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Showing 161 to 180 of 434070 Records

2025 (6) TMI 1099

Conviction and order of sentence in Special SEBI Case against person in-charge - two accused guilty u/s 24(2) r/w Section 27 SEBI Act and thus sentenced to suffer SI for one year each and to pay fine of Rs. 10 lakhs each ID to suffer SI for another three months each.

HELD THAT:- As it appears to this Court that before the learned Trial Court the complainant has led no evidence at all with regard to the alleged role of the present two appellants in the accused no.1 company at the relevant time. No documentary evidence has also been produced before the learned Trial Court to substantiate that the present two appellants were the directors and/or in-charge of the company. From Exhibit 4, being the certified copy of the order of the adjudicating officer dated 8th May, 2009 the alleged role of the present two appellants is found to be not much prominent.

Considering the entire circumstances this Court is of the considered view that the judgment of conviction and order of sentence as passed by the learned Trial Court cannot be sustained. The instant appeal is, thus, allowed.

Consequently, the judgment of conviction and order of sentence dated 30th July, 2019 as passed by the learned Judge-in- Charge, Fifth Special Court, Calcutta, in Special SEBI Case is set aside.
2025 (6) TMI 1098

Violation of principles of natural justice - Impugned Order is arbitrary and suffers from erroneous application of law - non speaking order - non-submission of Repayment Plan results in a deemed rejection of the Repayment Plan under Section 114 read with Section 115(2) of the I&B Code - HELD THAT:- If the provisions contained under Section 121 are taken into consideration, they stipulate the circumstances under which filing of an Application for Bankruptcy of a Debtor, by a Creditor individually or jointly can be permitted subject to the exceptions that had been carved out therein. The circumstances detailed therein is inclusive of an Order passed by Ld. Adjudicating Authority under the provisions contained under Section 115 (2) of I & B Code, 2016.

In the instant case, the Ld. Adjudicating Authority has taken the position that, in the absence of submission of the Repayment Plan by the Personal Guarantor, there will be a deemed rejection of the Repayment Plan under Section 114 r/w Section 115 (2) of the I & B Code, 2016, and if that be so, the pleading by the Appellant that the Impugned Order is violative of Section 121 (1) will not be maintainable. The process contemplated under Sub-Clause (b) of Sub-Section 1 of Section 121, contemplates that rejection of a Repayment Plan under Section 114, would attract Section 115 (2) of the I & B Code, 2016, which will entitle the Creditors to file an Application for Bankruptcy under Chapter IV which is the case at hand.

Non-filing of Repayment Plan will clearly imply rejection under Section 114 (1) of I & B Code, as nothing has been put up before Ld. Adjudicating Authority to consider for approval and accordingly the Creditors will be entitled to file an Application for Bankruptcy under Chapter IV in the light of Sub-Clause (b) of Sub-Section (1) of Section 121 to be read with Sub-Section (2) of Section 115 of I & B Code, 2016.

The Impugned Order has been passed without a cogent reason and the appreciation of the facts and circumstances of the instant case is not acceptable because the Personal Guarantor cannot take an advantage of his own inaction arising because of non-submission of the Repayment Plan and then taking advantage of the same by claiming that no order to proceed with the Bankruptcy process could be resorted to because, non-submission of Repayment Plan has not been specifically included in Section 114 of the Code is an absolute misnomer, and contrary to the spirit of law.

Once the Personal Guarantor has failed to submit his / her Repayment Plan, within the time frame stipulated therein, in the light of the provisions contained under Section 114 of the I & B Code, 2016, it would automatically stand rejected and the consequential decision taken under Section 115 (2) by Ld. Adjudicating Authority to permit the Creditors to file an Application for Bankruptcy by invoking the provisions contained under Chapter IV, would not call for any interference because the provisions contained under Section 121 (1) (a), as it has been sought to be attracted by the Appellant will have no bearing, in the present circumstances, since being an independent provision isolated in its applicability to the provisions contained under Section 115 (2) of the I & B Code, 2016.

Conclusion - i) Deemed rejection of Repayment Plan occurs upon non-submission by Personal Guarantor, triggering bankruptcy proceedings. ii) Section 115(2) read with Section 121(1)(b) governs initiation of bankruptcy after rejection of Repayment Plan. iii) Appeals under Section 61 of the I&B Code do not require separate leave applications.

