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Showing 101 to 120 of 1643 Records
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2025 (4) TMI 1543
Applicability of provisions of FERA to the appellant, who is not a citizen of India u/s 1(3) of the Act - HELD THAT:- The bare reading of sub clause (III) covers the person other than citizen of India who come and stay in India for taking employment or carrying a business or vocation in India. It can be when he is staying with his or her spouse and spouse being a resident of India, etc.
The definition of “person resident of India” thus covers a person not citizen of India but would fall in the definition in a given circumstances narrated under clause (III).
We are unable to accept the first argument raised by the appellant because under section 1 (3), word “also” has been used to indicate that the act of 1973 would apply to the citizen of India outside India also and branches outside India etc. Section 1(3) does not indicate that it would apply to citizen of India only. The word „only‟ does not exist under the provisions referred to above.
Thus first argument raised by the appellant is summarily rejected.
Applicability of section 8(1) - The restriction on dealing in foreign exchange has been imposed without previous general or special permission of RBI on all the persons other than the authorized dealer in India. No “person resident in India” other than authorized dealer shall outside India purchase or otherwise acquire or borrow or sale the land with any person not being authorized dealer. In the instant case, the appellants are not falling in the definition of “person resident of India” for the reason that no evidence was led by the respondent to prove that during the relevant period involved in this case, the appellant came and stayed for the purpose given under clause (iii) of section 2(p) of the Act of 1973. Accordingly, the counsel for the respondent could not clarify as to how section 8 (1) of the Act of 1973 can apply to the appellant.
The issue aforesaid has not been dealt with by the Special Director, DOE though it has been recorded that on account of the transfer of money by the Standard Chartered Bank, there was a contravention of section 8 (1) of the Act of 1973 but in this case, it could not be proved that appellant was falling in the definition of “person resident of India”. Thus, how section 8 (1) would apply to him.
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2025 (4) TMI 1542
Money Laundering - challenge to impugned notice issued under Section 8 (4) of PMLA and Rule 5 (2) of the Rules - such a notice can be issued prior to a formal order of confiscation by the Special Court under Section 8(6) of the PMLA or not - HELD THAT:- A meaningful reading of the notice in the light of section 8 (4) of the PMLA and Rule 5 (2) of the Rules would reveal that the order dated August 22, 2022 passed by the Adjudicating Authority (whereby the Provisional Attachment Order was confirmed) forms the foundation of the impugned eviction notice. The said notice is in effect a statutory consequence of the order dated August 22, 2022 passed by the Adjudicating Authority.
As regards the petitioner’s contention that there is nothing on record to show that the provisions of Rule 5 (1) of the Rules have been complied with, this Court is of the prima facie view that non-compliance or belated compliance with the provisions of Rule 5 (1) would not at the threshold vitiate a notice under Rule 5 (2) of the Rules. Rule 5 (1) contemplates notice of the attachment to the Registrar having jurisdiction over the area where the property is situated requiring the Registrar not to transfer or create any interest in the property till further orders are passed. The purpose of such provision is clearly different from that of Rule 5 (2). While the former provision is aimed at avoiding/preventing encumbrance and transfer of title, the latter is aimed at securing possession thereof. Both are important but non compliance or belated compliance of one would not vitiate the lawful compliance with the other.
The point that the notice impugned has been issued after 2 years 9 months is also not appealing. The statute does not provide for a mandatory time limit for such notice to be issued. In such situation the length of time taken by the Respondents to issue the notice impugned cannot be taken advantage of by the petitioner in the facts of the present case.
This Court, therefore, feels that the petitioner should be left free to approach the Appellate Tribunal and get the hearing of the stay application done expeditiously. Since the petitioner has approached this Court under Article 226 of the Constitution it would be just and proper for this Court to request the Appellate Tribunal before whom the petitioner’s appeal under Section 26 of the PMLA is pending to dispose of the petitioner’s appeal as expeditiously as possible. Insofar as the petitioner’s application for stay of the order dated August 22, 2022 is concerned, this Court would request the Appellate Tribunal to consider the same on priority basis and dispose of the same as expeditiously as possible preferably within a period of 2 months from date.
Conclusion - i) The eviction notice dated November 19, 2024 issued under Section 8(4) of the PMLA and Rule 5(2) of the Rules is prima facie valid and within jurisdiction. ii) The petitioner's challenge to the eviction notice is premature before the High Court given the pending appeal and stay application before the Appellate Tribunal under Section 26 of the PMLA.
Petition disposed off.
