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Showing 141 to 160 of 1589 Records
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2022 (7) TMI 1450
Addition u/s 14A - disallowing expenses i.e., interest expenses u/r 8D(2)(ii) and administrative expenses being 0.5% of average value of investment u/r 8D(2)(iii) - assessee stated that the assessee has not earned any exempt income and has not claimed any income in its computation of income - HELD THAT:- As going through the decision of Era Infrastructure (India) Ltd. [2022 (7) TMI 1093 - DELHI HIGH COURT] we are of the view that the explanation inserted in the provisions of section 14A of the Act by the Finance Act, 2022 is prospective and not retrospective. Accordingly, since the assessee has not earned any exempt income, no disallowance can be resorted by invoking the provisions of section 14A of the Act read with Rule 8D(2) of the Rules. The appeal of the assessee is allowed.
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2022 (7) TMI 1449
Rebate claim - claim of benefit of scheme called Rebate of State and Central Taxes and Levies in respect of 70 shipping bills generated for the export - HELD THAT:- It appears that when the goods were exported, Scheme Code 19 was inadvertently indicated while filling up the details in the system electronically. The stand is evidently too technical and pedantic.
In exercise of powers under Section 157 read with Section 46 of the Customs Act, 1962, the Central Board of Excise and Customs have made regulation, namely Bill of Entry (Electronic Integrated Declaration) Regulations, 2011. Bill of Entry is defined under Regulation 2(c) whereas Regulation 3 says that authorised person may enter electronic integrated declaration in the Indian Customs Electronic Data Interchange System (EDI system) by himself through ICEGATE or by way of data entry through the service centre by furnishing the particulars. It was based on the above requirement that the authorities have been taking a stand that since wrong code was entered in the electronic data interchange system, the petitioner could not be given the benefit of Rebate Scheme.
The entitlement of the petitioner for availment under export scheme is not in dispute. Entering a particular code to receive the benefit was only part of procedure. It could not overreach or obliterate the substantive right claimable by the petitioner once the petitioner was eligible under the scheme to get the benefit.
Resultantly, the decision of Respondent Director General of Foreign Trade reflected in email communication dated 10.06.2021 refusing to change the Scheme Code from 19 to 60 in EDI shipping bills is hereby set aside - Petition allowed.
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2022 (7) TMI 1448
Benefit of exemption - Import of Camera - Extended period of limitation - Jurisdiction of DRI to issue Show Cause Notice (SCN) - Proper Officer - Validity of proceeding initiated for Recovery of duty not paid - In deference to the observation made by the Court, learned counsel appearing for the respective parties fairly accept the suggestion to await the decision in review petition 400 of 2021 [COMMISSIONER OF CUSTOMS VERSUS CANON INDIA PVT. LTD. [2022 (8) TMI 888 - SC ORDER]].
HELD THAT:- Accordingly, list these matters after the Review Petition No. 400 of 2021 is decided.
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2022 (7) TMI 1447
Murder - Homicide - framing of charges - marshalling of evidence on record - unlawful assembly an assault on the appellant and his family members after trespassing into the residential property of the appellant - accused persons are alleged to have caught hold of the deceased (wife of the appellant herein) and the daughterinlaw and both were beaten up causing injuries - High Court thought fit to affirm the order passed by the trial court discharging the accused persons of the offence of murder.
Whether the High Court was justified in affirming the order passed by the trial court discharging the accused persons of the offence of murder?
HELD THAT:- The purpose of framing a charge is to intimate to the accused the clear, unambiguous and precise nature of accusation that the accused is called upon to meet in the course of a trial - The case may be a sessions case, a warrant case, or a summons case, the point is that a prima facie case must be made out before a charge can be framed. Basically, there are three pairs of sections in the CrPC. Those are Sections 227 and 228 relating to the sessions trial; Section 239 and 240 relatable to trial of warrant cases, and Sections 245(1) and (2) with respect to trial of summons case - Section 226 of the CrPC, over a period of time has gone, in oblivion. Our understanding of the provision of Section 226 of the CrPC is that before the Court proceeds to frame the charge against the accused, the Public Prosecutor owes a duty to give a fair idea to the Court as regards the case of the prosecution.
his Court in the case of Union of India v. Prafulla Kumar Samal and another [1978 (11) TMI 151 - SUPREME COURT], considered the scope of enquiry a judge is required to make while considering the question of framing of charges. After an exhaustive survey of the case law on the point, this Court held that in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
In the case of Asim Shariff v. National Investigation Agency [2019 (7) TMI 1546 - SUPREME COURT], this Court in so many words has expressed that the trial court is not expected or supposed to hold a mini trial for the purpose of marshalling the evidence on record.
