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Showing 121 to 140 of 1393 Records
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2024 (2) TMI 1273 - MADRAS HIGH COURT
Seeks rectification or re-assessment - Claim of Exemption under Notification No.152/2009-customs - manufacturing and trading in iron and steel products - HELD THAT:- Given the fact that power is conferred u/s 149 of the Customs Act on the proper officer to consider an application for rectification, there is no reason to reject the application merely because it does not make reference to Section 149 or on the ground that the word rectification is not used therein. It should, however, be noticed that it is necessary for the person claiming exemption to place on record and establish that all relevant documents were in existence at the time of clearance of the goods concerned for home consumption. Therefore, it is necessary to direct the petitioner to produce such documents.
Thus, this writ petition is disposed of by directing the respondent to consider the application dated 26.12.2023 as a rectification application and dispose of the same on merits within four weeks of production of all relevant documents by the petitioner. The petitioner is directed to produce all relevant documents before the respondent within a maximum period of two weeks from the date of receipt of a copy of this order.
W.P.No.2443 of 2024 is disposed of on the above terms. No costs. Consequently, W.M.P.No.2668 of 2024 is closed.
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2024 (2) TMI 1272 - ALLAHABAD HIGH COURT
Application for Grant of bail - smuggling foreign origin gold - No duty paid - provision of Section 135 (1)(b)(i)(A) of the Customs Act - HELD THAT:- We have found that as per the materials collected by the DRI, during the course of investigation, the gold seized was smuggled to India and no document/authority could be shown by the applicant for his possession of the seized gold.
Sampling was done in accordance with the provisions. There is no specific allegation on behalf of the applicant that how the provisions of law are not complied with while sampling the recovered gold. Seizure memo was prepared as per the provision, which is on record. The statement of accused-applicant is recorded by DRI which is signed by the applicant and the same is on record as annexure no.3 to the counter affidavit filed on behalf of DRI. The statements of other three co-accused were also recorded by the DRI, which was signed by them and same is on record as annexure nos.4 to 6, to the counter affidavit filed on behalf of DRI.
Whatever it may be, from the materials on record and on hearing the rival submissions made by the respective learned counsel for the parties, this Court is of the view that this is not a fit case to grant bail to the applicant, at this stage, as there are materials collected during the investigation of the case that the applicant had, in his possession four gold bars weighing 2441.500 grams valued at Rs. 1,49,90,810/- covering the case by the provision of Section 135 (1)(b)(i)(A) of the Customs Act.
Therefore, the prayer for bail of the applicant stands rejected.
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2024 (2) TMI 1271 - GUJARAT HIGH COURT
Application filed u/s 439 of the CrPC - for regular bail - Smuggling - Gold Paste - Offence punishable under Sections 135(1) (i)(a) and 135(1)(i)(b) of the Customs Act, 1962 - HELD THAT:- There is no recovery or discovery at the instance of the present applicant accused. The applicant accused has been arraigned as an accused on the basis of the statement of the co-accused. Thus, considering the nature of the allegations made against the applicant in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.
Hence, the present application is allowed and the applicant is ordered to be released on regular bail on executing a personal bond with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions.
The authorities will release the applicant only if he is not required in connection with any other offence for the time being - The present application stands allowed accordingly. Rule is made absolute. Direct service is permitted.
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2024 (2) TMI 1270 - CESTAT CHENNAI
Import of brand new vehicle or not - Valuation of the car - Vehicle imported ‘2013 Nissan Petrol Car Upper Grade ASR SPEC (13-999)’ - benefit of Notification No. 21/2002 - not produced type approval / COP certificate by the listed agency country of manufacture - confiscation - HELD THTA:- On perusal of records, it is seen that the report given on first check of the imported car, is that the car is new. The reading is only 121 Kms. The department though alleges that the car has been used has not produced any evidence to show that the car has been registered for the purpose of use. The registration, if in UAE is only to comply with technical formalities of the said country and not for using the vehicle on road. Following the case of Lorenzo Bestonro [2013 (11) TMI 387 - CESTAT MUMBAI] and Noshire Moody [2012 (5) TMI 386 - BOMBAY HIGH COURT] it was held that when registration is for the purpose of complying formalities it cannot be said that the car is used one. Thus, we are of the considered opinion that the allegation that the car is not new cannot be accepted.
