for recovery of short deposit of service tax for the financial years 2014-2015, 2015-2016 and 2017-2018 shall be deemed to have been instituted and continued under the repealed law and cannot be pre-empted with reference to the time frame under section 74 (10) of the Act of 2017. Hence, the impugned show cause notice cannot be said to be ex facie without jurisdiction or time barred.
Thus, no case of patent lack of jurisdiction or legal bar to the issuance of show cause notice cum demand notice has been made out. However the appellant/assessee is entitled to a personal hearing in the matter - appeal disposed off.
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2023 (12) TMI 1095 - DELHI HIGH COURT
Cancellation of petitioner’s GST registration - conditions as set out in Section 29(1) or 29(2) of the CGST Act satisfied or not - vague SCN - Principles of natural justice - HELD THAT:- Section 29 of the Central Goods and Services Tax Act, 2017 (‘CGST Act’) enables a Proper Officer to cancel a dealer’s GST registration in certain circumstances. Sub-section (1) of Section 29 of the CGST Act set out the circumstances in which a taxpayer’s GST registration can be cancelled. Sub-section (2) of Section 29 of the CGST Act specify the circumstances in which the registration can be cancelled from such date, including with retrospective effect, as the proper officer considers fit.
In the present case, it is noticed that the impugned SCN was issued solely on the basis of a letter received from another authority. The said letter is neither attached to the impugned SCN nor does the impugned SCN refers to the contents thereon The impugned order, does not indicate that the Proper Officer was satisfied as to any of the conditions as set out in Section 29(1) or 29(2) of the CGST Act - The impugned order does not indicate that the Proper Officer was satisfied as to any of the conditions as set out in Section 29(1) or 29(2) of the CGST Act.
The impugned order, cancelling the petitioner’s GST registration, is set aside and the respondents are directed to forthwith restore the same - petition allowed.
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2023 (12) TMI 1094 - BOMBAY HIGH COURT
Application for condonation of delay u/s 119(2)(b) - mismatch between the PAN number reflected in the income-tax return and the name of the company - primary grounds raised was Petitioner’s application came to be rejected without even giving a personal hearing - name of Petitioner had been changed with the approval and sanction of the Ministry of Corporate Affairs - HELD THAT:- As the notices issued u/s 139(9) of the Act were sent on Mr. Prasad Sathe’s official ID, none of the other members of the company had any access to the same. Admittedly, no physical copy of notice was sent to company’s registered address. All this came to light when the new team including one Mr. Kapil Bhakre (Director) and Mr. Dinesh Pande (Director-Finance), found out the error during the finalization of accounts for AY 2018-2019 and immediately took remedial action by submitting an application dated 5th November 2019 to the office of the DCIT, Circle-3, Pune. Petitioner immediately provided details about the invalid return and requested him to activate the action on the Income Tax Portal so as to enable Petitioner to rectify the return of income for AY 2017-2018.
We are satisfied that the delay in not responding to the notice is received under Section 139(9) of the Act, was neither deliberate nor on account of culpable negligence or any mala-fides. The issue is only of correcting the name of Petitioner in the returns so that there is no mismatch between the PAN number and name of the company.
We, therefore, direct Respondents to permit Petitioner to correct its name in the returns for AY 2017-2018 from ‘Optra Technologies Private Limited’ to ‘Optra Health Private Limited’. Therefore, we hereby quash and set aside the impugned order dated 23rd December 2022. Within two weeks of this order being uploaded, the required portal will be opened for Petitioner to do the needful, under advice to Petitioner.
We hasten to add that we have not examined the contents of the returns filed by Petitioner or claims which have been made in the returns. That will be subject of appropriate assessments/proceedings under the Act.
