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Showing 121 to 140 of 1469 Records
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2021 (7) TMI 1351
CENVAT Credit - common inputs for taxable as well as exempt goods - issuance of ARE-1s under self sealing and self certification with remarks “Export to SEZ” - non-maintenance of separate accounts for common inputs on which Cenvat credit was availed - clearance of goods in violation of provisions of Rule 6(3) of the Cenvat Credit Rules, 2004 without payment of duty in terms of Rule 30 of Special Economic Zones Rules, 2006 - Time Limitation - HELD THAT:- Supplies into by DTA unit have to be treated as export in terms of Section 2(m) of Special Economic Zones Act, 2005. They are neither chargeable to nil rate of duty nor exempt from payment of duty under exemption notification. That anomaly under rule 6 (6)(i) of Cenvat Credit Rules, 2004 was duly removed when the said clause 6(6)(i) of Cenvat Credit Rules, 2004 was substituted and SEZ developers were also treated on the same footing as SEZ units. In various judgments which have been relied upon by the learned Advocate it has been clearly laid down that the said substituted rule is clarificatory in nature and, therefore, would have retrospective effect from the date when Cenvat Credit Rules, 2004 were brought into force - reliance can be placed in the case of SUJANA METAL PRODUCTS LTD. VERSUS COMMISSIONER OF C. EX., HYDERABAD [2011 (9) TMI 724 - CESTAT, BANGALORE].
Time Limitation - HELD THAT:- The findings of the Commissioner that invoking extended period is very much within the legal ambit of the department cannot be sustained as the Appellant was duly following procedure as laid down under CBEC circular No. 29/2006-Cus dated 27-12-2006, and such clearances were well within the knowledge of the department - In the case of Sujana Metal Products Ltd Vs. CCE, Hyderabad, which has been upheld by the Hon’ble Andhra Pradesh High Court, this Tribunal apart from setting aside the duty demand on the very same issue on merits also set aside the duty demand on the ground of limitation.
Thus, the duty demand, demand of interest and imposition of equal amount of penalty is neither sustainable on merits nor on the ground of limitation - appeal allowed - decided in favor of appellant.
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2021 (7) TMI 1350
Availment of abatement benefit - inclusion of value of value of materials supplied by the clients free of cost, which have been used in providing Construction Services by the appellant, for calculation of abatement benefit - HELD THAT:- The issue stands decided squarely in favour of the assessee by the Hon’ble Supreme Court in the case of COMMISSIONER OF SERVICE TAX ETC. VERSUS M/S. BHAYANA BUILDERS (P) LTD. ETC. [2018 (2) TMI 1325 - SUPREME COURT] wherein it has been held that value of goods supplied free of cost by the clients are not required to be included for availing the abatement benefit in terms of the above notifications. The Apex Court in the aforesaid decision, while rejecting the appeal filed by the Revenue, has upheld the view taken by the Larger Bench of the Tribunal in M/S BHAYANA BUILDERS (P) LTD. & OTHERS VERSUS CST, DELHI & OTHERS. [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)].
The amount which has been paid in excess of the quantified demand by the Appellant may be refunded subject to quantification of the demand by the learned Adjudicating Authority. For the limited purpose of quantification of the demand, it is being remanded to the Ld. Adjudicating Authority - Appeal allowed by way of remand.
Appeal is allowed by way of remand.
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2021 (7) TMI 1349
Constitutional Validity of Rule 8 (3A) of the Central Excise Rules, 2002 - Use of the accumulated Cenvat Credit for making payment of Central Excise Duty even during default period - HELD THAT:- The High Court at Calcutta, in the case of Goyal MG Gases Pvt. Ltd [2017 (8) TMI 1515 - CALCUTTA HIGH COURT] has followed the decision of the Gujarat High Court in Indsur Global Ltd. V. Union of India [2014 (12) TMI 585 - GUJARAT HIGH COURT] and has held the portion of rule 8 (3A) as ultra vires.
Following the decision of the Hon’ble High Court, it is concluded that there is no bar in making use of the accumulated Cenvat Credit in making payment of Central Excise Duty even during default period.
