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2023 (12) TMI 1019
Power of the SFIO to Investigate Offences under the IPC - Powers of SFIO restricted to investigate offences under the Companies Act only - Further Investigation by the SFIO.
Power of the SFIO to Investigate Offences under the IPC - HELD THAT:- The heading of Section 219 of the Act reflects that the said provision relates to role of certain ‘related’ companies, which has surfaced during the course of investigation being conducted under Section 212 or other provisions of the Act and therefore, approval would be required in terms of Sections 219(a), (b) and (c) of the Act. The provision of Section 219(d) of the Act has to be construed by applying the rule of ejusdem generis - In the present case, it is reasonable to construe the aforesaid clauses (a), (b) and (c) of Section 219 of the Act as constituting a distinct category or class, i.e., ‘related companies’. The language and the object behind the aforesaid clauses is with respect to investigation of affairs of a company other than the company for which investigation has been ordered under Section 212 of the Act. In that context, clause (d) of Section 219 of the Act will apply to a ‘Managing Director’ or ‘Manager’ or ‘Employee’ of the company referred to in clauses (a), (b) and (c) of the said Section.
Section 219(a), (b) or (c), comes across role of Managing Director, Manager or employee of the said ‘related’ companies, then no prior approval for investigation would be required. In other words, protection has been given only to the Managing Director or Manager or employee of the company being investigated under Section 212 of the Act and not for the Managing Director or Manager or Employee of the companies being investigated under Section 219 (a), (b) or (c) of the Act. The aforesaid position is not acceptable - In the considered opinion of this Court, once an approval has been given under Section 212 of Act to investigate into the affairs of a company, the same would also relate to a Managing Director or Manager or Employee of the said company. The pre-condition of a prior approval under Section 219 of the Act applies to related companies and their Managing Director, Manager or employees as provided for in the said Section.
It is an admitted case that petitioner no. 3 was mentioned in the original order dated 03.05.2016 issued by the MCA under Section 212 of the Act. So far as petitioner no. 2 is concerned, it is the case of the SFIO that since the affairs of the company were not being investigated, therefore, no approval was required in terms of Section 219(a) of the Act - It is a matter of record that subsequent sanction has been obtained from the Central Government before filing the complaint by the SFIO in terms of Section 212(14) of the Act. Petitioner no. 2 is being prosecuted for a single transaction, as explained above. It is always open for petitioner no. 2, during the course of trial, to demonstrate that prejudice leading to a miscarriage of justice has been caused on account of not obtaining approval under Section 219(c) of the Act.
Powers of SFIO restricted to investigate offences under the Companies Act only - HELD THAT:- It is pertinent to note that Section 4(2) of the CrPC provides that investigation into offences under other statutes, like the present Act, shall be done in accordance with the CrPC unless the statute provides for otherwise. Section 212(15) of the Act provides that an investigation report filed before the learned Special Court shall be treated as a report filed by a police officer under Section 173 of the CrPC - the investigation report within the scheme of the Act will be treated as a police report, therefore, the officer filing the said report shall also be considered an officer in charge of a police station, although not specifically provided for in the said Act. The said position is further fortified by the fact that if power has been given to the learned Special Court under Section 436(2) of the Act to try offences other than those under the Act, then the power of the SFIO to investigate into such offences cannot be restricted. If during course of investigation under the present Act, the concerned Investigating Officer comes across commission of offences punishable under the IPC or any other law relating to the transactions being investigated, then the same cannot give rise to distinct proceedings. Such investigation can be carried out under Section 4(1) of the CrPC. If the report which is subsequently filed is to be treated as a police report under Section 173(2) of the CrPC, then the officer is to be considered to be vested with powers of an ‘officer in charge of a police station’.
From a conjoint and harmonious reading of the aforesaid provisions of the CrPC and the present Act, it cannot be said that the SFIO is barred from investigating an offence under the IPC.
Further Investigation by the SFIO - HELD THAT:- It is further pertinent to note that this Court has perused the record and does not find any document to show that after the learned Special Court has taken cognizance on 20.09.2022, the petitioners herein have been asked to join any further investigation by the SFIO.
The present petition is dismissed.
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2023 (12) TMI 1018
Maintainability of section 7 application - application filed by the Appellant was clearly beyond three years and time barred or not - HELD THAT:- There is no doubt that date of default has been mentioned as 31.03.2015 on which date the account of Corporate Debtor was declared as NPA, however, the Letter of Acceptance dated 24.04.2019 has also been pleaded in Part IV - Adjudicating Authority in the impugned order has noticed the DRT Consent Terms dated 26.09.2022 and observed that fresh period of limitation shall start, hence the objection on the ground of limitation have no merit.
In so far as Consent Terms dated 26.09.2022 and fresh period of limitation thereafter, they have no relevance in the present application which was filed in the year 2021. However, the later part of the order where Letter of Acceptance dated 24.04.2019 has been noted is relevant for the purpose of limitation - The Letter of Acceptance is in the nature of agreement which is signed by all parties and amounts to fresh agreement between the parties. This fresh agreement acknowledges the debt of Rs.106,97,76,398.83/- along with interest. The Letter of Acceptance further provides that the Obligors shall jointly and/or severally to pay Rs.43,89,46,000/- along with interest towards the settlement of assigned debt due. The Letter of Acceptance which is an agreement between the parties shall give a fresh period of limitation after 24.04.2019, which is within three years of 01.11.2021, date on which Section 7 application was filed.
There shall be fresh period of limitation from 24.04.2019 and the application filed by the Appellant within three years from the said date was well within time. The Adjudicating Authority in Para 13 has also noticed the Letter of Acceptance dated 24.04.2019 for holding that objection on ground of limitation does not have any merit.