The appellant has produced copy of the GSO conformity certificate. The importer has opted to purchase the vehicle through the dealer in UAE. The vehicle also is said to have been registered in UAE. In such circumstances, merely because the said certificate shows the vehicle as right hand drive, which is the model used in India, it cannot be said that the appellant has not complied with policy conditions.
In the present case, there is no evidence suggesting undervaluation especially when the value of the goods could be easily verified from website. The adjudicating authority has taken the view that since the vehicle imported is of right hand drive and the vehicles used in UAE are of left hand drive, the value cannot be accepted. We cannot endorse the said view. Further, the value of the goods imported into Australia cannot be taken as a comparable value for redetermining the assessable value of the goods since the value differs on the basis of destination of shipment also.
Thus, we find that the order passed by Commissioner (Appeals) allowing the benefit of exemption Notification No.21/2002-Cus. as well as setting aside the order of confiscation of the goods is legal and proper. The enhancement of value was also found to be not justified. The impugned order does not call for any interference. The Department appeal is dismissed.
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2024 (2) TMI 1269 - CESTAT CHENNAI
Imported goods declared as “Sonalleve MR HIFU KIT'' - MRI System accessories - classified them under 90181300 - claiming concessional rate of Basic Customs Duty at 5% as per serial no.357B (ii) of Customs Notification No. 021/2012- Cus and CVD at nil rate in terms of serial no. 59(i) of Central Excise Notification No.6/2006 - differential duty demand confirmed along with interest - whether the Sonalleve MR HIFU KIT are accessories to MRI machine - HELD THAT:- In the case of Commissioner of Customs, Chennai Vs. Indian Surgicals [2009 (8) TMI 280 - CESTAT, CHENNAI], the question considered was whether cardiac stents can be considered as accessories of cardiac catheters so as to be eligible for exemption under Notification 17/2001-Cus. The Tribunal observed that stents are used in cardiac catheters and are mounted and placed after dilation of blood vessels. They are essential for cardiac catheter treatment through the process of angioplasty. Without implanting the stent with help of catheters, the treatment cannot be completed. The Tribunal held that the stent are accessories to cardiac catheters. After understanding the function of the impugned goods and following the decisions above we hold that the Sonalleve HIFU KIT classified under CTH 9018 13 00 is an accessory to MRI. The goods are eligible for benefit of Notification of 21/2002-Cus at Sl.No.357B (ii) and benefit of Notification of 6/2006 – CE at Sl. No. 59 (i).
Allegation raised in the Show Cause Notice is that the appellant has wrongly availed benefit of Notification 21/2002 Cus at serial no. 357B (ii) in regard to BCD. There is no mention of wrong availment of CVD under Notification No.6/2006. However, the impugned order has denied the exemption of CVD available @ serial no. 59 (i) of Central Excise Notification No. 6/2006. The argument of the Learned Counsel that the impugned order has travelled beyond the scope of the Show Cause Notice is not without substance. The confirmation of the differential duty which has not been proposed in the Show Cause Notice cannot be sustained. For this reason also the demand of differential duty cannot sustain.
In the result, the impugned order set aside. The appeal is allowed with consequential relief. The Miscellaneous application is disposed.
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2024 (2) TMI 1268 - CESTAT AHMEDABAD
Imported remelted zinc from Australia - classification of “remelted zinc” that whether it will be covered under CTH 7901 20 90 as claimed by the Department or under CTH 7901 12 00 as claimed by the Appellant - HELD THAT:- We note that the Appellant vide Bill of Entry 3940705 dated 09.11.2017 and 4542175 dated 25.12.2017 have admittedly declared zinc at 95.85 % and 95.75% respectively which clearly does not correspond to the requirement as envisaged under note (b) of Chapter 79. The classification of the goods by the Department is proper and needs no interference.