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2023 (12) TMI 1093 - MADRAS HIGH COURT
Validity of assessment order passed w/o affording fair opportunities to the petitioner to put forth their contentions - denial of principles of natural justice - main grievance expressed by the petitioner is that no fair opportunity of hearing was granted to the petitioner before passing the impugned order and the opportunity that was granted to the petitioner cannot be deemed to be fair opportunity, since within a short span of time - HELD THAT:- As respondent-Department has concluded the assessment proceedings hurriedly inasmuch as, the show cause notice itself was issued only on 27.03.2022 and within two days the petitioner was called upon to file their reply on 29.03.2022 and immediately on the very next day, i.e. on 30.03.2022 at 3.30. p.m the petitioner was asked to appear for hearing through video conference within one hour, i.e. at 4.30 p.m. and on the very same day,, the impugned assessment order has been passed. Therefore, impugned order suffers from violation of principles of natural justice.
As decided in M/s. Gemini Film Circuit Vs. Additional/Joint/Deputy/Assistant Commissioner of Income Tax.[2023 (10) TMI 1040 - MADRAS HIGH COURT] provision of fair opportunity of hearing, held that minimum of 21 days has to be granted to an assessee to enable him to file reply in an effective manner, and the opportunity granted to the assessee should be nominal in nature and should not be an empty formality.
This Court is inclined to set aside the impugned order passed by the respondent, since, in the present case, opportunity that was granted to the petitioner was not realistic in nature rather appears to be a nominal one and further, the petitioner has been deprived away of their rights to appear in person to put forth their contention as the petitioner was heard only through video conferencing, which lasted only for five to six minutes and thereafter, the Portal was closed and within a short span of time, no assessee can be expected to put forth their contention in an effective manner. Therefore, this Court holds that the impugned order is in gross violation of principles of natural justice and liable to be aside.
Writ Petition is allowed, the impugned order is set aside and the matter is remanded back to the first respondent for re-consideration, in which case, the respondent is directed to provide an opportunity of personal hearing to the petitioner, which can be fixed by the respondent at any date granting 15 days' time after the receipt of a copy of this order
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2023 (12) TMI 1092 - KARNATAKA HIGH COURT
Refund claim with Interest u/s 244A - Withholding of refund without recording an opinion on whether grant of refund would likely affect the revenue adversely u/s 241A - HELD THAT:- As consideration falls short of the requirements under the provisions of Section 241A of the IT Act, which stipulate that the Assessing Officer, having regard to the fact that notice has been issued under sub-section (2) of Section 143, must record in writing an opinion with reasons on how the revenue’s interest would be adversely affected if refund is allowed. The withholding of the refund in the manner as now considered by the Assistant Commissioner of Income Tax, ReAC (AU)-1(2)(1), Surat cannot be accepted, and there must be interference by this Court.
This Court must record that it is undisputed that the petitioner has claimed refund for the Assessment Years prior to the Assessment Year 2021-22. The Principal Commissioner of Income-tax (AU)-1 has granted approval recording the details of the carry forward losses for the corresponding years, and consequentially, the petitioner is admitted to refund for the Assessment Years 2018-19, 2019-20 and 2000-21 respectively. The petitioner has reported a carry forward loss to the tune of Rs. 3,325.85/- Crores for the present Assessment year. The Revenue as against the principal sum of Rs. 29,35,11,360/- will have to pay interest in excess of Rs. 2,00,00,000/-, imposing a burden on the exchequer, if there is a delay.
Further, if indeed a reference to the transfer pricing officer is under investigation, it would suffice for this Court to observe that if the adjudication, after due process, results in a demand, the petitioner will have to answer the demand, but in anticipation of a conclusion for a demand without even recording the reasons, the petitioner cannot be denied the refund. There are overwhelming circumstances as established by the undisputed facts. In the light of the above, the petition must be allowed directing the respondents to refund a sum along with interest as is permissible in law within a timeframe without prejudice to recover demand on the conclusion of the pending proceedings.
The petition is allowed. The first and the fifth respondents [National Faceless Assessment Centre through the Commissioner of Income Tax-1 and Central Processing Cell through the Commissioner of Income Tax], are directed to take appropriate action for refund of a sum of Rs. 29,30,46,736/- along with permissible interest under Section 244A.