The application filed by the Financial Creditor was not barred by time and the debt and default being proved, the Adjudicating Authority did not commit any error in admitting Section 7 application. There is no merit in the Appeal - appeal dismissed.
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2023 (12) TMI 1017
Maintainability of Application filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 - delivery of the goods not proved - no reply given to notice issued u/s 8 of IBC - HELD THAT:- The Tribunal appears to have been swayed only by a submission made by the Respondent that the Appellant has failed to give the proof of the delivery of goods. There is no discussion in the entire Judgement as to whether the goods were actually taken by the Respondent in its own trucks as stated by the Appellant because it is alleged by the Appellant that the Respondent lifted the goods from the Port to its Plant. Furthermore, various other evidence which may prove the transactions having been taken place between the Parties have not been discussed at all by the Learned Tribunal much less the fact that if no contest is made till the filing of the Petition, whether it can be raised for the first time in the Reply filed to the Application under Section 9 is also a question which requires to be answered.
This is one such case in which interference is required for the purpose of looking into the entire evidence by the Tribunal and recording a finding thereafter as to whether the Application has to succeed or to fail.
The Impugned Order is set aside. The matter is remanded back to the Learned Tribunal to decide the Application again after taking into consideration the entire evidence on record.
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2023 (12) TMI 1016
Possession of goods - lien of the Appellant on the goods as a bailee - waterfall mechanism - main plank of argument of the Appellant is Section 171 of the Act on the basis of which it is claimed that the Appellant should have been declared as a secured creditor and should have been included in the list of stakeholders for the purpose of distribution in terms of Section 53 of the Code - HELD THAT:- Section 3(30) of the Code defines secured creditor which means a creditor in favour of whom security interest is created. Section 3(31) deals with security interest which means right, title or interest or a claim to property, created in favour of, or provided for a secured creditor by a transaction which secures payment or performance of an obligation and includes mortgage, charge, hypothecation, assignment and encumbrance or any other agreement or arrangement securing payment or performance of any obligation of any person. Provided that security interest shall not include a performance guarantee. Section 3(4) deals with ‘charge’ means an interest or lien created on the property or asset of any person or any of its undertakings or both as the case may be as security and includes a mortgage.
The wharfingers as the Appellant claiming itself to be a security for a general balance of account any goods bailed to them whereas in the present case, the goods are not in possession of the Appellant which is also admitted by the Appellant during the course of hearing and thus there was no actual lien to invoke Section 171 of the Act.
There are no error committed by the Adjudicating Authority in passing the impugned order and as such the present appeal is found without merit and the same is hereby dismissed.
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2023 (12) TMI 1015
CIRP - Renewal of Bank Guarantee for customs duty exemption - Whether the Adjudicating Authority was justified in concluding that the Customs Bank Guarantees are not essential for the ‘Going Concern’ nature of the Corporate Debtor Company? - HELD THAT:- It is an admitted fact that the MPP status is important since it provides an exemption of Customs Duty - there are force in the contention of the Learned Counsel for the Respondent that since there are no goods being imported by KMPCL or its contractor, being SEPCO, from China during the CIRP of KMPCL, for the operationalisation of the units of KMPCL, there is no exemption which KMPCL can claim for customs duty liability and therefore, the Respondent has intimated the CoC that these renewals are not necessary for the ‘Going Concern’ nature of KMPCL.
A perusal of the Minutes of the Meetings dated 14.10.2020, 22.10.2020 and 19.09.2022 of the CoC evidence that the Respondent had informed the Appellants that the renewal of the Customs Bank Guarantees would only increase the financial burden of KMPCL which would have to bear the commission charges and renewal charges which are exorbitant amounts. It is also significant to mention that the Deputy Commissioner, Paradip Customs Division filed a claim dated 04.11.2019 with the IRP / RP of KMPCL stating that an amount of Rs. 7,19,98,48,660.49/- was payable by KMPCL as per the assessment Order.
When there is no guarantee with respect to the MPP status of the Non-Operational Units and since there are no goods being imported by the Corporate Debtor Company as it is undergoing CIRP, there is no exemption which the Company can claim for Customs Duty liability and we are of the earnest view that the Corporate Debtor Company need not be burdened with the Commission and renewal charges approximately amounting to Rs. 70 Crores which would only increase the financial burden of the Corporate Debtor Company with no positive benefits accruing. Under Section 25(1), the RP is empowered to reject the CoC proposal for renewal of the Bank Guarantees provided by the Corporate Debtor Company, prior to the initiation of the CIRP as renewing those would not consequently lead to any advantage or any valuable gains.
There are no substantial grounds to interfere with the well-considered order of the Adjudicating Authority - appeal dismissed.
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2023 (12) TMI 1014
Dismissal of application under Section 7 of IBC, for the resolution on the ground of limitation - the order was upheld by this Tribunal but the Hon’ble Supreme Court set aside the order of this Tribunal and remanded the appeal back to this Tribunal and restored the same, permitting the financial creditors (Bank) to file an application to amend Section 7 application - HELD THAT:- The fact remains that while allowing the appeal, the Hon’ble Supreme Court has remanded the appeal and restored the same to this Tribunal and permitted the present Respondent (FC) to make amendment in the application filed under Section 7 of the Code. It is no where mentioned by the Hon’ble Supreme Court that the application had to be filed before the Adjudicating Authority. Since, the matter was pending before the Adjudicating Authority at that time, after restoration of the appeal by the Hon’ble Supreme Court, the application has rightly been filed before this Tribunal for seeking amendment in Section 7 application.