Either way the claims of Appellant find no merit. We observe that there was no foul in the department’s reliance on the test reports in furtherance of ascertaining the classification of the goods in dispute.
Thus, we are of the view that the impugned orders are just and legal which does not require any interference. Accordingly, the impugned orders are upheld. The appeals are dismissed.
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2024 (2) TMI 1267 - CESTAT NEW DELHI
Application for conversion of shipping bills - time limitation - Drawback (Scheme Code 19) to Drawback and ROSCTL (Rebate of State and Central Taxes and Levies) SB (Scheme Code 60) - whether the period of time limit of three months prescribed in the circular is binding in view of the provisions of Section 149 of the Customs Act - HELD THAT:- We find that the export goods is not in dispute and therefore, the entitlement of the appellant to claim the benefit under the scheme is clearly admissible and the same cannot be denied on account of any procedural lapse as provided in the circular. We also find that the examination level of Drawback Scheme and that of Drawback along with ROSCTL Scheme is the same and therefore, there is no reason to deny the benefit of the scheme. We also find that the examination level of Drawback Scheme and that of Drawback along with ROSCTL Scheme is the same and therefore, there is no reason to deny the benefit of the scheme.
The error made by the appellant in making the application for conversion before the Commissioner, Nhava Sheva is concerned, the same needs to be ignored in terms of the response given by the Cell at Mumbai, the appellant had made the on line application on 31.03.2021.
The appellant had justified the necessity of conversion as they had produced the documents in terms of the Section 149 of the Act which entitles an amendment in the Bill of Entry even after the imported goods have been cleared for home consumption except on the basis of documentary evidence which was in existence at the time the goods were cleared and in the present case it is not that such documents were not in existence at the time of export of goods.
Circular was meant to liberalise the migration from one scheme of the Foreign Trade Policy to another and it could not have imposed rigid restrictions which are not contemplated in the parent statute and in the context of facilitative intent, is to be implemented in accordance with the spirit of liberalised approach to request for conversion from one scheme to another, Haldiram Foods International Pvt. Ltd. Vs. Commissioner of Customs [2020 (12) TMI 1229 - CESTAT MUMBAI].
The impugned order denying the amendment on the ground that the same has been made by the exporter beyond the period of three months from the date of Let Export Order in terms of the circular, deserves to be set aside. Accordingly, the appeal is allowed with consequential relief as per law.
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2024 (2) TMI 1266 - CESTAT AHMEDABAD
Imposition of redemption fine - import of Limestone Blocks - imported goods not covered by the license - confiscation of goods - penalty - HELD THAT:- We observe that the order was placed by the Appellant during the validity of their license wherein out of the total shipments in dispute, Bill of lading bearing No. MSCUS5860867 was issued and the rest within a month of the same time which we observe is close to the lapse of the license of the Appellant. Furthermore, we note that the Appellant have voluntarily updated the adjudicating authority about the said issue. Taking the said facts into consideration we are of the view that the Appellant is a bonafide as they have not suppressed facts relevant in the present case. We also find that in the present case the appellant suffered heavy demurrage due to which the profit of the appellant has also wiped off. Thus, we are of the view that appellant deserve the leniency with regard to quantum of redemption fine and penalty.
Accordingly, we reduce the redemption fine and penalty in the matter of Appeal No. C/10327/16 to Rs.25,00,000/- and Rs.4,00,000/- respectively and in Appeal No. C/10623/16 to Rs.20,00,000/- and Rs. 3,00,000/- respectively.
The impugned orders are modified to the above extent. Appeals are partly allowed in the above terms.
