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2019 (7) TMI 2029 - BOMBAY HIGH COURT
Entitlement of secured and unsecured creditors in a liquidation case - entitlement to enforce their full claim on the basis of the certificate under Section 19(22) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - HELD THAT:- It is not in dispute that the amount which is lying in deposit with the bank through the Company Court will have to be sent to the Recovery Officer for disbursement. However, looking to the dispute between the secured creditors regarding their unsatisfied claims and the objection raised by the unsecured creditors regarding their entitlement and the claims made by the unsecured creditors, in my view, it would be appropriate at this stage to direct the Recovery Officer to ascertain the entitlement of the secured creditors and the unsecured creditors keeping in view the priorities as per Section 529A of the Companies Act, 1956 and Section 31B of the RDB Act.
For the purpose of provisional determination of the entitlement of the secured creditors and unsecured creditors, the Recovery Officer shall consider that the amount of Rs.20,00,00,000/- is available for disbursement.
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2019 (7) TMI 2028 - CESTAT BANGALORE
Refund of the excess credit reversed by them in terms of Rule 6 of CCR 2002/2004 as Rule 6 was amended retrospectively vide Sections 72 and 73 of the Finance Act, 2010 - recovery of interest.
Whether the appellants are entitled for refund of excess credit reversed by them? - HELD THAT:- The issue of restoring the credit by the appellants where credit has been reversed in excess has been settled in favour of the appellants. It is not the case of the Department that the credit or duty for that matter requires to be paid twice. The appellants have reversed the credit before the order of the confirmation of reversal in view of Hon’ble Supreme Court’s judgment in the case of Ballarpur Industries [1989 (9) TMI 102 - SUPREME COURT]. The appellants have demonstrated that they have only availed the credit and have not utilised it. As longs as the credit is not utilised, the entries in the register are just book entries and by no stretch of imagination can be treated as duty paid so as to invite the provisions of Section 11B of CEA 1944. The Assistant Commissioner himself has found that provisions of unjust enrichment are not applicable in such cases. In view of the judgment cited, the appellants are entitled to take recredit of the excess reversal.
Whether they are liable to pay interest on the amount held to be reversable by the learned Commissioner? - HELD THAT:- In view of the wordings of Rule 14 of CCR, payment of interest, if any, comes into play only when the credit is utilised. As the appellants have successfully demonstrated the credit is not utilised, the payment of interest is not warranted.
Appeal allowed.
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2019 (7) TMI 2027 - JHARKHAND HIGH COURT
Levy of penalty imposed on a truck driver for discrepancies in a road permit while transporting goods - in the road permit, the truck number was not mentioned and the truck had entered through the different entry point in the State of Jharkhand - violation of Section 72 (3) (a) of the Jharkhand Value Added Tax Act and Rule 42(2) framed therein - HELD THAT:- According to the road permit, which was issued on 01.01.2016, the consignment was shown to have left the destination on 01.01,2016 itself. By no stretch of imagination it could have taken more than one day to reach the entry point at Jharkhand, where the consignment was apprehended, which, as per the order passed by the Appellate Authority, was at a distance of only about 270 Kms - The order of the Appellate Authority shows that there is difference in the amount shown in the tax invoice as also in the 'Sugam G'. Even in the tax invoice, the number of the vehicle is missing.
In that view of the matter, it could not be held that the non-mentioning of the vehicle number in the tax invoice or in the 'Sugam G' road permit, was not with the intention to evade the tax, and since the vehicle was found to be entering the State of Jharkhand through a different entry point, that too after inordinate delay from the date of dispatch without any reasonable cause, the chances of the deliberate attempt to evade the tax liability, could not be ruled out. The form 'Sugam G' is statutory in nature, having been prescribed to ensure prevention of evasion of tax liability, and in such cases the strict compliance of the mandates of law are required to be followed, to avoid any reasonable apprehension of evasion of tax liability.
There are no merit even in the submission of learned counsel for the petitioner, that reasonable opportunity of hearing was not given to the petitioner. The notice to appear before the Commercial Taxes Officer, was served upon the petitioner personally, five days in advance, and by no stretch of imagination it could be held to be insufficient time given to the petitioner.
There are no illegality in the impugned orders passed either by the Commercial Taxes Officer, or the Appellate Authority, or even by the Tribunal, confirming the penalty imposed upon the petitioner, being the driver of the truck, carrying the consignment, with the defective road permit - application dismissed.
