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Showing 201 to 220 of 1445 Records
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2024 (3) TMI 1245
Monetary Limit - Filing of Appeal by the Revenue / Department - threshold limit for filing appeals as per Central Board of Indirect Customs (CBIC) circulars - Instruction are binding effect Or not - Valuation of imported goods - Aluminum Scrap - rejection of declared value - enhancement of assessable value - HELD THAT:- On Persual of the provisions, it is clear that the Instruction/Circulars are mandatory/binding vis-a-vis the Departmental Officers are concerned. However, vis-a-vis the Superior Courts including Tribunals, the objective is different. The Tribunal as well as Superior Courts have to prioritize the interest of justice. It is the mandate for the Courts to see that none shall be condemned un-heard and that none shall be pre-judicially affected. The Courts/Adjudicating Authorities have to see whether any Circular/Instruction of the department is sufficient enough to fulfil the requisite interest of justice in the given set of circumstances.
The order of Commissioner (Appeals) under challenge before us is held to have been passed in violation of statutory mandate. Hence it cannot be allowed to attain finality due to Departmental Instructions or Clarifications which have to be within the four corners of parent legislation. The circular was for department to follow and not for the assessee to rely upon, especially when the self assessment of assessee is under shadow of doubt, more so when the department is being denied the proper opportunity to defend its stance. Above all, there cannot be any intention of the Department to issue any instruction which is detrimental to its own interest. As observed above, the only intention of the impugned instruction for fixing monetary limit is to reduce the Department litigation.
The instruction cannot be enforced at the cost of prejudice to the issuing authority itself. Rule of law requires a fair opportunity of being heard even to Government Authorities/Department herein. Commissioner (Appeals) has wrongly relied upon the decision of Sanjivani Non-ferros Trading Pvt. Ltd. Vs. Commissioner of Customs, [2018 (12) TMI 738 - SUPREME COURT] as in that case, the enhancement has not under Section 17 of the Customs Act, 1962.
Instead of counting each Bill of Entry for the purpose of calculating threshold monetary limit for filing appeal, it may be seen that all the 30 Bills of Entry pertain to one importer, namely Century Metal Recycling Private Limited for the same commodity i.e. aluminium scrap imported during more or less same period/time. Further, the Commissioner (Appeals) has passed one Order -in -Appeal for all the 57 Bills of Entry though numbered as 59-115/2019. Against the said OIA, this appeal is filed before this Tribunal (CESTAT).
In view of said Rule 6A of CESTAT Procedure Rule, 1982, we hold that the present case to be a fit case for this bench to exercise its power to not accept the CBIC instructions in this particular appeal and hold that CBIC Instruction F. No. 90 dated 17.08.2011 prescribing monetary limit for filing appeals before this Tribunal is not mandatory. Consequently, we hold that the Departmental Appeals shall be heard on merits. List for final hearing on 13th May, 2024.
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2024 (3) TMI 1244
Valuation - import of Old and used Digital Multifunction Printer - enhancement of value - restricted items - Without license - Confiscation - HELD THAT:- We hold that the date of importation in this case is from 19.10.2012 to 22.01.2013, which are prior to issuance of DGFT Notification No.35(RE-2012)/2009-2014 dated 28.02.2013. Therefore, following the decisions in the case of Bhawani Enterprises [2017 (11) TMI 974 - CESTAT KOLKATA], we hold that as the import has been affected prior to 28.02.2013, there is no restriction of import of the subject goods. Hence, no specific license is required for import of the impugned goods.
In that circumstances, we hold that for enhancement of value, the Chartered Accountant’s Certificate cannot be relied upon unless and until there is corroborative evidence. Therefore, we hold that that the goods are not liable for confiscation. No redemption fine can be imposed and no penalty on the respondent.
In the result, the Revenue’s appeal is dismissed.
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2024 (3) TMI 1243
Oppression and Mismanagement - denial of inspection of the books of accounts - EOGM not called for - purchase of loan without consent - failure to comply with statutory compliances - Validity of direction for independent forensic audit - HELD THAT:- The appellant was directed to file reply affidavit. Admittedly the appellant neither filed its reply affidavit nor documents as are now filed before us. It is in these circumstances it is needed to examine if the impugned order was wrong. Admittedly if the reply affidavit and documents were not filed before the Ld. NCLT then there was nothing before the Ld. Tribunal except to proceed on submissions made in the petition or in an application for interim relief. Such submissions have been duly noted in the impugned order. Para 9 of the impugned order rather says it is only in view of the averments made by the petitioner in its petition the interim order is passed.
