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Showing 141 to 160 of 1324 Records
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2023 (12) TMI 1184 - ITAT SURAT
Reopening of assessment u/s 147 - bogus purchases - case reopened after four years - competent jurisdictional Assessing Officer to issue notice - AO received information from DDIT(Inv.) Mumbai as well as DDIT(Inv), Unit-VI, Jhandewalan, New Delhi and thus made his belief that income of assessee as “escaped assessment” as recorded above.
HELD THAT:- We find merit in the submission of assessee that all the material relating to assessment was available with the Assessing Officer in the original assessment completed u/s 143(3) - AO has nowhere recorded that he obtained any sanction/ approval from Joint-Commissioner of Income-tax as mandated u/s 151(2).
We further find merit in the submission of assessee that jurisdictional AO in case of assessee lies with Assessing Officer at Surat. However, notice under section 148 was issued by AO i.e., ITO Ward-33(2), New Delhi. Thus, the reopening is not only suffering by “satisfaction” from proper approval by competent person as well as the notice under section 148 was not issued by a competent jurisdictional Assessing Officer. Therefore, the reopening as well as issuance of notice under section 148 is bad-in-law. Since the re-opening u/s 147 and issuance of notice under section 148 is bad-in-law, subsequent action initiated thereto have become ab initio.
Considering the fact that we have held the validity of re-opening and issuance of notice under section 148 had invalid, therefore, subsequent action has become ab initio and the ground of assessee succeeds on primary contention raised - Appeal of assessee is allowed.
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2023 (12) TMI 1183 - ITAT AHMEDABAD
Exemption u/s 11 and 12 - exemption denied as assessee is not engaged in charitable activities - CIT(A) held that the Assessee is a facilitator for arranging funds for charitable organisations, and that the assessee receives fees from the donors as well as the donees - assessee submitted that the activity of the assessee is that it acts as a bridge between the donor and the donee i.e. the activity of the assessee is that on receipt of donation, the assessee identifies suitable recipients, who are not the direct beneficiaries of such donation but are usually other trusts who are engaged in conducting charitable activities. The role of the assessee is to identify such genuine organizations / trusts which are engaged in carrying out charitable activities in the form of giving relief to the poor etc.
HELD THAT:- The assessee had further given the donation to other trusts for the purpose of carrying out charitable work itself would not disentitle the assessee from denial of exemption. Before us, we observe that it is not the case of the Department that the trusts / organisations to whom the assessee had given the donations for carrying out charitable activities had not in fact carried out any charitable activities in the first instance. Secondly, it would be useful to reproduce the relevant extracts of the decision rendered by Hon’ble Supreme Court in the case of the Ahmedabad Urban Development Authority[2022 (10) TMI 948 - SUPREME COURT] as held that while carrying out charitable activities, the assessee trust may also collect nominal cost / consideration with the objective to effectuate the carrying out of the charitable activities. However, this is subject to the condition that such charge is only confined to the extent the same is required for the purpose of carrying out charitable activities and should not take the colour of professional fees / business income.
Thus in interest of justice, the matter is being restored to the file of the AO to analyse the impact of the observations made by the Hon’ble Supreme Court in the decision of AUDA [supra] more specifically on the observations made by the Hon’ble Supreme Court with regards to incidental earning of income, in the light of the assessee’s set of facts.
AO after considering of the facts of the assessee’s case may then decide whether, looking into the assessee’s facts, the assessee is engaged primarily in rendering of services for consideration (retained earnings) or whether looking into the totality of facts of the assessee’s case, it could be inferred that such retained earnings are only kept by the assessee to the extent of facilitating the above activities.
Assessing Officer may also analyse the impact of decisions which have held that the assessee acts as a bridge between the donor and the recipient, even then, looking into the particular facts of assessee’s case, it may be inferred that the assessee is carrying out charitable activities within the meaning of Section 2(15) - Accordingly, looking into the totality of facts of the assessee’s case, the Assessing Officer may also analyse whether the aforesaid decisions have a bearing on the assessee’s set of facts. In the result, the primary matter involved in all the Assessment Years under consideration before us is restored to the file of the Assessing Officer for carrying out the analysis as directed above. Issue raised by the assessee is allowed for statistical purposes.