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2025 (4) TMI 1541
Classification of service - business auxiliary service or mining service? - activities of recovery of embedded iron ore, transportation to screening points, weighment, and billing - HELD THAT:- The activity undertaken by the appellant is 'recovery of embedded iron ore and transporting the same to screening point for screening by machines installed by the mine owner and managed by them' and after screening, the appellant was making weighment of the goods and raising invoices on such quantity at the screening point. If the Revenue is of the view that the appellant has undertaken any process and the goods became of a different name and identity, then the said activity amounts to 'manufacture'.
Similar issue was dealt with by this Tribunal in the case of Commissioner of Customs, Central Excise & Service Tax, Bbsr-II v. Ores India (P) Ltd. [2013 (3) TMI 355 - CESTAT KOLKATA] wherein it was held that 'The said mining services were not taxable services during the relevant period. By way of this, the Revenue is trying to divide the contract which is not the case in the showcause notice. Therefore, division contract cannot be permitted at this stage and the grounds taken by the Revenue in their appeal are beyond the purview of show-cause notice.'
It is found that if any activity undertaken by the appellant is liable to be taxed, the same is provided by the appellant within the mining area and is appropriately classifiable as 'mining service'. However, during the impugned period, mining services were not taxable. In these circumstances, no demand of Service Tax can be raised against the appellant.
Extended period of limitation - HELD THAT:- The whole of the demand is barred by the extended period of limitation i.e., for the period from April, 2007 to May, 2007, the Show Cause Notice has been issued on 30th July, 2012, which is beyond the period of five years. Therefore, the impugned order deserves no merits.
Conclusion - i) The appellant's activities do not qualify as business auxiliary services under Section 65(19)(v) of the Finance Act, 1994. ii) The appellant's activities are more appropriately classified as mining services, which were not taxable during the relevant period. iii) No service tax demand can be sustained against the appellant for the period April 2007 to May 2007. iv) The demand is also barred by limitation as the Show Cause Notice was issued beyond five years.
Appeal allowed.
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2025 (4) TMI 1540
Non-payment of service tax on the entire charges collected from M/s Hindustan Zinc - Maintenance & Repair Services - Whether the appellant is liable to pay service tax on the differential amount of consideration and actual value of spare parts for the period prior to 01.07.2012 or not? - HELD THAT:- It is a fact on record that maintenance and repair contracts as were entered between appellant and M/s Hindustan Zinc Limited are the composite contracts involving supply of goods as well as for providing the service. Such Contracts were there is a contract of supply of goods as well as of providing services, are termed as 'Works Contracts' and the same were made taxable w.e.f. 01.06.2007 under the category of ‘Works Contract Services’ as held by the Hon'ble Apex Court in the case of Commissioner v. Larsen & Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT].
The Hon’ble Supreme Court in Larsen & Toubro in paragraph 24 drew a distinction between the service contracts simpliciter and a composite works contracts which would involve both services and goods and held that it is only w.e.f. June 01, 2007 that composite contracts can be subjected to levy of service tax and not before this date.
Therefore, prior to 01.06.2007 also the nature of activity undertaken by the appellant is works contract services but for the period prior to 01.06.2007 covered by the decision of Larsen & Toubro Ltd. this was not liable to pay Service Tax at all. W.e.f. 01.06.2007.
Similar issue has come up before this Tribunal in the case of Xerox India Ltd. [2018 (3) TMI 1006 - CESTAT CHANDIGARH] wherein this Tribunal has held that if service has been provided along with material and the value of material supplied cannot be vivisected, in that circumstances, appropriate classification of the service shall be works contract service and same is not taxable prior to 01.06.2007. Hence, prior to 1.6.2007, even the service portion of a composite contract was outside the ambit of service tax net. Accordingly, the repair and maintenance services under clause (zzg) of Section 65(105) refers only to contracts for service simpliciter and not composite contracts like the present ones. Therefore, no service tax is leviable on such composite contracts upto 1.6.2007.
Coming to the impugned demand for the period post 01.07.2012, it is observed from the show cause notice dated 03.09.2013 as issued for the post July 2007 amendment but the amended provisions have not been mentioned in the said show cause notice. It is utmost mandatory for the Department to first establish that the nature of the services subsequently and the respective charging provisions and the heavy burden is cast upon the department to prove that the demand is sustainable under the said charging provisions but as already observed above. The show cause notice has no proper and correct charging provisions. The show cause notice is nothing but a vague show cause notice. The demand on such show cause notice is not sustainable.
Conclusion - i) The appellant's composite maintenance and repair contracts involving supply of spare parts were works contracts and not taxable as service contracts simpliciter prior to 01.07.2012. ii) Service tax demand on the spare parts portion for periods prior to 01.07.2012 is unsustainable. iii) The show cause notices issued for the post-01.07.2012 period were vague and failed to specify the correct charging provisions, invalidating the demand for that period. iv) The value of spare parts on which VAT was paid cannot be included in the taxable value for service tax under composite contracts.