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2024 (2) TMI 1265 - CESTAT AHMEDABAD
Undervaluation of imported goods - Confiscation of goods - redemption fine - penalty u/s 12 - HELD THAT:- We observe in the present case that the immunity granted to the Appellant is under show cause notice No. DRI/HQ -CI/50D/Int-2/2018/CI/8935 dated 14.11.2019 does not ipso facto cover the show cause notice No. DRI/HQ–CI/50D/Int-2/2018/CI-7806-7809 dated 04.10.2018. However taking into consideration the obligations discharged by the Appellant under the Settlement Commission’s order, we are of the view that it would be only fair that a lenient view be adopted with regards to the quantum of fine and penalty imposed.
Accordingly, in Appeal, the redemption fines of Rs. 12,00,000/-, Rs. 20,00,000/- and Rs. 7,50,000/- are reduced to Rs. 6,00,000/-, Rs. 10,00,000/- and Rs. 4,00,000/- respectively and in Appeal, penalty of Rs. 20,00,000/- is reduced to Rs. 5,00,000/- The impugned order is modified to the above extent. Appeals are partly allowed in above terms.
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2024 (2) TMI 1264 - CESTAT AHMEDABAD
Refund of SAD in terms of Notification No. 102/2007-Cus - Procedural lapse - Importing goods on payment of appropriate Countervailing Duties (CVD) and 4% Special Additional Duty (SAD) - import duties through DEPB Script - appellant has filed multiple refund claims against one bill of entry - HELD THAT:- We observe that the Department has applied the said condition stating that the Appellant has filed two separate claims on the same Bills of Entry. It has to be noted here that under the given circumstances the application of this procedural requirement seems trivial to the purposes of the said issue as in the present case the payment of 4% SAD was done through two mediums by DEPB Script and Cash which was the sole reason behind the Appellant filing two claims. The conditions under the said circular act as a procedural safeguard that can be differentiated based on the facts and circumstances of a case. It would be contrary to the essence of the circular to deny the substantial benefit of refund only on a procedural requirement when it is silent towards such issues like that in case of the Appellant.
The scope of benefit entailed under a Notification cannot be curtailed solely based on the claims as made in the present case. It would render the effectiveness of a Notification redundant when all other essential conditions required for the said purposes have been adhered with which in the present case has been complied with by the Appellant. The intent of the Notification has been given priority over the executive application of a Circular.
Thus, we are of the considered view that the benefits under Notification No.102/2007-Customs should not be denied to the Appellant thereby the Appellant is entitled for refund claim.
Hence, the impugned order is set aside. Appeal is allowed.
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2024 (2) TMI 1263 - CESTAT KOLKATA
Smuggling - Seized 2332.800 gm of foreign marked gold - confiscation of seized gold - Burden of proof - four invoices of VBC initially recovered from Satendro Panda at the time of recovery - invocation of Section 123 of CA - HELD THAT:- We find that it remains a matter contentious between the department and the appellant, that only photocopies of two invoices of BBC were made over to the authorities and original not produced by the appellant, while the latter claims to have made it over to the Deputy Commissioner, who had personally verified the same. The fact that copy of the said invoices each were procured by the department from the end of BBC, sets to rest any doubts in this regard, in the purported absence of the originals/invoices.
It is also not the case that the two invoices were tendered quite later during the investigation process, as it is on record that the appellant, at the time of claim of ownership of seized gold within days of seizure (gold seized on 18.08.1999 while ownership claim application and BBC invoices received by the department on 23.08.1999), itself tendered the said invoices – virtually hinting at proximate time span in the matter. Also we find not enough merit in disregarding the application indicating “20 Tolas” in lieu of “200 Tolas” in one of the application tendered by the appellant, which error the appellant have described as to a clerical one. We also find no substance in the departments plea of reading exceptionally into the act of interpolating “UBS” in the MMTC issued delivery challan/invoice, which the appellant indicates was for reason of their own internal consumption.
MMTC has admittedly raised the invoice in question in favour of BBC which the department sourced upon investigations done with BBC and a copy of which was made over to the department by the appellant during investigations. Also, BBC has submitted before the authorities that sales were normally made against manual invoices, but computerized billing was resorted to by them on the basis of customer’s request. We note it is these computerized invoices that the department laid its hands on while conducting immediate follow up with BBC.