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2023 (12) TMI 1091 - ITAT DELHI
Addition u/s 56(2)(viib) read with Rule 11UA - assessee issued shares at the face value of Rs. 10 with the premium at 990.00 per share - FMV determination - CIT(A) deleted the above additions - HELD THAT:- As per section 56(2) (viib) of the Act, the amount exceeding the Fair Market Value of shares has to be treated as income. As per the Explanation, the Fair Market Value shall be as per the value determined in accordance with the method prescribed or as substantiated by the company based on the value of the shares, goodwill etc. whichever is higher.
The working provided as per Rule 110A(2) has 2 limbs either FMV of unquoted equity share as per formula (A-L)* (PV) / (PE) or as p the FMV worked out for the unquoted shares determined by merchant banker as per discount free cash flow method. It is at the option assessee to choose between two. In the present case, the assessee opted for the second option for working out the fair market value shares duty supported by report of a Chartered Accountant.
As also observed by the CIT(A) that AO has not provided any sound reasoning or not brought on record any material to counter the argument or to negate the submissions of the appellant. He has only taken the book value for the fair market value, though it is at the option of the appellant. Since appellant has adopted the higher value, therefore, it cannot be denied the working without any reasoning.
Considering the factual position in this case and valuation report etc. It has been rightly held by the Ld. CIT(A) that that there is no case by the AO to take the FMV @ Rs. 25/- per share, on the basis of book value, disregarding the projected value, especially when it is provided in the Act that fair market value can be taken by the assessee to its option and at a higher amount. CIT(A) committed no error in deleting the addition. Accordingly, the Ground No.1 of the Revenue is dismissed.
Addition u/s 68 after making addition u/s 56(2) - CIT(A) deleted addition - HELD THAT:- AO conducted the probe regarding share application money and the assessee provided due confirmation from each of the parties along with ITR which has been neither doubted nor proved as bogus. The assessee also provided the share application Form and its allotment with ROC.
As found by the Ld. CIT(A) that the out of total share application money received by the assessee during the year under consideration, the AO made addition u/s 56 (2)(viib) for a sizable portion and for the balance amount the provisions of Section 68 has been invoked. When the AO considers the very same applicants u/s 56(2)(viib), then the AO cannot question their identity, creditworthiness and the genuineness of the transaction, that too when the assessee has satisfied the initial burden cast upon him u/s 68 of the Act. In our considered opinion, CIT(A) has rightly deleted the addition made by the AO u/s 68 of the Act with requires no interference at the hands of the Tribunal. Accordingly, ground No.2 of the Revenue is dismissed.
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2023 (12) TMI 1090 - ITAT DELHI
Deduction u/s. 80G - amount incurred for the purpose of Corporate Social Responsibility - DRP held that, as per section 80G(2) a deduction is admissible in respect of any sums, which is paid by the assessee in the previous year as donations to various bodies/institutions indicated in that section - HELD THAT:- As per the Companies Act 2013, it is mandatory for certain specified companies to spend 2 percent of their average profits to CSR. CSR expenses incurred by companies are now specifically treated as for non business purposes and hence are disallowed for Income tax purposes.
Finance Act 2014 mandated that “CSR Expenditure” shall not be allowed as “Business Expenditure” u/s 37 of Income Tax Act 1961. The ‘ Memorandum of Finance Bill 2014’ had also clarified that this initiative is primarily to ensure that companies share the burden of providing social services and granting deduction for CSR expenditure would amount to the Government effectively bearing one third of that expenditure. This same Memorandum also added that if CSR expenditure is of the nature which is covered by specific deductions contained in Sections 30 to 36, the expenditure by virtue of being governed by a specific provision (of Income tax) shall be granted a deduction if the conditions prescribed are satisfied. No specific tax exemptions have been extended to CSR expenditure. The Finance Act, 2014 also clarifies that expenditure on CSR does not form part of business expenditure.
Thus we hold that no deduction u/s. 80G is allowable on the amount incurred for the purpose of Corporate Social Responsibility.
