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Showing 121 to 140 of 1721 Records
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2019 (6) TMI 1603 - CESTAT KOLKATA
CENVAT Credit - input services - outdoor catering services availed at the factory - levy of penalty in case credit is held to not available to them - HELD THAT:- The Hon’ble Madras High Court in its decision dated 31.08.2017 in the case of CCE Coimbatore vs. PRICOL [2017 (8) TMI 1467 - MADRAS HIGH COURT] has held that the use of outdoor catering services in the factory has a nexus and integrally connected with the manufacture of final products and hence eligible for credit. Similar views have been taken by the Hon’ble Gujarat High Court in CCE Vadodara vs. Transpek Industry Ltd [2017 (10) TMI 86 - GUJARAT HIGH COURT] - The appellant is entitled to avail Cenvat credit on outdoor catering and therefore the order passed by the Ld. Commissioner allowing credit on outdoor catering services in factory is legally correct.
Penalty - HELD THAT:- The entire details regarding availment of credit were available to the department and thus there is no suppression on the part of the assessee. Therefore, penalty of ₹ 1,51,080/- imposed on the assessee is set aside.
Appeal allowed - decided in favor of appellant.
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2019 (6) TMI 1602 - CESTAT NEW DELHI
Time Limitation - Confiscation of imported goods as well as indigenous procured goods in year 2000 itself - goods confiscated lying in the bonded warehouse - depreciation as per the notifications 13/81-Customs as amended not granted by the adjudicating authority - renewal of license denied - HELD THAT:- The appellant in the case has approached the Tribunal as many as four time against the various orders passed by the adjudicating authority/appellant authority on the same sets of facts and circumstances. In spite of quashing the demand/order against appellant by the Commissioner (Appeal) and the Tribunal, the adjudicating authority has been issuing the show cause notices on one pretext or other contrary to the provision of Customs and Central Excise Act. Once the order passed by the Commissioner on the same issue which has been set aside by this Tribunals and also by the Commissioner (Appeal), the re-opening of the issue amounts to non compliance of the order of the Tribunal/Commissioner (Appeal). Once the department has issued the show cause notice before the expiry of LOP and that has been decided in appeal, by setting aside that, the same issue cannot be revived by another show cause notice even after the extension of LOP period.
The department has not renewed the warehousing licence of the appellant after year 2000 and thereafter the demand was required to be made in terms of the notifications No.13/81 within prescribed time, which has not been done by the department. Therefore, the demand is also time bared.
The entire goods, which has been procured indigenously or imported is still lying in the appellant’s warehouse. The appellant has requested for the disposal of confiscated goods under the provisions of Customs and Central Excise Act and recover the demand penalty against them. But the department has failed to do so - the impugned order is contrary to the provisions of the law, on merits and also on the limitation and is not sustainable.
Appeal allowed - decided in favor of appellant.
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2019 (6) TMI 1601 - ITAT CHANDIGARH
Rectification application - Validity of the reopening of the assessment u/s 147 of the Act read with section 148 - Initially the assessee had not pressed the aforesaid grounds as the same were not permitted by the Committee on Disputes’ - HELD THAT:- As held in the of the decision of the Hon'ble Supreme Court in the case of Electronics Corporation of India Ltd. [2011 (2) TMI 3 - SUPREME COURT] the approval of the Committee on Disputes was not required for pursuing the appeals before the I.T.A.T. and Courts. The assessee, accordingly, duly pressed those grounds.
The above said grounds inadvertently were dismissed as ‘not pressed’ be cause of the earlier note put on against the aforesaid grounds. Earlier, the Committee on Dispute s had not permitted to raise the aforesaid grounds. However, later on since the assessee had become entitled to raise and press these legal issues, which go to the root of the case, the Ld. Counsel for the assessee, duly pressed the same during arguments. In view of the above, a mistake apparent on record has occurred in the order of the Tribunal in not adjudicating the aforesaid legal issues on merits.
The consolidated order [2018 (8) TMI 2027 - ITAT CHANDIGARH] of this Tribunal is, therefore, recalled to the limited extent and purpose for adjudication of the related ground.Miscellaneous Applications filed by the assessee are treated as allowed.