The Impugned Order is set aside and the appeal is allowed.
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2021 (7) TMI 1348
Extended period of limitation - Valuation of Central Excise duty - VAT amount retained by the assessee would be includible in assessable value or not - Sales Tax remission under the Assam Value Added Tax Act - HELD THAT:- The applicability of extended period of limitation has been decided subsequent to the outcome of the decision in the case of COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II VERSUS M/S. SUPER SYNOTEX (INDIA) LTD. AND OTHERS [2014 (3) TMI 42 - SUPREME COURT]. It is found that the issue has been decided in detail by the Tribunal in the case of CCE & ST, RAIPUR VERSUS. M/S. JAYASWAL NECO INDUSTRIES LTD. [2015 (8) TMI 963 - CESTAT NEW DELHI] as relied upon by the Appellant, where it was held that appellant during the period of dispute were liable to pay duty on the assessable value including amount of VAT collected by them from their customers and retained by them and since the VAT amount was not included in the assessable value, there has been short payment of duty. However, the duty demand for the 2006-07 period has been issued only on 28.4.2011 by invoking extended period of five years under proviso to Section 11 A(1) and this demand would survive only if it can be proved that the appellant had not acted under bona fide belief or that they had committed fraud or wilful misstatement or suppression of facts with intent to evade payment of duty.
Since the issue is no longer res integra, there is no reason to take a contrary view. Moreover, it is found that taking note of the outcome of decision of Hon’ble Supreme Court in COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II VERSUS M/S. SUPER SYNOTEX (INDIA) LTD. AND OTHERS [2014 (3) TMI 42 - SUPREME COURT] which decided the valuation issue against the assessee, the SCN dated 04.06.2014 was issued soon thereafter to raise the impugned demand. Since there were Board Circulars wherein it was clarified that VAT amount retained by the assessee would not be liable to be included in the assessable value, which fact has also been noted by the Hon’ble High Court and the co-ordinate Benches of the Tribunal, the assessee cannot be faulted.
The impugned demand cannot be sustained on the point of limitation and thus, set aside - Appeal allowed - decided in favor of appellant.
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2021 (7) TMI 1347
CENVAT Credit - dutiable as well as exempt goods - non-maintenance of separate records - whether the demand raised in the impugned order by invoking Rule 6(3)(b) of the Credit is legally sustainable whereby the amount of 10% of the value of exempted goods has been considered as ineligible credit - Time Limitation - Penalty - HELD THAT:- The issue is decided in the case of DR. WRITER’S FOOD PRODUCTS PVT. LTD. VERSUS COMMR. OF C. EX., PUNE-II [2009 (3) TMI 846 - CESTAT, MUMBAI] where it was held that The appellants, in the case before us, have not only reversed the credit of Rs. 70,21,383/- but also paid the interest of Rs. 4,71,189/-. We feel that by doing so, the appellants, have undone the act of taking/utilizing the credit, it amounts to not taking the credit and, therefore, they are not required to pay an amount equal to 10%.
Since the legal position stands settled in favour of the assessee, there are no reason to take a contrary view. In the facts of the present case, since it is found that the credit amount attributable to clearance of exempted goods stands already reversed which fact is on record, there is no justification to saddle the assessee with disproportionate demand by mechanically applying the formula of 10% of the value of exempted goods, moresoever when credit has not been availed of such huge amount.
Appeal allowed - decided in favor of appellant.
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2021 (7) TMI 1346
Strict rule of interpretation - additional fixed capital investment of the 'industrial undertaking' as a whole has to be taken into account or item-wise additional fixed capital investment - joint diversification - benefit of clause (d) of Explanation (5) of the Section 4A of UPTT Act - Section 58 (1) of the U.P. Value Added Tax Act - Whether the Tribunal has wrongly relied upon Clause (d) of the above explanation (4) of Section 4A of UPTT Act to hold that the Applicant has himself separately shown the investment in refrigerator and monitor, therefore it cannot be considered jointly for the purpose of Section 4A?