Appeal dismissed.
2025 (6) TMI 1097

Dismissal of Interlocutory Applications under Sections 60(5) and 33(3) of the I&B Code - issuance of directions to make 50 percent of payment, as a mandatory condition of pre-deposit in order to entertain the Appeal - Section 18 of the SARFAESI Act, 2022 - HELD THAT:- The Learned Tribunal, while dealing with the Company Petition, by the judgment of the 11.08.2023, found that the conduct of the Appellant was dubious and thereby, dismiss the Interlocutory Applications on a payment of cost of Rs. 1,00,000/-. The Appellant thereafter, has filed a Memorandum of Withdrawal of the Appeal but however, it carries a rider that the “Appellant may be permitted to take a necessary legal action in the manner known to law only against Respondent Nos. 1, 4, 7 & 8”. This exception sought for in a Memorandum of Withdrawal of Appeal is being vehemently opposed by the Respondents, who have filed the objection and particularly the reference may be have to the contents of the Para-5, 6 & 7, on which the Learned Counsel for the Respondent has heavily harped upon that, though the withdrawal can be permitted, but the liberty as prayed for to resort to recourse known to law may not be left open as an issue based on judicial dictum, as it stands affirmed qua the confirmation of sale of the property by the judgment of the Honourable Apex Court in GBJ HOTELS PRIVATE LIMITED VERSUS SRIHARAN SRIPATHMANATHAN & ORS. [2025 (5) TMI 46 - SUPREME COURT].

Conclusion - The argument in the objection as raised by the Respondent seems to be reasonable and justified. Hence, the Memorandum of Withdrawal of Appeal would stand allowed and the Appeal would stand dismissed as withdrawn simplicitor, without any liberty being reserved for the Appellant as sought for leaving a leverage to resort to any other remedy for the same subject of dispute, as prayed for in the Memorandum of Appeal, which would stand denied.

The Withdrawal Memo is allowed, the Company Appeal is permitted to be dismissed as withdrawn.
2025 (6) TMI 1096

Rejection of claim filed with the Liquidator on Form-C in respect of outstanding dues against the Corporate Debtor - rejection on the ground that the claim has been filed belatedly after a delay of 102 days which was not within the statutory timelines prescribed under the Code and the Liquidation Regulations - HELD THAT:- The Ld. Tribunal, in the penultimate paragraph No. 6 has categorically recorded that: “In view of the above and perused the material available on record, this bench finds that, the reasons for delay is not properly given in the application” which means that the Tribunal has taken into consideration the decision in the case of Southern Power Distribution Company of Telangana Limited vs. Priyadarsini Limited Rep by Liquidator, Mr. Krishna Mohan Gollamudi [2023 (7) TMI 1580 - NATIONAL COMPANY LAW TRIBUNAL HYDERABAD] which was on the issue of condonation of delay in filing of the appeal under Section 42 of the Code and not the condonation of delay in filing the claim before the Liquidator.

In this case that the impugned order is totally confusing as to whether it has decided the appeal or rejected the claim of the appellant and also the impugned order is totally non-speaking, therefore, the impugned order deserves to be set aside and the matter deserves to be remanded back to the Ld. Tribunal to decide the issue raised by the appellant and contested by the respondent afresh.

The matter is remanded back to the Ld. Tribunal seized of the Liquidation Proceedings, to decide the appeal in accordance with law - Appeal allowed by way of remand.
2025 (6) TMI 1095

Refusal to exercise the power under Section 85 of the Finance Act, 1994 by condoning delay - time limitation - invocation of extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India - HELD THAT:- On perusal of order dated 23.12.2024 passed in appeal, it surfaced that the Order-in-Original dated 09.04.2024 was served on the Petitioner on 12.04.2024. Thus, the period of limitation is to be reckoned from the next date, i.e., 13.04.2024.

The last date for presenting the appeal within the specified period of two months from this date (13.04.2024) would fall on 12.06.2024 and the condonable period of one month would lapse on 12.07.2024. Concededly by counsel both the parties, the appeal was presented on 12.07.2024. It is, therefore, abundantly clear that the Appellate Authority has misguided himself and his approach in computation of period of limitation is tainted. The Appellate Order dated 23.12.2024 is faulted with in view of Section 85(3A) of the Finance Act, 1994 read with Section 12 of the Limitation Act, 1963 and Section 9 read with Section 3(35) of the General Clauses Act, 1897.

The Appellate Authority has not borne in mind the purport of Section 3(35) read with sub-section (9) of the General Clause Act, 1897, Section 12 of the Limitation Act. Therefore, the conclusion arrived at by the Appellate Authority vide Order dated 23.12.2024 is faulted with.

Conclusion - Having thus demonstrated the legal aspect of calculation of period of limitation as envisaged under Section 85(3A) of the Finance Act, 1994, this Court is inclined to interfere with the Order dated 23.12.2024 passed by the Commissioner (Appeals), Bhubaneswar and, having held that the Commissioner (Appeals) has the competence to deal with the proviso to sub-section (3A) of Section 85 of the Finance Act, 1994, on the facts and in the circumstances of the case, the said order is liable to be set aside.