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2023 (12) TMI 1182 - ITAT MUMBAI
TP adjustment - royalty paid by the assessee to its AE - selection of MAM - Whether CUP is the most appropriate method for benchmarking the royalty payment made by the assessee to its AE; Or “Other Method” can be treated as MAM on the facts of the present case? - HELD THAT:- The method of the assessee can be pigeonholed in the “other method” provided in Rule 10AB r.w.s. 92C (1) and in our opinion this is the MAM in the peculiar facts of the Assessee. Accordingly, we hold that “other method” would be a good substitute for CUP as there is lack of reliable comparables and looking to the fact that the royalty payments have been made for unique intangibles, therefore, we direct the ld. TPO to adopt “other method” as the Most Appropriate Method. However, the working given by the assessee before us as incorporated above needs to be examined afresh by identifying the costs and profits attributable to manufacture and sales to the non-AE and to find out appropriate allocation of the costs and what could be the profits on account of royalty which can be stated to be attributable on account of royalty. The assessee is directed to substitute the working on the basis of “other method”.
The method of the assessee can be pigeonholed in the “other method” provided in Rule 10AB r.w.s. 92C (1) and in our opinion this is the MAM in the peculiar facts of the Assessee. Accordingly, we hold that “other method” would be a good substitute for CUP as there is lack of reliable comparables and looking to the fact that the royalty payments have been made for unique intangibles, therefore, we direct the ld. TPO to adopt “other method” as the Most Appropriate Method.
However, the working given by the assessee before us as incorporated above needs to be examined afresh by identifying the costs and profits attributable to manufacture and sales to the non-AE and to find out appropriate allocation of the costs and what could be the profits on account of royalty which can be stated to be attributable on account of royalty. The assessee is directed to substitute the working on the basis of “other method”. With this direction, all the grounds raised by the assessee are allowed for statistical purposes.
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2023 (12) TMI 1181 - ALLAHABAD HIGH COURT
Seeking immediate release of the goods without charging any demurrage or rent charges - goods were detained and re-valuation was done - petitioner deposited custom duty on the declared transaction value to take release the goods - HELD THAT:- Since the issue in hand is not res judicata and the same has already been decided by the Division Bench of this Court in the case of M/s Continental Carbon India Ltd. [2015 (10) TMI 2131 - ALLAHABAD HIGH COURT] where it was held that the respondent was not entitled to charge any demurrage charge from the goods so detained by the custom authorities.
Learned counsel for the respondent heavily relied upon the recent judgement of Delhi High Court in the case of Bhavik S. Thakkar [2023 (2) TMI 681 - DELHI HIGH COURT]. The case is of no help to the respondent as in the aforesaid case, the goods were seized and detained and at the time of confiscating the goods, time was granted to pay the dues but the same was not paid thereafter order was passed by the Settlement Commissioner imposing the penalty of Rs. 2 lakh and fine of Rs. 1 lakh in lieu of confiscation of imported goods. On the said premise, it was held that Settlement Commissioner is not the Court and the order was passed holding that the waiver cannot be granted to the parties therein.
However in the case in hand, the appellate court specifically passed the order in favour of the petitioner holding that the disclosed value was correct - the respondent authority cannot charge the demurrage charges, therefore, no demurrage charges can be charged or demanded from the petitioner.
The petitioner is granted relief to the extent that it would be open for the petitioner to clear off the goods without payment of demurrage charges subject to payment of other charges subsequent to the period of 17.9.2020 till the date of actual clearing off the goods in question - Petition disposed off.
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2023 (12) TMI 1180 - CESTAT NEW DELHI
Nature of transaction - classification of goods or refund of excess maount - Liability to pay court fees on all the 4191 appeals in terms of section 129A (6) of the Customs Act, 1962 - aggrieved by reassessment, the appellant filed 4191 appeals before Commissioner of Customs (Appeals) who confirmed the assessments in respect of the said bills of entry.
Whether the present appeal relates to the classification of the goods in question or is a simple case of refund of the excess amount? - HELD THAT:- On perusing, the statement of facts in the appeal memorandum, it is found from paragraph 4 that the order of assessment on the bill of entry were challenged in an appeal before Commissioner of Customs (Appeals) challenging the classification concluded by the respondent - Further, in the memo of appeal, the appellant explained the manufacturing process and the use or purpose of the back covers, front cover and the middle cover. Had it been a simple case of refund, there was no scope for urging these facts - Considering the statement of facts as well as the grounds of appeal, the only logical conclusion is that the challenge in the present appeals relates to the issue of classification only and there is not a whisper of the refund claim. The present appeals have not arisen out of the rejection of any refund claim applications. In fact as appears, no such application for refund has been filed by the appellant.