In so far as, the allegation of the Applicant that some application was also filed before the Adjudicating Authority for amendment, firstly, it was only a memo and secondly, no proceedings were pending at that time before the Adjudicating Authority, therefore, the application has rightly been filed before this Tribunal where the proceedings were pending and there is no error in the statement made by Counsel which has been recorded in the order dated 11.01.2022 which is sought to be labelled as fraudulent.
As a matter of fact, the application under Section 7 was admitted on 05.06.2023 which was further challenged by the present applicant by way of an appeal i.e. CA (AT) (Ins) No. 184 of 2023 and dismissed with a detailed order on 16.10.2023, therefore, the only recourse available to the Appellant is to challenge the order dated 16.10.2023 by way of further appeal but in so far as the recalling application is concerned, it is totally misconceived and the same is thus hereby dismissed.
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2023 (12) TMI 1013
Oppression and mismanagement - Application for continuation of interim stay dismissed - appointment of a Chief Operating Officer - Article 69 of the Articles of Association of the Respondent No. 1 Company requiring unanimous consent of all directors - appointment of more than 1 (one) director on the board of Respondent No. 1 Company - Appointing an independent director on the board - Removing Respondent Nos. 4 to 6 from the Board of Directors of the Respondent No.1 Company and directing Respondent No. 2 Company to nominate 1 (one) person after providing and obtaining approvals of the credentials of such person - restraint from interfering with the day-to-day functioning and management of the affairs of the Respondent No. 1 Company - ensuring clear separation between the persons nominated on the board of the Respondent No. 1 Company or any other person having access to Respondent No. 1 Company and its information - Restraining Respondent Nos. 2 to 9, their principals/directors, their promoters, managers, assigns, successors-in-interest, licensees, franchisees, sister concerns, representatives, servants, distributors, agents, etc. and/or any person or entity acting for them from entering into any contract of supply/ services or otherwise with the Respondent No.1 Company - Section 241 & 242 of the Companies Act, 2013.
HELD THAT:- It is needless to mention that the main petition filed under Section 241 and 242 of the Act is pending for hearing on 01.02.2024. It is also borne out from the record that initially when stay was granted on 04.09.2023 it was observed that if the board of directors takes a decision to appoint Shri MSM Mujeebur Rahuman as COO, the said decision shall be kept in abeyance till 12.09.2023 and then the Appellant chose to file the application bearing I.A. No. 263 of 2023 in which the only prayer made is for extension of the order dated 04.09.2023. It is pertinent to mention that this order was extended by the Tribunal up to 28.11.2023 but by that time the appeal was filed not only the order became inoperative but also the Respondents appointed Dr. MSM Mujeebur Rahuman as COO who is working as such and no application has been filed until now about his act and conduct.
It is also a matter of fact that the Tribunal fixed the case for hearing on 05.12.2023 i.e one after the order dated 28.11.2023 was passed for the purposes of hearing the main petition in terms of the observation made in para 49 which is mentioned hereinabove, however, instead of arguing the case on merit itself on 05.12.2023 the Appellant got the main petition adjourned for 01.02.2024 on the pretext that the appeal has been filed which was only against an interim order.
In such a situation, where the court has to thoroughly scan voluminous record and also interpret various articles of the AoA, it would be just and expedient if the main petition itself is heard and decided, as proposed by the Tribunal who has rightly not made any observation about the interpretation of Article 69 which is the main plank of the argument of the Appellant in the interim application and the main petition, therefore, this appeal is disposed off with liberty to the Appellant to file an appropriate application before the Tribunal for preponement of the hearing from 01.02.2024 to an early date by making reference to Para 49 of the impugned order and in case any such application is filed, the Tribunal shall consider the said request and prepone the date of hearing and decide the main petition filed by the Appellant as early as possible.
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2023 (12) TMI 1012
Admissibility of Section 7 application - date of default in the Section 7 Application - bar u/s Section 10A of IBC - right of Debenture Holders to initiate proceedings under Section 7 of the Code - competency of Facility Acceleration Notice.
Whether the Application filed by the Financial Creditors under Section 7 of the Code was hit by Section 10A of the Code? - HELD THAT:- The Law is well settled that no application for initiating proceedings under Section 7 can be initiated for default which is committed during Section 10A period - It is well settled that when default is committed during Section 10A period and subsequent to Section 10A period, application is fully maintainable for any default subsequent to Section 10A period - The Application under Section 7 being filed for default which was on basis of default occurred subsequent to Section 10A period, it is opined that application was not hit by Section 10A.
Whether the Debenture Holders have right to initiate proceedings under Section 7 of the Code? - HELD THAT:- It is already noticed that Altico i.e. majority Debenture Holder has already initiated Section 7 proceeding hence all Debenture Holders were unanimous in their view to proceed against the Corporate Debtor and this Tribunal upheld the initiation of proceeding against the Corporate Debtor by the Financial Creditors.
Whether the Facility Acceleration Notice dated 30th May, 2021/31st May, 2021 was incompetent and not in accordance with Debenture Trust Deed dated 19th March, 2018? - In event, Facility Acceleration Notice dated 30th May, 2021/31st May, 2021 is held to be not in accordance with Debenture Trust Deed, whether the Application under Section 7 deserves to be dismissed? - Whether the Order passed by the Adjudicating Authority admitting Section 7 Application needs interference in this Appeal? - HELD THAT:- From the facts and sequence of events as noticed, it is clear that the facility acceleration notice issued by the Debenture Holders cannot be said to be in accordance with the Debenture Trust Deed. The notice was not issued by Debenture Trustee and issued by Debenture Holders - having held that Facility Acceleration Notice was not issued in accordance with the terms and conditions of Debenture Trust Deed, the next question to be considered is as to whether after the aforesaid holding whether the Section 7 Application deserves dismissal.