There are no infirmity in the impugned order before us, specially in view of the fact only oral submissions were made before the Ld. NCLT as alleged, without support of any documents or reply. Even otherwise conduct of forensic audit does not determine the rights and liabilities of the parties but merely would enable the Ld. Tribunal to appreciate the issues involved. The issues raised in the petition before Ld. NCLT are allegations of siphoning of funds, grave lapses in the appointment of statutory auditors, lack of approval of petition on reserved matter, non-maintenance of proper books of accounts and hence this conduct of forensic audit will only come to the aid of the Tribunal to adjudicate the petition.
Thus in view of the allegations of serious lapses and non-compliance in the financial statements, no proper disclosure of related party transactions, non-reporting, non-disclosure and non-compliance of statutory compliances, as alleged in the petition before Ld. NCLT, the interim order passed by the Ld. NCLT is justified and there are no reason to interfere in the impugned order.
Appeal dismissed.
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2024 (3) TMI 1242
Seeking restoration of name of the company on ROC - failure to file the Financial Statement and Annual Returns since incorporation - Section 252 of Companies Act, 2013 - HELD THAT:- It is not the case of the respondent that appellant company was ever engaged in the transfer of the funds to its own sister concerns or that it is a Shell company or is engaged in siphoning of funds of another company. Rather the appellant claims to have carried commercial transactions with a view to establish a relationship with DPIL in order to commence its operations in consonance with the objectives of the appellant company and had amassed substantial assets but due to the fact DPIL went into insolvency in the year 2017, the company suffered a loss.
On going through the auditor reports for the financial years 2016- 17, 2017-18, 2018-19, 2019-20, 2020-21 which show the Non-Current Liabilities to the tune of Rs.7,36,23,359/-; Current Liabilities to the extent of Rs.88.00 Crores; Non-Current Assets to the extent of Rs.06.00 Crores (approximately), the Current Assets of Rs.25.94 Crores, the Fixed Assets of Rs.56.32 Crores; the Loan & Advances of Rs.25.93 Crores etc., and further since it is not a case of RoC the appellant is a Shell company and was at any time engaged in siphoning of the funds, hence, if the company’s name is restored it shall cause no prejudice to RoC. Admittedly, Nil revenue from operations cannot be a sole cause for striking of the name.
The appellant undertakes to be more cautious and vigilant in future in filing compliances under the applicable Laws and would adhere to all stipulated timelines designated without fail and shall pay cost imposed as per law. An affidavit in this regard be filled within a week from today before this Tribunal.
It is just and equitable to restore the name of the appellant company to the record of RoC - the impugned order set aside - RoC, New Delhi is directed to restore the name of the company to the Register of Companies subject to the fulfilment of compliances imposed - appeal disposed off.
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2024 (3) TMI 1241
Sanction of composite scheme of amalgamation - Section 230-232 of the Companies Act read with Companies (Compromises, Arrangements and Amalgamation) Rules, 2016 - The appellants contested the impugned order, alleging it was passed without considering the relevant clauses of the scheme of amalgamation - HELD THAT:- The impugned order doesn’t discuss if the scheme of amalgamation was separable as pointed out in clauses no. 1.2.2 and 23.1. The impugned order is completely silent on these clauses.
Even otherwise, section 231(1) (b) of the Companies Act duly empowers the Ld. NCLT to exercise discretion to “give such directions in regard to any matter or make such modifications in the compromise or arrangement as it may consider necessary for the proper implementation of the compromise or arrangement”. The Ld. NCLT was thus duly vested with sufficient powers under the Companies Act, to even partly sanction the scheme.
The impugned order dated 23.02.2023 is set aside - the Ld. NCLT, New Delhi Bench is directed to revisit the application of second motion in the light of the observations made by this Tribunal above and after considering the observations/clarifications of Regional Director, may dispose of the petition in accordance with law within six weeks from the date of communication of this order.
Appeal disposed off.