Liability to pay Court fees - HELD THAT:- The provisions of section 129A (6) makes it mandatory for the appellant to deposit the court fees where the demand has been disputed or challenged arising out of assessment or reassessment. The only exception as per the Proviso is where under subsection (2) the Committee of Commissioners decides to file an appeal against the order of the Commissioner (Appeals) or a memorandum of cross objections as provided in subsection (4) is filed. Needless to mention that section 129A (7) even where an application for rectification of mistake (ROM) and restoration of an appeal (ROA) is filed the party has to deposit Rs 500/- as court fees and the only exception is where an application has been filed by or on behalf of the Principal Commissioner of Customs or Commissioner of Customs no such fee shall be payable.
Reliance placed on the decision of this Tribunal in the case of E-BIZ. COM PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NOIDA [2008 (9) TMI 55 - CESTAT NEW DELHI], where the controversy related to the provisions of Section 86(6) of the Finance Act, 1994 which are pari-materia to the provisions of section 129A (6) of the Act and hence it squarely applies to the present case.
Once the duty is paid ‘under protest’ and the party challenges the same by filing an appeal, it necessarily implies that demand of duty is disputed and consequently the case would fall under section 129A (6) of the Act and the party would be liable to pay the court fees on such appeal being filed.
The reasoning adopted by the appellant that it is not a case of demand of duty is basically frivolous as had it not been so there was no scope to file the present appeals challenging the impugned order. The objection raised by the Registry of the deficit court fees in filing the present appeals is justified. The appellant is, accordingly directed to deposit the requisite court fees in terms of section 129A (6) of the Act within a period of two weeks from the date of the order.
Application disposed off.
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2023 (12) TMI 1179 - CESTAT CHENNAI
Benefit of concessional rate of CVD as per Notification No. 12/2012 dated 17.03.2012 - Polyester Staple Fibre (PSF) recycle - HELD THAT:- The appellant has declared the goods as Polyester Staple Fibre recycled which indicate that the goods are manufactured from waste. However, the plea of the appellant whether they are eligible for Notification No. 12/2012-CE dated 17.03.2012 has to be verified.
It is opined that the matter can be remanded to the original authority who is directed to verify whether the appellant is eligible for the benefit of Notification No. 12/2012 dated 17.03.2012. The original authority shall also consider the decisions relied upon by the appellant which have considered the very same issue and noted the retrospective application of Notification No. 12/2012.
The impugned order is set aside. The appeal is allowed by way of remand to the adjudicating authority.
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2023 (12) TMI 1178 - CESTAT KOLKATA
Valuation of imported goods - glass chatons - rejection of value in terms of Rule 12 of the Customs Valuation Rules, 2007 - enhancement of value - contemporaneous imports as well as NIDP data not considered - HELD THAT:- First of all, the Appellant has not been put to notice as to why the transaction value cited by him is not acceptable to the Department. After this, Rule 4 to Rule 12 of CVR, 2007 have to be followed sequentially to arrive at the value of the imported consignment. In this case, this procedure also was not followed. The NIDP data gathered by the Appellant for such identical/similar goods shows that the price adopted by the Appellant is actually more than the price at which the other importer has imported the goods.
It is not found that the value arrived at by the Revenue is a realistic and legally sustainable value - impugned order set aside - appeal allowed.
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2023 (12) TMI 1177 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Oppression and Mismanagement - shareholding slightly less than the threshold of 10% shareholding required for filing Petition under Sections 241 & 242 as per provisions of Section 244 of the Act - HELD THAT:- It is apparent that each branch of the family is represented in the Company and for resolution of any dispute, it will be better that each branch of the family is represented in the proceeding and is heard. We feel no prejudice shall be caused to anyone if the impleadment application is allowed. Wherever the Court is of the opinion that by adding any party, it would be in a better position to effectually and completely adjudicate upon the controversy, it is proper to exercise judicial discretion in impleading the said party. The Appellants herein are daughters of late Mr. Tarsem Singh and sister of Respondent No. 3, against whom allegations of Oppression and Mismanagement have been made. The Appellants have a defined subsisting, direct and substantive interest in resolution of the controversy and are necessary and expedient to be impleaded in the said Petition.