HELD THAT:- After perusal of record, the Court has opined in para 26 that in the first place, as a rule, it cannot be disputed that at the threshold i.e. to determine whether the assessee was eligible to exemption a strict rule of interpretation had to be enforced. However, undisputedly, the assessee did engage in diversification upon establishing manufacturing facility to manufacture refrigerators and PC monitors. No goods similar to those were being manufactured by it, earlier. Therefore, a purposive construction has to be made. Reliance had also been placed on para 11 and 12 of the judgment of Hon'ble Apex Court in COMMISSIONER OF SALES TAX VERSUS INDUSTRIAL COAL ENTERPRISES [1999 (2) TMI 530 - SUPREME COURT]. The Court further observed that it also cannot be disputed that the burden to establish that the assesse had made a single diversification to manufacture refrigerators and PC monitors rested on the assessee. It was a special fact in the knowledge of the assessee. Therefore, the burden would remain on the assessee to prove the same and for the revenue authorities to rebut such evidence as the assesse may produce.
Now at this stage it is not expected from this Court to take fresh appraisal of the evidences or fact findings recorded by the Tribunal, or submitted for consideration by the revenue/revisionist. The trade tax revision could not be dealt with and decided as an appeal by this Court as an appellate authority. If fact finding authority comes to certain conclusion honestly and bona fidely, the mere fact that Court may have a different perspective of that question, cannot be a ground to interfere with the finding even though another view may be possible. Considering the limited jurisdiction exercisable under the Act such a course is not available.
It is apparent that the Tribunal arrived at finding of fact after adducing the evidence produced by the assessee and by the revenue that there was single diversification for carrying out the work to set up manufacturing unit for manufacture of refrigerators and monitors. In any set of circumstances, it cannot be said that the order passed by the Tribunal is in any way illegal or erroneous - This Court is of the considered opinion that if the last fact finding authority i.e. the Tribunal has recorded finding of fact, the same cannot be interfered with in the revision provided the finding is perverse or it based on consideration of irrelevant material or not consideration of relevant material. The Court does not find any infirmity or illegality in the finding recorded by the Tribunal.
The revision fails and is accordingly dismissed.
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2021 (7) TMI 1345
Assessment u/s 153C - violation of Principles of Natural Justice - As contended that it is a classic case of violation of Principles of Natural Justice as the authorities competent, who is exercising the quasijudicial power, failed in their duty to provide reasonable opportunity to the assessees in the manner known to law - HELD THAT:- The manner, in which, the orders of assessment were passed by the Assessing Authority itself would establish that reasonable opportunity had not been granted to the petitioners/assessees. Opportunity to be granted is not a mere opportunity and it must be meaningful and reasonable. The assessees must have time to put forth their defense statements, examine the witnesses by engaging a counsel or for personal hearing. Undoubtedly, the allegations against the assessees emanated from and out of a search conducted in the premises of M/s.Agni Estates and Foundations Private Limited. The assessees are the 'other persons' and therefore, they require opportunity to rebut the contentions raised against them from and out of the materials collected from the premises of the 'searched person'.
This being the factum, the respondent could not able to establish that reasonable opportunity has been afforded to the petitioners/assessees to defend their case in the manner known to law. However, the allegations made against the Assessing Authority is not substantiated and became unnecessary. Therefore, such allegations made in the affidavits require no consideration. Though such an allegation is made, the respective learned Senior counsels fairly have not insisted the same. The Learned Senior counsels for the petitioners have reiterated that the petitioners are ready and willing to defend their case and reasonable opportunity is to be given.
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2021 (7) TMI 1344
Input tax credit - scope of Plant and Machinery - Whether the term 'other civil structure' used in the definition of 'Plant and Machinery' restricts the Land filling Pit from considering it as Plant & Machinery and thereby restricts ITC to be availed on it? - HELD THAT:- The analysis of the exclusions i.e. land, buildings or any other civil structures, telecommunication towers and pipelines would definitely not form part of machineries and would definitely fall under the category of “fixed assets” in the form of “plant”. Hence when these are excluded, definitely they are excluded from the claim of input tax credit even if they are plant in the general sense of business. The applicant has explained that the structure is covered under “plant” and this may be acceptable in the general sense, but in case of the present law, civil structures are not “plant” for the purpose of Chapter related to Input tax credit and Chapter VI. The case laws referred by the learned Advocate are all used to claim that the structure is a “plant” and that is acceptable in the general sense, but for the specific purpose of Chapters V and VI of the GST Act, they would be kept out of the category of “plant”.