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2019 (7) TMI 2026 - ITAT SURAT
Reopening of assessment u/s 147 - proceedings made after completing of 4 years - AO had received information from Investigation Wing Mumbai as assessee had indulged in bogus transaction - HELD THAT:- As in the case of Amit Polyprints (P) Ltd. [2018 (5) TMI 1845 - GUJARAT HIGH COURT] wherein it was held that where reassessment proceedings were initiated on the basis of information received for Investigation Wing that the assessee had received certain amount from shell companies working as an accommodation provider, reassessment could not be held unjustified.
Similarly, in the case of Aradhna Estate (P) Ltd. [2018 (2) TMI 1534 - GUJARAT HIGH COURT] held that where reassessment proceedings were initiated on the basis of information received from Investigation Wing that the assessee had received certain amount from shell companies working as an accommodation entry provider, merely because these transaction were scrutinized by AO during original assessment, reassessment could not be held unjustified.
AO has in his possession a credible information that income chargeable to tax has escaped assessment hence proceedings u/s. 147 r.w.s.148 has been correctly initiated. Therefore, the contention and arguments raised by the learned counsel for the assessee are not sustainable in law. Accordingly, the validity of reopening of assessment is held to be sustainable in law, and therefore, upheld. Consequently, Ground No. 1 of the appeal is therefore, dismissed.
Estimation of income - bogus purchases - HELD THAT:- We observe that the assessee has failed to substantiate the purchases by not producing the parties in question and admission of the party that they have indulged in providing bogus accommodation entries - In the light of above facts and circumstances and considering the net profit of 5% as the average rate of the industry as observed as in the case of Mayank Diamonds Pvt. Ltd. [2014 (11) TMI 812 - GUJARAT HIGH COURT] we deem it fit to restrict the addition to 5% of total bogus purchases. Accordingly, addition @ 5% is sustained as against the addition sustained by the Ld. CIT(A) and balance is deleted. Accordingly, Ground No. 2 to 4 of appeal of the assessee are therefore, partly allowed.
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2019 (7) TMI 2025 - ITAT SURAT
Reopening of assessment u/s 147 - bogus purchase received - credible information from the DGIT (Inv.), Mumbai, indicating that the assessee had received accommodation entries - HELD THAT:- The sufficiency of material at this stage in determining whether commencement of proceedings u/s 147(a) was valid, what was to be seen was only the prima facie material; the sufficiency or correctness of the material was not a thing to be considered at that stage.
In the case of Phool Chand Bajrang Lal [1993 (7) TMI 1 - SUPREME COURT] held that one of the purposes of section 147 is to ensure that a party cannot get away by willfully making a false or untrue statement at the time of the original assessment and when that falsity comes to notice, to turn around and say: "You accepted my lie, now your hands are tied and you can do nothing." It would be a travesty of justice to allow the assessee that latitude. further relied in the case of Pramamount Communication (P.) Ltd. [2017 (7) TMI 621 - SC ORDER] affirming the judgement of Paramount Communication (P.) Ltd. [2017 (4) TMI 188 - DELHI HIGH COURT] held that Information regarding bogus purchase by assessee received by DRI for CCE which was passed on to the revenue authorities was “tangible material on record “to initiate valid reassessment proceedings.
Our view is further supported by the judgement of Amit Polyprints (P) Ltd. [2018 (5) TMI 1845 - GUJARAT HIGH COURT] wherein it was held that where reassessment proceedings were initiated on the basis of information received for Investigation Wing that the assessee had received certain amount from shell companies working as an accommodation provider, reassessment could not be held unjustified.
In the case of Aradhna Estate (P) Ltd. [2018 (2) TMI 1534 - GUJARAT HIGH COURT] held that where reassessment proceedings were initiated on the basis of information received from Investigation Wing that the assessee had received certain amount from shell companies working as an accommodation entry provider, merely because these transaction were scrutinized by AO during original assessment , reassessment could not be held unjustified.
AO has in his possession a credible information that income chargeable to tax has escaped assessment hence proceedings u/s. 147 read with section 148 of the Act has been correctly initiated. Therefore, the contention and arguments raised by the learned counsel for the assessee are not sustainable in law. Accordingly, the validity of reopening of assessment is held to be sustainable in law, and therefore, upheld. Consequently, Ground No. 1 of the appeal is therefore, dismissed.