The orders under challenge are hereby set-aside - Appeal allowed.
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2025 (4) TMI 1539
Non-compliance of the obligations imposed on the manufacturer of final products or provider of output service, in availment of CENVAT Credit, in specified situations mentioned therein, under Rule 6 of the CENVAT Credit Rules, 2004 - HELD THAT:- On plain reading of the legal provisions under Rule 6 of CCR of 2004, it transpires that while providing a comprehensive input credit scheme of the duties and taxes paid on input and input service, the Government had provided for an exception of not extending such input credit facility in respect of those inputs and input services used in or in relation to exempted goods or exempted services. The rationale of this provision is evident inasmuch as the CENVAT credit scheme enables the manufacturer or output service provider to use the credit to reduce the cascading effect of tax on input/input service embedded in the duty or tax liability on the final product or output services - the appellant has followed Rule 6(2) ibid inasmuch as the various manufacturing units situated at Aurangabad, Mulund, Baddi are registered individually with jurisdictional Central Excise authorities and maintained separate records for availing CENVAT credit, and have not taken credit on the inputs and input services used in provision of exempted service viz., trading which has been undertaken only by HO and the manufacturing units have taken credit only on the inputs and input services used in manufacture of dutiable goods and not in respect of exempted goods.
From the legal provisions of the Finance Act, 1994, it is understood that ‘trading’ is a form of service and no service tax is leviable on it and hence it is an exempted service. Usually the amount one pays to a service provider is the value of the services. For example, what one pays for a service, the amount paid represent not only the service rendered by trader, but also the value of the goods purchased and delivered. The service element cannot be the total turnover of the goods traded but is only a small fraction of the turnover - On reading of the Explanation I(c) to this Rule 6 ibid, for both the relevant periods (April 2016 to June 2017 and earlier periods) it clearly specifies that in case of trading service, the value of the service is the difference between the buying and selling price or 10% of the traded goods whichever is higher.
In the present case, the only dispute is regarding the credit on common input services used in their HO unit, which was transferred to the field units through ISD invoices. This credit cannot be attributed wholly to either the dutiable goods manufactured or the exempted service rendered viz., trading. This should therefore, be apportioned in terms of Rule 7 ibid. The adjudicating authority, therefore, erred in taking the total credit taken (including credit taken on inputs and input services used exclusively for manufacture of dutiable goods) to calculate the amount of CENVAT credit that must be reversed under Rule 6(3A) ibid. For the period April 2016 to March 2017, this was clearly, against the explicit rule position as laid down in Rule 6(3A)(b). Therefore, the calculation of CENVAT credit adopted by the learned adjudicating authority does not stand the scrutiny of law.
Conclusion - The appellants having exercised the option under Rule 6(3A)(a) and submitted requisite intimation, and having maintained separate records for inputs and input services used exclusively for dutiable goods and exempted services, are entitled to apply the formula under Rule 6(3A) for proportionate reversal of credit on common input services.
The impugned order is set aside - appeal allowed.
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2025 (4) TMI 1538
Determination of the value of taxable services in the execution of works contracts involving both supply of goods and provision of services - whether duty paid on 15% as service component by the assessee considering 85% element of good supplied, which has been described by it as the actual value, on the basis of contract price or as per their invoices and which as per the department`s view was not actual value but a uniform notional value on which VAT was discharged and remaining 15% was treated as value for the service tax even though the percentage of abatement under service tax only could be ousted by external value of goods based on costing? - difference of opinion - matter placed before the Hon’ble President to nominate a third member for resolution.
HELD THAT:- The Revenue feels that in spite of clear directions given to the adjudicating authority in the Final order of this Tribunal dated 03.07.2014 [2014 (7) TMI 748 - CESTAT AHMEDABAD], proper verification has not been undertaken by him, while dropping the demand.
From the above portion of the earlier Final Order, it is observed that the Tribunal has already considered that VAT was being paid on the value of the goods portion. Only to verify as to whether the same was being paid or not, and correct value was adopted or not, these facts were required to be verified by the Adjudicating Authority. The adjudicating authority has gone through the documentary evidence placed before him including the Chartered Accountant’s Certificate/Cost Accountant’s certificate and has concluded that the assessee has paid the VAT on goods value portion.
Even for the prior period, if Notification 12/2003 is read carefully it says that “subject to the condition that there is documentary proof specifically indicating the value of the said goods and materials.” There can be no better documentary proof than the invoice raised by the assessee. In the present case, it is clearly seen that the VAT is being paid on the 85% consideration treating the same as value of the goods. The Supreme Court’s decision in the case of Safety Retreading Co. (P) Ltd case [2017 (1) TMI 1110 - SUPREME COURT] has already held that once VAT is paid on the value component as per the statutory provision of the State Government, the value of service cannot be put to question.