The Order-in-Appeal dated 23.12.2024 passed by the Commissioner (Appeals), Bhubaneswar is set aside and the matter is remitted to the Appellate Authority to exercise his conscientious discretion as conferred under Section 85(3A) of the Finance Act, 1994 and adjudicate the matter with respect to limitation afresh - Petition disposed off by way of remand.
2025 (6) TMI 1094

Maintainability of appeal - appellant's mandatory pre-deposit under Section 35F of the Central Excise Act, 1944 was disputed - DRC-03 can be used for payment of pre-deposit for compliance of the provisions of the said Section 35F or not - HELD THAT:- The learned Commissioner (Appeals) has not decided the appeal before him on merit and held that the appeal before him was not maintainable for non-compliance of the provisions of the said Section 35F, even when 7.5% of the adjudged dues was paid through debit into electronic credit ledger on 04.06.2021.

Hon’ble Bombay High Court has affirmed the interim order dated 07.07.2023 passed by this Tribunal in the case of Saphire Cables and Services Pvt. Ltd. [2023 (7) TMI 544 - CESTAT MUMBAI]. This Tribunal in the said interim order has held that if debit is made in electronic credit ledger, i.e. DRC-03, before 28.10.2022 towards payment of pre-deposit under the said Section 35F, then such debit is valid and it is to be concluded that the provisions of the said Section 35F have been complied with.

Conclusion - It is noted that in the present case the debit was made on 04.06.2021. Therefore, the appellant had made mandatory pre-deposit as required under the said Section 35F. The impugned order set aside and the matter is remanded to learned Commissioner (Appeals) to decide the appeal before him on merit.

The appeal is allowed by way of remand after setting aside the impugned order.
2025 (6) TMI 1093

Levy of service tax - Sponsorship Services - it is alleged that the appellant had made payments to various companies towards sponsorship in respect of Indian Premier League (IPL) T20 Tournament during the period 2010-11 and not paid service tax under the category of ‘Sponsorship Services’.

Demands for the period prior to 01.07.2010 - HELD THAT:- It is an admitted fact that the appellants are sponsoring IPL teams through the team owner companies for which agreements were entered between them.

In view of the definition of Sponsorship Services, the entire demand confirmed by the adjudicating authority against the appellant for the services rendered by M/s. Royal Challengers Sports Pvt. Ltd. are exempted since the activities are carried out prior to 01.07.2010. This Tribunal in the matter of Hero Motocorp Limited [2013 (6) TMI 447 - CESTAT NEW DELHI] held that the sponsorship of IPL team would amount to sponsoring the sport event and it is fully covered by the exclusion provision of definition of ‘Sponsorship Service’. This decision was upheld by the Hon’ble Supreme Court in [2015 (7) TMI 1163 - SC ORDER] and their Lordships had observed that 'The appellate Tribunal in its impugned order had held that several rights accuring to appellant under sponsorship agreement with GMR owner of Delhi Daredevi team clearly indicates that sponsorship of team is in relation to participation in IPL T-20 Cricket Tournament. This agreement, is a clear commercial transaction and is for sponsorship of T-20 sport event and not owner of Delhi Daredevils or BCCI-IPL. Accordingly, agreement falls within exclusionary clause of Section 65(105)(zzzn) of Finance Act, 1994 and appellants are not liable to pay Service Tax.'

Hence, the demands for the period prior to 01.07.2010 are unsustainable.

Demands raised for the services rendered prior to 01.07.2010 but payments received after 01.07.2010 - HELD THAT:- With regard to demands raised for the services rendered prior to 01.07.2010 but payments received after 01.07.2010, are not taxable in terms of 2nd proviso to subrule (1) of Rule 6 Service Tax Rules, 1994 - Hence, the demands made under Sl.No.3 and 8 of Annexure – 1 of show-cause notice with respect to (i) Bill No.KRSTL/2010-11/USL4 dated 12.07.2010 issued by IPL Team, Knight Raiders to the appellant and (ii) Bill No.13/DCSVL/2010 dated 24.07.2010 issued by IPL Team, Decan Chargers, are set aside since the last match was concluded on 25.04.2010 i.e., services were rendered prior to 01.07.2010.

Demand confirmed for the services rendered after 01.07.2010 - HELD THAT:- It is evident that the appellant had discharged duty liability with interest before issue of show-cause notice and this fact has been reflected in their ST-3 returns. This demand is confirmed as the services were rendered after 01.07.2010.

Levy of penalty - HELD THAT:- Considering the fact that the appellant had paid the said amount before issuance of show-cause notice, penalty imposed by the adjudicating authority is unsustainable.

Conclusion - i) Demands for sponsorship services rendered prior to 01.07.2010 are set aside as unsustainable. ii) Demands relating to services rendered before 01.07.2010 but paid after that date are also set aside. iii) Demand for services rendered after 01.07.2010 was upheld since tax was payable; however, penalty was quashed due to pre-show-cause payment.