Estimation of income - bogus purchases - HELD THAT:- As decided in Deluxe Diamonds [2018 (4) TMI 1892 - ITAT SURAT] wherein the Tribunal has restricted the estimation of 5% of bogus phases and not of entire purchases disclosed in books of accounts by the assessee by following decision of Mayank Diamonds Pvt. Ltd [2014 (11) TMI 812 - GUJARAT HIGH COURT] Therefore, in the light of above facts and circumstances and considering the net profit of 5% as the average rate of the industry as observed by the Hon`ble Jurisdictional High Court and following the judicial pronouncements by the Co-ordinate Bench of Tribunals and the decision in the case of Mayank Diamonds Pvt. Ltd [2014 (11) TMI 812 - GUJARAT HIGH COURT] we deem it fit to restrict the addition to 5% of total bogus purchases Accordingly, addition @ 5% is sustained as against the addition sustained by the CIT (A) and balance is deleted. Accordingly, Ground of the assessee are therefore, partly allowed.
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2019 (7) TMI 2024 - SUPREME COURT
Suit for specific performance of agreement - scope of interference in second appeal in Punjab and Haryana, governed by Section 41 of the Punjab Act - Dhanwant Singh was the attorney to act on behalf of the Appellant or not.
Scope of interference in second appeal in Punjab and Haryana is governed by Section 41 of the Punjab Act - HELD THAT:- The effect of the Constitution Bench judgment in Pankajakshi [2016 (2) TMI 1063 - SUPREME COURT] is that in second appeal, the scope of interference within the Punjab and Haryana High Court would be the same as Code of Civil Procedure existed prior to 1976 amendment. The provisions of Section 41 of the Punjab Act and of Section 100 of the Code of Civil Procedure are pari materia.
In a judgment, reported in Kshitish Chandra Bose v. Commissioner of Ranchi [1981 (2) TMI 251 - SUPREME COURT] three Judges, of this Court held that the High Court has no jurisdiction to entertain second appeal on findings of fact even if it was erroneous.
The jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable the error may seem to be. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact.
Dhanwant Singh was power of attorney holder or not - HELD THAT:- The learned first appellate court has returned a finding that the Plaintiff was ready and willing to perform the contract and that the Defendants cannot take plea that they were not aware that Dhanwant Singh was power of attorney holder. Therefore, the findings recorded by the first appellate court cannot be said to be contrary to law which may confer jurisdiction on the High Court to interfere with the findings of fact recorded by the first appellate court.
In respect of financial capacity, it has come on record that the sale deeds were executed by Randhir Kaur prior to January 30, 2005 for making payment to the Defendants to execute the sale deed as per terms and conditions of the agreement. Therefore, the High Court was not within its jurisdiction to interfere in second appeal only for the reason that on the date of agreement, there was no specific power of attorney in favour of son of the Plaintiff, Dhanwant Singh.
The High Court's judgment is set aside and the decree of the lower appellate court is restored, granting the Appellant two months to pay the balance sale consideration. The Defendants were directed to execute the sale deed upon receiving the amount, failing which the Plaintiff could deposit the amount with the executing court and seek execution of the decree.
Appeal allowed.
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2019 (7) TMI 2023 - DELHI HIGH COURT
Grant/release of full and final reward - HELD THAT:- It is pointed out that the Division Bench of this Court (of which the undersigned was a member) had rendered a judgment in RANNU DEVI AND ANOTHER VERSUS CHAIRMAN, CENTRAL BOARD OF EXCISE AND CUSTOMES AND OTHERS [2014 (6) TMI 518 - DELHI HIGH COURT] accepting the petitioners’ entitlement for a reward as informers under the relevant policy - This Court had also noted that the interim reward had already been granted by the department to some of its officers and had left it to the concerned authorities to exercise their discretion to pass appropriate orders regarding disbursement of interim award to the petitioners.
The grievance of the petitioners is that they are not aware of the status of the appeal, as no details have been provided. In view of the above, the respondents are directed to communicate the details of the appeal preferred by the assessee.
Petition allowed.