Matter to be placed before the regular bench for final disposal - In view of the majority order, the appeal is dismissed.
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2025 (4) TMI 1537
Refund of the Service Tax paid by mistake on transportation of oil cakes - principles of natural justice - HELD THAT:- Revenue has not issued any Show Cause Notice seeking to know as to why the refund claim should not be rejected on account of unjust enrichment. The Department has simply issued several letters seeking documentary evidence and calling for balance sheet copies, P&L account and other payment details. All these documents have been provided by the appellant. Thus, the appellant was not even made aware as to on what grounds the refund was proposed to be dismissed.
This is a case where the Service Tax has been paid on RCM basis. The question of passing on the burden to the third party or to any other person will arise only when the service is being provided in the normal course for which invoice is issued along with the Service Tax component. In cases of RCM basis, no invoice is raised on any other third party. Thus the question of passing on Service Tax burden on a third party does not arise. The only point to be checked is about the taking of the Cenvat Credit on such Service Tax paid, which has not been done by the Dept., by way of issue of SCN to this effect. But, this point has been raised by the Bench and answered properly by the appellant at the Tribunal stage.
Conclusion - i) The appellant is not liable to pay Service Tax on transportation of oil cakes due to exemption. ii) The refund claim filed is timely and valid. iv) The appellant satisfied the unjust enrichment condition by proving no passing on of tax burden.
Appeal allowed.
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2025 (4) TMI 1536
Recovery of Service Tax on Transport Charges, Delivery Charges, Freight Charges, Commission, Supervision Charges, Service Charges, and Works Contract Service for the period 2007-08 to 2011-12 - suppressios of material facts or not - invocation of extended period of limitation - HELD THAT:- The main ground of the Revenue to deny the benefit of the said Notifications is that the ld. adjudicating authority has not examined the agreements. We have gone through the impugned order. From a perusal of the impugned order, we find that the ld. adjudicating authority has recorded the findings that the respondent has received various amounts from M/s. Uttar Pradesh Rajakiya Nirman Nigam Limited during the period from 2008 to 2011 for construction and maintenance of P.M.G.I. road in Hordoi, from M/s. Hindustan Construction Company Ltd. during the year 2010-11 for construction and maintenance of approach road and land development work in the project of widening of the existing two lanes to four lane including strengthening of existing two lanes of NH-34 from Km 295+000 to km 398+ in Maldah District, West Bengal and from M/s. PACL India Ltd. for the period 2009-10 for agricultural land levelling work at National Highway and site formation, clearance, excavation, earthmoving and demolition work in relation to construction of road - These facts are available on record.
Conclusion - It cannot be said that the ld. adjudicating authority has not examined the documents before allowing the benefit of the aforesaid Notifications. In these circumstances, there are no merit in the appeal filed by the Revenue and therefore, the Revenue's appeal is dismissed.
Appeal dismissed.
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2025 (4) TMI 1535
Recovery of Central Excise duty with interest and penalty - alleged default in payment of duty beyond the stipulated due dates by violating Rule 8(3A) of the Central Excise Rules, 2002 - HELD THAT:- The issue is similar to the relevant findings of the jurisdiction High Court of Punjab & Haryana in the case of Sandley Industries [2015 (10) TMI 2455 - PUNJAB & HARYANA HIGH COURT], wherein the jurisdiction High Court of Punjab & Haryana has held that 'Rule 8(3A) of the 2002 Rules to the extent it contains the words ‘without utilizing the Cenvat credit’ is held to be arbitrary and unreasonable and is struck down. In other words, the unamended Rule 8(3A) of 2002 Rules whereby the benefit of Cenvat credit for all the period till the actual payment was made, stands disallowed in the event of a minor default also is arbitrary and unreasonable.'
Conclusion - The portion of sub-rule (3A) of Rule 8 of the Central Excise Rules, 2002, that prohibits utilization of CENVAT credit during default is declared unconstitutional and invalid. The appellant is entitled to utilize CENVAT credit for payment of duty even during the default period, subject to payment of outstanding amounts and interest as per law.
The impugned order is not sustainable in law, and is set aside - appeal allowed.
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2025 (4) TMI 1534
Evasion of Central Excise duty - non-inclusion of the amount of VAT/Sales Tax collected and retained by them in the assessable value in violation of Section 4 of the Central Excise Act, 1944 - HELD THAT:- The facts are not in dispute. The appellant was eligible for remission under the State VAT scheme. Therefore, while the appellant were charging 100% VAT on their customers, they were retaining 99% of the VAT and paying only the balance 1% VAT to the State Govt. There is nothing on record that this 99% was required to be paid subsequently in instalments. Thus, it gets clarified that this amount is simply retained by the appellant.