While noticing the clauses of Debenture Trust Deed, it is noticed that Debenture Trustee has to initiate proceeding after occurrence of event of default in pursuance of the approved instructions by the Debenture Holders has to be obtained in meeting with fifty percent vote share as per the clauses of Debenture Trust Deed as noticed above. The Financial Creditors who have filed Section 7 Application were minority debenture holders having only 29.8 percent. Majority Debenture Holder is the Altico Capital. In the Reply which has been filed by the Financial Creditors it has been pleaded that Altico the majority NCDs holder had already initiated proceeding under Section 7 of the Code against the Corporate Debtor - The fact remains that majority Debenture Holder having already initiated Section 7 Proceeding, all debenture holders are unanimous in their actions to proceed against the corporate debtor for the defaults committed. It is already held while considering Question no. i that application under Section 7 was not hit by section 10A since the application under Section 7 was not confined to the default committed during Section 10A period rather the Application was filed on the basis of date of default dated 01st June, 2021 consequent to Facility Acceleration Notice dated 30th May, 2021 and 31st May, 2021 as well as other defaults as explained in Section 7 Application.
If 1st June, 2021 is not taken as date of default, the default on the payment of interest after end of the 10A period i.e. after 24th March, 2021 there is clear default on the payment of interest and payment of default in the interest of both the Financial Creditors is more than Rs. 1 Crore which is threshold amount for filing of the Application under Section 7 - The tabular chart given in Exhibit K contains the details of interest accrued interest paid and interest outstanding even if we take period after 10A period i.e. period from 31st March, 2021 as mentioned in the tabular chart total overdue interest after 10A period is much more than threshold amount of Rs.1 Crore. Details of overdue interest has been captured in the tabular form in exhibit K - The date of default in payment of interest after there are several date of default in payment of interest after Section 10A period which is captured in the tabular form filed as Exhibit K in Part-IV of the Application, Financial Creditors have also filed the working for computation of the amount and days of default in tabular form thus the date of default cannot be confined only to date 1st June, 2021 as mentioned in Part-IV. The date of default which is mentioned in the tabular form cannot be ignored it is clear that there was default of more than Rs.1 Crore i.e. threshold period in payment of default by the Corporate Debtor after Section 10A period.
The above default is very much there even if the default is ignored on the basis of Facility Acceleration Notice dated 30th May, 2021/31st May, 2021 - even after Section 10A period there being default in payment of interest which was more than threshold amount, the Application under Section 7 deserves to be admitted - the order of the Adjudicating Authority admitting Section 7 Application need no interference in this Appeal.
Appeal dismissed.
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2023 (12) TMI 1011
Maintainability of appeal - appeal dismissed on the ground of being filed beyond the period of limitation - cessation of right of petitioner to get legitimate relief which involves a wide range of legal interpretations as well as involves the same question of law for the previous and subsequent assessment years, for which the same elucidation is involved - compliance with the principles of natural justice or not - HELD THAT:- Under normal circumstances this Court would not exercise any discretion in the matter on account of clear statutory mandate for fixing time limit for preferring an appeal before the Commissioner of Appeals. However, considering the fact that the appellant is a local authority and the issues which have been the subject matter of adjudication before the authority culminating in an order dated 24th August, 2017 are all recurring issues, the appellant, in our opinion, should be granted one opportunity to agitate their contentions so that a decision on merits is arrived at rather non-suiting the appellant municipality on a technical ground. This discretion cannot be exercised in all cases and this Court is of the view that the case on hand is a rare case where the municipality is contesting demand raised by the Service Tax Commissionerate. That apart, in all probabilities the appellant would have complied with the pre-deposit condition while preferring the appeal before the learned Tribunal.
The order passed by the learned Tribunal as well as the order passed by the Commissioner of Appeals is set aside and the appeal stands restored to the file of the Commissioner of Appeals, Siliguri - Appeal allowed.
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2023 (12) TMI 1010
CENVAT Credit - erection of transmission line towers - case of the appellant is the transmission towers which it had erected were for transmission of electricity and hence they are fully exempted - levy of penalty - HELD THAT:- The question is no longer res integra and it has been the consistent view in several precedent decisions that the expression ‘services relating to transmission of electricity’ in the two notifications has a wide ambit and includes the services of installation of transmission towers for electricity and no service tax is payable - reliance placed in the case of M/S. KEC INTERNATIONAL LTD. VERSUS COMMISSIONER OF CGST, GURGAON AND COMMISSIONER OF S.T., DELHI [2022 (8) TMI 992 - CESTAT CHANDIGARH].
As the entire service tax is exempted as no service tax has to be paid by the appellant. Consequently, the penalties imposed under sections 76, 77 and 78 of the Finance Act also cannot be sustained.
The impugned order is set aside - Appeal allowed.
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2023 (12) TMI 1009
Levy of service tax - Business Auxiliary service or not - commission paid by the appellants to the commission agents - reverse charge mechanism - Revenue neutrality - extended period of limitation - HELD THAT:- The appellants are manufacturers of tyres; they are clearing the tyres in the domestic market and are also exporting to other countries; they have appointed agents, overseas, to procure orders for such tyres; as per the orders confirmed by the agents, the appellants export the tyres and pay the agents a certain commission. The services rendered by agents abroad results in the export of the goods manufactured by the appellant. Thus, the services rendered by the agents are in the direction of promoting the business of the appellants. Undoubtedly, the business of the appellant is in India - It is found that the effect of the services rendered by the overseas agents, results in export of tyres by the appellant, which is their business; to this extent, it is found that the categorization of the services under “Business Auxiliary Service” is correct. Moreover, it cannot be said that the services are received abroad though, they are certainly performed outside India; as long as the recipient and his business are in India, it cannot be said that the said service is not received in India. Receipt of the service takes the colour of recipient of the service that is to say receipt of service is decided by the recipient. The services rendered by the agents are not a personalized service availed by the appellants on their visit to abroad; moreover, by no stretch of imagination, the appellant being a body corporate, services cannot be held to have been received and enjoyed overseas, as they have no place of business abroad. Understandably, the benefit of the service accrued to the business of the appellant in India and therefore, to that extent, receipt of the services is certainly in India and not abroad. To this extent, the contention of the Revenue is correct - there are no infirmity in the findings of the OIO and OIA to the extent that the appellants have received services from foreign agents who have procured order outside India against which they had supplied the goods and thus have rendered themselves liable to pay service tax on Reverse Charge Mechanism in terms of Section 66A of Finance Act, 1944 and the Taxation of Service (Provided from Outside India and Received in India) Rules, 2006.