Appeal allowed in part.
2025 (6) TMI 1092

Refund of unutilized Cenvat Credit of Service Tax - Appellant did not submit all copies of BRC/FIRC in support of export turnover - relevant services were either used in un-registered premises or did not have any nexus with the output services or did not fall in the ambit of Rule 2(1) of CCR or on strength of invalid documents/missing invoices in contravention of Rule 9 ibid - HELD THAT:- There are no merit in the ground stated at (i) for the reason that the if the credit claimed was inadmissible for any reason then proper proceedings for the denial of the CENVAT Credit should have been initiated under Rule 14 of the CENVAT Credit Rules, 2004. When the Appellant has claimed refund of the unutilized credit in terms of Rule 5 of CENVAT Credit Rules, 2004 read with Notification No 5/2006-CE, the question of admissibility of the CENVAT Credit could not be questioned and refund claim denied for this reason.

In case of Qualcomm India Pvt. Ltd. [2019 (8) TMI 1645 - CESTAT HYDERABAD] Hyderabad Bench has held that 'in absence of specific provisions contained in the statute, denial of the refund benefit provided under Rule 5 ibid, in our considered opinion, cannot stand for judicial scrutiny.'

Admittedly in the present case, there is no position to ascertain whether any proceedings for denial of the CENVAT Credit were initiated in terms of the Rule 14 of the CENVAT Credit Rules, 2004. Nothing to this effect has been stated either in the show cause notice, order in original or the impugned order. Thus in absence of any assertion that proper proceedings have been initiated under Rule 14, in view of the above decision, there are no merits in the impugned order denying the refund claim by holding certain credits as inadmissible.

There are merits in the submissions of the Appellant that for determining the admissibility of the refund the authorities should have made the revised calculations by taking those FIRCS/BRCs which were produced by the Appellant. Undisputedly the entire amount claimed as refund by the Appellant as per the refund claim filed by them 28.12.2012, would be admissible even if the export turnover for the purpose of calculating the admissible refund as per notification No 5/2006-CE (NT). Thus there are no merits in the rejection of the refund claim on this account also.

There are no merits in the submissions made by the Appellant claiming refund over and above the amount claimed by them in the claim filed by them on 28.12.2012. Impugned order correctly records that the Appellant could not have claimed any amount which was not the subject matter of proceedings before the lower authorities.

Conclusion - There are no merit in the denial of refund on the grounds of lack of nexus or unregistered premises, especially in absence of any Rule 14 proceedings.

Appeal is thus allowed to the extent of the amount claimed as refund in the refund claim filed by the Appellant on 28.12.2012, and was subject matter of the show cause notice dated 07.04.2014.
2025 (6) TMI 1091

Wrong availment and utilization of Cenvat Credit in contravention of Rule 3(4) of Cenvat Credit Rules, 2004 - Non-payment of service tax on declared service under Section 66E(e) of Finance Act, 1994 on forfeiture of deposits on account of penalty/fine and others.

Wrong availment and utilization of Cenvat Credit in contravention of Rule 3(4) of Cenvat Credit Rules, 2004 - HELD THAT:- It has been brought to the notice that the appellant had all requisite documents in his possession to show that the said Cenvat credit has been availed and utilized well in conformity of the said rules. He also mentioned that the details of the said record, the list thereof were placed before the adjudicating authority below. He has acknowledged to have all the requisite invoices detailed in the said list to be in his possession.

Keeping in view the said submission and the fact that the Cenvat credit has been disallowed for want of the documents, it is deemed appropriate that an opportunity be given to the appellant to produce the entire record before the original adjudicating authority who shall take a fresh decision, afresh, about the entitlement of the appellant vis-à-vis the impugned amount of Cenvat credit.

Non-payment of service tax on declared service under Section 66E(e) of Finance Act, 1994 on forfeiture of deposits on account of penalty/fine and others - HELD THAT:- This issue is no more res integra. This tribunal in the case of South Eastern Coal Fields Ltd. vs. CCE & ST, Raipur [2020 (12) TMI 912 - CESTAT NEW DELHI] has considered the same issue as above. It has already been held that 'It is, therefore, not possible to sustain the view taken by the Principal Commissioner that penalty amount, forfeiture of earnest money deposit and liquidated damages have been received by the appellant towards “consideration” for “tolerating an act” leviable to service tax under section 66E(e) of the Finance Act.'

Thus, the issue of considering a forfeited amount as an amount of consideration towards declared services stands already settled in favour of the assessee. The same is already held to not to be the consideration towards rendering declared service defined under section 66E(e) of the Finance Act, 1944. In fact the cancellation of contract itself is held to not to be a service. There are no reason to differ from these findings - the service tax demand on the forfeited amount has wrongly been confirmed. The demand is therefore set aside.

Conclusion - The demand of service tax amounting to Rs.69,88,709/- along with interest is hereby set aside. The order of respective penalty imposed is also set aside. However, the issue of disallowing Cenvat credit with interest and respective penalty is remanded to the original adjudicating authority for fresh decision to be taken in the light of the invoices/other documents to be produced by the appellant.