Whether the pit is a civil structure or not. It is very clear that the applicant has used materials like steel, cement, bricks and claims that they are not used for the land filling pit? - HELD THAT:- The applicant is purchasing the construction materials for other than the construction of land filling pits. If they are used for construction of other structures, they would have been done on his own account and the input tax credit would not be available on those input tax credit related to those materials as per section 17 (5) (d) as they would still be civil structures (other than pits). Since those civil structures are not being used directly in relation to the main business activity, they would not be covered under the definition of “plant” even generally (other than for the purpose of GST). Furthermore, civil structures are excluded even if they are generally covered under plants, for the purpose of GST.
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2021 (7) TMI 1343
Interpretation of statute - Jurisdiction - power of a court to modify an award - whether the power of a court under Section 34 of the Arbitration and Conciliation Act, 1996 [Arbitration Act] to set aside an award of an arbitrator would include the power to modify such an award? - HELD THAT:- In the present case, a notification designating a Special District Revenue Officer as the competent authority has been made. The amount determined by the aforesaid authority has then to be sent to an arbitrator, on application by either of the parties. What is important to remember is that the aforesaid arbitration is not a consensual process with both parties having a hand in appointing the arbitrator. As a matter of fact, the land owner has no say in the appointment of the arbitrator, who is to be appointed only by the acquiring authority, that is the Central Government.
It is settled law that a Section 34 proceeding does not contain any challenge on the merits of the award.
There can be no doubt that given the law laid down by this Court, Section 34 of the Arbitration Act, 1996 cannot be held to include within it a power to modify an award.
In KRISHNA BHAGYA JALA NIGAM LTD. VERSUS G. HARISCHANDRA REDDY & ANR. [2007 (1) TMI 498 - SUPREME COURT], a judgment of this Court referred to in para 36, this Court reduced the rate of interest for the pre-arbitration period, pendente lite and future interest. It also referred to a suggestion that a certain amount be reduced from the awarded amount from Rs.1.47 crores to Rs.1 crore, which the learned counsel for the respondent therein fairly accepted. Obviously, these orders were also made under Article 142 of the Constitution of India and do not carry the matter very much further. From these judgments, to deduce, in para 39, that the judicial trend appears to favour an interpretation which would read into Section 34 a power to modify, revise or vary an award is wholly incorrect. The observation found in McDermott’s decision clearly bound the learned Single Judge and any decision to the contrary would be incorrect.
Given the fact that in several similar cases, the NHAI has allowed similarly situated persons to receive compensation at a much higher rate than awarded, and given the law laid down in NAGPUR IMPROVEMENT TRUST AND. VERSUS VITHAL RAO AND OTHERS [1972 (12) TMI 82 - SUPREME COURT], the jurisdiction under Article 136 is declined to be exercised in favour of the appellants on the facts of these cases. Also, given the fact that most of the awards in these cases were made 7-10 years ago, it would not, at this distance in time, be fair to send back these cases for a de novo start before the very arbitrator or some other arbitrator not consensually appointed, but appointed by the Central Government.
Appeal dismissed.
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2021 (7) TMI 1342
Validity of assessment/reassessment against company filled petition under Insolvency Bankruptcy Code, 2016 - refund processed by the respondents in favour of the petitioner shall be adjusted against the outstanding demand existed from Assessment Year 2007-2008 till 2015-2016 - whether respondent Income Tax Authorities were legally justified in raising the aforesaid demand and issuing notices and orders cum intimations and whether the respondent Income Tax Authorities were legally justified in initiating reassessment proceeding and continuing with the assessment proceeding for the Assessment Year 2012-13 and 2016-17 respectively and completing the assessments for the period prior to the transfer date and whether such an Act of the respondent is in breach of violation of the order passed by the National Company Appellate Tribunal approving the Resolution Plan - initiation of penalty proceedings under Section 271 (1) (C) for the periods prior to the Transfer Date - HELD THAT:- As for proper adjudication of the issues involved in this Writ Petition, elaborate hearing upon affidavits is required. Petitioners have prima facie been able to make out a case for the interim order.