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2019 (6) TMI 1600 - CESTAT NEW DELHI
Classification of goods - “dant mukta” used in manufacture of “lal dant manjan” - classifiable under Chapter sub-head 33061010 or otherwise? - benefit of N/N. 02/2011–CE dated 01.03.2011 - extended period of limitation - penalty - HELD THAT:- The word ‘tooth powder’ has been taken away from the existing eight digit tariff and any kind of powder which is the preparation for oral or dental hygiene is held covered under Chapter heading 33061010 - Otherwise also, the Tribunal Mumbai in the case of ECO VALLEY FARMS & FOODS LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE, PUNE-III [2013 (1) TMI 51 - BOMBAY HIGH COURT] has held that the amendment of tariff from six digit to eight digit regime was brought about with a view to covert the existing six digit entries in Schedule to the 1985 Act to eight digit entries on par with the entries in the Schedule to the Customs Tariff Act and not with a view to bring in new goods within the purview of excise. The said observation was based on the clarification under Notification No. 01/2005 dated 24.02.2005 and a subsequent Trade Circular No. 808 dated 25.02.2005 clarifying that the amendment of 2004 is merely a technical change of transition from six digit to eight digit classification with no substantive change to be brought in.
In the present case, admittedly, the impugned product, i.e. the raw material/ intermediary product in manufacture of “lal dant manjan” (tooth powder), namely “dant mukta” has an essential character of “lal dant manjan”. Admittedly, it contains all such ingredients as are the ingredients for “lal dant manjan”. It is only one constituent, i.e., gairric powder which is being added to “dant mukta” for it to be finally called as “lal dant manjan”. There is no denial on record to the fact that “dant mukta” imparts the essential character to the final product ‘lal dant manjan’ and the garric powder which is found in a higher concentration in lal dant manjan does not contain any tooth cleansing property and it only acts as a carrier - this intermediary product is nothing but the tooth powder (under six digit regime) or powder for oral hygiene (under eight digit regime), classifiable under 330610/33061010 respectively.
Applicability of Notification No. 02/2011–CE dated 01.03.2011 - HELD THAT:- The impugned product ‘dant mukta’ is entitled for benefit of the Notification. Denying the said benefit on the ground that it is not sold in packages for retail, is also not appropriate finding because the goods in packages of a kind sold by retail are not the only goods for holding 3303–3307. Rather Chapter Note 3 also uses the word ‘inter alia’, which as per the dictionary meaning is ‘amongst other things’. The word ‘inter alia’ in Chapter Note 3 is comprehensive in nature to include even the products sold in lump sum packages and also products sold in retail packages. Hence, irrespective ‘dant mukta’ is not sold in retail packages but in bulk packages, it is eligible for the benefit of concessional duty under Notification No. 02/2011 dated 01.03.2011 - Department has wrongly denied the benefit of the impugned Notification to product of the appellant called ‘dant mukta’.
Extended period of limitation - Penalty - HELD THAT:- Department initiated the proceedings alleging ‘dant mukta’, an intermediary product of the appellant required to make ‘lal dant manjan’ has been mis-declared with an intent to evade payment of duty - In the present case, where it is already held that ‘dant mukta’ has rightly been declared as tooth powder/ powder meant for dental or oral hygiene. The alleged mis-declaration has already been set aside. It thus, becomes clear that there was no intention to act dishonestly so as to evade the payment of duty. Hence, the extended period of limitation could not be invoked. Otherwise also, the extended period of limitation is not invokable in the cases pertaining to classification as interpretational issue - Remaining demand for the period January, 2016 to January, 2017 though within the normal period of one year is also liable to be set aside, in view of both the questions for adjudication as framed to have been decided in affirmative i.e., in favour of the appellant.
Appeal allowed - decided in favor of appellant.
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2019 (6) TMI 1599 - CESTAT NEW DELHI
Refund of CENVAT Credit - export of services - SCN not issued - POPOS Rules - whether the Commissioner is justified in remanding the matter back to the Adjudicating Authority for determination of the question of export of service under the provisions of ‘place of provisions of service rules 2012’? - HELD THAT:- This Tribunal has repeatedly held that without issuing a show cause notice of the intended disallowance of a claim, the same cannot be done legally as the issue of valid show cause notice is a sine quo non for assuming jurisdiction, to pass an adjudication order. In the facts of the present case, it is an admitted fact that the appellant has been engaged in similar activities, wherein they provide credit report on worthiness of the buyer of the product manufactured by the seller /principal, who are located outside India. The appellant has also brought on record several adjudication orders for the period July, 2014 to March, 2016, wherein under the similar facts and circumstances, cenvat credit has been refunded and the status of export of service is accepted by the Department, which has not been further carried in appeal by the Department.
