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Showing 201 to 220 of 1469 Records
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2021 (7) TMI 1271
Jurisdiction of respondent no. 2 to issue a show cause notice - termination of proceedings awaiting the final order - HELD THAT:- The point of Jurisdiction need not be examined at this stage, since the final order on the proceedings is awaited.
The interest of justice would be sufficiently served if the petitioner is granted liberty to file an application before the respondent no. 2, to urge before such respondent that in view of the ratio of the decision in M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT] the proceedings cannot be carried further. If such an application is made, the respondent no. 2 will proceed to decide the same in accordance with law either by a preliminary order or by the final order in the proceedings.
The writ petition stands disposed of, without costs.
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2021 (7) TMI 1270
Reopening of assessment u/s 147 or assessment u/s 153C - HELD THAT:- In this case, the names of around 500 persons/entities figure in the IVMS data and the question of logistics or practicable application of the provisions cannot be lost sight of. If the law offers multiple options to an officer as to how to proceed in a matter, it is for that officer to determine and come to a conclusion as to the proper, appropriate and simplest method of proceeding further.
The provisions of Section 147 and 148 provide for assessment of income that have escaped assessment. Nowhere in Section 147 are the provisions of Section 153 excluded.
AO must, in choosing the provision to apply, bear in mind the statutory conditions set out and arrive at a decision having regard to the logistics and the efficacy of the provision chosen. In a case such as the present, the respondent has, in my view, arrived at the proper conclusion, bearing in mind the interests of revenue, to share the information found with the assessing officers of the third parties. He is in no position to arrive at statutory ‘satisfaction’ in all the cases as to whether the name of the third party in the IVMS data is genuine/germane or otherwise.
The decisions relied on by the petitioner proceed on the basis that the use of the non-obstante clause in Section 153C would limit the choice of the Assessing Officers only to a search assessment.
Certainly satisfaction cannot be thrust upon the Assessing Officer. The requirement of recording of ‘satisfaction’ requires independent application of mind by the officer upon his detailed examination of all relevant material.
These writ petitions are dismissed. The petitioner is permitted to file appeals, if it so desires, before the Commissioner of Income Tax (Appeals) agitating merits of the matter.
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2021 (7) TMI 1269
Seeking grant of anticipatory bail - petitioner contends that the petitioner was not in office when the incident took place but be that as it may, a charge sheet has been filed and he joined investigation but was not arrested and then there was no need to arrest him now - HELD THAT:- We put to learned senior counsel for the petitioner as to why the petitioner did not appear after summons were sent in pursuance to cognizance being taken as logically, the petitioner ought to have appeared and applied for regular bail and there should have been no case for anticipatory bail at that stage.
Let notice issue returnable on 18.08.2021
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2021 (7) TMI 1268
Grant of Anticipatory Bail - Bribe - huge amount was due towards the P.F. Fund of the Employees which had not been deposited by the complainant - applicant was posted as Assistant Provident Fund Commissioner at Regional Office EPFO, Noida - HELD THAT:- Perusal of the record shows that after investigation, charge-sheet has been submitted in the matter on 12.10.2020. Cognizance has also been taken. Applicant has not appeared before the court concerned. Process of bailable and non-bailable warrant were issued on different dates against the applicant. Inspite of this, he did not appear. Although co-accused Narendra Kumar and Brijesh Ranjan have been allowed on regular bail, yet keeping in view the conduct of the applicant and process going on against the applicant, the Court is of the opinion that it is not a fit case for anticipatory bail particularly when applicant was posted as Assistant Provident Fund Commissioner in the concerned Office and allegation of bribe amounting to ₹ 9 lacs was being raised in the matter and same amount has also been recovered from the possession of the co-accused.
The anticipatory bail application is rejected.
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2021 (7) TMI 1267
Condonation of delay - Rejection of Declaration filed under the scheme called Kar Vivad Samadhan Scheme - Revision / Appeal filed by the concerned Petitioner was time barred or was not valid - HELD THAT:- No shadow of doubt that appeal could be said to be pending, even if the delay occurred in filing the same was not condoned and even if it was allegedly irregular or incompetent. In the instant case therefore also, the Respondent could not have rejected the Declaration Form of the Petitioner filed under the said Act merely on the ground that the Appeal was not valid or competent, as the delay occurred in filing the Appeal was not condoned by the Appellate Authority. In the opinion of the Court, the Respondent had to only take into consideration, as to whether, the Petitioner had filed an Appeal, and the same was pending on the ‘specified date’ i.e. 31.1.2020. It was not for the Respondent to decide, as to whether, such Appeal was irregular or incompetent or invalid in the eye of law.
The impugned communication dated 22.2.2021, displayed on the Portal of the Department, rejecting the Declaration filed by the Petitioner under the said Act, deserves to be quashed and set aside, and is accordingly quashed and set aside.