The appeal stands allowed partially by setting aside the demand of service tax and partially by way of remand.
2025 (6) TMI 1090

Nature of activity - sale or service - supply of license keys/codes for antivirus software constitutes a taxable service under section 65(105)(zzzze) of the Finance Act, 1994, or amounts to a transfer of goods? - HELD THAT:- It is seen that, the order of the Tribunal, in re Sakri IT Solutions Pvt Ltd v. The Additional Director General (Adjudication), [2024 (4) TMI 373 - CESTAT NEW DELHI] had held that 'the supply of packed Antivirus Software to the end user by charging license fee would amount to a provision of service and would not be a sale.'

Conclusion - The transaction involving supply of antivirus software license keys/codes is not liable to service tax but is a sale of goods attracting VAT/sales tax.

As the issue stands settled in their own dispute for the earlier period and with the present dispute having its origin in ‘statement of demand’ consequent to the show cause notice issued therein, the impugned order is set aside - Appeal allowed.
2025 (6) TMI 1089

100% EOU - liability to pay duty on indigenous/imported inputs and packing materials used in manufacturing goods that were subsequently destroyed after becoming unfit for human consumption, under N/N. 52/2003-Cus and No. 22/2003-CE dated 31.03.2003 - HELD THAT:- It is observed that the condition for duty-free procurement of inputs, prima facie, had not been complied in the present case by the appellant. The appellant, without disputing the admissibility of the notifications or otherwise, paid the amount under protest. Later, without challenging the order of the Department, they filed a refund application straightaway. This aspect has not been addressed by the adjudicating authority as per the principle of law prevailing at the relevant time, as it allowed the appellant to file the refund claim directly which has been considered by the Hon’ble Supreme Court in ITC’s case [2019 (9) TMI 802 - SUPREME COURT (LB)] and it is observed that the assessment order need to be challenged before claiming the refund, their Lordships observed 'When we consider the overall effect of the provisions prior to amendment and post-amendment under Finance Act, 2011, we are of the opinion that the claim for refund cannot be entertained unless the order of assessment or self-assessment is modified in accordance with law by taking recourse to the appropriate proceedings and it would not be within the ken of Section 27 to set aside the order of self-assessment and reassess the duty for making refund; and in case any person is aggrieved by any order which would include self-assessment, he has to get the order modified under Section 128 or under other relevant provisions of the Act'.

Conclusion - The appellants were liable to pay duty on inputs as per notifications dated 31.03.2003 since conditions were not met.

The impugned order is set aside and the appeal is allowed by way of remand to the adjudicating authority.
2025 (6) TMI 1088

Entitlement to interest on the pre-deposited refund amount under Section 35FF of the relevant statute as it existed prior to June 2014 - appeal filed by the Appellant before the Commissioner (Appeals) at Nagpur through electronic mode was valid and within the prescribed limitation period or not - HELD THAT:- Going by the preamble to which adjudicating Authority’s refund order is annexed, it would clearly show that Appellant was instructed to file appeal before the Commissioner (Appeals) at Nagpur if he was aggrieved by order passed by the Refund Sanctioning Authority. It might be a wrong forum due to territorial jurisdiction issue, but Appellant had complied with the instructions and filed the appeal within the stipulated time at Nagpur for which Learned Commissioner (Appeals) at Nagpur, if not had jurisdiction to deal with the matter, would have transferred the appeal to the Commissioner (Appeals) having jurisdiction or would have returned the same to the Appellant with direction to file the same before proper forum and the entire period for which Appellant’s appeal was pending before him, should have been deducted by the Commissioner (Appeals) at Nashik for the purpose of computation of Limitation period since it has been consistently held by Hon’ble Supreme Court also in the case of M.P. Steel V/s. Union of India [2015 (4) TMI 849 - SUPREME COURT], reported in 2016 that for the purpose of computation the provision contained in section 5 to 24 of the Limitation Act, can be referred while disposing of issues concerning limitation.

The Appellant had filed the appeal within the stipulated time and the case laws cited by Ld. AR in the case of Singh Enterprises V/s. Commissioner Central Excise, Jamshedpur [2007 (12) TMI 11 - SUPREME COURT], would not be applicable in the instance case for the reason that in the said judgment, the legality of the order passed by the Hon’ble High Court in a writ petition in which Commissioner (Appeals) order was assailed was questioned and decided.

Having regard to the fact section 35FF contains wordings that “there shall be paid to the Appellant interest @ specified in section 11BB after the expiry of three months from the date of communication of order…”, Grant of interest is a statutory right and should have been granted alongwith refunded amount at the time of passing the order of refund but the same is not done so.

Conclusion - The Appellant's appeal is validly filed within the limitation period, and the delay caused by jurisdictional confusion should not prejudice the Appellant. The statutory right to interest on delayed refunds under Section 35FF is mandatory and must be granted along with the refund amount.