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2024 (3) TMI 1240
Professional mis-conduct by CA - SCN was not accompanied with documents relied upon against the Appellant and only a reference to the documents has been made in Annexure A appended with the show cause notice - non-compliance/violation of principle of natural justice by the NFRA - HELD THAT:- The fact remains that the Appellant has relied upon the reply filed by the Firm to the SCN which is pari materia the same in which he was working as engagement partner and shall knock the bottom of his case as now he cannot be allowed to take a different stand. The Appellant was required to file the reply to the show cause notice dated 15.11.2022 within a period of 30 days up to 15.12.2022. No such reply was filed within this period, rather, the Appellant sought extension of time of 45 days to submit his response vide his letter dated 14.12.2022. The NFRA considered the request made by the Appellant and on 03.01.2023 the period was extended till 29.01.2023. The Appellant during this period did not ask for any documents from the Respondent and rather relied upon the reply filed by the Firm which is apparent from the letter dated 30.01.2023, in which the Appellant has categorically stated that “the Auditor (firm) has submitted detailed reply dated 24.01.2023 to the SCN issued on the Firm.
Since the Appellant himself has relied upon the reply filed by the Firm to whom all the documents had already been served and has made a statement that the reply filed by the Firm shall be considered as his reply to the show cause notice then the nothing remains in this case to raise hue and cry for the alleged violation of principle of natural justice especially when the Appellant also did not ask for a personal hearing as well. No other point has been argued.
There are no merit in the submission made by the Appellant and hence the appeal fails and the same is hereby dismissed though without any order as to costs.
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2024 (3) TMI 1239
CIRP - Appellant seeks to modify the project completion date from 03.12.2023 to 03.12.2024, as stated in the subsequent certificate issued by the Real Estate Regulatory Authority (RERA) - correction of error in exercise of inherent jurisdiction of this Tribunal - HELD THAT:- There can be no dispute to the preposition that this Tribunal has inherent power to correct mistake or slip occurred in the order that such power is preserved in the Rule 11 of the NCLAT Rules, 2016 but the power cannot be exercised when there is no mistake or slip in the order or decree. Present is not a case where any mistake or slip occurred in the order passed by this Tribunal. The date 03.12.2023 was a date which was noticed by the Adjudicating Authority in the impugned order and which date is reflected in the order while dismissing the appeal.
This is not a fit case to exercise any inherent jurisdiction to correct any error in the judgment - Application is rejected.
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2024 (3) TMI 1238
Admission of Section 7 application under IBC - CIRP initiated against the Corporate Debtor, Personal Guarantor and the Corporate Guarantors - OTS proposal has been accepted by the Bank - HELD THAT:- The settlement agreement is taken on record and the CIRP proceedings against the Corporate Debtor, Corporate Guarantors as well as proceedings under Section 95 against the Personal Guarantors is closed. The orders impugned in these appeals dated 04.07.2023, 08.12.2023 and 06.12.2023 are set aside. CIRP is closed and Corporate Debtor, Corporate Guarantors and Personal Guarantors are freed from CIRP. Liberty is reserved to the Bank to make an application.
Learned counsel for the Bank submits that with regard to the Appeals of the Personal Guarantors amount of Rs.2 Lakhs each has been paid to the IRP - In view of the aforesaid amount having been paid, no further amount have to be paid to the IRP. Amount of Rs.5 Lakhs as required to be paid, if not already paid, shall be paid by the Appellant within two weeks.
Amount deposited by the Appellant in Company Appeal shall now be handed over to the Bank of India as per the Settlement Terms - appeal disposed off.
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2024 (3) TMI 1237
Admission of Section 7 application - It is the case of the Appellant that after restructuring the debt was not due on alleged default dates claimed by the Respondent, as such the admission of Section 7 application by the Adjudicating Authority was illegal and perverse - HELD THAT:- The Corporate Debtor requested for restructuring benefit being MSME and the Respondent sanctioned the same vide sanction letter dated 30.03.2019 as per their guidelines dated 15.01.2019 applicable to all MSME including the Corporate Debtor. We have taken into consideration the pleadings of the parties and note that for restructured Funded Interest Terms Loan (FITL) and Working Capital Term Loan (WCTL), moratorium was indeed allowed, however the said moratorium was only for principal amounts and not for interests whereas the Appellant has taken the plea that the moratorium was blanket for both principal amount as well as for the interest component and therefore, the moratorium was absolute.