Revenue neutrality - HELD THAT:- It is found that the Scheme of Service Tax and Excise Duty work on the principle of a chain of paying the duty and availing the credit. It is not correct to argue that the service tax paid could have been availed as credit and therefore, non-payment of service tax has not made any material difference to the Revenue. The principle of netting of duty is not in operation. For a smooth flow of goods and seamless procedures, a system of payment of duty and availing credit has been put in place. Breaking of this chain for whatever logic would entail in chaos which is neither a principle envisaged nor an intended result under the Scheme of taxation.
Extended period of limitation - HELD THAT:- It is apparent from the records that the appellant and the Department were in constant correspondence and litigation in this regard. Thus Revenue has not made out any case for invocation of the extended period. Therefore, we are of the considered opinion that extended period cannot be invoked to this extent.
Both the appeals are partially allowed to the extent of limitation - it is held that the demands be restricted to the normal period; however, penalties imposed on the appellants are set aside - appeal allowed in part.
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2023 (12) TMI 1008
Levy of service tax - business auxiliary service or not - overseas Banks has deducted certain Bank charges from the export realization of the appellant’s export of goods while remitting the export proceeds to the Indian Bank of the appellant - applicability of reverse charge mechanism - HELD THAT:- In the present case undisputed fact is that the bank charges deducted by the Foreign Bank while remitting the export proceed received from the Foreign Country to the exporters Indian Bank was demanded Service Tax - it is found that there is no contract or understanding between appellant and the Foreign Bank. The appellant being exporter of goods is exclusively dealing with Indian Bank i.e HDFC Bank of the appellant. In such case if any charge is collected by the Indian Bank from the appellant the said activity would be liable to Service Tax that too in the hands of the Bank. In the present case the dealing is clearly between the Foreign Bank and Indian Bank, therefore in such case the appellant is not a service recipient of the Bank charges collected by the Foreign Bank from the payment remitted to the Indian Bank.
The Indian Bank has only collected such charges from the appellant as a reimbursement which was born by the Indian Bank while transacting with the Foreign Bank. Therefore, the appellant even though bearing the charges as a reimbursement the same cannot be said to be service charges - in the present case the demand of Service Tax was raised under the head of BAS which is absolutely incorrect. Therefore, on this count also the demand of Service Tax will not sustain.
The impugned order set aside - appeal allowed.
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2023 (12) TMI 1007
Classification of services - technical inspection and certification service - activity of X-Ray of pipeline - HELD THAT:- As per the definition of inspection and certification service, apart from inspection, certification is also required whereas in the present case there is no certification found on record therefore on that basis the activity of X-Ray on the material cannot be classified as inspection and certification charges - the submission of the learned Counsel is also convincing that since the service was provided along with material it is classifiable as works contract service.
The service is similar to the photography service and in M/S. JAIN BROTHERS & M/S. PUNJAB COLOUR LAB. VERSUS CCE, BHOPAL [2008 (11) TMI 58 - CESTAT, NEW DELHI] and COMMISSIONER OF CENTRAL EXCISE, RAIPUR VERSUS AJANTA COLOR LABS [2008 (12) TMI 135 - CESTAT NEW DELHI] in case of photography, since it is provided along with material. It was held that the service is qualified as works contract service - Applying the ratio of the said judgment, we are of the view that the service in the present case is qualified as works contract service, for this reason also the demand under wrong head i.e inspection and certification service will not be sustainable.
The demand in the present case is not sustainable on multiple counts - the impugned order is set aside - Appeal allowed.
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2023 (12) TMI 1006
Recovery of Service Tax - collection of service charge from the customers besides the price of the food - no show charges (amount forfeited advance as was received for providing accommodation service) - extended period of limitation.
Whether the service charges collected besides the price of the food while rendering the restaurant service, the appellant was liable to pay tax on the said amount? - HELD THAT:- It is an admitted fact that the amount in question is received by the appellant while providing the restaurant service from their customers/recipients of the said service. In the light of section 67 as recorded above, it shall be the amount as part of consideration received for rendering the taxable service. Though the defence taken by the appellant is that they were not retaining this amount and were distributing the same among the hotel staff, hence, they were not liable to pay service tax of this amount - service tax in case of supply of food etc. in restaurant is being charged on abatement basis on the amount collected by the provider of restaurant service from the recipients thereof the TRU Circular No.334/3/2011 dated 28.02.2011 has also been referred, wherein it has been held that separation of certain portion of the bill as service charge will not represent the full value of all services rendered by the restaurants - there are no infirmity in those findings in the order under challenge when the demand of Rs.1,73,211/- on service charges has been confirmed by the Commissioner (Appeals). This issue is decided confirming appellant liability to pay service tax on service charges collected besides the price of food.