The order passed by the Commissioner (Appeals) is hereby set aside and Respondent Commissioner is directed to pay interest on the refunded amount of 20 lakhs as per law prevailing prior to June, 2014 within two months from passing of this order without fail - appeal allowed.
2025 (6) TMI 1087

Seeking rectification of mistake - recovery of the Central Excise duty - invocation of extended period of limitation - HELD THAT:- The period involved in the appeal is from 01.04.2013 to 14.05.2015 and the Show Cause Notice (SCN) was issued by the Department on 28.11.2017, proposing for recovery of the Central Excise duty demand from the appellant, by invoking the extended period of limitation. Since the entire modus operandi of manufacturing and clearance of the goods were known to the Department well in advance through filing of periodical returns by the appellant and on the basis of the books of accounts maintained by them, periodical audit being conducted by the Department, the charges levelled against the appellant such as suppression, fraud, collusion, wilful mis-statement etc. cannot be sustained and in such circumstances, the duty demand can only be sustained for the normal period of limitation of two years. Since the present SCN was issued on 28.11.2017 i.e. beyond the normal period prescribed under Section 11A of the Central Excise Act, 1944, we are of the view that confirmation of the adjudged demands in the impugned order, by invoking the extended period of limitation cannot be sustained against the appellant.

The Hon’ble Allahabad High Court in the case of Commissioner of Customs, Central Excise & Service Tax Vs. Monsanto Manufacturer Pvt. Ltd. [2014 (4) TMI 505 - ALLAHABAD HIGH COURT] has dealt with an identical situation and has held that, if the show-cause proceedings are barred by limitation of time, the merits of the case cannot be looked into for deciding the matter, ignoring the limitation aspect provided in the statute.

Conclusion - Extended period of limitation under Section 11A cannot be invoked without specific grounds such as suppression, fraud, collusion or wilful mis-statement.

There are no merits in the impugned order, insofar as it has confirmed the adjudged demands on the appellant by invoking the extended period of limitation - the impugned order is set aside - appeal allowed in favour of the appellant only on the ground of limitation.
2025 (6) TMI 1086

CENVAT Credit - entitlement to avail 100% cenvat credit on flexographic plates during the period March 2009 to March 2013, or only 50% credit in the year of purchase and the remaining 50% in the subsequent financial year as per Rule 4(2)(a) of Cenvat Credit Rules, 2004 - capital goods or inputs - flexographic plates used by the appellant - extended period of limitation - HELD THAT:- It is noted that the subject goods viz. flexographic plates qualify to be considered as components of Flexo printing machine and in terms of Rule 2(A)(iii) of Cenvat Credit Rules, 2004, the same would qualify to be treated as capital goods and, therefore, in the financial year in which the same are brought into factory, cenvat credit of 50% of the duty paid on the same is eligible to be taken as cenvat credit. However, in the present case the cenvat credit which is proposed to be denied being 50% for the month of March 2009 was eligible to be availed in the month of April 2009 and in similar manner for all the years after the entry into next financial year, the remaining 50% amount of cenvat credit proposed in the show cause notice for denial was eligible for availment. The last financial year dealt with in the proceedings is 2012-13 and 50% cenvat credit denied for being availed in 2012-13 was eligible to be availed in April 2013.

Therefore, by the time show cause notice was issued, the entire cenvat credit availed by the appellant was eligible to be availed. Therefore, invocation of Rule 14 for denial of the said cenvat credit at a stage when the said cenvat credit was admissible to be taken is not in accordance with law.

The impugned order is set aside - appeal allowed.
2025 (6) TMI 1085

Entitlement to refund of the amounts paid to the developer authority (GMADA) along with interest for delay in possession of flats under the residential scheme - case of respondent is that the terms of the agreement cannot circumscribe the authority of the Commission to award just compensation - HELD THAT:- In Bangalore Development Authority v. Syndicate Bank [2007 (5) TMI 565 - SUPREME COURT], this Court having surveyed several other judgments, laid down seven principles regarding grant/non-grant of relief to an allottee who is aggrieved by non-delivery or delay in delivery of plots/flats. This court held that 'Where the development authority having received the full price, does not deliver possession of the allotted plot/flat/house within the time stipulated or within a reasonable time, or where the allotment is cancelled or possession is refused without any justifiable cause, the allottee is entitled for refund of the amount paid, with reasonable interest thereon from the date of payment to date of refund. In addition, the allottee may also be entitled to compensation, as may be decided with reference to the facts of each case.'

The entitlement of compensation, therefore, is not in dispute. A reference to Balbir Singh [2004 (3) TMI 753 - SUPREME COURT] shows that compensation can take different forms, considering the facts and circumstances at hand. Determination has to be made, keeping in view the stage of the work completed, where the service provider has lapsed in duty and the loss caused thereby etc. Uniformity is foreign to such determination.