Let there be an interim order restraining the respondent Income Tax Authorities from taking any step or further steps or acting in any manner contrary or inconsistent with the approved Resolution Plan dated 14th November, 2018 which was confirmed by the order passed by the Hon’ble Supreme Court dated 26th July, 2019 and the respondents are also restrained from taking any further steps or to give further effect to the orders dated 24th December, 2019, 31st December, 2019 and the Notices dated 3rd January, 2020, 20th January, 2020 and 23rd January, 2020 till 30th September, 2021 or until further orders whichever is earlier.
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2021 (7) TMI 1341
Exemption u/s 11 - corpus donations - absence of 12AA registration of the Trust - Scope of amendment brought in Section 12A by Finance Act 2014 with effect from 01.10.2014 by way of insertion of first proviso to Section 12A (2) - whether the corpus donations in the form of voluntary contributions made with a specific direction would form part of the corpus of the trust and are exempted under Section 11(1)(d) of the Income Tax Act in the absence of 12AA registration of the Trust? - HELD THAT:- As amendment in Section 12A, the intention of the statute is to confer the benefits of exemption under Section 11 of the Act on genuine trusts which are registered under Section 12AA. It is true that equity and taxation are strangers. They cannot co-exist together. It may also be argued that equity has to prevail over the taxation even if the literal constructions of law attempts to cause such an interpretation. But philanthropy in taxation of trusts gets complicated due to the complex situation in our country. If the provision of law is interpreted in such a manner to allow all donations to corpus as exempted from tax, it would certainly open the floodgates to all and sundry, making it difficult for the Income Tax authorities to differentiate between the original and fake. The registration of trust, in case the trust has to accept donations and build corpus, is one way of regulating the flow of money into the trust and avoid unscrupulous elements trust from evading tax by seeking exemptions indiscriminately. - Decided against assessee.
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2021 (7) TMI 1340
Seeking deletion of names of the Personal Guarantors from this Petition - requirement to file separate applications against the Personal Guarantors - HELD THAT:- The Petitioner is permitted to file an Affidavit in this regard within 7 days from today and copy of the same is to be given to the Respondent. Since the petition filed is under Section 7 of IBC, no further adjournment shall be granted.
List the matter on 11.08.2021.
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2021 (7) TMI 1339
Violation of the principles of natural justice - an opportunity of personal hearing as contemplated u/s 75(4) of the Tamil Nadu Goods and Services Tax Act, 2017 not provided - HELD THAT:- Admittedly, the petitioner has not filed reply within the time nor sought for personal hearing as per Section 75(4) of the Act. But, equally when the authorities decided to pass adverse orders, then, necessarily personal hearing has to be given as per the judgment in G.V. COTTON MILLS (P) LTD. VERSUS THE ASSISTANT COMMISSIONER (CT) AVARAYAMPALAYAM ASSESSMENT CIRCLE, COIMBATORE [2018 (3) TMI 1617 - MADRAS HIGH COURT], but in the present case, no such opportunity of personal hearing has been given to the petitioner and therefore, considering the present facts and circumstances of the case and in the interest of justice, one more opportunity to the petitioner herein is to be granted.
The matter is remanded back to the respondent for fresh consideration after giving reasonable opportunity including the personal hearing as contemplated under Section 75(4) of the TNGST Act, 2017 and then pass appropriate orders in accordance with law - petition allowed by way of remand.