We are of the view that the appellant’s have satisfactorily discharged the burden cast upon them in law, u/s 123 of the Customs Act and have demonstrated the licit possession of seized gold. On the other hand the department has failed in irrefutably demonstrating any falsity in the evidence supplied by the appellant noticee.
Thus, for want of the same the seizure and the ultimate confiscation of the 20 gold bars is not warranted. It being therefore unlawful is liable to be set aside. For reasons thus, we quash and set aside the orders passed by the lower authority and also set aside the order of confiscation of gold and imposition of penalty and allow the appeal with consequential relief as per law.
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2024 (2) TMI 1262 - CESTAT AHMEDABAD
Penalty on Customs Broker under Regulation 18 of CBLR, 2018 - violation of regulation 10(o) and Regulation 10(b) - not complied with the condition of KYC of the exporter Fraudulent export - correct value of the goods not verified - HELD THAT:- Valuation of the goods is not the responsibility of the custom broker. The custom broker has limited responsibility of documentation on behalf of the exporter and of course the verification of KYC which is not disputed in present case. Therefore, both the allegations are not sustainable. There is no case of the department that the appellants have colluded with the exporter knowingly about fraudulent export of goods with intension to avail the refund of GST, therefore in absence of any such evidence merely because some fraud was committed by the exporter the custom broker cannot be implicated automatically even though he has no role in the offence of fraudulent export. Therefore, in my considered view there is no reason in the present case to penalise the appellant.
Accordingly, the penalty is set aside. Appeal is allowed.
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2024 (2) TMI 1261 - BOMBAY HIGH COURT
Effect of resignation from Directorship - Removal of name of the Petitioner as a Director of Respondent No. 4-company - HELD THAT:- Although certain compliances on the part of the company were necessary, however, in the peculiar facts of the present case, it is clear that the company itself did not commence its business, as also the other director being a foreign director did not take any steps in that regard. Added to this was the Covid-19 pandemic period during which such compliances could not be made. All these circumstances ought not to weigh against the petitioner, for deletion of his name as a director from the record of the Registrar of Companies. This also for the reason that severance of the petitioner’s relationship as a director of the company took effect from 1 September 2021 as per the petitioner’s letter dated 24 August 2021 received by the company. This is the legal consequence as brought about by Section 168(2) of the Companies Act, 2013.
Except for certain forms not being filled by the company within the prescribed time, there does not appear to be any other gross default or illegality or any other justifiable reason for the Registrar of the Companies to give effect to the resignation of the petitioner, in the official records, as maintained by him. This is fortified from the contents of the reply affidavit of the official respondents which categorically state that even the explanations / comments and / or compliances as demanded by the Registrar of Companies from respondent No. 4/company were reported to be not answered by the company. This was a default on the part of a non-functional company. Thus, this is clearly a case where the company itself was stillborn.
Petition allowed.
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2024 (2) TMI 1260 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI - LB
Qualified bidder or not - Application rejected holding that in third round of e-auction conducted by the Respondent property lot-III as is specified in e-auction notice dated 07th July, 2023 also stands sold - grievance of the Appellant is that in the process document, the time for payment was provided for 10 days whereas in the Schedule I, the time for payment is for 90 days.
HELD THAT:- Auction having already held with regard to lot-III, challenge to auction notice cannot be entertained.
In so far as the submission of the Appellant that in the process document only 10 days time is allowed for making payment whereas regulation provides for 90 days, it is well settled that in event of conflict between a clause in the process document and the regulations, it is the regulation which will override. The question of payment arises only when auction is confirmed and when bidder is declared a successful bidder. It is not the case of the Appellant that Appellant has been declared as Successful Bidder and he has been asked to deposit within 10 days, Appellant having not participated in the auction, at his instance the auction notice has not rightly been quashed by the Adjudicating Authority.