Whether the amount of „no show charges‟ i.e. the amount forfeited advance as was received for providing accommodation service, is the consideration for providing the declared service by the appellants? - HELD THAT:- In the present case admittedly there is no separate fee or charges recovered by the appellant from the customers/ recipients of hotel accommodation service, for not being appearing to attend the said service. There was no express nor implied contract for non-appearance for availment of accommodation service between the parties. The consideration was paid by the recipient only for accommodation service on which the service tax liability was duly discharged. This issue about forfeiture of the amount received by a hotel from a customer on cancellation of the booking whether to be liable to pay service tax under section 66 E (e) has already been dealt with by this Tribunal in the case of Lemon Tree Hotel [2019 (7) TMI 767 - CESTAT NEW DELHI], South Eastern Coalfields Ltd. [2020 (12) TMI 912 - CESTAT NEW DELHI] the Tribunal has held that the retention of amount on cancellation would not attract service tax under 66E (e) - the adjudicating authority below has wrongly held the „no show charges‟ as a consideration for providing declared service.
Whether demand is barred by limitation and the penalty need to be waived in the given facts and circumstances? - HELD THAT:- The demand in question pertains to the period from July, 2012 to September, 2015 and the Show Cause Notice is of April 2016. Resultantly the major demand i.e. from July, 2012 to March, 2015 is the demand for the extended period. And that extended period should not have been invoked by the Department - Since the issue is observed to be an interpretational, imposition of penalty is also not warranted in the given circumstances.
As a result of findings on three of the issues, except for the miniscule demand for the period w.e.f. April 2015 to September 2015 i.e. for the normal period, that too, on the amount of service charges collected, the entire demand is hereby set aside - Appeal stands, accordingly, partly allowed.
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2023 (12) TMI 1005
Classification of services - Erection Installation of Scaffolding - manpower supply/recruitment agency service or Erection Installation and Commissioning Service? - abatement claim - taxability of service provided to Reliance Industries Ltd. (SEZ) Jamnagar - levy of service tax on differential value arising between the figure shown as credit of service charge in the books of accounts and ST-3 return on account of credit shown twice once against receipt of service charge and second the value taken from 26-AS - Time Limitation.
HELD THAT:- From the contract order of Leo Coats (I) Private Limited, it is clear that the appellant has provided the service of Scaffolding, Erection and Dismantling. From the nature of the service, there is no doubt that the service does not fall under the Man-power recruitment or supply agency service. Moreover, the job is not on the basis of man hour or number of man power but it is on the quantum of work and the rate is also as per cubic meter of Scaffolding, Erection & Dismantling, therefore, the service is undisputedly does not fall under Manpower Agency Service but falls under Erection Installation & Commissioning Service. The Appellant considering the service as Manpower Recruitment & Supply Agency Service, availed the abatement of 75% and paid the service tax only on 25%. However it is not in dispute that on 75% of the Service provided by the appellant, the service recipient has discharged the service tax, which is clear from the work contract as well as the confirmation given by M/s Leo Coats (I) Private Limited.
The appellant’s service is classifiable under Erection Installation & Commissioning Service but the fact remains that on the entire service the service tax was paid i.e. 25% by the appellant and on 75% by the service recipient. Since the entire service has suffered the service tax only for technical reason the department has no right to demand the service tax twice, therefore, on this ground, the service tax demand on the basis of is not sustainable. This issue has been considered time and again and in the following judgments, it has been held that service tax cannot be demanded twice even though the person who is liable to pay the service tax has not discharged the service tax but some other person has discharged the service tax on the same service.
It is settled that once the service has suffered the service tax irrespective of anyone paid the service tax, the service tax cannot be demanded twice. Therefore, we hold that in respect of Erection Installation Commissioning Service, the service tax demand is not sustainable. Hence the same is set aside.
Service provided to Reliance Industries Limited (SEZ) Jamnagar Unit - HELD THAT:- It is a settled law and even as per the SEZ Act, that any service provided to SEZ is exempted from payment of service tax. In this regard in the case of CCE Patna vs Advantage Media Consultant, [2008 (3) TMI 59 - CESTAT KOLKATA], it was held When the amount is collected for the provision of services, the total compensation received should be treated as inclusive of service tax due to be paid by the ultimate customer of the services unless service tax is also paid by the customer separately. When no tax is collected separately, the gross amount has to be adopted to quantify the tax liability treating it as value of taxable service plus service tax payable - the service tax demand on the service provided to SEZ is not sustainable.
Time Limitation - HELD THAT:- It is found that in the submission of the appellant that the show cause notice has not expressly alleged any ingredient such as suppression of fact, misdeclaration, fraud, collusion etc with intent to evade payment of duty, the extended period cannot be invoked. Moreover, the appellant is a registered unit, was paying service tax on 25% of the service charges and were filing regular ST-3 Returns, therefore, it is not found any suppression of fact on the part of the appellant. Accordingly, the remaining payment being covered under extended period, will not sustain. Hence, the same is set aside on the ground of time bar.
The service tax demand is not sustainable. Hence, the same is set aside. Appeals are allowed.
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2023 (12) TMI 1004
Non-payment of service tax - providing non-scheduled operation of aircraft for the period upto 30.11.2009 by making the services of aircraft available to various entities for travelling to places in India pre-fixed and pre-intimated on payment of charges, based on duration and destination - suppression of facts or not - invocation of extended period of limitation - HELD THAT:- In Pushpam Pharmaceuticals Company [1995 (3) TMI 100 - SUPREME COURT], the Supreme Court examined whether the Department was justified in initiating proceedings for short levy after the expiry of the normal period of six months by invoking the proviso to section 11A of the Excise Act. The proviso to section 11A of the Excise Act carved out an exception to the provisions that permitted the Department to reopen proceedings if the levy was short within six months of the relevant date and permitted the Authority to exercise this power within five years from the relevant date under the circumstances mentioned in the proviso, one of which was suppression of facts. It is in this context that the Supreme Court observed that since “suppression of facts’ has been used in the company of strong words such as fraud, collusion, or wilful default, suppression of facts must be deliberate and with an intent to escape payment of duty.