It is evident that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law. However, the material which is required to be evaluated by the Court at the time of framing charge should be the material which is produced and relied upon by the prosecution - Undoubtedly, apart from the material that is placed before the Court by the prosecution in the shape of final report in terms of Section 173 of CrPC, the Court may also rely upon any other evidence or material which is of sterling quality and has direct bearing on the charge laid before it by the prosecution.
In the present case, the trial court could be said to have conducted a mini trial while marshalling the evidence on record. The trial court thought fit to discharge the accused persons from the offence of murder and proceeded to frame charge for the offence of culpable homicide under Section 304 of the IPC by only taking into consideration the medical evidence on record. The trial court as well as the High Court got persuaded by the fact that the cause of death of the deceased as assigned in the post mortem report being the “cardio respiratory failure”, the same cannot be said to be having any nexus with the alleged assault that was laid on the deceased. Such approach of the trial court is not correct and cannot be countenanced in law - The post mortem repot can be used only to corroborate his statement under Section 157, or to refresh his memory under Section 159, or to contradict his statement in the witnessbox under Section 145 of the Evidence Act, 1872. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert’s opinion because once the expert’s opinion is accepted, it is not the opinion of the medical officer but of the Court.
Whether the case falls under Section 302 or 304 Part II, IPC could have been decided by the trial court only after the evaluation of the entire oral evidence that may be led by the prosecution as well as by the defence, if any, comes on record. Ultimately, upon appreciation of the entire evidence on record at the end of the trial, the trial court may take one view or the other i.e. whether it is a case of murder or case of culpable homicide. But at the stage of framing of the charge, the trial court could not have reached to such a conclusion merely relying upon the port mortem report on record. The High Court also overlooked such fundamental infirmity in the order passed by the trial court and proceeded to affirm the same.
Once the trial court decides to discharge an accused person from the offence punishable under Section 302 of the IPC and proceeds to frame the lesser charge for the offence punishable under Section 304 Part II of the IPC, the prosecution thereafter would not be in a position to lead any evidence beyond the charge as framed. To put it otherwise, the prosecution will be thereafter compelled to proceed as if it has now to establish only the case of culpable homicide and not murder - in the facts of the present case, it would be more prudent to permit the prosecution to lead appropriate evidence whatever it is worth in accordance with its original case as put up in the chargesheet. Such approach of the trial court at times may prove to be more rationale and prudent.
The orders passed by the High Court and the trial court are hereby set aside - appeal allowed.
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2022 (7) TMI 1446
Condonation of delay of 1708 days in filing appeal - reasonable cause for delay present or not - HELD THAT:- From the applications, it is evident that the applicant is seeking indulgence of this Tribunal for condoning the delay of 1708 days in filing these appeals. No justifiable ground has been stated in the applications filed.
There are no merits in the applications for condonation of delay in filing the appeals and the same is dismissed.
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2022 (7) TMI 1445
Reopening of assessment u/s 147 - unexplained cash deposits - scope of term change of opinion - HELD THAT:- The reassessment notice u/s 148 deals with the alleged cash deposit made by the assessee in the Punjab and National Bank and Bank of India. The cash deposit was not adjudicated upon in the Section 143(3) proceedings. In fact, the Assessment Order deals with another cash deposit made by the assessee in the Corporation Bank and accordingly an amount was added to his returned income after considering his reply. Consequently, the assessing officer did not consider the cash deposits in Punjab National Bank and Bank of India during scrutiny assessment proceedings.