The Appellants are Shareholders of the Respondent No. 1 Company and are family members of the other Shareholders. They are concerned with the affairs of the Company and their arraignment as party to the proceedings would facilitate an effective, efficacious, just and fair adjudication of the case. It is held that they are proper and necessary party and their impleadment will assist in arriving at the correct decision in C.P. No. 129/ND/2019 pending with NCLT.
Appeal allowed.
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2023 (12) TMI 1176 - SC ORDER
Maintainability of section 7 application - nearly two years have gone by in the interregnum - HELD THAT:- After the application under Section 7 is heard and disposed of on merits, should it become necessary to do so, the parties would be at liberty to take recourse to all appropriate proceedings in accordance with law. At that stage, should it become so necessary, this Court will enquire into both the merits and maintainability. However, we also clarify that the issue of maintainability shall stand concluded by the impugned order dated 17 November 2023 insofar as the National Company Law Tribunal “NCLT” and NCLAT is concerned.
Since the application under Section 7 is pending for over two years, the NCLT is requested to take up the application at the earliest possible date and to endeavour an expeditious disposal within two months.
Appeal dismissed.
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2023 (12) TMI 1175 - SC ORDER
Deed of Compromise/settlement dated 04.10.2023 entered into by respondent no. 1 – Rustagi Projects Pvt. Ltd. and the appellant – Anuj Sharma, is taken on record - Parties will be bound by the terms and conditios mentioned in the Deed of Compromise/settlement dated 04.10.2023.
However, the appellant – Anuj Sharma/respondent no. 1 – Rustagi Projects Pvt. Ltd. shall pay the Corporate Insolvency Resolution Process (CIRP) costs, as may be determined by the National Company Law Tribunal. In the event the costs are not paid, it will be open to the adjudicating authority/NCLT to take appropriate steps for recovery of the amount in accordance with law.
Appeal allowed in part.
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2023 (12) TMI 1174 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Liquidation Order - whether issuance of Form-G decision cannot be taken by CoC to liquidate the Corporate Debtor? - HELD THAT:- On looking into the resolution passed by the Committee of Creditors, CoC has given reasons as to that there are no employees, no business, no registered office, no filing of annual account of the MCA since 31.03.2011, no returns and no transactions since 2017. The scheme of the IBC as delineated by Section 33 sub section 2 empower of Committee of Creditors to take a decision to liquidate after constitution of Committee of Creditors.
It is true that the decisions of the CoC to liquidate has to be with reasons and that cannot be arbitrarily done but in the present case when looked into the resolution of the CoC it is clear that there was objective consideration by the CoC for taking a decision to liquidate.
Since SLP having been dismissed and review having also dismissed on the said submission the hearing of the appeal cannot be adjourned. It goes without saying that any order passed by Hon’ble Supreme court is binding by this tribunal and Adjudicating Authority, in event any such order is passed in the Curative Petition - in view of the order which we are passing in this appeal the subsequent application has become infractuous and has to be closed.
The order passed by Adjudicating Authority dated 31.08.2023 is set aside - appeal allowed.
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2023 (12) TMI 1173 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Seeking issuance of fresh Form G - Resolution Applicant has submitted his revised plan - Resolution Professional in the Information Memorandum has also mentioned about dispute regarding the property - HELD THAT:- The Adjudicating Authority has taken in consideration the fact that properties shall come to the kitty of the Corporate Debtor, whose value is much more than the entire plan value submitted by the Resolution Applicant, hence, order was issued for issuance of Form G - the observation of the Adjudicating Authority as made in Para 19, 20 and 21 of the impugned order, agreed upon, which was sufficient reason for issuance of fresh Form G. However, we are of the view that some time ought to have been fixed by the Adjudicating Authority for completion of the entire process - while affirming order of the Adjudicating Authority, further direction is given that entire process including consideration of Resolution Plan shall be completed within a period of three months from today.
The present is not a case where the Adjudicating Authority has directed for any valuation of the assets of the Corporate Debtor. Present is a case where during the CIRP process under the orders of the High Court of Delhi properties worth value of approx. Rs.3 Crores have been added to the assets of the Corporate Debtor on basis of which the Adjudicating Authority took the view that fresh Form G should be issued so that interested Resolution Applicants may know that the value of the Corporate Debtor has increased.