Mere suppression of facts is not enough and there must be a deliberate and wilful attempt on the part of the assessee to evade payment of duty. In the absence of any intention to evade payment of service tax, which intention should be evident from the materials on record or from the conduct of the assessee, the extended period of limitation cannot be invoked. Thus, mere non disclosure of the receipts in the service tax return would not mean that there was an intent to evade payment of service tax.
This issue was also examined at length by this Bench in M/s G.D. Goenka Private Limited vs. The Commissioner of Central Goods and Service Tax, Delhi South [2023 (8) TMI 995 - CESTAT NEW DELHI] and after referring to the provisions of section 73 of the Finance Act, the Bench observed Suppression of facts has also been held through a series of judicial pronouncements to mean not mere omission but an act of suppression with an intent. In other words, without an intent being established, extended period of limitation cannot be invoked.
The impugned order dated 31.01.2018 passed by the Commissioner (Appeals) is, accordingly, set aside - Appeal allowed.
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2023 (12) TMI 1003
Levy of service tax - Construction of Residential Complex services (CRC) - Commercial or Industrial construction (CIC) - demand prior to 1.6.2007 - HELD THAT:- The contracts are entirely composite in nature involving both element of service as well as supply of goods. The Hon.’ble Supreme Court in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT] has held that the demand of service tax on composite contracts cannot be made prior to the introduction of WCS (1.6.2007). Following the said decision, it is opined that the demand prior to 1.6.2007 requires to be set aside.
After the period 1.6.2007 the department has raised the demand under the category of Construction of Residential Complex services and Construction of Commercial or Industrial Construction services - HELD THAT:- The said demand cannot sustain for the reason that the contracts involved are again, composite in nature, involving both rendering of services as well as supply of goods. The Tribunal in the case of Real Value Promoters Pvt. Ltd. and Others Vs. CGST and Central Excise, Chennai [2018 (9) TMI 1149 - CESTAT CHENNAI] had observed that even after 1.6.2007 the demand of service tax on composite contracts has to be under works contract services and the demand under Construction of Residential Complex services or Commercial and Industrial Construction services cannot sustain.
The decision rendered by the Tribunal in the case of Real Value Promoters was followed by the Tribunal in the case of Jain Housing and Construction Ltd. Vs. CST [2018 (9) TMI 1149 - CESTAT CHENNAI] In the said decision, the Tribunal set aside the demands raised under Residential Complex Services observing that the demand raised under such services after 1.6.2007 on composite contracts cannot be sustained.
The demands raised under construction of Residential Complex Services and Commercial or Industrial Construction Services for the disputed period cannot be sustained and requires to be set aside - the impugned order is set aside - appeal allowed.
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2023 (12) TMI 1002
Recovery of Central Excise Duty alongwith interest and penalty - Onus to prove - conditions imposed in N/Ns. 4/97-CE, 5/98-CE, 5/99-CE, 6/00-CE were satisfied or not - failure to discharge the onus of proving that the two conditions mentioned in the said Notifications, namely, that the goods in question had to be sold to the apex bodies by the respondent and that a certificate should be issued from the said apex bodies to the respondent at the time of the clearance of goods that the said goods were going to be used only on handloom had been satisfied - whether or not the role of the apex bodies was in the nature of selling or commission agents and not that of direct purchasers of the said goods from the Respondent.
HELD THAT:- It is undisputed that the respondent/assessee is a co-operative spinning mill which manufactured the yarn in question. The two co-noticees namely Tantuja and Tantusree are also apex handloom co-operative societies of the State Government who purchased yarn and also gave certificate that the yarn is going to be used only on handlooms. The respondent/assessee received payments from the aforesaid two purchasers namely Tantuja and Tantusree, by account payee cheques. The inference drawn by the adjudicating authority to deny exemption under the relevant exemption notification, that delivery of yarn was given by the respondent/assessee to persons other than Tantuja and Tantusree, is neither based on any material or evidence nor the inference so drawn can be said to be a valid exercise of power by the adjudicating authority - on admitted facts of the case, it is found that the respondent/assessee has fully complied with the conditions of the relevant exemption notification. Therefore, the Tribunal has correctly and lawfully set aside the adjudication order and allowed the appeal of the respondent/assessee.
Undisputedly, the yarn in question has been purchased by the co-noticees namely Tantuja and Tantusree, which both are registered apex handloom co-operative societies, who made payment to the respondent/assessee (yarn manufacturing co-operative society) through cheque drawn by them on their own bank accounts. They have also issued a certificate to the effect that the yarn is going to be used only on handlooms. Thus, all the conditions of the exemption notification in question were satisfied by the respondent/assessee. Therefore, the respondent/assessee was entitled for exemption and the Tribunal has lawfully and correctly allowed the appeal of the respondent/assessee holding the transactions in question to be exempt from Central Excise Duty.
The adjudicating authority had proceeded to deny exemption to the respondent/assessee merely on the basis of surmises and presumptions and alleged intendment. In our view and as per well-settled principles in a taxation statute, there is no room for any intendment and that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification - Nothing is required to be read into nor should anything be implied other than essential inference while considering a taxation statute or exemption notification.
What the adjudicating authority attempted to do is that it attempted to read something which was either factually not existing or which was not provided by the exemption notification. It attempted to add words by drawing its own inference on the basis of presumption that the yarn in question could have been sold by the respondent/assessee not to the aforesaid apex handloom co-operative societies but to some other persons - Since the respondent/assessee has fulfilled all the conditions, therefore, it became entitled for exemption and the exemption could not have been denied.