As regard, the different date of default as alleged by the Appellant, both the parties during the pleadings, brought out that the Adjudicating Authority had asked the Respondent to file a supplemental affidavit which was filed on 16.04.2019 where the Respondent elaborated that the Corporate Debtor committed first default in 2018 the loan accounts of the Corporate Debtor were classified as NPA on 30.04.2018, however, on payment of over due amount the account of the Corporate Debtor were upgraded to the standard category.
The Corporate Debtor, having not deposited the interest from time to time, defaulted and outstanding balance remained continuously in excess of sanction limit, entitling the Respondent bank to classify the loan accounts of the Corporate Debtor as NPA - there are no strength in the arguments of the Appellant regarding alleged wrong date of defaults which has been consciously elaborated in the Impugned Order.
Thus, the grounds of the Appellant that there was no default whatsoever is not found to be true in view of various loans agreements, restructuring approvals letters, supplemental terms loan agreements, various statement of accounts provided by the banks w.r.t to the Corporate Debtor. There was clear default on the part of the Corporate Debtor to the Respondent Bank - there are no error in the Impugned Order which has gone into details of all the facts and came to the clear conclusion that there has been default on the part of the Corporate Debtor.
Appeal dismissed.
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2024 (3) TMI 1236
CIRP - Delay in making claim by the Homebuyers - Condonation of delay of 544 days in submitting the claim FORM -CA - seeking a direction to the Resolution Professional/ Respondent to accept the claim of the Applicant as Financial Creditor - HELD THAT:- The very fact that effected party in this case has given a concession in so many words that it has no objection if the claim of the Appellant is also entertained and the delay in filing the claim is condoned, therefore, it is not required to go into the merits of this case and decide the appeal only on the basis of concession made by the Mr. Ritesh Jain.
The present appeal succeeds and the Impugned Order is set aside. The Respondent/ Resolution Professional shall now accordingly include the claim of the Appellant and submit the updated claim to the Adjudicating Authority - Appeal allowed.
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2024 (3) TMI 1235
CIRP - Completion of Real estate project during the Proceedings - Appellant filed an application seeking permission for unsecured and secured financial creditors to vote on the Project Completion Proposal - HELD THAT:- The Corporate Debtor is allowed to complete the project under the guidance of the IRP, in terms of the affidavit filed on 24.08.2023, 04.09.2023 and 23.12.2023 and also on the principles of reverse CIRP which has been propounded by this Tribunal in the case of FLAT BUYERS ASSOCIATION WINTER HILLS – 77, GURGAON VERSUS UMANG REALTECH PVT. LTD THROUGH IRP & ORS. [2020 (2) TMI 1409 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI].
The request has been made by the appellant is hereby accepted and as a result thereof, the present appeal is hereby disposed of.
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2024 (3) TMI 1234
Entitlement to the percentage of fee in respect of the sales effected by appellant (liquidator) - The appellant, who served as the liquidator for over a year, contends that his fee should be based on the total amount realized from asset sales during the liquidation period. The main contention revolves around the interpretation of Regulation 4 of the IBBI (Liquidation Process) Regulation, 2016, and a circular issued by the IBBI clarifying the term "amount realized." - HELD THAT:- There is an error in the approach of the Tribunal while rejecting the application filed by the appellant which deserves to be reconsidered in terms of the order being passed herein. The issue in the present case is that the appellant effected various sales during the period he remained the liquidator of the Corporate Debtor which has been set up by the appellant in the claim application filed before the present Liquidator in which it is shown that total amount of sale is Rs. 78,47,31,778/- and the appellant is accordingly entitled to the percentage of fee in respect of the sales effected in the first six months, next 6 months, next one year and thereafter etc.
However, this aspect of the matter has not been taken into consideration either by the present Liquidator or by the Ld. Tribunal whereas it is very much clear not only from Regulation 4 (3) (unamended provision) that the amount realized is to be considered but also from Circular dated 28.09.2023 by which the term “amount realized” has been further clarified.
The impugned order is hereby set aside whereby the application filed by the appellant has been dismissed. The matter is remanded back to the Learned Tribunal which restoring the application - Appeal allowed by way of remand.