This very issue was considered by the Hon’ble Supreme Court in the cited case of Commnr. Of Central Excise, Jaipur vs M/S. Super Synotex (India) Ltd. & Ors [2014 (3) TMI 42 - SUPREME COURT] wherein it has been held that 'As is seen from the facts, 25% of the sales tax collected has been paid to the State exchequer by way of deposit. The rest of the amount has been retained by the assessee. That has to be treated as the price of the goods under the basic fundamental conception of “transaction value” as substituted with effect from 1.7.2000. Therefore, the assessee is bound to pay the excise duty on the said sum after the amended provision had brought on the statute book.'
It is found that the issue had reached the Apex Court, which has held that the retained portion of VAT is required to be treated as additional consideration and hence the same is to be added to the Assessable Value.
The appellant is required to pay the differential Excise Duty for the normal period along with interest. However, considering the factual details of the case, all the penalties are set aside.
The demand of central excise duty for the normal period of limitation, along with interest upheld. No penalty imposable on the appellant. The demand confirmed for the extended period of limitation is set aside. The issue is remanded back to the adjudicating authority only for the limited purpose of verifying the correctness of duty payment for the normal period along with interest by the appellant.
Conclusion - VAT remission or sales tax incentives retained by the manufacturer and not paid to the State Government constitute additional consideration and must be included in the assessable value for Central Excise duty under Section 4 of the Central Excise Act, 1944.
Appeal disposed off by way of remand.
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2025 (4) TMI 1533
Evasion of Central Excise Duty by resorting to undervaluation - clearance of finished products through related unit viz., M/s. H.D. Consortium India Ltd. at a price which was lower than the price at which the said product was subsequently sold by M/s. H.D. Consortium India Ltd. to unrelated buyers - revenue neutrality - HELD THAT:- In the appellant's own case [2024 (6) TMI 1320 - CESTAT KOLKATA], this Tribunal has examined the very same issue and observed that 'the Appellant has adopted a higher value addition and duty was paid at a higher side. Thus, we find that there is no evidence available on record to substantiate the allegation that the appellant has undervalued the finished goods sold to M/s. H.D. Consortium India Ltd. Accordingly, we hold that the demand confirmed in the impugned order on the allegation of undervaluation of the final product is without any basis and liable to be set aside.'
Conclusion - As the issue has already been decided by this Tribunal in the appellant's own case for an earlier period, no demand is sustainable against the appellant, as also being revenue neutral.
Appeal allowed.
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2025 (4) TMI 1532
Irregular availment of CENVAT Credit - denial of credit on the ground that the process undertaken does not amount to manufacture - HELD THAT:- he appellant has been availing CENVAT Credit of duty paid on inputs viz. PP/HDPE/LLDPE Granules, Calcium Compound, Master Batch and PP/HDPE & Woven Fabrics. The said inputs were used in the manufacture of their final products. The appellant was clearing their finished goods on payment of duty and was submitting their Returns regularly. The Department has not raised any dispute against availment of credit by the appellant. It is also observed that when the appellant paid duty on the finished goods, the Department has accepted the same. If the finished products attract duty, then the CENVAT Credit availed on the inputs used in the manufacture of the said finished goods cannot be denied, even if the process does not amount to manufacture.
Reliance placed in the case of Commissioner of C.Ex. & Cus., Surat-III v. M/s. Creative Enterprises [2008 (7) TMI 311 - GUJARAT HIGH COURT]. In this case, initially, the Tribunal had granted the benefit of MODVAT Credit despite the final product not being dutiable as the activity did not amount to manufacture.
The CENVAT Credit availed by the appellant on the said inputs cannot be denied on the allegation that the process undertaken by the appellant did not amount to manufacture and no new product emerged - the demands confirmed in the impugned order are not sustainable - Appeal allowed.
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2025 (4) TMI 1531
Irregular availment of Cenvat Credit - violation of the provision of Rule 11 of Central Excise Rules, 2002 and Rule 10 of Cenvat Credit Rules, 2004 - HELD THAT:- It is quite clear that in the instant matter there is no aspect of unutilized credit in consideration, as evident from the language of the letter dated 12.01.2010 issued by M/s Henkel India Ltd., referred to in para-4 above. The impugned matter, therefore cannot be construed to be a case within ambit of Rule 10 of the said Rules. Thus, we are of the view that the Revenue has misdirected themselves by referencing the present issue within the ambit of Rule 10 on Cenvat Credit Rules, 2004. The fact of the appellant stating to the audit query, of availment of the credit in terms of Rule 10 ibid cannot be so held against them, when the facts on records stand out clearly duly demarcated and distinguishable.