There is no merit in the Appeal, the Appeal is dismissed.
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2024 (2) TMI 1259 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Initiation of CIRP u/s 9 - time limitation - threshold limit of amount claimed - whether the claims made by operational creditor are time barred? - whether the claims are meeting the threshold limit for them to be eligible for section 9 proceedings? - acknowledgement of debt - HELD THAT:- This Tribunal in S.M. GHOGBHAI VERSUS SCHEDULERS LOGISTICS INDIA PVT. LTD. [2022 (5) TMI 1210 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] had held that proceedings under Section 9 of the IBC 2016 cannot be set to be a suit relating to accounts and as such Article 1 of the Limitation Act is not applicable and the period of limitation for application under Section 9 of the IBC, would be governed by Article 137 of the Limitation Act. Accordingly, the time from which period of limitation begins is when the right to apply accrues and right to apply accrues when the invoices were to be paid.
Time barred claims or not - HELD THAT:- The Limitation period begins to run from the time when the right to apply accrues i.e. limitation will be three years from when the right to apply accrues, which is over for 224 out of 234 invoices, as the due dates of these invoices, admittedly are from 2013 to 2014. In the instant case there are six projects, located in different locations, though under the same construction company viz HCCL. Most of the invoices pertain to the period of 2012 to 2014 and default dates varies from the year 2012 to 2014 in majority of the cases. Therefore, the three-year limitation period, even for the last invoice out of the 224 invoices had lapsed in September 2018, while this Company Petition was filed on 25th February, 2021. Therefore, the argument of the petitioner that for Company Appeal the limitation stood extended is not tenable.
The legal tenability of running accounts has already been noted in the instant case for all the invoices together and there cannot be any better justification to settle them project wise as per Article 1 and therefore they also have to be settled as per Article 137 of the Limitation Act. The Operational Creditor has not been able to cross the hurdle of limitation and the threshold of Rupees one crore in a consolidated manner for 234 invoices claimed in his demand notice - with respect to 234 invoices, which are payable within 30 days of the invoices, 224 invoices are ex-facie time barred and the remaining 10 invoices do not meet the threshold of Rs.1,00,00,000/-. Therefore, this line of argument of the operational creditor is also not tenable.
Emails-are they acknowledgement of debt? - whether the emails of 14.07.2017, 07.01.2019 and 26.03.2019, annexed to the petition constitute an acknowledgement of debt or not? - HELD THAT:- The claims either suffer from hurdle of limitation or threshold or most of the time by both. In the present case as the so-called acknowledgement of liability by these emails is not before the expiration of the period of limitation. Taking these projects individually, in the case of Kashang Hydro Electric Project the due date for the last invoices had fallen on 28.06.2014. The claims were rendered time barred on 28.06.2017. And the purported emails sent by the Appellant is dated 10.11.2017, which is much after the period of expiry of limitation. Similarly , the due date for the last invoice for the Uri Project had fallen on 23.01.2014. The claims were rendered time barred on 23.01.2017. Appellant had relied upon email dated 14.07.2017, which is much after the period of expiry of limitation. Same is the case for other projects also. Therefore, section 18 of the Limitation Act doesn’t apply and these emails do not provide any acknowledgement of the debt and doesn’t help the Appellant.
It is well settled that the period of limitation for application under Section 9 of the IBC, would be governed by Article 137 of The Limitation Act, 1963. The claim of the Operational Creditor that they were having running account and are covered under Article 1 of the Limitation Act cannot be accepted - In the instant case in most of the claims, as noted by the Adjudicating Authority they are time barred. Specifically, out of 234 invoices 224 are ex-facie time barred and for the remaining 10 invoices the total does not make it more than the threshold of Rupees one crore and therefore the claims of the Operational Creditor cannot be accepted.
Accordingly, the Appeal is dismissed.