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2024 (3) TMI 1233
Seeking grant of regular bail - Money Laundering - Scheduled Offences - proceeds of crime - illegal transfer of the land - creation of fabricated documents - twin condition as per section 45 of PMLA satisfied or not - grounds of parity - HELD THAT:- The Hon’ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. [2022 (7) TMI 1316 - SUPREME COURT] has been held that the Authority under the 2002 Act, is to prosecute a person for offence of money-laundering only if it has “reason to believe”, which is required to be recorded that the person is in possession of “proceeds of crime”. Only if that belief is further supported by tangible and credible evidence indicative of involvement of the person concerned in any process or activity connected with the proceeds of crime, action under the Act can be taken forward for attachment and confiscation of proceeds of crime and until vesting thereof in the Central Government, such process initiated would be a standalone process.
This court has “reason to believe” that prima-facie the involvement of the present petitioner is fully substantiated by the tangible and credible evidences which is indicative of involvement of the present petitioner in activity connected with the proceeds of crime.
The conditions enumerated in Section 45 of P.M.L.A. will have to be complied with even in respect of an application for bail made under Section 439 CrPC. That coupled with the provisions of Section 24 provides that unless the contrary is proved, the authority or the Court shall presume that proceeds of crime are involved in money-laundering and the burden to prove that the proceeds of crime are not involved, lies on the appellant.
The “offence of money-laundering” means whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering and the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever - on the basis of the discussion made the contention of the learned counsel for the petitioner that even if the entire ECIR will be taken into consideration, no offence will be said to be committed so as to attract the ingredients of Sections 3 & 4 of the P.M.L. Act, 2002, is totally misplaced in the light of accusation as mention in prosecution complaint dated 01.09.2023.
Ground of parity - HELD THAT:- Law is well settled that the principle of parity is to be applied if the case of the fact is exactly to be similar then only the principle of parity in the matter of passing order is to be passed but if there is difference in between the facts then the principle of parity is not to be applied - It is further settled connotation of law that Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail and by only simple saying that another accused has been granted bail is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established.
The Hon’ble Apex Court in Tarun Kumar Vs. Assistant Director Directorate of Enforcement [2023 (11) TMI 904 - SUPREME COURT], where it has been held that parity is not the law and while applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration - It has further been held in the said judgment that the principle of parity is to be applied in the matter of bail but equally it has been laid down therein that there cannot be any negative equality, meaning thereby, that if a co-accused person has been granted bail without consideration of the factual aspect or on the ground said to be not proper, then, merely because the co-accused person has been directed to be released on bail, the same will not attract the principle of parity on the principle that Article 14 envisages positive equality and not negative equality.
On comparative assessment of the allegation as per the material collected in course of investigation as referred hereinabove, it is evident that against the said Bishnu Kumar Agarwala, the allegation of purchase of the land in question has been alleged and further allegation against him is that he is involved in the activities connected with the acquisition, possession, concealment and use of the proceeds of crime and claiming and projecting the proceeds of crime as untainted property.
The twin condition as provided under Section 45(1) of the Act, 2002 is not being fulfilled so as to grant the privilege of bail to the present petitioner - Even on the ground of parity as per the discussion made hereinabove, the same on the basis of the role/involvement of the present petitioner in the commission of crime in comparison to that of the said Bishnu Kumar Agarwala, is quite different.
Having regard to the facts and circumstances, as have been analyzed hereinabove as also taking into consideration the statements made in the counter affidavit, the applicant is failed to make out a prima-facie case for exercise of power to grant bail, hence, this Court does not find any exceptional ground to exercise its discretionary jurisdiction under Section 439 of the Code of Criminal Procedure to grant bail - this Court is of the view that the bail application is liable to be rejected.
Bail application dismissed.
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2024 (3) TMI 1232
Violation of principles of natural justice - non-service of impugned order - no proof of service of order - HELD THAT:- On examining the Order-in-Original, it follows that the Special Leave Petition filed by the tax authorities against the order of the Telangana and Andhra Pradesh High Court was dismissed by the Hon'ble Supreme Court in [2019 (7) TMI 1975 - SC ORDER]. Consequently, the judgment of the Telangana and Andhra Pradesh High Court holds the field as on date. In these circumstances, it is just and appropriate that the petitioner be provided with an opportunity to contest the tax demand. It should also be noticed, in this regard, that there is no proof of service of the impugned order on the petitioner.