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2021 (7) TMI 1338
Entitlement to pay scale equivalent to their counterparts in the State of Punjab from 1.1.1986, though the revised pay scale was allowed by the Federation w.e.f. 1.1.1994 - whether 'Federation' is a State within the meaning of Article 12 of the Constitution of India or not? - Whether the upward should confine only to the categories covered in the report of Government Anomaly Committee or categories enjoying identical scales (unimproved) or not - necessity of changing the qualification/improving designations of certain categories being placed in higher scales or not? - power of Judicial Review - HELD THAT:- The Central or State Government is empowered to levy taxes to meet out the expenses of the state. It is always a conscious decision of the government as to how much taxes have to be levied so as to not cause excessive burden on the citizens. But the Boards and Corporations have to depend on either their own resources or seek grant from the Central/State Government, as the case may be, for their expenditures. Therefore, the grant of benefits of higher pay scale to the Central/State Government employees stand on different footing than grant of pay scale by an instrumentality of the State.
The judgment in Purshottam Lal [1973 (2) TMI 135 - SUPREME COURT] is a case where reference was made to the Pay Commission to consider the pay revision of all Central Government employees paid out of the Consolidated Fund of India. The recommendation of the Pay Commission was accepted but the benefit of revised pay scale was not given to the employees of the Forest Research Institute and College, Dehradun. An argument was raised that the report of the Pay Commission did not deal with the case of the Petitioners. The said argument was negated for the reason that once the Government has accepted the recommendation of the Pay Commission, which included all Central Government employees, the benefit of revised pay scale cannot be denied to the Petitioners.
In K.T. Veerappa and Ors. v. State of Karnataka and Ors. [2006 (4) TMI 576 - SUPREME COURT], the Court upheld the principle that fixation of pay and parity in duties is the function of the executive and financial capacity of the Government is also a relevant factor to be considered, though on facts, it was held that the employees of the University were entitled to revision of pay at par with the employees of the State.
In the present case, it is contended that the Federation is a statutory Co-operative Society which is having its Common Cadre Rules. Any amendment in the Common Cadre Rules is to be approved by the Registrar (Co-operative Societies). The State Government communicated on 1.3.1990 and 9.7.1993 that the pay scale as applicable to the Punjab Government employees is not to be adopted by the Public Sector Undertakings without taking into consideration the financial health of the other statutory Boards and Corporations. The Federation has thus taken a conscious and concerted decision to not follow the report of the Anomaly Committee of the State Government to grant revised pay scale from 1.1.1986 in view of precarious financial condition. Moreover, financial assistance had to be availed by the Federation from the State Government as well as from the National Dairy Development Board.
The submission that there will not be financial burden on the federation in view of the fact that the High Court has ordered payment of arrears for a period of 3 years and 2 months before the date of filing of writ petitions is again not tenable. The High Court has granted revised pay scales with effect from 01.01.1986 instead of revised pay scales granted to the employees of the federation with effect from 01.01.1994. Therefore, restricting it for a period of 3 years and 2 months will not be helpful in respect of the financial condition of the Federation as during the relevant time the federation was suffering from huge losses.
The order of the High Court is unjustified and in excess of the power of judicial review conferred on the High Court. Consequently, the appeals are allowed. The orders passed by the High Court are hereby set aside - Petition dismissed.
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2021 (7) TMI 1337
Seeking grant of Interim relief - HELD THAT:- Taking into consideration the provisions of Section 16 of the GST Act, this Court is of the opinion that prima facie, a strong case for grant of interim relief has been made out. Accordingly, there shall be stay of the effect and operation of the impugned order dated 15.10.2020 (Annexure P-1) till next date of hearing.
List the case after 3 weeks.
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2021 (7) TMI 1336
Income deemed to accrue or arise in India - Taxability of amount received - PE in India - Indo-China DTAA - whether payments made by the assessee’s customers to it constituted royalty, in respect of software supplied? - as decided by HC [2019 (10) TMI 1508 - DELHI HIGH COURT] supplies made (of the software) enabled the use of the hardware sold. It was not disputed that without the software, hardware use was not possible. The mere fact that separate invoicing was done for purchase and other transactions did not imply that it was royalty payment. In such cases, the nomenclature (of license or some other fee) is indeterminate of the true nature. Nor is the circumstance that updates of the software are routinely given to the assessee’s customers. These facts do not detract from the nature of the transaction, which was supply of software, in the nature of articles or goods. This court is also not persuaded with the submission that the payments, if not royalty, amounted to payments for the use of machinery or equipment. Such a submission was never advanced before any of the lower tax authorities;
HELD THAT:- We find no ground to interfere with the impugned order(s) passed by the High Court. The Special Leave Petitions are, accordingly, dismissed.