It is an undisputed fact on record that there is no physical removal of any goods as the entire factory as a whole, lock stock and barrel, was purchased by the appellant and there is no shift of the premises involved. It is also not disputed that due duty was paid in respect of goods that were transferred to the appellant by reversing cenvat credit availed. The question that the goods were already in possession is therefore rendered futile and has no ramification with the availability of the credit, till a legal title in the good accrues in favour of the appellant. The argument of the Revenue is therefore baseless.
No credit can be denied if there is no dispute regarding the receipt of such inputs or capital goods and its utilization in the manufacture of final products. It is not disputed that the appellant had received the goods under consideration on which Cenvat Credit has been availed from M/s Henkel India Ltd., in accordance with the Asset Purchase Agreement entered between the two parties and as it is a clear that the title in goods only passed onto the appellant upon issuance of invoices and payment of duty as applicable on the said goods.
The denial of credit therefore to the appellant is clearly erroneous and the argument of delay in issuance of the invoices, without disputing the validity of transference of goods, duty payment thereon and their ultimate utilization is at cross/contradicting purposes. The Asset Purchase Agreement is privy between the parties entering thereto and when they mutually decide to cast aside a delay of 1-2 days, in issuance of the invoice, it is not open for a third party to question the same on grounds of delay and presumed invalidation thereof. It is between the two consenting parties to overlook any such variation of the terms of contract, to which both the sides have no qualms and reportedly agreed to.
Extended period of limitation - HELD THAT:- Once the agreement has been implemented and the goods come into possession and title of the appellant, their duty payment not questioned, their consumption and utilization in manufacture of goods not doubted, all payment including duty payment made by the appellant, the department cannot hold that such invoices were irregular and inadmissible for availment of credit. For reasons foregoing, there are no justification in the department’s stance of invoking extended period of limitation and charging the appellant with willful suppression more so when there are proper communications on record, intimating the department from time to time.
Conclusion - The appellant is entitled to avail Cenvat credit on the capital goods and inputs purchased from the transferor company, as the invoices were valid and duty was duly paid.
Appeal allowed.
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2025 (4) TMI 1530
Contempt of Court - Non-payment of arrears of use and occupation charges for period between 20.09.2021 and 31.11.2022 in six monthly instalments - Respondent-Contemnor's plea of financial incapacity to comply with the Court's order is a valid defense against the charge of contempt or not - HELD THAT:- All throughout, the Respondent-Contemnor had been in possession of the said Property and had been utilising the income generated from running of the said resort. Acceptance on the part of the Respondent-Contemnor with regard to the viability of the project is apparent from the Order dated 07.11.2022 and his conduct. This would not permit the Respondent-Contemnor to now turn around and state that he is unable to make payment of not only the monthly dues for use and occupation charges after passing of the Order dated 07.11.2022 but also the arrears as per which terms and conditions were fixed by this Court in accordance with the prayer made by him. Non - fulfilment of the mandate and direction of this Court which were at the request of the Respondent-Contemnor himself reflects the intent on the part of the Respondent- Contemnor to not to comply with the order rather to violate with the same with impunity. The conduct clearly reflects that the intention of the Respondent-Contemnor was to gain the benefit by running the resort in the subject property without paying the current liability, what to say of the arrears.
The malafide is therefore writ large and reflect the misuse of the process of the Court. After seeking an order from this Court where benefit has been conferred on the basis of the submissions of the Respondent-Contemnor, not complying therewith amounts to contempt of Court - The power and jurisdiction of this Court to initiate and punish for its contempt has not been disputed. It is well settled by now and it is apparent from the provisions of the Contempt of Court Act that Civil contempt means wilful Contempt Petition (C) No. 712 of 2023 Page 14 of 19 disobedience of judgment, decree, or direction, order, writ or other process of the Court or wilful breach of an undertaking given to the Court.
A party, misguiding the Court to pass an order which was never intended to be complied with, would constitute an act of overawing the due process of law and, thus, commit contempt of Court. In the instant case, the opportunity having been availed, time having been sought and granted by the Court further reflects the intent on the part of the Respondent-Contemnor to discard and tarnish the judicial process by polluting it. Disobedience of the order of the Court in such circumstances would be the only result and thus, civil contempt.
The Respondent-Contemnor cannot be allowed to go scot free after having taken this Court at a stage where his conduct leaves this Court with no option but to take strict action and to punish him for the contempt committed by him, i.e., non-compliance of the directions issued by this Court vide Order dated 07.11.2022.
Shaji Augustine-Respondent is guilty of Civil Contempt and impose punishment of Simple Imprisonment for three months along with fine of INR 20,000/- to be deposited in two weeks, and in case of default, further Simple Imprisonment for one month - Giving one more opportunity to the Respondent- Contemnor to purge the contempt, 30 days time is granted to him to comply with the Order dated 07.11.2022 and submit compliance report to the Registrar Judicial of this Court a week thereafter.