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2019 (7) TMI 2022 - ITAT DELHI
Violation of principle of natural justice - lack of cross examination provided - addition made on the basis of the information received from the Investigation Wing - HELD THAT:- Issue decided in favour of assessee as relying on case of Amitabh Bansal [2019 (2) TMI 1132 - ITAT DELHI] in which exactly similar issue has been dealt by the Tribunal and decided that when revenue strongly relies on statements of certain persons to implicate an assessee, principle of cross examination has to invariably followed if truth and justice needs to be found out, which has not been done in the case of the assessee.
Thus the issue of cross examination in dispute is squarely covered in favour of the assessee by the findings of the Tribunal, as reproduced above. Appeal of the assessee is allowed.
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2019 (7) TMI 2021 - DELHI HIGH COURT
Application for recall of an ex-parte under Order IX Rule 13 of the Code of Civil Procedure, 1908 allowed - defendant's failure to lead the evidence or appear was not on account of his own default - suit for recovery of the price of goods sold to the respondent - HELD THAT:- The Trial Court has been persuaded by the defendant's argument that the defendant and his counsel were not in communication when the defendant was in judicial custody. However, the facts regarding his having applied for certified copies of the decree during this period, and having appeared for the defendant on atleast two occasions before the Supreme Court, belie the stand taken by the defendant.
It is also significant that, even during this period, an application was filed in March, 2016 for reopening the defendant's evidence, which had been closed in October, 2015. This application was filed by a pairokar of the defendant and shows that the defendant was in a position to participate in judicial proceedings even at that stage.
This is a fit case for exercise of jurisdiction under Article 227 of the Constitution, against the order of the Trial Court invoking its powers under Order IX Rule 13 of the CPC.
The impugned order is set aside - petition allowed.
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2019 (7) TMI 2020 - GUJARAT HIGH COURT
Seeking grant of Regular Bail - offence punishable under Sections 132(1)(A) (B)(C)(D) of Central Goods and Services Tax Act, 2017 by Assistant Commissioner of State Tax, Unit 99, Jamnagar - HELD THAT:- Having heard the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.
The applicant is ordered to be released on regular bail on fulfilment of conditions imposed - bail application allowed.
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2019 (7) TMI 2019 - MADHYA PRADESH HIGH COURT
Validity of order passed by the Settlement Commission - Revenue submits that the Settlement Commission has wrongly allowed deductions u/s 80-IA (4) as the returns were filed after the period prescribed by law - HELD THAT:- It is observed that the issue of filing of returns after the date prescribed by law was taken up by the respondent before this Court in M/S DILIP BUILDCON LTD. VERSUS UNION OF INDIA & OTHERS [2016 (7) TMI 215 - MADHYA PRADESH HIGH COURT] allowed the petition setting aside the order passed by the Central Board of Direct Taxes and condoned the delay on the part of the respondent in filing returns.
Admittedly, the order passed by this Court [supra] has attained finality as the same has not been assailed or challenged by the petitioner before any higher Court. Thus the issue regarding delay in filing the return does not survive and has been finally settled in favour of the respondent.
In view of the order passed by this Court, the contention of the learned counsel for the petitioner that the Settlement Commission has wrongly allowed deductions under Section 80- IA (4) of the Act, without taking into consideration the aspect of delay, has no merit and does not survive for either being raised or adjudicated.
Also contention of revenue that the respondent was only involved in construction of roads as a contractor and, therefore, as he was only a works contractor, the benefit of the provisions relating to work undertaken for infrastructural development would not have been availed by the respondent and has wrongly been allowed by the Settlement Commission, is to be rejected as Settlement Commission has discussed these aspects extensively - The aforesaid finding in favour of the respondent, is a finding of fact and does not warrant any interference by this Court in writ proceedings.
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2019 (7) TMI 2018 - CESTAT ALLAHABAD
Maintainability of appeal - monetary amount involved in the appeal - refund granted in CENVAT account - HELD THAT:- Inasmuch as the amount disputed by the Revenue is only to the extent of Rs.12.00 Lakhs, the Revenue’s appeal is covered by the Litigation Policy.
Accordingly the appeal dismissed as not maintainable.
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2019 (7) TMI 2017 - MADRAS HIGH COURT
Insertion of Section 105-A into the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - inherent Arbitrariness in the State Enactments - failure of President of India to apply his mind while granting assent to Section 105A - Impugned State Enactments become repugnant once the Parliament 'made' the New Land Acquisition Act or not - provisions of Section 105A(2) and (3), mandatory in nature or not.