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2023 (12) TMI 1089 - ITAT DELHI
Rectification of mistake - Benefit of brought forward loss - CIT(A) directed the AO to recompute the income of appellant for A.Y. 2009-10 after taking into consideration the brought forward loss for A.Y. 2008-09 as determined by AO by replacing the disallowance of loss - HELD THAT:- It can be appreciated that consequent to the order of the Tribunal however, for A.Y. 2008-09 the effect giving order was passed by Ld. AO on 12.12.2018 by which the total loss for A.Y. 2008-09 was recomputed at Rs. 4,92,05,810/- . That thus made available loss for set off or carry forward in the subsequent years. Same has been taken into consideration by Ld. CIT(A) while passing the direction in the impugned order. The appeal has no merit. Same is dismissed.
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2023 (12) TMI 1088 - ITAT MUMBAI
Deduction u/s. 80IB - compensation received by the assessee from the insurance company - CIT(A) upheld the addition made by the ld. A.O. on the ground that the insurance/compensation claimed cannot be considered for computing the eligible profit and gains derived from the industrial undertaking of the assessee - HELD THAT:- The assessee in the present case has received compensation for destroyed and lost goods from the insurance company and from the franchisees which the Revenue claims to be not from the industrial undertaking and shall not be the profits and gains of the business of the assessee.
The Hon’ble Gujarat High Court in SHREE RAMA MULTI TECH LTD. [2013 (10) TMI 306 - GUJARAT HIGH COURT] after duly considering the decision of Sportking India Ltd. [2009 (8) TMI 29 - DELHI HIGH COURT] has held that such compensation received from insurance company for the damage incurred by the assessee would be the profit/loss from such industrial undertaking, for the reason that if not for such loss, the assessee would have earned income which is otherwise eligible for deduction u/. 80IB,
It is evident that on identical facts, the Hon'ble High Court has held that the assessee is eligible for deduction u/s. 80IA/80IB of the Act on compensation received due to destruction of goods before sale had taken place. We find that on destruction of raw materials, the assessee was paid insurance claim, the cost of raw material is already considered as ‘cost’ while working out the profit of eligible undertaking and the claim tantamount to sale of raw materials.
As regards to loss of goods at franchisee and the amount paid by such franchisee would also be sale of goods. Thus, both the above sums are profits derived from industrial undertaking business eligible for deduction. Hence, we direct the ld. A.O. to allow deduction u/s. 80IB on both the amounts. We, therefore, allow the appeal filed by the assessee.
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2023 (12) TMI 1087 - ITAT KOLKATA
Addition u/s 68 - undisclosed cash credit found in the books of the assessee - unexplained share application money in the form of share capital - HELD THAT:- We find that the assessee which is regularly carrying on business activity of manufacturing sponge iron, registered under the Excise Act, holds fixed assets, having considerable amount of stock in hand and has successfully discharged the burden of proof primarily casted upon it to explain the identity and creditworthiness of investor company i.e., Bhillai Holdings Pvt. Ltd., which is group concern having common directors and shares issued at face value and no share premium has been charged.
Genuineness of the share transactions and correctness of such details has not been disputed by the Revenue Authorities except making general observations. Therefore, considering the evidences placed by Ld. A/R to explain the nature and source of the alleged share application money, we find no reason to interfere with the findings of the ld. CIT(A) deleting the addition made u/s 68 of the Act. Appeal of the revenue is dismissed.
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2023 (12) TMI 1086 - ITAT DELHI
Treating intimation u/s “143(1) as "non-est" - intimation u/s 143(1) of the Act was never communicated - whether CIT (A) exceeded his jurisdiction in entertaining appeal against intimation where no adjustment of income was carried out resulting in demand? - demand raised on the basis of book profit u/s 115JB as disclosed in the schedule 7 of return of the return of income for A.Y. 2008-09 - HELD THAT:- The entire quarrel revolves around the following findings of the Hon'ble High Court of Delhi – Court on its Own Motion [2012 (9) TMI 163 - DELHI HIGH COURT] as held onus to show that the order was communicated and was served on the assessee is on the Revenue and not upon the assessee. We may note in case an order under Section 143(1) is not communicated or served on the assessee, the return as declared/filed is treated as deemed intimation and an order under Section 143(1). Therefore, if an assessee does not receive or is not communicated an order under Section 143(1), he will never know that some adjustments on account of rejection of TDS or tax paid has been made. While deciding applications under Section 154, or passing an order under Section 245, the Assessing Officers are required to know and follow the said principle.