Conclusion - The Respondent-Contemnor is found guilty of civil contempt for wilful and deliberate disobedience of the Court's order dated 07.11.2022.
The contempt proceedings are disposed of.
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2025 (4) TMI 1529
Dismissal of appellant’s petition under Section 482 of the Code of Criminal Procedure - appellant, who was not the authorized officer at the relevant time of the auction and issuance of sale certificate under the SARFAESI Act, can be held criminally liable for the alleged cheating and forgery in relation to the sale of mortgaged property or not - HELD THAT:- It is evident that the sale certificate was issued by the appellant’s predecessor and, at the relevant time, the appellant was not the authorized officer empowered to issue the certificate. In fact, right from the initiation of the auction process to the issuance of sale certificate, no direct involvement of the appellant can be seen as he was not the authorized officer during the said period and assumed the office of Manager only in November, 2014. Therefore, it becomes clear as day that the appellant had no role to play in the transaction leading to the FIR as he was not a signatory to the sale certificate. Since the appellant was neither the authorized officer at the relevant time nor responsible for the auction process or issuance of the sale certificate, the allegations against him are baseless and do not attract criminal liability.
The continuation of the instant criminal proceedings against the appellant shall lead to abuse of process of law, cause nothing but miscarriage of justice and inordinately harass the appellant who has been implicated without due cause.
Conclusion - The criminal proceedings against the appellant are quashed as he was not the authorized officer or involved in the auction or sale transaction at the relevant time, and continuation of proceedings would constitute abuse of process and miscarriage of justice.
Appeal allowed.
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2025 (4) TMI 1528
Rejection of Interim Application filed by the petitioner herein under Section 5 of the Limitation Act, 1963 - declination to condone the delay of 301 days in filing the main appeal under Section 13(1-A) of the Commercial Courts Act, 2015 - HELD THAT:- One of the avowed objects of the provisions of the Commercial Courts Act read with amended provisions of CPC applicable to the Commercial Courts is to ensure that there is no unnecessary delay in disposal of the commercial suit. Once specific time lines are fixed and there is a strict procedure provided in terms of the Commercial Courts Act, parties are by the statute put to notice that they have to very carefully contest the suits filed as commercial suits and that failing to comply with statutory timelines and a strict procedure, certain adverse consequences may flow on account of lack of application by a contesting party.
Merely because Order XX Rule I enjoins a duty upon the commercial courts to provide the copies of the judgment that does not mean that the parties can shirk away all responsibility of endeavoring to procure the certified copies thereof in their own capacity. Any such interpretation would result in frustrating the very fundamental cannons of law of limitation and the salutary purpose of the Act, 2015 of ensuring timely disposals.
Conclusion - The High Court did not err in rejecting the condonation of delay application. The limitation period for filing the appeal commenced from the date of pronouncement of the judgment, irrespective of whether the certified copy was provided or not. The petitioners' failure to apply for the certified copy within the limitation period and their inaction for over 300 days constituted negligence.
Petition dismissed.
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2025 (4) TMI 1527
Demolition of the appellants' residential structures by the Prayagraj Development Authority (PDA) under Section 27 of the Uttar Pradesh Urban Planning and Development Act, 1973 - HELD THAT:- As noted by this Court in the order issuing notice, against an order of demolition made under sub-section (1) of Section 27 of the 1973 Act, an appeal has been provided under sub-section (2) of Section 27. The demolition order passed on 8th January, 2021, was not served upon the appellants. It was allegedly served by affixing only. What was served was a subsequent communication dated 1st March, 2021. Within 24 hours of the service of the said communication, an action of demolition was taken on a Sunday. This deprived the appellants of their opportunity to avail of the remedy of appeal under sub-Section (2) of Section 27 of the 1973 Act.
Therefore, the demolition action is completely illegal, which violates the appellants' right to shelter guaranteed by Article 21 of the Constitution of India. The action is completely arbitrary. Moreover, carrying out demolition of residential structures in such a highhanded manner shows insensitivity on the part of the statutory development authority. This is one more case of bulldozer justice. The officers of the PDA have forgotten that the rule of law prevails in our country. Unfortunately, the State Government has supported the PDA.
Today, the learned senior counsel and the learned counsel appearing for the appellants, on instructions, stated that the appellants are not in a position to reconstruct the structures. In view of this statement, there is now there is no occasion to direct the planning authority to follow the due process of law in these cases. However, considering the inhuman and illegal action of demolition carried out, the planning authority must be saddled with costs. The costs of Rs. 10,00,000/- quantified in each case.