Just because the Appellate Authority has the power to modify an assessment order with regard to a source of income that has not been considered during assessment proceedings does not mean that the jurisdiction of the authorities u/s 148 of the act would be excluded when the issue involved in the proceeding u/s 148 is not the same as that being considered u/s 251 - The power u/s 148 is an independent power and would not stand excluded on exercise of powers of appellate jurisdiction by the CIT(A) u/s 251.
Moreover, the impugned reassessment notice has been issued within four years from the relevant assessment year and the only requirement to be satisfied is reason to believe.
Prima facie, the contention of the Petitioner that the details of the cash deposits had been disclosed by him in the income tax returns is not correct, as the assessee in his return of income in row 14 “Detail of all the bank accounts held in India at any time during the previous year (excluding dormant accounts)” has only mentioned detail of cash deposited in the Corporation Bank account and has not mentioned cash deposits in any other bank accounts.
As decided in Chhabil Das Agarwal, (2013 (8) TMI 458 - SUPREME COURT) has held that as the Income Tax Act, 1961 provides complete machinery for assessment/reassessment of tax, assessee is not permitted to abandon that machinery and invoke jurisdiction of High Court under Article 226. This Court is further of the view that the present cases do not fall under the exceptional grounds on which a writ petition is maintainable at the interim stage in tax matters.
As considering that the assessment order under Section 147 of the Act has already been passed in the present cases, the contentions and submissions advanced by the petitioner must be agitated before the appropriate authority.
Present writ petitions are dismissed with liberty to the Petitioner to raise all its contentions and submissions before the Appellate Authority.
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2022 (7) TMI 1444
Validity of Assessment u/s 153A - Period of limitation - HELD THAT:- As rightly noted by the ITAT the requirement under Section 153B (1) is for the AO to make the assessment order within a period of twenty-one months from the end of the financial year in which the last of the authorization for the search under Section 132 of the Act was executed.
In the present case, there is no doubt that the last date by which the assessment had to be made was 31st December, 2016. As further rightly noticed Section 153B (1) uses the expression “order of assessment” and not merely ‘assessment’. Therefore, the assessment order becomes an order only when in fact it is communicated and therefore the communication of the order had to be prior to the end of the limitation period.
No error has been committed by the ITAT in allowing the Assessee’s appeal.
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2022 (7) TMI 1443
Violation of Regulation 11(1) of the SAST Regulations - Non issue of open offer - whether loan agreement did not in any manner transfer control of NDTV to VCPL either directly or indirectly? - As argued essential ingredients to constitute control are right to appoint majority of the directors, holding majority voting rights and/ or control over management and policy decisions of the company which in the instant case is non-existent nor any evidence has come on record to show that VCPL has control over NDTV through any of the aforesaid ingredients as per Regulation 2(1)(c) of the SAST Regulations.
HELD THAT:- This Tribunal in Shubhkam held [2010 (1) TMI 1260 - SECURITIES APPELLATE TRIBUNAL, MUMBAI] that the word “control” is a proactive and not a reactive power. That is to say, it is a positive power and not a negative power. The test of control was whether the acquirer was in the driving seat and whether the driver controlled the steering, accelerator, the gears and the brakes and, if the answer to these questions was in the affirmative, then alone would he be in control of the company. The Supreme Court [2011 (11) TMI 878 - SUPREME COURT] while affirming the decision of this Tribunal in Shubhkam held that the expression “control” denotes only positive control and further the word “control” as contrasted with management means de facto control of actual management or de facto control of policy decisions.
Needless to say here, that the definition of the term “control” in the IBC 2016 is the same/ identical as defined under Section 2(27) of the Companies Act, 2013 and Regulation 2(1)(c) of the SAST Regulations, 1997.
In the present case various clauses are meant to protect the interest of VCPL and the investment made by it. The transaction in the agreement is an amalgamation of rights. It is a loan transaction with an option to acquire 26% equity shares of NDTV as consideration for the provision of the loan. However, the transaction does not justify as being a control transaction. The transaction does not acquire direct or indirect control of NDTV. The intent and language of the loan agreement and call option agreements read with the SAST Regulations makes it clear that there is no direct or indirect control of NDTV by VCPL. The transaction structure does not lead to a conclusion that VCPL has acquired direct or indirect control over NDTV.