The order of remand by the Commissioner (Appeals) for re-determination of the issue whether the appellant has exported their services is without any merit - Adjudicating Authority is directed to grant the refund within a period 45 days from the date of receipt of the order along with interest as per rules - appeal allowed - decided in favor of appellant.
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2019 (6) TMI 1598 - CESTAT NEW DELHI
Refund of accumulated Cenvat Credit - export of services - time limitation - claims have been rejected forming an opinion that period of one year has to reckon from the date of invoice - HELD THAT:- Larger Bench decision in case of CCE & CST, BENGALURU SERVICE TAX-I VERSUS M/S. SPAN INFOTECH (INDIA) PVT. LTD. [2018 (2) TMI 946 - CESTAT BANGALORE] has considered the issue about the time limit within which a refund claim under Rule, 5 CCR may be filed. It has been observed therein that paragraph 6 of the Notification No. 5/2006-CE (up to 17/06/2012) specifies that refund claims may be made before the expiry of the period specified in Section 11(B) in CEA, 1994. The time limit of one year in the said Section is from the relevant date. The Hon‟ble Larger Bench held that a relevant date specified under above section leads no room for doubt as far as export of goods is concerned.
Since the matter has already been remanded by the Commissioner (Appeals) to the Adjudicating Authority, also in view of the admitted fact that the impugned refund claims were filed on quarterly basis, the refund claims all still to be verified for limitation purposes however on the basis of principle held herein hence it is directed that the Adjudicating Authority, to re- examine the claims while taking the end of the quarter in which FIRC is received as the relevant date for determining the time limit.
Appeal allowed by way of remand.
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2019 (6) TMI 1597 - CESTAT NEW DELHI
CENVAT Credit - input services - IPR and Management Consultancy Services used in or in relation to the manufacturing activities of the appellant - period March, 2011 to May, 2011 - invocation of extended period of limitation - HELD THAT:- The appellant was manufacturing both dutiable and exempted goods. As such, they were entitled to take cenvat credit of common input services as provided in Rule 6(5) of Cenvat Credit Rules, 2004 as regards the specified services therein - Further, it is found that the appellant was entitled to distribute the credit among its other units under the provisions of Rule 7 of Cenvat Credit Rules. Thus, there is no malafide or contumacious conduct on the part of the appellant in availing the common input credit in respect of the IPR services and Management Consultancy services.
The extended period of limitation is not available to Revenue - appeal allowed - decided in favor of appellant.
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2019 (6) TMI 1596 - CESTAT MUMBAI
CENVAT Credit - input services - providing of Construction Services other than Residential Complex including Commercial/ Industrial Building or Civil Structures - entitlement to abatement as provided by Notification No 1/2006-ST - HELD THAT:- The measure amounts received by the appellants i.e. ₹ 4,98,92,896/- was against the services provided by the Appellant under the category of “Commercial and Industrial Construction” services was in respect of the services provided by the Appellant to TNEB, Tuticorin during the period prior to 07.04.2012. It is admitted fact by the Commissioner that Appellants had taken the Centralized Registration in respect of the services provided under this category only from 20.04.2012. In respect of the Service provided by the Appellants from Tuticorin, they were having separate registration AAKCS7579PSD021 for providing taxable services under the category of “Maintenance or Repair Services, Construction Service In Respect of Commercial or Industrial Buildings and Civil Structures” in Tuticorin. For the services rendered in Tuticorin, appellants had filed ST-3 return without claiming any CENVAT Credit - Thus we are not in position to agree with the conclusion arrived by the Commissioner, that the demand is in respect of the Construction of Commercial or Industrial Complexes in respect of the major portion of demand.