Are the State Enactments void because of inherent Arbitrariness? - HELD THAT:- The purpose of acquisition under all the four Acts, namely new Act and three State Acts are different. The compensation provided under all the four Acts is going to be identical, the rehabilitation and resettlement scheme too shall be identical.
A reading of Article 254 reveals that Article 254(1) gives overriding effect to the provisions of law made by the parliament, which the parliament is competent to enact or to any provision or to any existing law in respect of matters enumerated in List 3 and if a law made by a State Legislature is repugnant to the provisions of the law made by the Parliament, then the law made by the legislature of the State is treated to be void to the extent of the repugnancy - However, Article 254(2) contemplates that where a law made by the Legislature of a State contains any provision repugnant to the provisions of the earlier law made by the parliament, then the law made by the legislature of the State, shall, if it has been reserved for the consideration of the President and has received his assent will prevail in the State.
The Parliament was of the view that the Old Act, 1864 Act is resulting in drastic reduction of agricultural lands, and ensuring that agriculturalists were turned into landless poor. There were was no scheme for rehabilitating persons who have lost their livelihood/land, and the Parliament thought it fit to bring out the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the New Act.
The three State enactments received the assent of the President on 21.7.1978, 25.5.1999 and 16.9.2002 respectively and therefore, prevailed in the State of Tamil Nadu even when the Old Act, 1894 covered the entire field. Contention of the petitioner is that when the new Act came into force, the three state enactments have become void. In order to save the acquisitions made under the three State enactments, the State of Tamil Nadu brought out an amendment to the Central Act by inserting Section 105-A in order to save the acquisitions made under the three State enactments from 1.1.2014 to the insertion of 105-A - Therefore, these state enactments are rendered void, the moment the New Act was "made." i.e. when it received the presidential assent, as on 27.09.2013.
In order to bring any act within the purview of Article 254(2) it must necessarily be re-enacted, and reconsidered by the President afresh. Merely inserting Section 105A in the New Act, shall not fulfil the requirements of Article 254(2), and the laws would remain repugnant.
Since the President has given the assent to the New Act on 27.9.2013, all the three State Acts had become repugnant to the Central enactment. They had therefore become void on 27.9.2013. By introducing Section 105-A and putting the three Acts which had become void, in the fifth schedule would not resurrect the Acts which had become void - The three State Enactments have already become void on the date on which the new Act become operative and therefore, even if the deeming fiction the fullest effect, it would still not revive the three State enactments, which had become void on 27.9.2013.
The impugned three state enactments were rendered repugnant as on the date the New Act, was made, i.e. the date of which the President of India gave the New Act his assent, i.e. 27.09.2013. We further hold that in order to revive these acts it is necessary to re-enact these laws, in accordance with the provisions of Article 254(2). Mere insertion of Section 105A in the new Act, would not save these acts from repugnancy.
Are the provisions of Section 105A(2) and (3) mandatory, and if so, whether non-compliance of these provisions fatal to the validity of these enactments? - HELD THAT:- Merely by inserting Section 105A in the New Act, the State could not be revived three state enactments. Submissions have however been made across the bar at great length, that even if Section 105A has the effect of reviving the three state enactments, the fact that the requirements of Section 105A(2) and (3) have not been made is fatal, to these acts - Section 105-A(2) mandates the State Government to bring out a Notification within one year from 1.1.2014 and direct that the provisions of the Central Act relating to the determination of compensation in accordance with the first schedule and rehabilitation and resettlement specified in 2nd and 3rd Schedule being beneficial to the affected families shall apply to the case of the land acquisition and the enactment specified the 5th Schedule. Section 105-A(2) therefore mandates that the State Government has to bring out a Notification. Admittedly, no Notification has been brought out by the State Government.
When Section 105-A has been made subject to Section 105-A(2), section 105-A(1) can work only when the conditions specified in 105-A(2) are satisfied. Section 105-A(2) mandates that a notification has to be published. The notification as stated earlier is defined in the Act itself to mean that it has to be in the official gazette and shall to come within one year from the commencement of this Act. The purpose of the notification is to inform the general public about how the compensation is to be calculated and how the rehabilitation scheme will be worked out - It is well settled and has been laid down by a number of judgments that if there is power coupled with a duty mandating that the particular act must be done by the executive in a particular way, then it shall be done in that way or not at all.