Thus the impugned order does not establish how each of the rights, either individually or collectively have led VCPL to acquire indirect control over NDTV. No evidence has come to light to indicate that VCPL is exercising control over the management or policies of NDTV. In the absence of any evidence, the impugned order passed by the WTM cannot be sustained. In our view, the combined reading of the agreement, call option agreements, warrant conversion option and the purchase option does not in any way lead to a conclusion of VCPL acquiring indirect control over NDTV. Thus the direction to VCPL to make an open offer in terms of Regulation 44 of SAST Regulations, 1997 and Regulation 32 of SAST Regulations, 2011 does not arise.
Whether the appellants failed to disclose the loan agreement under Clause 49 of the listing agreement? - Considering the violation of the Code of Conduct, the order of the WTM restraining them from accessing the securities market or from accepting any position of a Director is totally out of context and does not commensurate with the alleged violation especially when no fraud has been committed nor does the loan agreement defraud the investors.
The imposition of penalty of Rs. 25 crores by the AO is also high, excessive and disproportionate to the alleged violation. We find that the AO while considering the factors under Section 25J has noted that the quantifiable gain or unfair advantage accrued to NDTV or extent of loss suffered by the investors as a result of the default cannot be computed. In the absence of any quantification, we are of the opinion, that in the absence of any concealment or causing fraud to the investors or to the minority shareholders, the violation of Clause 49 of the listing agreement only invites a penalty. Considering the factors brought on record, we reduce the penalty from Rs. 25 Crores to Rs. 5 Crores.
Further penalty reduced - As considering the factors involved under Section 23J of the SCRA is concerned, we find that the AO himself has held that the quantifiable gain or unfair advantage accrued to NDTV or extent of loss suffered by the investors as a result of the default cannot be computed.
Consequently, the penalty for mere violation of non-disclosure under Clause 36 of the listing agreement cannot be penalized to the maximum amount quoted in the provision. Considering the facts and circumstances, we are of the opinion that the penalty of Rs. 5 Crores is reduced to Rs. 10 lakhs under Section 23A(a) of the SCRA.
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2022 (7) TMI 1442
Capital Grants & Subsidies and Consumers’ Contribution - addition of 15% of Capital Grants as against 10% offered by assessee - HELD THAT:- As decided in own case [2020 (11) TMI 301 - ITAT AHMEDABAD] as per provisions of section 43(1) of the Act, the capital grant should be reduced from the cost/WDV of the relevant asset, and thereafter the depreciation is to be calculated. Thus, the capital grant receipt in respect of asset, on which depreciation is allowable at the rate different from 15% should be worked out as per the applicable rate. The DR could not point out any mistake in the above submission of the assessee, which we find is in accordance with law. We, therefore, set aside the orders of the lower authorities on this issue, and restore the matter back to the file of the AO for adjudication afresh after verifying the proportionate amount of grant relating to different asset, and applying the actual rate of depreciation which relate to these assets. Thus, this ground of appeal of the assessee is allowed for statistical purpose.
Correct head of income - Income as “other income” OR business income - interest on loans to staff and other advances - HELD THAT:- As decided in the case of Odisha Power Generation Corporation Ltd [2022 (3) TMI 539 - ORISSA HIGH COURT] no difficulty in accepting the submission of the Assessee that the interest received on advances and loans given to its employees are receipts in normal course of carrying its business and should be considered as income derived from its essential business activities. Likewise, the late payment by GRIDCO for the electricity supplied, is sought to be made up by GRIDCO by issuing bonds on which the Assessee earns interest. This also therefore, has a direct nexus with the essential business activity of the Assessee.
We find it fit and proper to direct the Ld. AO to consider the issue afresh upon examining the same in regard to the head of income upon considering the relevant evidence
Disallowance of prior period expenses - HELD THAT:- The Coordinate Bench in [2020 (11) TMI 301 - ITAT AHMEDABAD] has set-aside the identical issue to the file of the Ld. AO. for de novo adjudication upon giving an opportunity of being heard to the assessee and upon considering the evidence which the assessee may choose to file at the time of hearing of the matter. This ground is allowed for statistical purposes.