A perusal of the judgment and orders of the Commissions does not reveal any exceptional or strong reasons for the interest on the loan taken by the respondents to be paid by GMADA. That apart, whether the buyers of the flat do so by utilizing their savings, taking a loan for such purpose or securing the required finances by any other permissible means, is not a consideration that the developer of the project is required to keep in mind. For, so far as they are concerned, such a consideration is irrelevant - Repayment of the entire principal amount along with 8% interest thereon, as stipulated in the contract, alongside the clarification that there shall be no other liability on the authority, sufficiently meets this requirement.

The amount of interest awarded is the compensation to the investment maker for the amount of money and the time he has been denied the fruits of that investment. The 8% interest awarded in this case on top of the entire amount that is being invested, is the compensation for being deprived of the investment of that money. Apart from this no amount of interest on the loan taken by the respondents could have been awarded.

Conclusion - The respondents are entitled to refund of the amounts paid along with 8% compounded interest as per the contract.

Appeal allowed.
2025 (6) TMI 1084

Entitlement to enforce the contract of agreement for sale - failure to appreciate that the Plaintiffs had resources to execute their part of contract - sale agreement had recitals that after execution of sale deed, the Plaintiffs on their own has to evict the tenant from the Suit property or not - grant of decree for specific performance of contract to the Plaintiffs - specific performance for sale of the property.

HELD THAT:- In this case, the decree for specific performance is not only refused on the ground of efflux of time, but the attitude of the Plaintiffs in not depositing the balance sale consideration atleast during the trial in the suit. The argument that the trial court did not insist the Plaintiffs to deposit the balance sale consideration does not augur well and it only goes against the interest of the Plaintiffs to seek for equitable relief.

The documents under Ex.A-13 to Ex.A-145 were filed by the Plaintiffs to prove that they have sufficient means. On assessment of those documents, the learned Trial Judge concluded that in those Bank statements there was amount of one lakh and two lakhs etc. for a few days and those amounts were withdrawn subsequently - The financial capacity or capability of the Plaintiffs after institution of the suit is immaterial. It must be shown that within the time granted under the sale agreement dated 14.11.1994, the Plaintiffs had wherewithal to perform their part of the argument. Therefore, the documents, which emanate after institution of the suit cannot be considered for grant of a decree for specific performance. As observed in the judgment by Justice R. Subramanian in A.S.No.863 of 2009 the value of the property increases every year. Therefore, if the Plaintiffs are bona fide, they should have voluntarily deposited the amount so as to retain their right and interest to purchase the property. They need not expect the Court to insist for depositing the balance sale consideration.

Yet another aspect for consideration is that the Plaintiffs were heavily indebted. The Plaintiffs faced criminal proceedings for dishonour of cheque and ultimately got convicted for having committed the offence under Section 138 of The Negotiable Instruments Act, 1881 and sentenced to undergo imprisonment. That apart, there were also civil proceedings initiated against the Plaintiffs and a portion of the immovable property owned by them got attached - the Plaintiffs admit that now some other tenants are in occupation of the property. It is not known as to why the Plaintiffs are exhibiting enormous interest to purchase a property which is full of litigation, lack of title etc. - Going by the above facts, this Court is of the view that the Trial Court, in a circumstance of this nature, is wholly justified in dismissing the suit and directing the Defendant to repay the advance amount.

It is to be mentioned that in cases of this nature, Plaintiffs are reluctant to pay the balance of sale consideration after making initial advance amount. It is their intention or expectation that as they have paid a miniscule portion of the sale price, they can get the sale deed executed at any time or they can assert ownership over such property without performing their duties embodied under the contract. By the time the suit is decreed, one of the parties file an appeal the adjudication of the appeal takes time - Section 16 (c) of The Specific Relief Act, confers a discretion to the Courts to award a decree for specific performance, not for the sake of the Plaintiff asking for it, but on the touchstone of equity by weighing the various considerations that are precedent for grant of such decree.

Conclusion - The Trial Court ought to have dismissed the suit in entirety but instead the Trial Court was magnanimous enough to grant the alternative relief of refund of advance amount under the principles of equity. Such an exercise of discretion by the Trial Court, in the facts and circumstances of this case, is justified and it is proper. Accordingly, all the points raised for determination are answered against the Plaintiffs and in favour of the Defendant.

The appeal suit is dismissed.
2025 (6) TMI 1083

Dishonour of Cheque - challenge to order of acquittal - legally enforceable debt or liability under Section 138 of the Negotiable Instruments Act or not - rebuttal of presumption - stoppage of payment instruction given by the accused to his bank - criminal liability under Section 138 or not - HELD THAT:- The Complainant has to establish his case by raising a presumption and only then, the burden will shift on the Accused. Here, even though, the trial proceeded on the presumption that the Accused had not denied the issuance of the cheque, the Accused discharged his rebuttal evidence by issuing a reply notice, adducing evidence and also marking the documents in support of his claim under Ex.D-1 to Ex.D-19 and thereby he had proved that there was sufficient amount in his account on the date of issuance of stop payment under Ex.D-18.