The impugned order is quashed and the matter is remanded for reconsideration by the 1st respondent. The 1st respondent is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh order within three months from the date of receipt of a copy of this order - Petition disposed off.
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2024 (3) TMI 1231
Levy of service tax - Business Support Service - joint venture - setting up clean development mechanism electricity (CDM) Co-generation plant of 20 MW on Build, Own, Operate and Transfer (BOOT) basis to improve energy efficiency and to reduce steam consumption - HELD THAT:- On going through the definition of the taxable service it appears that the term “Infrastructure Support Service” includes providing of office along with office utilities, lounge, reception with competent personnel to handle messages, secretarial services etc. A clear takeaway from the definition of “Business Support Service” is that it is in the nature of outsourced work which necessarily presupposes deployment of services as well as personnel to help the business of the other person. In the instant case, no such outsourcing of work by M/s a2z Ltd to the appellant is visible. It is clear from the wordings of the definition that one party, the provider of the service should render service to support the business of the other party, that is the recipient of the service. However, in the instant case, it is found that no such arrangement is visible.
The MOU between the appellants and the M/s a2z is on a principal-to-principal basis and not on the basis of a service provider and the client. We find that while rendering a service may result in the payment of a consideration, monetary or otherwise, the vice versa is not true. Department seriously erred in viewing every consideration to be necessarily for rendering a service.
On going through the provisions of the statute, board’s clarification and the terms of the MOU, it is opined that deposit of Rs. 50,00,000/- received by the appellants from M/s a2z is not any consideration for the provision of any service. The nature of relationship between the appellant and M/s a2z is on the principal-to-principal basis and therefore, similar to a “Joint Venture”. The arrangement is mutually beneficial.
The impugned order does not stand the scrutiny of law and therefore is not legally maintainable and requires to be set aside - Appeal allowed.
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2024 (3) TMI 1230
Claim of Interest on Refund of pre-deposit (amount as was deposited in terms of Section 35F of the Finance Act) - rejection on the ground that the amount of interest on the refund claim as was already sanctioned to the appellant - HELD THAT:- It is held that Commissioner (Appeals) has wrongly relied upon the pre amended Section 35FF for denying the entitlement of interest to the appellant. The appellant is held entitled for the same. The decision of Hon’ble Apex Court in the case of Commissioner of Customs (Import), Raigad vs M/s. Finacord Chemicals (P) Ltd. [2015 (5) TMI 371 - SUPREME COURT] while discussing the liability of the department to pay the interest has referred to Departments' own circular dated 02.1.2002 wherein the Board clarified that the matters of refund other than the amount of duty would not be covered under the provisions of Section 11B of Customs Act or Section 35FF of Central Excise Act. It was held by the Hon'ble Apex Court that in such cases of refund even the concept of unjust enrichment is not applicable.
Rate of interest - HELD THAT:- No doubt the department has relied upon a notification of 2014 and as per the Section 35FF also, the rate of interest has to be more than 5% but less than 36%, however, subject to a re-notification. The above decision of Hon’ble Apex Court in M/s. Finacord Chemicals (P) Ltd. [2015 (5) TMI 371 - SUPREME COURT] which is subsequent to the said notification. Applying the said matrix, the appellant entitled for interest at the rate of 12%. The decision of Hon’ble High Court is found not applicable to the given set of circumstances. The provision involved in the said decision is the Section 129 EE of the Customs Act - the appellant is held entitled for interest from the date of deposit to the date of payment at the rate of 12%.
Appeal allowed.
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2024 (3) TMI 1229
Refund of Service Tax - Principles of unjust enrichment - Department took the view that the Appellant has not discharged onus of showing that unjust enrichment clause is not applicable in that case - HELD THAT:- The Credit Notes issued by the Public Limited Company is a proper document wherein the transaction towards credit given to their customers is properly recorded. These Credit Notes form part of their P & L Account and Balance Sheet. Therefore, the Credit Notes cannot be taken as a piece of paper as has been held by the Commissioner (Appeals). However, the veracity of the same can definitely be checked and verified before it is accepted as a proper document.