Thus the onus is on the Revenue to show that the TDS or tax credit had been fraudulently claimed by the assessee. Facts on record show that the Revenue has grossly failed in showing that the intimation u/s 143(1) of the Act ever served upon the assessee as the Revenue failed to give any proof of service of such intimation to the assessee. Therefore, intimation u/s 143(1) of the Act has to be treated as non-est or invalid.
Coming to the observations of the Hon'ble High Court, again the onus is on the Revenue to show that the claim of TDS is fraudulent. A perusal of the computation sheet shows that inadvertently the assessee has mentioned the tax payable at normal rates at Sl. No. 3 instead of tax payable of deemed total income u/s 115JB of the Act.
This by any stretch of imagination, cannot be considered as fraudulent activity of the assessee to deny the benefit of the decision of the Hon'ble Jurisdictional High Court of Delhi [supra]. Decided against revenue.
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2023 (12) TMI 1085 - ITAT SURAT
Penalty u/s 271(1)(c) levied - AO held that assessee had concealed his income by not filing the return of income and not showing his income and paying due taxes thereon - concealment has come to notice as a result of scrutiny assessment proceedings only as had the case not been re-opened u/s 147/148 assessee would have succeeded in tax evasion - HELD THAT:- We note that assessee did not conceal the income and was in the bona fide believe that the said income, which was taxed u/s 147 of the Act, was not assessable under the Act. We note that there is no finding of the AO in the assessment order that assessee has concealed his income; rather Assessing Officer has accepted the returned income filed by assessee, as it is, (in response to notice u/s 147 of the Act).
We note that in the case of CIT v. K.R. Chinni Krishna Chetty [1998 (6) TMI 5 - MADRAS HIGH COURT] has held that u/s 271(1)(c) of the Act the authority is given the discretion to levy a penalty if there is concealment of particulars of income and even as regards the quantum of the penalty there is a discretion. Of greater importance is the necessity for a definite finding that there is concealment, as without such a finding of concealment, there can be no question of imposing any penalty. In the assessee’s case, the AO has not given any finding in assessment order that the assessee had concealed any income or furnished inaccurate particulars of such income. He had simply accepted the returned income u/s 148 - penalty u/s 271(1)(c) will not be imposable. Decided in favour of assessee.
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2023 (12) TMI 1084 - ITAT SURAT
Estimation of income - bogus purchases - CIT(A) noted that in absence of visibility on correctness of the amount paid/ payable to creditors, the possibility of purchasing the goods from grey market at lower rates and recording the same at inflated price in books of accounts cannot be ruled out. However, if the entire purchases are disallowed, the corresponding sales also need to be ignored but the assessing officer has not done so - HELD THAT:- As observed by ld CIT(A) that the assessee's business is recently started and it is into second year of its operations. During the year under consideration the gross profit earned by assessee is 13.05%. Therefore, ld CIT(A) restricted the addition to Rs. 9,80,121/- (Rs.75,10,503/- X 13.05%). We have gone through the above findings of CIT(A) and noted that there is no infirmity in the conclusion reached by ld CIT(A). That being so, we decline to interfere with the order of Id. CIT(A) in deleting the aforesaid additions. His order on this addition is, therefore, upheld and the grounds of appeal of the Revenue are dismissed.
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2023 (12) TMI 1083 - BOMBAY HIGH COURT
Detention of goods - consignment of apples - prohibited goods or not - hit by the N/N. 5/2023 - HELD THAT:- In the present case, the Bill of Entry seeks to clear the imports of apples which are imported by the petitioner at a price which is at Rs. 50/- per kg. Thus clearly the price per kilogram being Rs. 50/- per kg. which is not below the price fixed by Notification No. 5 of 2023, it would be correct for the petitioner to contend that the respondents cannot detained the petitioner’s consignment on the basis of the minimum price as fixed by the said notification.
It is opined that there is no reason as to why the petitioner ought not to be permitted to clear the goods - it is directed that the imports of the petitioner be not detained on the ground that this goods are prohibited goods under NN. 5/2023 and on such count be released on the petitioner furnishing a bond - An appropriate assessment of the bill of entry be accordingly undertaken in accordance with law within a period of 3 days from today - Petition disposed off.