Nature of receipt - Guarantee fees paid to the Government of Gujarat - HELD THAT:- As carefully considered the judgment passed by the Coordinate Bench in [2020 (2) TMI 1223 - ITAT AHMEDABAD] While deciding the ground in favour of the assessee by upholding the order passed by the Ld. CIT(A) in the appeal preferred by the Revenue concluded where no such asset is created, it would be indicative of an expenditure which was not capital in nature.
Another test relates to the principle of "enduring benefit". "Enduring benefit" may be in the form of long lasting use of an asset or the acquisition of a right to exploit certain commercial processes, etc. In the instant case, the assessee did not acquire any right to exploit a commercial technology or process, and neither was the benefit "enduring", since the payment of guarantee commission was an annual charge. The benefit derived from payment of such commission thus lasted for exactly one year only. Such shortlived benefit cannot be categorized as "enduring". Hence, we are inclined to the view that the payment of guarantee commission was a revenue expenditure.
Disallowance of claim of raising finance - HELD THAT:- No reason to interfere of the order passed by the Ld. CIT(A) in deleting the disallowance of claim of cost of raising finance as relying on [2020 (2) TMI 1223 - ITAT AHMEDABAD].
Loss due to pilferage, shortage of material in transit etc. to be allowed as relying on own case [2015 (6) TMI 1096 - ITAT AHMEDABAD].
MAT u/s 115JB - addition of Prior Period Expenses made while computing Book Profit computed u/s 115JB - HELD THAT:- As relying on M/s. Ashirwad Hgiene Pvt. Ltd [2016 (1) TMI 1501 - ITAT CHANDIGARH] no adjustment on account of prior period expenses is to be made in the net profit of the company for arriving at the book profits u/s 115JB of the Act. The appeal of the assessee is therefore allowed.
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2022 (7) TMI 1441
Profiteering - purchase of Flat - benefit of reduction in the rate of tax or ITC on the supply of construction service by the Respondent No. 1 & 2, on implementation of GST w.e.f.01.07.2017 - such benefit was passed on by the Respondent No. 1 & 2 to the recipients or not - contravention of section 171 of CGST Act - HELD THAT:- It is established from the perusal of the facts that the Respondent No. 1 has realized an additional amount of Rs. 7,94,569/- from Applicant no. 1 Rs. 29,45,27,905/- from 850 home buyers other than Applicant No. 1 and Rs. 1,23,35,442/- from the Respondent No. 2 during period from 01.07.2017 to 30.09.2019. The details of eligible homebuyers/recipients to whom supply has been made by Respondent no. 1 in the impugned Project and from whom additional amount on account of benefit of ITC had been realized by the Respondent no. 1 during period from 01.07.2017 to 30.09.2019 along with details of such additional amount is given in Annexure-‘A’ to this Order. All the home buyers/recipients are identifiable as per the documents placed on record and therefore, the Respondent No. 1 is directed to pass on/return/refund the profiteered amount along with the interest @ 18% per annum (from the dates from which the said profiteered amount was collected by him from each of them till the date such amount is passed on/returned/refunded is made), if not already passed on/returned/refunded, within a period of 3 months from the date of passing of this Order as per the details mentioned in Annexure-‘A’.
It is also found that the Respondent No. 2 was also required to pass on the benefit of ITC @ 10.51 % of the turnover, which is calculated to the tune of Rs. 1,23,35,442/- to 30 flat buyers other than the Applicant No.1 as he had received consideration only from 30 flat buyers/recipients out of 62. The details of eligible homebuyers/recipients to whom supply has been made by Respondent no. 2 in the impugned Project and from whom additional amount on account of benefit of ITC had been realized by the Respondent no. 2 during period from 01.07.2017 to 30.09.2019 along with details of such additional amount is given in Annexure-‘B’ to this Order.
Thus, this Authority under Rule 133 (3) (a) of the CGST Rules, 2017 orders that the Respondents shall reduce the prices to be realized from the buyers v of the flats/recipients of the above Project commensurate with the benefit of ITC received by him.