As per judgment in COMMISSIONER OF CENTRAL EXCISE, MADRAS VERSUS M/S ADDISON & CO. LTD. [2016 (8) TMI 1071 - SUPREME COURT], since the person who has initially bought the goods would have already charged the full amount on the end customer, if subsequent discount is granted to the person, there is no possibility for that discount to be passed on the end customer. Because of this reason, the Supreme Court has held that unjust enrichment clause will be applicable and no refund can be granted in that case - In the present case, the refund is purely on account of erroneously paid Service Tax. The only way unjust enrichment can get attracted is if the receiving client takes the Cenvat Credit. If it is established that no Cenvat Credit has been taken by the client, there would be no case of unjust enrichment. Therefore, it is found that in the present case, the case law of Addison is not applicable.
From the documentary evidence produced, it is felt that they should be given an opportunity to produce all these documents before the Adjudicating Authority. In view of the forgoing, the matter remanded to the Adjudicating Authority directing him to follow the principles of natural justice and decide the issue within four months from the dated of communication of this order.
Appeal disposed off by way of remand.
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2024 (3) TMI 1228
Clandestine removal - concealment of information of production capacities of its machines installed in the premises - manufacture and production of cigarettes - Evasion of GST and cess which is payable to the respondents - HELD THAT:- The power of judicial review under Article 226 of the Constitution of India is to ensure whether the processes through which a decision is taken by the competent authority is in consonance with the Act and Rules or not, but not the decision itself. Thus, all disputed facts and circumstances are to be adjudicated before the competent authority or before the appellate authority concerned. This certainly is the reason why the High Courts are not entertaining a writ petition against the show cause notices and competent authorities and notices. The demand notices are issued based on initial determination made by the original authorities.
A writ petition need not be entertained at this stage and High Court cannot adjudicate the issues relating to huge economic offence of stealthily procuring raw materials clandestine manufacturing and fraudulent supply of filter cigarettes of various brands during a particular period without payment of taxes, as alleged by the respondents resulting into issuance of show cause notices which were issued after conducting a detailed investigation in the matter by them. Even if the procedures are not followed by the authorities before issuance of show cause notices, they are bound to do so in accordance with the provisions of the Act and Rules.
The interim order granted by this Court stands vacated. However, the petitioner would be at liberty to avail the statutory alternative remedy in accordance with law, if so advised - Petition dismissed.
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2024 (3) TMI 1227
Valuation - brake shoes supplied by them to M/s SAL - Job workers of M/s SAL - whether the appellants are job-workers for M/s SAL and whether the valuation of the Brake Shoes manufactured by the appellant needs to be done taking recourse to CEVR,2000? - Rule 10A of the Central Excise Valuation (Determination of Price of Excisable Goods), Rules 2000 or CEVR, 2000 - HELD THAT:- The appellants submitted the correspondence between them and M/s SAL, which indicates that though M/s SAL are making payments to the suppliers of ingots, the same is but on behalf of, the appellants, by debiting to the account of the appellants. It is seen that this is only a financial arrangement and it in itself does not render the appellants to be the job-workers of M/s SAL.
There is no indication either in the orders placed by M/s SAL on the appellants or in the invoices issued by the appellants to M/s SAL, that the whole arrangement is of any job-work - the argument of the appellant that if they were job-workers for M/s SAL, M/s SAL would have availed the benefit of notification no. 214/86 - there is no reason for M/s SAL to pay for the full value of Brake Shoes rather than job charges, if the manufacture by the appellant was only on job-work basis.
Revenue has not made out any case for rejection of declared value and fixing it at 110% of the cost of production as it is not established the appellants are job-workers of M/s SAL - the impugned order cannot be legally sustained - Appeal allowed.
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2024 (3) TMI 1226
Refund of duty paid in excess - Admitted tax or not - Valuation - freight from the factory of the appellant to the destination (customer’s premises) has to be added to the assessable value or not - place of removal - period 2014-15, April 2015, May 2015 and 1.6.2015 to 8.6.2015 - HELD THAT:- It is found that so far the fact of the not including freight in Assessable value is concerned, the same were not disputed by Revenue in the ROM Application. What was disputed by Revenue was that the said amount has been paid by way of admitted tax or self assessed tax and hence, it was not refundable unless the order of self assessment was modified in accordance with law.
The said amount of Rs.4,22,85,418/- does not form part of the self assessed tax or admitted tax of the appellant/assessee and accordingly, allowing the appeal of the assessee, it is held that they are entitled to refund of the said amount with interest as per Rules - appeal allowed.
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9911796707