For the period after 20.04.2012, when the appellants had shifted and obtained registration under the category of “Construction of Commercial or Industrial Complexes” in their Centralized Registration at Nagpur, they have not taken any CENVAT Credit. Commissioner has himself rendered the finding that they had taken the disputed credit during the period October 2010 to March 2011. Thus the appellants had not availed any CENVAT Credit during the period after 20.04.2012 - appellants had not taken credit in respect of inputs or input services for rendering the services under the category of “Construction of Commercial or Industrial Complexes”. The benefit of abatement under Notification No 1/2006-ST is admissible subject to the condition imposed.
Appeal allowed - decided in favor of appellant.
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2019 (6) TMI 1595 - CESTAT MUMBAI
Levy of penalty - personal involvement by the appellant in the alleged clandestine manufacture and removal of the goods or not - HELD THAT:- Undisputedly there has been manufacture and clearance of excisable goods clandestinely by M/s B.K. Industries of which Shri Radheshyam Sarda was the Director. In his statement recorded by the officers, Shri Sarda categorically admitted that the said manufacturing unit was indulged in clandestine manufacture and clearance of the finished goods during the relevant period and agreed to deposit the entire amount of duty not paid. Also, in his statement dated 25.11.2009, he has accepted that he looks after day to day affair of the factory including purchase, sale and production. Therefore, his plea that personal penalty cannot be imposed on him is without merit, accordingly, imposition of penalty under Rule 26 of Central Excise Rules, 2002 is justified.
In the interest of justice, penalty imposed is reduced to ₹ 2.00 lakhs - appeal allowed in part.
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2019 (6) TMI 1594 - CESTAT MUMBAI
Revocation of Customs Broker license - delay in conducting the enquiry proceedings - goods grossly misdeclared in terms of value, quantity and description - HELD THAT:- There are no justifiable reason being put forth to hold that Shri Sanjay Mishra was not the employee of the appellant. In the examination done before the enquiry officer, Shri Sanjay Mishra has specifically deposed that he is G Card holder given to him by Customs after conducting CHA examination as a permanent employee of a Custom Broker. He is thus authorized to meet the client and customs authorities and for signing the documents for clearance of goods.
Commissioner has not rebutted the claims of the Custom Broker and Shri Sanjay Mishra to the effect that there was employer employee relationship between the two. Once the fact of Shri Sanjay Mishra being the employee of Custom Broker is accepted all other charges will fall.
Appeal allowed - decided in favor of appellant.
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2019 (6) TMI 1593 - CESTAT MUMBAI
CENVAT Credit - input services - repossession of vehicle provided by the various recovery agent to the Appellant against the output service of the Appellant i.e. lending of money - HELD THAT:- An identical issue covering the earlier period i.e. April, 2007 to March, 2012 and it was decided in favour of the Appellant by this Tribunal in M/S. BAJAJ FINANCE LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE [2017 (11) TMI 658 - CESTAT MUMBAI] by which this Tribunal has held that the Appellant are entitled for the Cenvat credit on the service of repossession of vehicle provided by the various recovery agent to the Appellant against the output service of the Appellant i.e. lending of money.
Since on an identical issue between the same parties, this Tribunal has taken a view to allow the appeal - credit allowed - appeal allowed - decided in favor of appellant.
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2019 (6) TMI 1592 - ITAT MUMBAI
Allowability of loss on share transactions - determination of ‘date of transfer’ and holding period for the purpose of computing the period for capital gains - HELD THAT:- Circular issued by the CBDT vide Circular No. 704 dated 28.4.1995 wherein it was clarified that the share transactions carried on by the parties , if followed by delivery of shares and transfer deeds, then the same would have to be accepted. Though this circular was issued in the context of determination of ‘date of transfer’ and holding period for the purpose of computing the period for capital gains, the analody drawn thereon could be utilized to the facts of the instant case.
It is not in dispute that the assessee had traded in shares of Nirma Ltd in off-market but the same was subsequently followed by delivery of shares and transfer deeds. The sale of shares is made following First In First Out (FIFO) basis and it is pertinent to note herein that the opening balance of shares held by the assessee were never doubted by the revenue. No deficiencies whatsoever were brought out by the ld DR before us with regard to these documentary evidences. Hence the share transactions in respect of Nirma Ltd is to be considered as genuine and assessee had made profit in respect of this off-market transaction.