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2024 (2) TMI 1258 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI - LB
Prayer for direction for placing the Settlement Proposal submitted by the Appellant before the CoC for consideration - CoC unanimously decided to reject the proposal - HELD THAT:- On looking into the minutes of the CoC, it is clear that the proposal submitted by the Appellant was duly considered and deliberated by the CoC. The reasons have also been noted in the minutes due to which the proposal did not find favour with the CoC. The decision to accept or reject the proposal under Section 12A is essentially a business decision and is in the domain of commercial wisdom of the CoC - the submission of learned counsel for the Appellant that proposal of the Appellant was not adequately considered by the CoC or there is any error in consideration or CoC has arbitrarily acted in rejecting the proposal of the Appellant, is not accepted.
It is well settled that jurisdictional review of the decision of CoC for accepting or rejecting a proposal by the Adjudicating Authority is only on the ground that decision is arbitrary. The minutes of the CoC meeting does indicate that there is application of mind and CoC has rejected the proposal after due consideration and deliberation.
There are no error in the order of the Adjudicating Authority rejecting the application - appeal dismissed.
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2024 (2) TMI 1257 - DELHI HIGH COURT
Violation under FERA - charge u/s. 56 of FERA - Company being in Liquidation - Offences by companies u/s 68 of FERA - As submitted Company being in Liquidation and a Provisional Liquidator having been appointed for it, only the Provisional Liquidator can represent the Company in the proceedings pending before the learned ACMM and not the petitioner herein.
Whether the charge against the Company can be framed through the petitioner? - HELD THAT:- As per Section 305 CrPC Procedure when corporation or registered society is an accused would show that where the accused person is a company, it may appoint a representative for the purpose of the trial, and where such representative appears, any requirement of the CrPC that anything shall be done in the presence of the accused or shall be read or stated or explained to the accused, shall be construed as a requirement that that thing shall be done in the presence of the representative or read or stated or explained to such representative. Sub-Section (4) of Section 305 CrPC states that where the representative of a company does not appear, any such requirement as is referred to in sub-Section (3) of Section 305 CrPC shall not apply.
In the present case, there is no authorization of the petitioner to represent the Company in the trial. In fact, the Company is in liquidation and a Provisional Liquidator already stands appointed for the Company.
In terms of Section 457 of the Companies Act, 1956 (as was then applicable), it is only the Provisional Liquidator or person authorized by the Provisional Liquidator, who could represent the Company in the trial. The petitioner, therefore, cannot be said to be representing the Company. It is another thing to say that he would face the trial in his individual capacity as an accused, but another thing to say that he would also face the trial as a representative of the Company.
Though the above issue was flagged before the learned Trial Court, as is reflected in the Orders the learned Trial Court proceeded to frame the charge against the Company taking the petitioner herein to be representing the Company. The same cannot, therefore, be sustained.
Conclusion & Directions - Trial Court has clearly erred in framing the charge against the Company through the petitioner. The charge against the Company has to be through the Provisional Liquidator appointed for the Company. The impugned order dated 03.08.2007 shall stand modified to this limited extent. It is clarified that the charges framed against the petitioner in his individual capacity have not been interfered with by this Court.
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2024 (2) TMI 1256 - DELHI HIGH COURT
Violation of right to privacy and dignity and right of fair investigation by press reports - Preventing any information from being leaked, including any confidential, sensitive, unverified/unconfirmed information, to the print / electronic media in relation to the ongoing investigation / proceedings - alleged violation of the provisions of Foreign Exchange Management Act, 1999 - HELD THAT:- It is well settled that modern communication mediums advance public interest by informing the public of the events and developments that takes place in a democratic set-up. Dissemination of news and views for popular consumption is a must and any attempt to deny the same has always frowned upon by Courts. It is also equally well settled that freedom of speech and expression guaranteed under Article 19(1)(a) includes freedom of press and communication needs in a democratic society i.e., the right to be informed and the right to inform, however, not at the cost of right to privacy.