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2023 (12) TMI 1082 - BOMBAY HIGH COURT
Seeking provisional release of the consignment of apples imported by the petitioner - Detention on the ground that N/N. 5/2023 has been issued, which caps the minimum price of apples for import at Rs.50/- per kg - HELD THAT:- It is seen from the documents as annexed in the petition, which are Bill of Entry and Invoices, that the price at which the petitioner has imported the apples in question is at Rs. 50/- and the embargo to any clearance of such import under Notification No. 5/2023, which would operate if the value is below Rs. 50/- per kg. Thus, it would not be correct on the part of the revenue only on the ground of the notification in regard to fixing of the import price, the present consignment of the apples, as imported by the petitioner should be labelled as prohibited goods.
It is also observed that not only this Court in the case of M/S. INDUSINA EXIM L.L.P. VERSUS THE COMMISSIONER OF CUSTOMS (IMPORT) & ORS. [2023 (12) TMI 918 - BOMBAY HIGH COURT] but also the Kerala High Court as well as the Madras High Court have taken a consistent view in regard to permitting clearance of the apples on the ground that Notification No. 5/2023 has been stayed - there are no contrary judgment which takes a contrary view in regard to the notification in question.
It is directed that the imports of the petitioner subject matter of Bill of Entry No. 8854586 dated 20 November, 2023, be released on the petitioner furnishing a bond - An appropriate assessment of the bill of entry be accordingly undertaken in accordance with law within a period of three days from today - petition disposed off.
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2023 (12) TMI 1081 - DELHI HIGH COURT
Seeking permission to complete the obligation of manufacturing and exporting copper wire by purchasing additional copper of the same grade from the open market and also seeking advance authorization license - HELD THAT:- The request of the Petitioner is to fill up the shortage of raw material by purchasing the same from the domestic market, the same has been rejected by the Department placing reliance on Para 4.03 of the Foreign Trade Policy 2015-20. Since the Foreign Trade Policy specifically insists that in case advance authorization is issued to allow duty free import which is physically incorporated in the export product, the request to allow the Petitioner to purchase the raw material from open market for these exports could not be permitted.
The Court while adjudicating administrative orders exercising its jurisdiction under Article 226 of the Constitution of India only looks into the decision making process and also the fact that whether the order is violative of any law. The reasons given in the order passed by the Respondent does not require any interference under Article 226 of the Constitution of India.
A perusal of the Order challenged in the present Writ Petition indicates that the DGFT has given a proper opportunity of hearing to the other sides and, therefore, this Court is of the opinion that the decision-making process is fair. Further, even on merits, the learned Counsel for the Petitioner has not been able to establish as to why the Order is contrary to the law or that any provisions of the Foreign Trade Policy or the handbook of procedures has been violated. Resultantly, this Court finds no reason to interfere with the present Writ Petition.
The writ petition is rejected.
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2023 (12) TMI 1080 - CESTAT NEW DELHI
Classification of goods - Bulk Reishi Gano Powder 100% Ganoderma - Bulk Ganocelium Powder 100% Gano Mycelium - whether the products are classifiable as Ayurvedic medicaments under chapter 3003.9011 of the First Schedule to the Central Excise Tariff Act, 1985 (CETA) as contended by the appellant or as food supplements under CTH 2106999 of CETA? - Invocation of the extended period of limitation under section 28(4) of the Act - Confiscation of goods under section 111 (m) and (o).
Classification - HELD THAT:- The said issue is no longer rest-integra and has been decided by the Chennai Bench in DXN Manufacturing India Private Ltd. vs. Commissioner of Central Excise and Service Tax, Pondicherry [2017 (11) TMI 608 - CESTAT CHENNAI], where the Tribunal reconsidered the matter at length on being remanded by the Supreme Court [2015 (8) TMI 1418 - SUPREME COURT] and concluded that both the impugned goods fail both the twin test for being considered as Ayurvedic medicament and therefore the products in question are nothing but food supplements promoted mainly for general health or well-being and therefore merit classification under 2108 of the CETA and more specifically under 2108.99, as it stood at the relevant time and assessed accordingly under section 4A of the Act for discharge of duty liability. The issue of classification was thus decided in favour of the revenue and against the assessee.