Assessee had also submitted the statement giving details of purchase and sale of shares of Visual Soft Ltd along with copies of bills and contract notes, copies of demat statement and copy of price list from the stock exchange . No deficiencies whatsoever were brought out by the ld DR before us with regard to these documentary evidences. All these documents conclusively prove that the transaction carried out by the assessee is genuine.
Assessee had also submitted the statement giving details of purchase and sale of shares of Elque Polyster Ltd along with copy of price list from the stock exchange. No deficiencies whatsoever were brought out by the ld DR before us with regard to these documentary evidences. All these documents conclusively prove that the transaction carried out by the assessee is genuine.
We find that the assessee had also submitted the statement giving details of purchase and sale of shares of Global Tele Ltd along with copies of bills and contract notes and copy of price list from the stock exchange. No deficiencies whatsoever were brought out by the ld DR before us with regard to these documentary evidences. All these documents conclusively prove that the transaction carried out by the assessee is genuine.
Assessee had also submitted the statement giving details of purchase and sale of shares of Penta Four Soft Ltd along with copies of bills and contract notes; copies of demat statement ; copy of trade file of NSEand copy of price list from the stock exchange (page 86 of paper book). No deficiencies whatsoever were brought out by the ld DR before us with regard to these documentary evidences. All these documents conclusively prove that the transaction carried out by the assessee is genuine.
Assessee had also submitted the statement giving details of purchase and sale of shares of Ramco Systems Ltd along with copies of bills and contract notes. No deficiencies whatsoever were brought out by the ld DR before us with regard to these documentary evidences. All these documents conclusively prove that the transaction carried out by the assessee is genuine.
We direct the ld AO to treat the net speculation loss as genuine loss and allow the same to be carried forward to subsequent years. Accordingly, the grounds raised by the assessee are allowed.
Chargeability of interest u/s 234D - HELD THAT:- No interest u/s 234D of the Act could be charged on the assessee in the peculiar facts and circumstances of the instant case before us. We find that the ld CITA had followed this tribunal order which had attained finality. Hence we do not find any infirmity in the said order of the ld CITA . Accordingly, the grounds raised by the revenue are dismissed.
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2019 (6) TMI 1591 - ITAT BANGALORE
Charging of interest under section 234A, 234B and 234C - HELD THAT:- The charging of interest is consequential and mandatory and the AO has no discretion in the matter. This proposition has been upheld by the Hon’ble Apex Court in the case of Anjum H. Ghaswala [2001 (10) TMI 4 - SUPREME COURT] and I, therefore, uphold the action of the AO in charging the assessee the aforesaid interest u/s 234A, 234B and 234C of the Act. The AO is, however, directed to re-compute the interest chargeable u/s 234A, 234B and 234C of the Act, if any, while giving effect of this order.
Assessment under section 153A - protective and substantive additions made by the AO in the orders of assessment was based on documents found and seized in the course of search - HELD THAT:- AO could not have taken cognizance of the seized documents and other material found and seized in the course of search conducted in the premises / case of Shri. Manoj Kumar Jain, while framing the order of assessment under section 143(3) of the Act in the case on hand. As a matter of fact, the ongoing assessment proceedings under section 143(3) of the Act would abate on receipt of these seized materials as per the second proviso to section 153C of the Act. We are of the view that in the event the AO wanted to take cognizance of the seized materials, he ought to have invoked the provisions section 153C of the Act after recording his satisfaction based on material sent by the AO of Shri. Manoj Kumar Jain.
As pre-condition laid down by the Legislature of recording of satisfaction for taking action under section 153C of the Act cannot be side-stepped / brushed aside and additions be made in proceedings pending under section 143(3) of the Act as the scope of assessments framed under sections 143(3) and 153C of the Act are quite different. In that view of the matter, we hold that the protective additions made by the AO in the impugned order of assessment for Assessment Year 2008-09 dated 31.12.2009, are contrary to the provisions of the Act and are therefore to be deleted. Similarly, the addition sustained by the CIT(A) of ₹ 6,45,000/- on substantive basis as profit from trading in iron-ore based on the material found and seized in the search conducted in the case of Shri. Manoj Kumar Jain is also hereby deleted.