In case of conditional legislation, the legislation is complete in itself but its operation is made to depend on fulfilment of certain conditions and what is delegated to an outside authority, is the power to determine according to its own judgment whether or not those conditions are fulfilled. In case of delegated legislation proper, some portion of the legislative power of the legislature is delegated to the outside authority in that, the legislature, though competent to perform both the essential and ancillary legislative functions, performs only the former and parts with the latter, i.e., the ancillary functions of laying down details in favour of another for executing the policy of the statute enacted.
When the effect of the legislation is depends upon the determination of a condition by the executive organ of the State, it becomes a conditional legislation and as observed in ITC. BHADRACHALAM PAPERBOARDS AND ANOTHER VERSUS MANDAL REVENUE OFFICER, ANDHRA PRADESH AND OTHERS [1996 (9) TMI 536 - SUPREME COURT], a conditional legislation is mandatory. The condition that is required for Section 105-A(1) to be active is that the notification as contemplated under Section 105-A(1) must be published within one year from 1.1.2014.
The mandatory provision of Section 105-A has not been complied and therefore Section 105-A cannot be said to have come into force in the absence of the notification as stipulated in Section 105-A(2) and also non-placing the notification before the Assembly.
Petition allowed.
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2019 (7) TMI 2016 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Seeking restoration of petition u/s 9 of the Insolvency & Bankruptcy Code, 2016 - Appellant (Corporate Debtor) submitted that the Adjudicating Authority (National Company Law Tribunal) (NCLT), Kolkata Bench has no jurisdiction to recall its earlier order having no power of review or to recall - HELD THAT:- The Adjudicating Authority, Kolkata Bench in exercise of power conferred by Rule 11 of the NCLT Rules, 2016 having restored the petition u/s 9 to its original file, there are no illegality in the impugned order.
In so far hearing of the Appellant Amrit Feeds Limited (Corporate Debtor) is concerned, the petition having restored, the Appellant Amrit Feeds Limited (Corporate Debtor) will be given notice by the Adjudicating Authority before passing any order in the application u/s 9 preferred by S.S. Enterprises(Operational Creditor).
There are no reason to interfere with the impugned order. The appeal is accordingly dismissed.
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2019 (7) TMI 2015 - KARNATAKA HIGH COURT
Seeking a direction to the respondent authority to consider his representation dated 29.02.2016 at Annexure-D - direction to respondent Authority to give appropriate and adequate compensation amount as per the provisions of the newly promulgated Act i.e., the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - HELD THAT:- The writ petition is disposed of with a direction to respondent to consider and decide the representation submitted by the petitioner in accordance with law by a speaking order, within a period of two months from the date of receipt of certified copy of the order passed today.
The writ petition is disposed of.
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2019 (7) TMI 2014 - DELHI HIGH COURT
Appointment of a sole Arbitrator for adjudicating the disputes - Section 11(6) of the Arbitration and Conciliation Act, 1996 - HELD THAT:- The Court while exercising its power under Section 11 of the Act, cannot recast the terms of the Contract and direct the parties to go for a composite arbitration contrary to the procedure prescribed under the arbitration clause provided in distinct arbitration agreements. The overlapping of the issues does not mean that the arbitration proceedings under the two respective contracts cannot commence and continue independently. Fundamental feature of an arbitration agreement is that there is an understanding between the parties to adopt alternate mechanism for the adjudication of the future disputes that arise between them. The law does not prescribe any standard form of arbitration agreement and the parties are free to agree upon a procedure and designate the private forum where the parties would like to go in case the disputes and differences arise between them. Thus, there is to be consensus ad-idem between the parties regarding the choice of the forum.
The Supreme Court in certain judgments, has held that in certain exceptional circumstances the Court has a power to make an appointment of the Arbitrator, notwithstanding the choice of the specified forum agreed between the parties.
Parties were conscious of the terms of the agreement and they willingly and consciously agreed for the arbitral procedure envisaged under the agreement without any reservation. Petitioner is now suggesting that the agreed choice of forum should be ignored and that part of the Agreements should be severed and further Respondent should tow it's line and agree to the Arbitral Tribunal contrary to what has been provided in the Contracts. This cannot be permitted and thus the relief claimed in the present petition for appointment of a common arbitrator cannot be granted.
There is no merit in the present petition and the same is dismissed.