It goes without saying that the Appellant shall be entitled to submit his Expression of Interest in response to Form G issued by the Resolution Professional - appeal disposed off.
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2023 (12) TMI 1172 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI - LB
Initiation of CIRP - authentication of default as contemplated in Regulation 21, not taken - information of default not filed with the information utility - HELD THAT:- In the present case no authentication of the default having been obtained by the Financial Creditor, application under Section 7 was not liable to be admitted. The Adjudicating Authority committed error in admitting Section 7 application without there being any authentication of default as per Regulations 2017.
Whether application filed by the Financial Creditor deserves to be rejected on account of non-filing of record of default with information utility? - HELD THAT:- Regulation 20(1A) cannot be read to mean that after the said amendment brought in regulation w.e.f 14.06.2022 an application filed under Section 7 which is not supported by information of default from an information utility is to be rejected and if the Financial Creditor has filed other evidence to prove default which is contemplated by the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 and the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, the said application has not to be considered - even after amendment of Regulation 20 by insertion of Regulation 20(1A) w.e.f 14.06.2022, Financial Creditor is entitled to file evidence of record of default as contemplated by Regulation 2A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 r/w Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 - there are no substance in the submission of the Appellant that since Financial Creditor has not filed the record of default from an information utility, Section 7 deserves to be rejected - the Adjudicating Authority has correctly repelled the contention of the Appellant that in absence of a record of default recorded by information utility, the application filed under Section 7 may not be admitted.
Nidhi Kumar was fully empowered to nominate, constitute and appoint any one as lawful attorney of the bank at New Delhi. Pawan Sharma himself was Senior Manager, Zonal Stressed Assets Recovery Branch - there are no error in filing the application duly signed by Pawan Sharma supported by Affidavit of Pawan Sharma and submission of the Appellant that NCLT has no jurisdiction to entertain application filed by Pawan Sharma is to be rejected.
There are no substance in any of the submissions raised by the Counsel for the Appellant to interfere with the impugned order of the Adjudicating Authority - There is no merit in the Appeal - appeal dismissed.
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2023 (12) TMI 1171 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Initiation of CIRP - NCLT admitted the application - No outstanding dues - Squaring off of loans - case of appellant is that entire outstanding duty along with unsecured loans belonging to Shankar Khandelwal, his wife Guman Khandelwal and their concerns were squared off against outstanding debts and adjustment paying off balance outstanding in terms of LLP Agreement - HELD THAT:- From the LLP Agreement dated 31.12.2015, it becomes clear that the Respondent Shankar Khandelwal resigned on 31.12.2015 to be effective from 01.04.2016 and the balance sheet of Corporate Debtor LLP was necessary to be drawn accordingly to settle his dues. It is also noteworthy that all outstanding of Guman Builders and Developers Pvt. Ltd and Guman Furniture & Services Pvt. Ltd., was agreed to be adjusted to the account of outstanding partner i.e., the Respondent Shankar Khandelwal.
The Respondent Shankar Khandelwal filed an application under Section 7 of Code alleging non-payment of financial debt of Rs. 38,73,94,501/- which has been disputed by the Appellant stating this to be highly inflated amount due from the Corporate Debtor whereas the only Rs. 5,16,55,842/- was due and payable to the Respondent Shankar Khandelwal by the Corporate Debtor at the time of his retirement from the LLP - the pleadings of the Appellant is accepted that based on combined examination of Ledger and balance sheet it is proven that all dues towards the Respondent Shankar Khandelwal stand settled.
It is also noted that the allegations of the Appellants that the Respondent Shankar Khandelwal is allegedly attempting to recover tainted money from Corporate Debtor, which is forming a part of the proceeds of crime. Even if the alleged loan is found to not be a part of the proceeds of crime, any attempts towards recovery of the amount would have to be adjudicated by a civil court under a recovery suit. The intent of IBC is not to facilitate recovery for creditors - it is agreed that once all outstanding dues have been paid by the Corporate Debtor to the Respondent Shankar Khandelwal, disputed claims if any, can be raised in suitable other legal forum and IBC can not be used for such recovery proceeding.