Disallowance of Depreciation on Windmills - Disallowance of the same was not forming part of the cost of the Windmill; but was actually payment made for taking the land on lease - HELD THAT:- 2 Respectfully following the decision of the Co-ordinate Bench of this Tribunal in the case of M/s. V. S. Lad & Sons [2014 (6) TMI 922 - ITAT BANGALORE]we allow the lease rent paid for acquiring the leasehold rights over the land as rent paid in advance and direct that the same is to be allowed as revenue expenditure as per the provisions of section 37(1) of the Act. Consequently, ground No.2 of assessee’s appeal is partly allowed.
Disallowance of claims of deduction under section 10B - whether the assessee is entitled to deduction under section 10B of the Act on the deemed exports? - HELD THAT:- This issue is covered by the decision of the Hon’ble Karnataka High Court in the case of Tata Elxsi Ltd [2015 (10) TMI 634 - KARNATAKA HIGH COURT] - Thus we hold that the assessee is entitled for deduction under section 10B of the Act on deemed exports
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2019 (6) TMI 1590 - ITAT CHENNAI
Assessment u/s 153A - Bogus purchases - HELD THAT:- In the absence of any incriminating materials found during the course of search and seizure operations, no addition can be made u/s.153A of the Act. Reliance can be placed on the decision of Hon’ble Delhi High Court in the case of PCIT vs. Meeta Gutgutia [2017 (5) TMI 1224 - DELHI HIGH COURT] affirmed by the Hon’ble Supreme Court by dismissal of the Special Leave petition in the case of PCIT vs. Meeta Gutputia, [2018 (7) TMI 569 - SC ORDER]. There is a long line of authorities in support of the proposition of law that in the absence of incriminating material found as a result of search no addition can be made in the assessment made pursuant to notice u/s.153A of the Act.
No purchases can be disallowed by alleging that purchases made are bogus. CIT(Appeals) also considered the statement given by the director of M/s. Bhanwarlal M.Jain Group and come to conclusion that the statement does not reveal that the purchases are bogus, it is only stated that the actual supplies are made by some other person on whose behalf the invoices are issued by this group. The statement only reinforces the contention of the respondent assessee that actual purchases are made.
CIT(Appeals) also considered the prevailing business practices in the same line of business and come to conclusion that the actual suppliers are made by one party and the invoices are issued by another party, which does not mean the purchases are bogus. Thus, the order of the ld. CIT(A) is based on due appreciation of materials on record and the law governing the issue of the bogus purchases. Therefore we do not find any reason to interfere with the order of the ld. CIT(A) on the issue of bogus purchases. Thus, viewed from any angle the impugned assessment order cannot be sustained in the eyes of law. The order of the ld. CIT(Appeals) is based on the due appreciation of material on record and in consonance with the settled principle of law and therefore we do not find any reason to interfere with the order of the ld. CIT(A). Accordingly, the appeal filed by the Revenue is dismissed.
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2019 (6) TMI 1589 - ALLAHABAD HIGH COURT
Dishonor of Cheque - It is submitted by learned counsel for the applicant that the present matter relates to dishonour of cheque and the said matter can be well considered by Mediation Centre of this Court - HELD THAT:- It is directed that applicant shall deposit a sum of ₹ 15,000/- within two weeks from today with the Mediation Centre of which 50% shall be paid to the opposite party no. 2 for appearance before the Mediation Centre - The matter is remitted to the Mediation Centre with the direction that same may be decided after giving notices to both the parties.
It is directed that Mediation Centre shall decide the matter expeditiously preferably within a period of three months. Thereafter the case shall be listed before appropriate Bench in the second week of September, 2019.
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2019 (6) TMI 1588 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- The Corporate Debtor failed to create security within the stipulated period of 120 days, i.e., by 13.10.2018. The Petitioner Bank issued a letter dated 14.10.2018 demanding repayment of the credit facilities as the Corporate Debtor failed to create security in favour of the Petitioner within the stipulated period. The letter dated 14.10.2018 issued to the Corporate Debtor and the personal guarantors of the Agreement dated 11.06.2018 is annexed to the Petition. The Petitioner issued a letter dated 16.10.2018 to the Corporate Debtor and its guarantors seeking payment of the instalments of principal and interest amounts. The Corporate Debtor has not tendered any response and has taken least efforts to make the necessary payments to the Financial Creditor. The Petitioner on 29.10.2018 issued letter recalling the entire loan to the Corporate Debtor and subsequently on 01.11.2018 invoked guarantees to the Agreement dated 11.06.2018 to take action against the Guarantors. Copies of letter dated 29.10.2018 and 01.11.2018 are annexed to the Petition.