The Authority has a reason to believe that since the Respondents have been found to have contravened the provisions of Section 171 of the CGST Act 2017 in respect of the subject project “Crescent Bay” and hence there is every possibility that similar contravention may has taken place with his other projects. This Authority in terms of Rule 133 (5)(a) of the CGST Rules 2017 also directs the DGAP to investigate profiteering in relation to other Projects executed by the Respondent No. 1 and 2, if any, under the provision of section 171 of the CGST Act 2017.
In view of the prevailing Covid 19 pandemic and the Hon'ble Supreme Court Order in IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [2021 (3) TMI 497 - SC ORDER], IN RE : COGNIZANCE FOR EXTENSION OF LIMITATION [2020 (5) TMI 418 - SC ORDER] and IN RE COGNIZANCE FOR EXTENSION OF LIMITATION [2021 (5) TMI 564 - SC ORDER], this Order having been passed today falls within the limitation prescribed under Rule 133(1) of the CGST Rules, 2017.
Application disposed off.
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2022 (7) TMI 1440
Disallowance of depreciation on intangible assets - Highway Project on BOT basis - HELD THAT:- We find the identical issue in M/s. Progressive Constructions Ltd. [2017 (3) TMI 1167 - ITAT HYDERABAD] held that the expenditure incurred by the assessee for construction of road under BOT contract by the Government of India has given rise to an intangible asset as defined under Explanation 3(b) r/w section 32(1)(ii) of the Act. Hence, assessee is eligible to claim depreciation on such asset at the specified rate.
Thus assessee is entitled for depreciation as admissible on intangible assets. - Decided in favour of assessee.
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2022 (7) TMI 1439
Bogus LTCG - Penny Stocks transactions - share transactions - Addition deleted by the CIT (Appeals) also upheld by ITAT - HELD THAT:- We find that the matter is concluded by the concurrent findings of fact. No substantial question of law is involved in the impugned order of the Tribunal. Therefore, the Appeal is dismissed.
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2022 (7) TMI 1438
Seeking enlargement on interim bail - applicant is suffering from ailment of cardiac attack and he is presently admitted in hospital - HELD THAT:- There is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and, in case, the applicant is enlarged on interim bail, he shall not misuse the liberty of bail.
Considering the submissions of the parties, applicant admitted in hospital for ailment of cardiac attack and time sought by the informant for filing counter affidavit, let this matter be taken up on 3rd August, 2022 as fresh. Till then applicant may be enlarged on interim bail with the condition imposed - application allowed.
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2022 (7) TMI 1437
Non-registration of documents relating to certain immovable properties, said to be belonging to one M/s Adarsh Credit Co-operative Societies Limited. - HELD THAT:- This Court, finds that after filing of writ petitions, the Authorities have passed order, under Section 8 of the Act of 2002, and as such, the final attachment order has been issued - This Court, finds that none of the petitioners have ever made any application in their petitions for amendment, and as such, this Court has to consider as whether these writ petitions can be heard by this Court in view of final attachment orders, which have already been passed by the Authorities on 31.03.2020.
This Court further finds that during pendency of the writ petitions, if the final attachment order has been issued and the petitioners feel aggrieved against such order, then they are required to take necessary remedy to assail the same orders under the law.
This Court, accordingly, dismiss these writ petitions with liberty to the petitioners to take appropriate legal remedy for challenging the subsequent orders, which have been passed by the Authority, wherein final attachment orders have been passed - The issue of locus and jurisdiction raised by the respondents before the Appellate Forum, can always be decided after hearing both the parties as per law.
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2022 (7) TMI 1436
Reopening of assessment u/s 147 - reopening beyond period of 4 years - notice u/s 148 issued beyond the period of limitation after the expiry of the relevant AY - HELD THAT:- Following the order of this Court in M/s. Ambika Iron and Steel Pvt. Ltd [2022 (1) TMI 1291 - ORISSA HIGH COURT] the impugned notice and the consequential notices are hereby quashed. The writ petition is disposed of in the above terms. The interim order is vacated.
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2022 (7) TMI 1435
Classification of goods intended to be imported - 17 enzyme products - to be classifiable under heading 3507 or under heading 2309? - HELD THAT:- The impugned products are a combination of active ingredients and inactive ingredients such as antioxidants, minerals and stabilisers - These goods consist of active ingredients, preservatives, stabilisers and carriers. As per HSN explanatory notes, active ingredients with a suitable carrier along with additives required for preservation and transport is a premix, which is added to the complete animal feed or supplementary animal feed.