The Apex Court in Indian Express Newspapers (Bombay) Pvt. Ltd. vs. Union of India, [1984 (12) TMI 65 - SUPREME COURT] has observed Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to governments and other authorities. The authors of the articles which are published in the newspapers have to be critical of the actions of government in order to expose its weaknesses. Such articles tend to become an irritant or even a threat to power.
The Petitioner herein is a former elected Member of Parliament and a public figure. The people are entitled to know about any news regarding the public figures. The accountability of persons who are public figures towards society is higher and they are subject to a higher level of public gaze and scrutiny - Since public figures are subject to closer scrutiny, unless the publications amount to harassment and invasion in private life of the individual public personality concerned or the family of the public personality, publications regarding the public life of such public personalities cannot be stopped from being published either by the Government or by the Orders of the Court.
The newspaper cuttings do not deal with the private life of the Petitioner but are only reporting regarding the investigation that is being conducted against the Petitioner who is a public figure and same is unrelated to her private life. There is nothing in the news articles which would have the effect of invading into the privacy of the Petitioner or tend to impair the impartiality of the investigation or that it can have the effect of prejudicing the trial of the Petitioner in the event it is initiated. It is well settled that Gag Orders against the media can be passed only when it has the potential to prejudice any investigation or an ongoing trial.
In view of the statement made by the learned Counsel for Respondent No. 1/ED that the Advisory on Media Policy issued by the Government of India vide Office Memorandum dated 01.04.2010 has been and is being followed, and after perusing the news articles, this Court is of the opinion that the reliefs as sought for by the Petitioner by way of the present writ petition need not be granted at this stage - Petition dismissed.
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2024 (2) TMI 1255 - SC ORDER
Seeking permission to withdraw the present appeals - COD Clearance- COD clearance to agitate quantum of demand and liability of Service Tax - Tribunal bound by ONGC case direction till they are overruled. Necessary COD clearance for challenge thrown under appeals filed absent - HELD THAT:- The appeals are disposed of as withdrawn.
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2024 (2) TMI 1254 - CESTAT AHMEDABAD
Eligibility for works contract composition scheme - ongoing works contract as on 01.06.2007 - HELD THAT:- The contracts executed by the appellants is composite in nature as the Appellant is engaged in both supply of goods as well as service and have been rightly classified under the tax entry works contract service. It can be understood from the interpretation by the Hon’ble Supreme Court in the case of Larsen & Toubro Ltd [2015 (8) TMI 749 - SUPREME COURT] that there is no liability to service tax in respect of indivisible composite works contract prior to 01.06.2007.
In the present case the Appellant is not contesting their service tax liability under works contract service after 01.06.2007 but their entitlement to pay the said tax in terms of composition scheme of 2007. The original authority held that the appellants switched over from construction service to works contract service only to avail the benefit of the scheme and thus are in contravention of the provisions of the said scheme. It has been observed that the denial of the composition scheme by the Adjudicating Authority is only based on the change of head from Commercial or Industrial construction service to works contract service that because of which the Appellant cannot opt for payment of service tax under works contract service under the composition scheme.
The activities carried out by the appellants become liable for taxation only with effect from 01.06.2007 as such activities prior to 01.06.2007 were not categorised as taxable services therefore it is inconsequential to the issue. Post introduction of the new tax entry the appellant discharged service tax in tune to the provisions applicable to them therefore their entitlement cannot be denied.
The absolute identical issue that whether in case of ongoing project running from the period prior to 01.06.2007 and after 01.06.2007 whether the assessee is eligible to avail the composition scheme under ‘works contract service’ form 01.06.2007 has been elaborately considered by relying upon Hon’ble Gujarat High Court, in the case of JMC Project India Ltd [2022 (6) TMI 303 - CESTAT AHMEDABAD] where it was held that prior to 01.06.2007, the activity int nature of work contract were not taxable.
Thus, it is no longer res-integra that the assessee can opt for composition scheme under ‘works contract service’ even in respect of ongoing projects with effect from 01.06.2007.
The Appellant is eligible for Composition Scheme under Works Contract. The impugned order is set aside - appeal allowed.
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