The main basis contained in the Impugned Order for admission of the Application under Section 7 of the Code is that the Corporate Debtor failed to show any valid proof that debt due and payment to the Respondent Shankar Khandelwal was paid in his individual capacity - No amount of financial debt was due to the Respondent Shankar Khandelwal on the date of filing of the Application under Section 7 of the Code before the Adjudicating Authority. Therefore, the Adjudicating Authority has patently erred in admitting the Application filed by the Respondent Shankar Khandelwal vide its Impugned Order dated 13.10.2021.
The Adjudicating Authority erred in passing the Impugned Order dated 13.10.2021 admitting application under Section 7 of the Code and therefore Impugned Order deserves to be set aside accordingly - Appeal allowed.
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2023 (12) TMI 1170 - ANDHRA PRADESH HIGH COURT
Seeking enlargement of petitioner on bail - siphoning of government funds - played an active role in floating shell companies in the said process - HELD THAT:- A perusal of the provision of Section 19 and 45 of PMLA goes to show that the Public Prosecutor has to be given an opportunity to oppose the application for bail, and where the Public Prosecutor opposes the application for bail, duty cast on the Court is that it should be satisfied whether there are reasonable grounds to believe that the person accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The said provision is analogous to Section 37 of the NDPS Act, 1985 - if the Court comes to conclusion that there are reasonable grounds for believing that the person accused is not guilty of such offence and the second condition is that he is not likely to commit any offence while on bail.
In the aforesaid identical case in Sanjay Raghunath Agarwal’s case [2023 (4) TMI 874 - SUPREME COURT], lodging of the prosecution complaint is sequel to the registration of the FIR in the predicate offence way back in the year 2021. In the present case on hand also, no charge sheet has been filed in the predicate offence for the last more than 15 months. The petitioner has been in jail from 04.03.2023. It is the first offence insofar as the petitioner is concerned. There are no other complaints registered as against him. The said argument gives room to say that second condition in clause (2) of sub-section (1) of Section 45 of the PMLA would be satisfied. In the aforesaid circumstances, continued incarceration of the petitioner, is not justified.
In respect of a query raised by the investigating agency, the petitioner herein gave response to each and every question that has been asked for. Prosecution complaint was also filed on 01.05.2023. The petitioner was arrested on 04.03.2023 and since then he is in judicial custody. Time and again, petitioner is continuously attending before the investigating agency and co-operating with the investigation. This Court is of the opinion that it is not necessary to detain the petitioner in jail further. In view of the aforesaid facts and circumstances, this Court feels that request of the petitioner for grant of bail can be considered, however, on certain conditions.
The petitioner shall be enlarged on bail on his executing a personal bond for a sum of Rs. 50,000/- with two sureties each for the like sum to the satisfaction of the I Additional Sessions Judge-cum- Metropolitan Sessions Judge, Visakhapatnam. On release, the petitioner shall co-operate with the investigating agency and shall attend before the investigating agency once in a week i.e. on every Friday between 10.00 AM and 5.00 PM.
The Criminal Petition is allowed.
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2023 (12) TMI 1169 - CESTAT MUMBAI
100% EOU - Recovery of Customs Duty, Central Excise Duty alongwith interest and penalty - standard input output norms (SION) - Diversion of polyvinyl chloride (PVC) resin, procured from abroad and sourced indigenously, without payment of duty in terms of notification no. 52/2003-Cus dated 31st March 2003 and notification no. 22/2003-CE dated 31st March 2003.
HELD THAT:- The question that begs answer is the extent to which the ‘norms’, borrowed for its empirical acceptability and contextual validity, can be stretched to presume inclination to misuse exemption intended for fulfillment of ‘net foreign exchange (NFE)’ earning. As it is noticed, ‘standard input output norms (SION)’, designed for another and later scheme in the Foreign Trade Policy (FTP), was grafted into the already existing ‘export oriented unit (EOU)’ scheme in the same policy without any alterations in structuring. Again, the grafting narrowed down the existing latitude in empowering of customs authorities to track usage of ‘duty exempt’ materials and even to the extent of prescribing ‘tolerance’ for ‘waste’ arising in the production process. Once again, as we have noticed supra, the distinction lay in employing of the ‘norms’ to limit import of ‘raw materials’ physically at the threshold for the purpose of export promotion scheme while employing it as a template for determining deviations when ‘raw materials’ are not physically available any longer and, consequently, cannot be accorded the rigour, by subsequent adoption, for presumption of diversion with penal consequence in the case of ‘export oriented units (EOU)’ in the Foreign Trade Policy (FTP).