The Hon'ble Tribunal in RECKITT AND COLMAN OF INDIA LTD., CALCUTTA VERSUS COLLECTOR OF CENTRAL EXCISE, CALCUTTA [1985 (4) TMI 306 - CEGAT NEW DELHI] has held that to qualms as a preparation the said product should be prepared by addition, mixing or such other similar process to the original commodity in order to derive a new commodity. From the above, it is clear that the products under consideration are preparations, also known as premixes.
It is observed that heading 2309 is an end-use-based heading. In this regard, reliance may be placed on the decision of Hon'ble in the case of TETRAGON CHEMIE (P) LTD. VERSUS COLLECTOR OF C. EX., BANGALORE [1998 (9) TMI 390 - CEGAT, NEW DELHI], wherein it was held that end-use assumes importance in determining the classification of goods under heading 2302 of CETA, 1985. The same is because the description of the goods under heading 2302 reads as 'Preparations of a kind used for animal feeding including cat and dog food'. The heading specifically states that the preparations must be used for animal feeding. Therefore, heading 2302 is an end-use-based heading. It must be noted that heading 2302 of CETA, 1985 is akin to Heading 2309 of the Customs Tariff Act, 1975.
As per the HSN explanatory note, the heading 2309 excludes protein substances of Chapter 35. However, the impugned products contain these protein substances, i.e. enzymes in very small quantities. They can't be considered as protein only product, rather they are products containing enzymes among other substances like stabilisers, solvents, preservatives and carriers. Therefore, the impugned goods do not appear to be hit by the above-mentioned exclusion clause.
It is to be noted that the active ingredient present in the impugned goods is in the range of 1.2% to 17%. The products, apart from enzymes, also include stabilisers, solvents, preservatives and carriers. The inclusion of such additives makes the impugned products suitable for specific use. Therefore, while classifying the product as a whole need to be considered rather than only the active ingredient present in the specific product. The products, are specifically used to enhance nutrient digestibility and help in enhancing the nutritive value of the animal feed. Therefore, the said products do not merit classification under heading 3507.
The 17 products listed in Table 1 are classifiable under heading 2309 and more specifically, under subheading 23099090 of the first schedule to the Customs Tariff Act, 1975.
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2022 (7) TMI 1434
Classification of goods intended to be imported - carotenoid products, namely Lucantin Red 10% NXT, Lucantin Yellow 10% NXT and Lucantin Pink - to be classified under heading 3204 of HSN or not? - HELD THAT:- The impugned products are a combination of active ingredients and other ingredients such as antioxidants, minerals and stabilisers - These goods consist of active ingredients, preservatives, anti-oxidants and carriers. As per HSN explanatory notes, active ingredients (vitamins, pro vitamins, amino acids, etc) with a suitable carrier along with additives required for preservation and transport is a premix, which is added to the complete animal feed or supplementary animal feed.
The Hon'ble Tribunal in RECKITT AND COLMAN OF INDIA LTD., CALCUTTA VERSUS COLLECTOR OF CENTRAL EXCISE, CALCUTTA [1985 (4) TMI 306 - CEGAT NEW DELHI] has held that to qualms as a preparation the said product should be prepared by addition, mixing or such other similar process to the original commodity in order to derive a new commodity. From the above, it is clear that the products under consideration are preparations, also known as premixes.
It is observed that heading 2309 is an end-use-based heading. In this regard, reliance may be placed on the decision of the large bench of the Hon'ble tribunal in the case of TETRAGON CHEMIE (P) LTD. VERSUS COLLECTOR OF C. EX., BANGALORE [1998 (9) TMI 390 - CEGAT, NEW DELHI], wherein it was held that end-use assumes importance in determining the classification of goods under heading 2302 of CETA, 1985. The same is because the description of the goods under heading 2302 reads as 'Preparations of a kind used for animal feeding including cat and dog food'. The heading specifically states that the preparations must be used for animal feeding. Therefore, heading 2302 is an end-use-based heading.