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2019 (7) TMI 2013 - CESTAT NEW DELHI
Reversal of credit availed on the common input and input services - beat pulp is being cleared by the appellant without payment of central excise duty - Rule 6 of Cenvat Credit Rules - HELD THAT:- The matter is no longer res-integra as it has already been decided by Hon’ble Supreme Court in UNION OF INDIA VERSUS DSCL SUGAR LTD. [2015 (10) TMI 566 - SUPREME COURT] that the by-product such as bagasse, press mud, beat pulp does not fall under the category of manufactured product of the appellant and therefore the question of reversal of the Cenvat credit equivalent to 6% of value of such clearances does not arise.
This Tribunal in its final decision in the case of KICHHA SUGAR COMPANY LTD. VERSUS CGST CC & C.E., DEHRADUN [2018 (10) TMI 1151 - CESTAT NEW DELHI] has held Since the main condition for Rule 6 is still, “obligation of a manufacturer or producer of final products”, it doesn’t extend to by- products released during the process of manufacture of main product that too without involvement of any such activity, which may be called as manufacture.
The order-in-original is without any merit and same is set aside. The appeal is accordingly allowed.
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2019 (7) TMI 2012 - MADRAS HIGH COURT
Dishonour of Cheque - scope and purport of Section 143A of the Negotiable Instruments Act - direction to pay interim compensation to the respondent within a stipulated time - petitioners submitted that the Court below has not given any reason as to why it has directed to accused persons to pay 20% of the cheque amount to the respondent as interim compensation - HELD THAT:- A careful reading of the order passed by the Court below shows that the Court below has focussed more on the issue of the prospective/retrospective operation of the amendment. The Court has not given any reason as to why it is directing the accused persons to pay an interim compensation of 20% to the complainant. As held by this Court, the discretionary power that is vested with the trial Court in ordering for interim compensation must be supported by reasons and unfortunately in this case, it is not supported by reasons. The attempt made by the learned counsel for the respondent to read certain reasons into the order, cannot be done by this Court, since this Court is testing the application of mind of the Court below while passing the impugned order by exercising its discretion and this Court cannot attempt to supplement it with the reasons argued by the learned counsel for the respondent.
This Court took the effort of discussing the effect and purport of Section 143A of the Negotiable Instruments Act, only to ensure that some guidelines are given to the Subordinate Courts, which deals with complaints under Section 138 of the Negotiable Instruments Act, on a regular basis to deal with such petitions effectively and in accordance with law.
The order passed by the Court is hereby set aside. In the result, the Criminal Original Petitions are allowed.
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2019 (7) TMI 2011 - CESTAT NEW DELHI
CENVAT Credit - appellant has not received the Cenvatable goods but only invoices were procured - HELD THAT:- The department although has obtain statement of Shri Amit Gupta and also the transporter of the goods, who have denied to have supplied the Cenvatable goods to the appellant. The Department has not adduced any evidence regarding compliance of provisions of Section 9D of the Central Excise Act before the statement were admitted evidence. It has been held in the number of cases including ANDAMAN TIMBER INDUSTRIES VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA-II [2015 (10) TMI 442 - SUPREME COURT] and SKYRISE OVERSEAS PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS (PORT) [2017 (11) TMI 1012 - CALCUTTA HIGH COURT] wherein it is held that without complying the Section 9D the reliance cannot be placed on such statements - reliance cannot be placed on the statement of these persons. It is on record that appellant has manufactured the excisable goods and cleared them on payment of duty which is not disputed by the Department. The department has not found the other sources of raw material/ inputs procured by the Appellant - thus, it will not be appropriate to hold that the appellant has not procured the goods from the companies belonging to Shri Amit Gupta (other Appellant No.).
The impugned order is not sustainable and is accordingly being set aside - appeal allowed.
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2019 (7) TMI 2010 - CESTAT ALLAHABAD
Maintainability of appeal - monetary amount involved in the appeal - HELD THAT:- Revenue was under obligation to challenge the order separately in respect of each appeal. In any case and in any view of the matter, it is noted that small amounts are involved in each appeal disposed of by Commissioner (Appeals). The highest amounts involved in one of the appeal is to the extent of Rs.4,87,881/-.
As such, Revenue’s appeal, even if considered as against the said Order-in-Appeal, is barred under litigation policy. As such, Revenue’s appeal rejected under Litigation Policy.
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