A case of diversion cannot be made out without reference to the movement of the goods alleged to have been diverted.
Recovery, intended by the impugned notifications, of duty liability, for non-conformity with the ‘standard input output norms (SION)’, on post-procurement evaluation - HELD THAT:- The ‘norms’ are an estimate of most commonly used ‘raw materials’ for a specific product; its utility did not lie in ‘mathematical precision’ which was not sine qua non for authorization of quantity limits for ‘duty exempt’ imports. Such precision, therefore, is not to be presumed for monitorial oversight and, concomitantly, such ‘intra mural’ correlation, between enumerations on one side of the ’norms’, cannot also be insinuated for any purpose whatsoever - recovery of duty in the event of excessive usage in comparison with actual production is also limited to each of the ‘raw materials’ on the logical premise of non-optimal deployment which the exchequer is not obliged to subsidize. The ascertaining of compliance with the second limb, of condition 3(d) of first paragraph of notification no. 52/2003-Cus dated 31st March 2003, as well as in condition 4(a) of first paragraph in notification no. 22/2003-CE dated 31st March 2003 is limited to each of the ‘raw materials’ in isolation from the rest of the mix. That, then, should be the test for allowing the relief sought by appellant-Commissioner.
The adjudicating-Commissioner has, on the other hand, noted that ‘plasticizer’ imparts flexibility to products of resinous origin and that the manifold variations of goods, within the product groupings, manufactured by the appellant does not lend itself to acceptance of the proposition in the show cause notice that consumption of ‘plasticizer’ should govern restrictions on use of ‘polyvinyl chloride (PVC) resin’ for determining recovery of ‘duty foregone’ at the time of procurement. The grounds enumerated for relief sought by appellant-Commissioner have not put forth any contention to override this conclusion. Mere reproduction of extracts from the notification coupled with reiteration of the proposition in the notice is not tenable surrogate either - there are no valid ground to hold that any part of ‘duty foregone’ is recoverable for the reasons offered in the appeal of jurisdictional Commissioner of Customs.
There is no evidence available, even remotely proximate, to suggest that ‘polyvinyl chloride (PVC) resin’ procured by the appellant-assessee had reached any user/trader. There is no ground to infer that ‘polyvinyl chloride (PVC) resin’ has been used in excess of that indicated in the ‘norms’, as adopted, for monitorial oversight of ‘actual user’ access to ‘duty exempt’ privilege.
The pleas of appellant-Commissioner fail - appeal of M/s Responsive Industries Ltd is allowed.
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2023 (12) TMI 1168 - BOMBAY HIGH COURT
Validity of SCN - Non-supply of relied upon documents and statements - grievance is that there are certain documents which are sought to be referred by the Designated Officer in the show cause notice, namely statement of one of the transporters - HELD THAT:- It is opined that the adjudication of the show cause notice can be taken forward, by permitting the petitioner to urge all contentions in relation to the show cause notice. Also certain material as pointed out by the petitioner i.e. the statement of one of the transporters recorded during enquiry, needs to be provided to the petitioner, so that the petitioner can take appropriate plea before the adjudicating officer on the case being made out by the department against the petitioner so that, the adjudicating officer can consider such plea of the petitioner in adjudication of the show cause notice.
Accordingly, request of the petitioner to provide that statement of the transporter as made in the letter dated 17 November 2023 needs to be complied by the Adjudicating Officer, within a period of two weeks from today - The adjudicating officer, after furnishing to the petitioner the documents, shall fix a convenient date when the petitioner can be heard on the show cause notice and thereafter, proceed to pass an order in accordance with law. Let show cause notice be decided within a period of eight weeks from today.
Application disposed off.
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2023 (12) TMI 1167 - ANDHRA PRADESH HIGH COURT
Cancellation of GST registration of the premise - availment of of input tax credit without there being any corresponding movement of goods - non-application of mind - HELD THAT:- A bare reading of the provision would clearly demonstrate that the invocation of the provisions of Sub-Section 2(a) of Section 29 of the A.P.G.S.T. Act, is available only in the event of there being a determination by a competent Tribunal or Court holding that the registered dealer has in fact contravened the provisions of the Act.