There are thus no hesitation in concluding the issue of classification of the products in question under CTH 21069099 as food preparation - the issue of classification on merits stands affirmed in favour of the revenue and against the appellant.
Invocation of the extended period of limitation under section 28(4) of the Act - HELD THAT:- In view of the proceedings which was pending since 2012 and the department itself had preferred an appeal, it cannot be said that the department was not aware of the classification of the products as declared in the instant bills of entry by the appellant and therefore no fault can be found on the part of the appellant as 9 out of the 10 bills of entries were filed before the final order was passed by the Tribunal on 10.01.2018 and the Order-in-Appeal by the Commissioner (Appeals) was holding the field.
The law on invocation of extended period of limitation is well settled. Mere omission or merely classifying the goods/services under incorrect head does not amount to fraud or collusion or wilful statement or suppression of facts and therefore the extended period of limitation is not invocable.
The Supreme Court in PUSHPAM PHARMACEUTICALS COMPANY VERSUS COLLECTOR OF C. EX., BOMBAY [1995 (3) TMI 100 - SUPREME COURT] has categorically laid down that where facts are known to both the parties, the omission by one to do what he might have done, and not that he must have done, does not render it suppression. Thus when all the facts are before the department as in the present case then there would be no wilful mis-declaration or wilful suppression of facts with a view to evade payment of duty - the revenue cannot invoke the extended period of limitation under section 28(4) of the Act, hence the show cause notice dated 2.07.2018 is barred by limitation for the period beyond the normal period.
Imposing penalty under section 114A of the Customs Act - HELD THAT:- As it is held that it is not a case of willful suppression, mis-statement or misdeclaration by the appellant, the ingredients required for invoking the penalty being the same, the penal action under the provisions of section 114A as imposed by the impugned order is not justifiable and is hereby set aside - the appellant cannot be held liable for penalty under section 114 AA of the Customs Act and the reasoning given by the Principal Commissioner that at the time of presenting the bill of entry, the importer made and subscribed to false declaration against the contents of bills of entry, in contravention to section 46(4) of the Act is unsustainable
Confiscation of goods under section 111 (m) and (o) - HELD THAT:- The findings in the impugned order that section 111(m) can be invoked for misdeclaration of any material particular, in respect of the goods and not necessarily only the value of the goods stands quashed and the issue stands decided in favour of the appellant that there cannot be any confiscation of goods under section 111(m) in the case of wrong classification - it is a simple case of mis-classification/incorrect classification and not mis-declaration of goods on the part of the appellant, the logical inference would be that the appellant has not wrongly claimed the exemption benefit and therefore there can be no confiscation under Section 111(o) of the Act.
The appeal is remanded to the Adjudicating Authority for the limited purpose of computing the differential duty to be demanded in respect of normal period only - the appeal is partly allowed by way of remand.
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2023 (12) TMI 1079 - CESTAT CHENNAI
Levy of Anti-Dumping Duty - clearance of tyre making machines (old and used) including used Chinese origin tyre curing presses under EPCG scheme - applicability of N/N. 01/2010 dated 08.01.2010 - HELD THAT:- At the outset it has to be stated that the respondent-company has gone into liquidation as per the order of the NCLT, Bangalore Bench dated 30.12.2019. Further, in the present case, the goods imported are “used and second-hand machines”. The Chartered Engineer has reported that the goods are used and second-hand. There is no dispute on the fact that the goods are used and second-hand machines.
The Tribunal in the case of Trinity Exporters [2019 (2) TMI 1370 - CESTAT CHENNAI] had an occasion to analyse the issue as to whether ADD is leviable on import of used and second-hand machines. The issue was answered in favour of the importer and against the Department.
Taking note of the fact that the respondent-company has gone into liquidation and also following the decision in the case of Trinity Exporters, there are no merit in the appeal filed by the Department - the appeal filed by the Department is dismissed.
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