Therefore, as pointed in the reported decision relied by the learned Counsel for the Respondents in MMTC Ltd and another vs Medchl Chemicals and Pharma (P) Ltd and another [2001 (11) TMI 837 - SUPREME COURT], the Accused had discharged the burden whereby stop payment is not attracted to the complaint filed by the Complainant under Section 138 of the Negotiable Instruments Act, 1881 in this case. If stop payment is issued and there is no sufficient amount in the account of the Accused on the date of issuance of cheque or on the date of return of the cheque under the caption stop payment, then it attracts Section 138 of the Negotiable Instruments Act, 1881. Therefore, the reasoning of the learned Judicial Magistrate, Fast Track Court (Magisterial level), Hosur, is found proper. It is on proper appreciation of evidence. Therefore, the judgment of the learned Judicial Magistrate is to be confirmed.

Conclusion - The Point for Consideration is answered against the Appellant/Complainant and in favour of the Accused. The judgment passed by the learned Judicial Magistrate, Fast Track Court (Magisterial level), Hosur is found proper which does not call for any interference by this Court and the same is to be confirmed.

The Criminal Appeal is dismissed as having no merits.
2025 (6) TMI 1082

Dishonour of Cheque - Grant of interim compensation - power of the Court under Section 143A of the NI Act is directory in nature or mandatory - signatures on the settlement deed made by the petitioner, were under coercion - HELD THAT:- On a perusal of the Impugned Order, it is evident that the prima facie view taken by the learned PD&SJ is correct. The learned PD&SJ has rightly observed that the petitioner has not lodged any complaint regarding him having to sign the said settlement agreement under coercion. Further, all the cheques issued by the petitioner were post- dated cheques, which could have been withheld on the instructions to the Banker of the petitioner. Therefore, this Court is unable to accept this plea of the petitioner.

The position of law is well settled that the power under Section 143 A is directory and not mandatory in nature and that the Court must record brief reasons stating consideration of all relevant factors. The learned PD&SJ and the learned Trial Court have provided detailed and reasoned Order, while granting the interim compensation which does not warrant any interference.

Conclusion - i) The Revision Petition challenging the interim compensation order was rightly dismissed by the revisional authority. ii) The petitioner's defence of coercion and denial of liability was not prima facie plausible and was rightly rejected. iii) The Courts below properly exercised their discretion under Section 143A of the NI Act, recording adequate reasons.

Petition dismissed.
2025 (6) TMI 1081

Requirement of Charitable institution registered u/s 12A to file a return of income for the purposes of claiming the benefit of exemption u/s 11 and 12 of the Act, prior to 2018 - HELD THAT:- Section 139 of the Act deals with return of income. The provision states that every person, other than a company or a firm, who has a total income, during the previous year, in excess of the maximum amount which is not chargeable to income tax, shall furnish a return of income in the prescribed form.

When a trust claims that its income is exempt from tax under sections 11 and section 12 of the Act, it was obligatory u/s 12A(b) of the Act as it then existed, to file a return since such a return was a condition of eligibility for claiming exemption during the years in question. Moreover, in the absence of a return, the assessee's claim for exemption will not be able to be decided. A decision on the eligibility for exemption can be made only after relevant materials are placed before the department by filing the return

Contention of petitioner that the obligation to file a return under section 139(4A) of the Act will arise only when the representative assessee is assessed, though impressive at first blush, on a deeper analysis has to be held to be not legally tenable. The provision under section 139(4A) of the Act obligates both the trust and the representative trustee, whoever is the person in receipt of the income, to file a return. Section 139(4A) of the Act can only be interpreted to mean that as far as religious or charitable trusts are concerned, if the person in receipt of the income is the trust or the trustee, the obligation to file a return will exist. It cannot be confined to a representative trustee alone.

Thus, for the years 2015-16 and 2016-17, a charitable institution registered under section 12A of the Act was bound to file a return of income for the purpose of claiming exemption under sections 11 and 12 of the Act. Without such a return having been filed, petitioner cannot claim the benefit of the exemptions. Hence the impugned orders need no interference.
2025 (6) TMI 1080

Validity of Reopening of assessment - AO proceeded to make the whole cash payment addition u/s 68 as bogus expenses and also proceeded to make 3% of the above expenses as commission expenditure - HELD THAT:- The reopening of the assessment is beyond jurisdiction and bad in law on both counts, not providing opportunity to the assessee for making addition based on third party statement as well as not brought on record the failure on the part of the assessee to disclose fully and trully all the material facts for the reopening of assessment beyond four years. Therefore, we are inclined to quash the assessment.