It is not in dispute and it is clearly admitted by the learned Government Pleader that the petitioner firm is a going concern, implying and meaning thereby that the petitioner is also providing livelihood to others. In the event, their registration is cancelled, it would automatically result in closure of business and would sound a death knell to the productivity of the petitioner resulting in loss of livelihood, not only to the management, but also to such other persons employed by them.
The Writ Petition deserves to be allowed in part.
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2023 (12) TMI 1166 - ANDHRA PRADESH HIGH COURT
Validity of show cause notice (SCN) u/s 73 - demand based on improper Audit Report u/s 65(3) - Violation of principles of natural justice - petitioner had no ‘not less than 15 working days’ of statutory period to file the response to the SCN for Audit u/s 65 - HELD THAT:- Section 65 (3) of Andhra Pradesh Goods and Services Tax Act, 2017 clearly provides that the registered person shall be informed by way of a notice not less than fifteen working days prior to the conduct of audit in such manner as may be prescribed - Rule 101 (4) of the Rules, 2017, thus also provides that the proper officer may inform the registered person of the discrepancies noticed, if any, as observed in the audit and the said person may file his reply and the proper officer shall finalise the findings of the audit, after due consideration of the reply furnished.
In the present case, the notice does not comply with sub-section (3) inasmuch as there is no clear ‘not less than 15 working days’ time prior to the conduct of audit. The audit has been finalized on 29.09.2023 based on the revised notice, which notice though revised on 04.09.2023 itself, but was uploaded on 14.09.2023. As such the registered dealer had the information of the notice on 14.09.2023 - From that date upto 29.09.2023, there are no clear 15 working days. The findings have been finalized by the Audit Officer within the statutory notice period, without waiting for completion of the statutory notice period. The petitioner’s reply is dated 28.09.2023, which though reached on 03.10.2023, was submitted within the statutory period, and even it be taken that it could not reach in time, as it was sent on 28.09.2023, the audit could not be finalized and the audit report could not be submitted on 29.09.2023.
In the present case, what is found from perusal of the show cause notice under Section 73, is that there is a reference of the Audit Report dated 29.09.2023, and therefore, it cannot be said that in the present case the show cause notice is independent of the audit report. It is based on the audit report, which in turn is not in accordance with the statutory provisions but is in violation of the principles of natural justice as also the due procedure of law.
The impugned show cause notice under Section 73 of the Act is set aside - respondent authorities/competent authorities are directed to pass fresh order/report on the audit, after taking into consideration the petitioner’s reply dated 28.09.2023 received on 03.10.2023 and consequent there upon to proceed further in accordance with law - petition allowed in part.
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2023 (12) TMI 1165 - GUJARAT HIGH COURT
Interest on the claim of the refund - petitioners could not file the return of income claiming refund in time and such return was filed after condoning delay by the respondent under section 119(2)(b) - interest on the compensation amount is paid for acquisition of the agricultural land of the petitioners - TDS deducted under wrong section as correct section for deduction of tax at source is section 194A and not section 194C - HELD THAT:- It is not in dispute that the amount of refund is already paid to the petitioners and therefore, as a natural corollary, the petitioners are entitled to have the right to get interest on such amount of refund claim.
Even as per sub-section(2) of section 244A of the Act, 1961, as it existed during the relevant AY 2013-2014, when the proceedings resulting in the refund are not delayed for reasons attributable to the assessee whether wholly or in part, the period of the delay so attributable only can be excluded from the period for which interest is payable under subsections (1) or (1A)or (1B) to section 244A of the Act, 1961.
In the facts of the case, the words "or the deductor, as the case may be," which is inserted with effect from 01.04.2017 would not be applicable as the petitioners have been permitted to file the refund claim for the AY 2013-2014 after condonation of delay and such delay in claiming the refund cannot be said to be attributable to the petitioners as the petitioners were not made aware about the deduction of tax at source by the deductor in absence of issuance of Form No. 16-A which was mandatorily required as per Rule 31(3) of the Rules.
In view of the foregoing reasons, the petitions succeed and are accordingly allowed. The respondent is directed to grant interest on the refund claim from the date of deposit of the TDS till the date of refund as per the provisions of section 244A of the Act, 1961. Such exercise shall be completed within a period of 12 weeks from the date of receipt of a copy of this order. Rule is made absolute to the aforesaid extent.
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