It is to be noted that the active ingredient presents in the impugned goods, i.e., carotenoid, does not exceed 10% by composition (Table 4). Further, it can be observed that heading 3204 pertains to synthetic organic colouring matter or preparations based on synthetic organic colouring matter. However, the impugned goods are not simple colouring matters, rather they are compound preparations used for animal feed as additives having active ingredients such as carotenoids. HSN explanatory notes state that certain of these substances are also used as laboratory reagents or for medical purposes - The impugned products are not used for their dyeing properties. They are specifically used as animal feed for improvement in the quality of eggs and skin due to pigmentation after consumption. Therefore, the said products do not merit classification under heading 3204.
The 3 products, i.e., Lucantin Red 10% NXT, Lucantin Yellow 10% NXT and Lucantin Pink are classifiable under heading 2309 and more specifically, under subheading 23099090 of the first schedule to the Customs Tariff Act.
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2022 (7) TMI 1433
Direction to concerned authorities to produce the respondent for custodial interrogation - diversion and sale of duty-free gold bullion in the domestic market with the active involvement of the respondent - fabrication of export documents - HELD THAT:- The Gazetted Officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry. That does not mean that power is vested upon the Officer of customs to collect information which would otherwise be termed as incriminating material from the person against whom accusation is made.
A person cannot be deprived of his life or personal liberty, except according to procedure established by law as per Article 21 of the Constitution of India. Further, we have got Article 20 (3), which says that no person accused of any offence shall be compelled to be a witness against himself. Though not it can be termed that examining the person against whom accusation is made as a witness, the police or the other officials who are investigating a case cannot be permitted to compel a person against whom accusation is made to make a statement either inculpatory or exculpatory. It is the duty of the Investigating Agency under whatever cadre it may be to investigate the case and to cull out the truth - Permission cannot be accorded for interrogating him only for the purpose of recording his statement for proceeding with the investigation. This Court does not find any other grounds, more so justifiable grounds, to accord such permission.
The criminal petition is dismissed.
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2022 (7) TMI 1432
Seeking grant of Anticipatory bail - applicant has submitted that the present applicant has been falsely implicated in this case as he has not committed any offence as alleged - HELD THAT:- Since under the sections in which the charge sheet has been filed the punishment is upto seven years, therefore, it is expected from the learned court below to abide by the dictum of the Hon'ble Apex Court inSATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION & ANR. [2021 (10) TMI 1296 - SUPREME COURT], SIDDHARTH VERSUS THE STATE OF UTTAR PRADESH & ANR. [2021 (8) TMI 977 - SUPREME COURT] and AMAN PREET SINGH VERSUS C.B.I., THROUGH DIRECTOR [2021 (10) TMI 1 - SUPREME COURT] as the law propounded by the Apex Court is the law of land and everyone is duty bound to follow such law in its letter and spirit. It is also observed that the present applicant shall also cooperate with the trial Neutral proceedings properly.
There is no need to pass any order granting anticipatory bail as prima facie it appears that there is no apprehension of the arrest of the present applicant - instant anticipatory bail application is disposed off.
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2022 (7) TMI 1431
Jurisdiction - power of respondent to prefer the Contempt Petition instead of filing a fresh application in terms of the Section 7 of the Code - HELD THAT:- The approach of the Respondent is totally fallacious as it did not understand the order dated 18.09.2019 (Annexure A-3) of the Adjudicating Authority in which, while passing the order of dismissal as withdrawn, the Adjudicating Authority had given the liberty to it to file a fresh petition in case of breach of consent terms. Instead of filing a fresh petition under Section 7 of the Code, on the pretext that there was a breach of consent of terms, the Contempt Petition was filed which is totally uncalled for and unwarranted.
The Contempt Petition was not maintainable at all as it has been filed while misunderstanding the order dated 18.09.2019 (Annexure A-3) the Adjudicating Authority was to consider as to whether the order passed by the Adjudicating Authority has been violated or not but the Adjudicating Authority do not have the jurisdiction to direct the party to the lis to get the FIR registered as has been done in the present case.
Appeal allowed.
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