The Sanction Letter dated 05.06.2018, the Master Facility Agreement dated 11.06.2018, and the CRILC Report establish that the Financial Creditor issued a loan to the Corporate Debtor and the same is in default. Moreover, the Corporate Debtor has admitted its liability in a letter dated 07.06.2018, issued by the Corporate Debtor to the State Bank of India.
The Corporate Debtor has failed to maintain the financial discipline to repay the loan amounts and has not taken any efforts to make the necessary payments - Application under sub-section (2) of Section 7 of I&B Code, 2016 is complete - The existing financial debt of more than rupees one lakh against the corporate debtor and its default is also proved.
Petition admitted - moratorium declared.
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2019 (6) TMI 1587 - MADRAS HIGH COURT
Stay petition - Interim stay seeked - HELD THAT:- There is no dispute or disagreement before this Court today that the conditions imposed has since been complied with or in other words, a sum of ₹ 1 ½ Crores has since been paid by the writ petitioner before 07.06.2019. Therefore, the interim stay granted pending appeal on the file of the second respondent is now operating.
As revenue submits that it may be desirable to have the appeal heard out and disposed of expeditiously and requested that there be a direction in this regard.
Writ petitioner, on instructions, submits that the writ petitioner assessee would cooperate for early disposal of the appeal now pending on the file of the second respondent.
Interim order of stay qua order of original authority/demand, which is now operating owing to compliance of the writ petitioner with the conditions imposed made vide earlier proceedings in instant writ petition will continue to operate till the disposal of the aforesaid appeal before the second respondent.
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2019 (6) TMI 1586 - MADRAS HIGH COURT
Jurisdiction - power of Joint Commissioner, a lower Authority to order any audit of the particular business dealer - no authorisation or delegation by the Commissioner possible in terms of Section 64(4) of TNVAT Act - HELD THAT:- The provisions of sub-Section (4) of Section 64 empowers the Head of the Department viz., the Commissioner to order for an audit of the business of any registered dealer by an officer not below the rank of the Deputy Commercial Taxes Officer, who is much lower authority in the hierarchy.
It is clear that the said sub-section (4) does not empower the Commissioner to delegate the power to pass order to any lower authority. Therefore, the application of mind by the Commissioner himself about the nature of the default by the particular Assessee concerned and therefore there is a need to audit the books of accounts and other revenue records of the business of that Assessee has to be recorded by the Commissioner himself. The words "any registered dealer" in Sub-Section (4) indicates a singular dealer and not a group of Dealers. Therefore, such orders under Section 64(4) cannot be passed for a group of registered dealer in one go. The recording the opinion about the default of the assessee cannot be construed to be an administrative function or administrative order passed by the Commissioner. Therefore, such an order under Section 64(4) of the Act can be nothing but a quasi-judicial order, entailing civil consequences for the Assessee or Dealer concerned. In view of this, the orders to be passed under Section 64(4) of the Act have to meet the principles of natural justice viz., the compliance of the principles of audit alteram partem, giving of a notice and opportunity of hearing to the assessee concerned. The Assessee before the Commissioner can always contend that no such default as stipulated in Section 64(4) clauses (a) to (e) is made out against him and if he places such a case before the learned Commissioner, it is incumbent upon of the Commissioner to apply mind and pass appropriate speaking and reasoned order in this regard. Therefore, passing of an omnibus or general order to audit of business of dealers like done in the present case, does not fit in the scheme of Section 64(4) of the Act at all.
The power to delegate further is not provided under Section 64(4) of the Act. Therefore, the manner in which the impugned order dated 16.05.2014, has been passed by the learned Commissioner laying down certain limits or criterias quoted above leaving it free for the Joint Commissioner to authorise officers below to undertake such audit is wholly untenable and unsustainable order - The audit of the books and accounts of an assessee is required not only under the provisions of Section 64 (4) of the Act but such provisions, which may be applicable to the assessee concerned, may be under the other relevant statutes also like the provisions of the Companies Act, if an assessee is a limited Company, under the provisions of the Income Tax Act, vide Section 142(2A) thereof as well.