There are no manifest error of law in the impugned order of the tribunal. The appellant has completely failed to make out any case for interference with the impugned order - substantial questions of law framed are answered in favour of the assessee and against the respondent.
There are no merit in this appeal - appeal dismissed.
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2023 (12) TMI 1001
Application seeking restoration of appeal - non-prosecution of the case - seeking change in the cause title - non-inclusion of value of the said moulds, dies charged to respective buyers of the forgings separately in the assessable value - Availment of CENVAT Credit.
Application seeking restoration of appeal - non-prosecution of the case - seeking change in the cause title - HELD THAT:- For the mistake of the counsel in not intimating the Tribunal about the change of name and address on merger with M/s. Kems Forgings Limited, the appellant cannot be penalised - Considering the submissions of the appellant supported by affidavit filed by the Managing Director of the company, in the interest of justice, the miscellaneous application seeking restoration of the appeal dismissed earlier for non-prosecution vide order dt. 20.08.2019 is allowed and the said order is recalled and appeal is restored to its original number. Also, the miscellaneous application seeking change of cause title from M/s. Sree Lakshmi Forge & Engineers Ltd., to M/s. Kems Forgings Ltd. on the basis of the certificate issued by the Registrar of Companies dated 14.07.2011 is allowed and the appellant’s cause title is changed from M/s. Sree Lakshmi Forge & Engineers Ltd., to M/s. Kems Forgings Ltd. Registry is directed to make necessary changes regarding cause title and address in the records as well as database.
Short payment of duty - non-inclusion of value of the said moulds, dies charged to respective buyers of the forgings separately in the assessable value - Section 4 of the Central Excise Act, 1944 - HELD THAT:- Initially, in the demand notice, the entire cost of the dies / jig fixtures proposed to be included assuming that the same have been used in the manufacture of forgings and its cost has been recovered from the customers. However, no evidence has been placed in this regard in spite of two rounds of litigation before the adjudicating authority. The learned Commissioner (Appeals) has now erred in remanding the matter to examine the issue of inclusion of the amortised cost of dies in the value of the forgings without analysing the evidence on the allegation of receipt of additional cost of the dies / blocks or inserts by showing separately in the invoice without payment of duty - the cost/value of the inserts, which are fixed with the blocks of the appellant and exhausted during the course of manufacture of forgings cannot be included as no evidence has been placed on record indicating that the same are recovered separately along with the value of the forgings. Thus, the finding of the learned Commissioner (Appeals) remanding the matter to add the amortised cost of the dies / blocks to the transaction value of forgings is erroneous; hence cannot be sustained.
Availment of CENVAT Credit - HELD THAT:- The invoices were raised on their account and the materials were shipped to the appellant and have been received as indicated in their material receipt register (pages 52 to 59 of the appeal paper book), the relevant transport receipts from the supplier M/s. Mahindra Intertrade Ltd. A/c of Sree Lakshmi Industrial Forge & Engineers Limited have been placed. The said goods are duly accounted for in their stock register. They have cleared the said goods later and necessary invoices are raised for clearance the goods ‘as such’ in favour of M/s. Southern Steel & Forgings Ltd. The receipt and corresponding clearance invoices in respect of M/s. Southern Steel & Forgings Ltd. are enclosed with the appeal (pages 32 to 51); hence it is sufficient to accept that the materials were received and utilized in the premises of the appellant - there are no reason to deny the cenvat credit on the basis of the aforesaid documents and to remand the matter to the original authority to examine the evidences enclosed, when the same had not been examined in the two rounds of adjudication before the original authority.
Consequently, another remand to verify the cenvat credit documents would not yield any fruitful result - the impugned order is set aside - appeal allowed.
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2023 (12) TMI 1000
CENVAT Credit - inputs - capital goods - structural steel items (plates falling under Chapters 69, 72, 73, 84 and 85) as part of modernization of the plant as well as their existing unit - Ld. Commissioner has denied the credit on the 'plates' mainly on the ground that they fall under Chapter 72 of the Central Excise Tariff, which are excluded from the definition of 'Capital goods' - HELD THAT:- In the impugned order credit has been denied on many items which are classifiable under Chapter 84 and 85 also. They fall under the definition of ‘capital goods’ under Rule 2(a) of the CCR, 2004 and hence they are entitled for the credit as 'Capital goods'.
Remaining credit availed on goods falling under Chapters 72, 73 and 74 - HELD THAT:- The impugned order has erroneously held that the ‘plates’ are used in factory shed, construction of building foundation etc. and dismissed the CE certificate furnished by the Appellant. The CE certificate certifies the end use of such plates by the Appellant viz. plates were used as components, parts or accessories of Kiln, Milling Machine, Coke Oven Gas, Pollution Control Equipment, Storage Tank, Kiln, etc. - the adjudicating authority has not given any valid reason for rejecting the CE certificate. Further, in this case the plates were not used as building materials for constructing factory shed, etc. They are used in construction of machinery, which are capital goods. Therefore, the credit on such plates cannot be denied.
The impugned order has relied upon Notification No. 16/2009-CE (NT) dated 7.7.2009 which amended explanation 2 to Rule 2(k) of the CCR, 2004 to specifically exclude angles, channels, TMT bards used for construction of factory and laying of foundation or making of structures for support of capital goods - the 'plates' are inputs for the capital goods and hence they are eligible for the credit availed on the 'plates' as 'inputs' - the demand confirmed in the impugned order is not sustainable. Since the demand itself is not sustainable, the question of demanding interest or imposing penalty does not arise.
The impugned order set aside - appeal allowed.
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