Conclusion - The demolition carried out by PDA was illegal, arbitrary, and violative of constitutional rights.
Appeal allowed.
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2025 (4) TMI 1526
Seeking quashing/setting aside of order of cognizance as well as summoning order - Criminal conspiracy - Whether a public servant "against whom sanction for prosecution under the Prevention of Corruption Act, 1988 has been expressly declined by the competent authority, where the denial of sanction has not even been challenged by the prosecuting agency and who is not charged with any independent or substantive offence under the Indian Penal Code" can nonetheless be prosecuted solely for criminal conspiracy u/s 120-B IPC, when the sole object of that conspiracy is the commission of an offence under the PC Act?
HELD THAT:- In the present case, the foundation of the alleged conspiracy rests entirely on an offence under the PC Act. With sanction expressly refused by the competent authority, to which no challenge has been made by the prosecuting agency, any attempt to prosecute the petitioner for conspiracy alone when the object of that conspiracy is itself legally non-prosecutable amounts to a colourable exercise of power. It constitutes a clear attempt to achieve indirectly what the law prohibits directly, thereby undermining the statutory mandate and rendering the protection under Section 19 illusory.
This Court has perused the material placed on record, including the transcripts of telephonic conversations. On a prima facie evaluation, there is no cogent or credible material to suggest any express or tacit agreement between the petitioner and the co-accused to demand or accept illegal gratification. In fact, the charge sheet itself, particularly paragraph 16.44 which stands extracted hereinunder, records that the petitioner declined the request made on behalf of the associate of the complainant and proceeded with lawful enforcement action. Such conduct negates, rather than supports, the inference of a conspiratorial understanding.
Thus, the central question "whether the petitioner, a public servant not charged with any substantive offence under the PC Act and against whom sanction has been expressly refused, can be prosecuted for conspiracy alone" must be answered in the negative when admittedly no other distinct IPC offence has been alleged against the petitioner. The attempt to invoke Section 120-B IPC in such a scenario amounts to a colourable exercise of power intended to circumvent the statutory protection under Section 19 of the PC Act.
It is a well-settled principle of law that what cannot be done directly cannot be done indirectly. Allowing the prosecution of a public servant under Section 120-B IPC for conspiracy to commit an offence under the PC Act, despite the denial of sanction, would effectively render the provision of Section 19 of the PC Act nugatory. Such an approach would circumvent the legislative safeguards designed to protect public servants by enabling a colorable prosecution under Section 120-B IPC, bypassing the procedural requirement of sanction.
Conclusion - i) This Court is of the considered view that a public servant, in respect of whom sanction to prosecute has not been granted under Section 19 of the PC Act, and who is, therefore, not charged with any substantive offence under the said Act, cannot be proceeded against solely under Section 120-B of the IPC, when the alleged object of the conspiracy is the commission of offences under the PC Act. ii) The charge of conspiracy under Section 120-B of the IPC, in such circumstances, is legally unsustainable, as it amounts to an indirect prosecution for an offence which is otherwise barred by statute.
Petition allowed.
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2025 (4) TMI 1525
Constitution of the Selection Committee for appointment of the Vice-Chancellor of the Himachal Pradesh Krishi Vishwavidalaya (HPKV) - compliance with the mandatory provisions of Section 24 of the Himachal Pradesh University of Agriculture, Horticulture and Forestry Act, 1986 - HELD THAT:- The nomination can only be made by the Chancellor and the Chairman, University Grants Commission, whereas the Director General, ICAR, is mandatorily required to be one of the members of the Selection Committee, to be constituted by the Chancellor.
The constitution of the Selection Committee is clearly in contravention and breach of the provisions as contained in Section 24 of the Act and the same, therefore, cannot be said to be a legal constituted Committee as it is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way.
Once this Court concludes that the constitution/ composition of the Selection Committee is against the law i.e. Section 24 of the Act, any action taken by such committee in furtherance thereof, is obviously a nullity or nonest.
Conclusion - The constitution of the Selection Committee is clearly in contravention and breach of the provisions as contained in Section 24 of the Act and the same, therefore, cannot be said to be a legally constituted Committee.
Petition allowed.
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2025 (4) TMI 1524
Seeking quashing of impugned order - GST levy on mining activity effective 01.07.2017 - HELD THAT:- Counsel on behalf of both the parties are agreed that the present impugned order dated January 25, 2025 may be quashed and the matter may be remitted to the Adjudicating Authority for granting an opportunity of hearing to the petitioner to place its case before the Adjudicating Authority.
The impugned order dated January 25, 2025 is quashed and set-aside with a direction upon the Adjudicating Authority to pass a fresh order in accordance with law, after granting an opportunity of hearing to the petitioner - Petition disposed off.
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