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2021 (7) TMI 1335
Addition u/s 68 - Unexplained loan - addition based on recording statements under Section 131 - statement was later on retracted by the Assessee, but the time gap between the such retraction and the said statement is more than one year - HC held we cannot find any fault with the findings concurrently rendered by the three authorities below, that the said addition deserves to be made under Section 68 - Merely because other two loan transactions, with two other persons was believed to be genuine and additions were set aside, that is not a sufficient ground to hold that a similar treatment should have been given with respect to the alleged loan transaction of M/s.AR.Com also - HELD THAT:- SLP dismissed.
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2021 (7) TMI 1334
Classification of imported goods - preparation/product of Betel nut (Areca Nut) commonly known as “Supari” (Boiled Supari) - the goods as described which does not contain lime or katha (catechu) or tobacco but may not contain any other ingredients, such as food starch, cardamom, copra, mulethi, menthol (flavours), perfumes etc. - to be classified under CTH 2106 90 30 as food preparation or not - HELD THAT:- The basic raw material for Boiled Supari is raw betel nut, which is classifiable under Chapter 8, more specifically sub-heading 0802 80. I also note that Chapter 8 covers only edible nuts; inedible nuts and fruits being excluded by virtue of Chapter Note 1; and that betel nut/supari are masticatory. However, Boiled Supari have been subjected to certain processes resulting in the question being posed whether the said processes are substantive enough to consider Boiled Supari as “preparation of betel nut” that would make them classifiable under Chapter 21 by virtue of Supplementary Note 2 of Chapter 21. Alternatively, whether the processes carried out on the same for cleaning, preserving and boiling are too minor to fall short of rendering them as preparations of betel nuts. Further, it would be inadvisable and inappropriate to approach the issue of classification of the said goods solely with the prism of the positive nature of Supplementary Note 2 to Chapter 21, as it seems to have been done in the order of the erstwhile AAR.
The processes involved in making Boiled Supari are clearly covered by the Chapter Note 3 to Chapter 8. It is also found that in the instant case, betel nuts after being boiled are dried; and this fact per se would not exclude the end-products from the scope of “dried nuts”. Therefore, it is concluded that the processes to which raw betel nuts have been subjected to obtain Boiled Supari is squarely in the nature of processes referred to in the Chapter Note 3 to Chapter 8 and HSN Note. Therefore, at the end of the said processes, the betel nuts retain the character of betel nut and do not qualify to be considered as “preparations” of betel nut, which is sine qua non for a goods to be classifiable under Chapter 21.
It is thus concluded that during the personal hearing, upon being explained the scope of the aforesaid two competing headings, the applicant accepted that given the processes involved in obtaining Boiled Supari, the same is more appropriately classifiable under sub-heading 0802 80 10.
Boiled (whole) Supari is not classifiable under sub-heading 2106 90 30 as food preparation; instead it is more appropriately classifiable under sub-heading 0802 80 10.
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2021 (7) TMI 1333
Validity of Faceless Assessment - no personal hearing in terms of Section 144B(7)(vii) given - HELD THAT:- As standing Counsel accepts notice and submits that he needs to seek instructions as to whether the Petitioner can be afforded a hearing even at this stage. He will also inform the Court whether the aforesaid order of Delhi High Court has been implemented.
List the matter on 24th August, 2021.
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2021 (7) TMI 1332
Seeking grant of Bail - bail sought on medical grounds - HELD THAT:- Issue notice.
In the meanwhile, the bail granted to the petitioner by the High Court for two months from the date of release, shall continue till further orders.
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9911796707