The order of the learned Commissioner under Section 64(4) of the Act is a quasi-judicial order, requiring a prior notice of hearing to the assessee and passing of a reasoned speaking order in individual cases of registered dealers for conducting audit by the specified Authority as directed by the Commissioner. The order dated 16.05.2014 does not meet these requirements of law at all.
The Hon'ble Supreme Court in a large number of cases has even held that unless the provisions of the natural justice are specifically excluded by the statutory provisions, they can be read into such provisions in the interest of justice. The provisions in Section 64(4) of the Act do not specify anything about the notice for hearing to the registered dealers but the mere absence of such a provision does not prevent this Court from directing such a requirement to be complied with by the Department viz., Commissioner before directing such audit under Section 64(4) of the Act - A reference for this proposition of law can be made to INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA VERSUS LK. RATNA AND OTHERS [1986 (10) TMI 37 - SUPREME COURT].
Appeal dismissed - decided against Revenue.
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2019 (6) TMI 1585 - COMMISSIONER OF GST (APPEALS), CHANDIGARH
Refund of unutilized input tax credit accumulated on account of inverted duty structure and debited in its electronic credit ledger equivalently - whether the Computation of refund in terms of Rule 89(5) of the Rules has to be done separately for each Head viz IGST, CGST and SGST or as a consolidated ITC and whether the amount claimed as refund under one head can be debited from another Head in light of the C.B.I. & C. Circular No. 59/33/2018-GST, dated 4-9-2018? - HELD THAT:- The benefit of the Circular No. 59/33/2018-GST, dated 4-9-2018 cannot be extended to the present appeals inasmuch as the procedure prescribed in the circular is applicable only to the refund applications filed after the issuance of the said circular - Furthermore, the adjudicating authority has correctly calculated the tax amount Head-wise since the payment of the respective sanctioned final amount has to be made by the respective Central and State Tax authorities independently in pursuance to the procedure laid down in Circular No. 24/24/2017-GST, dated 21-12-2017. The refund claim has been appropriately computed and sanctioned by the adjudicating authority in accordance with the provisions of law.
Appeal dismissed.
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2019 (6) TMI 1584 - AUTHORITY FOR ADVANCE RULING, UTTAR PRADESH
Classification of goods - rate of GST - Filter Elements & Air Filter Assembly as parts for Diesel Electric Locomotives for Indian Railways - classified under Tariff Heading - 8607 in GST regime or not? - HELD THAT:- The Indian Railways had placed Purchase Orders for the manufacturing of “Low mean pore size Primary & Secondary Filter Elements”, “Air Filter 975” & “MR Filter Element” by the party which they subsequently supplied to Indian Railways under the cover of invoices - After going through the Quality Assurance Plans (QAP) for low Mean Pore Size Primary & Secondary Fuel Oil Filter Elements for Diesel Electric Locomotives’ and for ‘Filter Air Dryer & MR for ALCO (American Locomotive Company) Locomotives & EMD (Electro-motive diesel) Locomotives’ as submitted by the party along with their said Advance Ruling Application, it is noticed that the said ‘Quality Assurance Plans’ were duly approved by the competent Railway Authorities. It, therefore, appears that the party had manufactured the said goods as per the specifications of Railways, which they subsequently supplied to Railways.
The term “parts” or “accessories” mentioned in Chapter 86 to 88 is applicable to those “parts” or “accessories” which are solely or principally being used with the articles of those chapters. Since, the aforesaid items manufactured by the party are being principally used for railway locomotives as per aforesaid ‘Quality Assurance Plans’ duly approved by the competent Railway Authority, the same appears to be appropriately covered under Customs Tariff Heading No. 8607 as ‘Parts of railway locomotives’ - It is also pertinent to mention that in pre-GST regime, the party in their ER-1 return for the month of March, 2017, as provided by them, had mentioned the clearances of goods as ‘Parts of Railway or Tramway or Rolling Stock’ under CSH No. 8607 99 20.
Applicability of tax rule under the GST Tariff/Act - HELD THAT:- On the basis of the classification of the said product, it will be leviable to appropriate rate of Goods and Services Tax under the Heading No. 8607 prescribed under Notification No. 1/2017-Central Tax (Rate), dated 28-6-2017 issued under the Central Goods and Services Tax Act, 2017.
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