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2021 (7) TMI 1266
Reopening of assessments - refusal to permit the petitioner to file ‘F’ forms - delay in submission of the forms - interstate transfer to branch unit at Karnataka - assessment year 2011-12 - HELD THAT:- As per the amended rule, the assessee is to furnish the requisite declaration/certificate within three months of the assessment year, while in the pre-amended Rule, he had option to file the declaration/certificate in the course of the assessment proceedings whenever the same was initiated as per law. In both the situations, however, the proviso to the Rule permitted the prescribed authority to condone the delay in furnishing declaration/certificate provided sufficient cause is shown - under the amended scheme, the dealer in order to avail the benefit of the proviso to the Rule must explain the delay from the date of expiry of the truncated time frame i.e., three months beyond the assessment year and not from the date of the assessment proceedings.
Instant case relates to the assessment year 2011-12. Hence, the dealer was required to file the declaration forms within June, 2012 as per the amended rule. Admittedly, he failed to submit the declaration forms within the said period. In 2015 show cause notice was issued and ex parte assessment order was passed on 27.03.2015, as the petitioner did not participate in the said proceedings. Thereafter, demand notice dated 09.11.2015 was issued and as the petitioner did not pay the tax liability, notice of attachment of land was issued on 09.02.2018.
The plea of closure of business for the delay in submission of declaration forms is extremely facile and evasive. The forms related to interstate transportation of goods between the Head office of the assessee to its branch office in the assessment year 2011-12. Under such circumstances, it is not understood why the assessee failed to obtain the declaration forms from its branch office and submit the same since 2012 - for the cause to be sufficient, explanation offered must provide justification for the entire period during which the assessee had failed to furnish forms i.e., from 2012 to 2019 as in the present case.
While the proviso to Rule 12(7) of the CST Rules gives opportunity to the dealer to make belated submission of declaration/certificate when sufficient cause is shown, the said proviso cannot be permitted to be abused by an indolent and indifferent dealer, who at a belated stage approaches the authorities without proper cause for submission of the declarations/certificates and seeks to reopen a concluded assessment proceedings on such score - the factual matrix of the case does not disclose any justifiable or sufficient cause for the inordinate delay in submission of the declaration forms.
There is no illegality or irregularity in the impugned order passed by the assessing authority - Petition dismissed.
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2021 (7) TMI 1265
Delay in remittance of employees contribution towards provident fund and ESI - assessee’s and Revenue’s plea that the same has been paid before the due date of filing sec. 139(1) return and after the due date prescribed in the corresponding statutes - HELD THAT:- Legislature has not only incorporated necessary amendment in Sections 36(1)(va) as well as 43B vide Finance Act, 2021 to this effect but also the CBDT has issued Memorandum of Explanation that the same applies w.e.f. 1.4.2021 only - as not an issue that the foregoing legislative amendments have proposed employers’ contribution/ disallowance u/s 43B as against employee’s contribution u/s 36 (va) of the Act; respectively. However, keeping in mind the fact that the same has been clarified to be applicable only with prospective effect from 1.4.2021, we hold that the impugned disallowance is not sustainable in view of all these latest developments - The impugned ESI/PF disallowance is deleted therefore. - Decided in favour of assessee.
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2021 (7) TMI 1264
Withdrawal of exemption granted u/s 10(23C) - seeking for being notified under Section 10(46) - HELD THAT:- Basic difference between the two provisions of the Act viz., 10(23C)(iv) and 10(46) of the Act, is that, while under the first provision, it is only a grant of an approval making an assessee eligible to claim exemption without any certainty of exemption being allowed on any income, since it is subject to scrutiny, the latter provision confers benefit of automatic exemption in respect of the specified income of the assessee as notified by the Central Government in the gazette. Thus, under Section 10(46) of the Act, there is a certainty with regard to claim of exemption.
In the facts of the present case, though there are two different provisions of the Act under which the petitioners can claim the benefit, mere fact of petitioners being granted approval under one particular provision of the Act, namely Section 10(23C)(iv) of the Act, in our opinion, would not disentitle the petitioners/ assessees to seek for being notified under a different provision, as it is for the assessees/petitioners to choose as to which of the provisions would be more beneficial.
The respondents for the reasons best known did not take any action on the applications filed by each of the petitioners for being notified under Section 10(46) of the Act, nor communicated the reason for not considering the applications, for nearly three years, till the petitioners approached this Court by the present writ petitions. Thus, the action of the respondents in not processing the case of the petitioners and maintaining static silence, cannot be countenanced
The understanding of the 2nd respondent that the power to withdraw conferred under Section 293C or Section 10(23C)(iv) of the Act, to be undertaken only at the behest of the respondents and not at the request of the petitioners, does not appeal to this Court, as a correct understanding. As detailed herein above, the word ‘withdraw’ as used in both the Sections 10(23C)(iv) and 293C of the Act, encompasses in itself the exercise of power even at the behest of the assessee/petitioners, and the contrary view of the respondents is liable to be rejected.
It is also to be seen that the petitioners have not sought for grant of exemption under Section 10(46) of the Act either from the day the said provision was introduced or from the date of their initial grant of approval under Section 10(23C) of the Act. The petitioners sought for being notified under Section 10(46) of the Act only from the relevant previous year, having regard to the fact that the benefit of exemption under Section 10(23C) of the Act, was being denied regularly, and they felt that the provisions of Section 10(46) of the Act are more beneficial and are applicable more aptly.
In view of the conclusions arrived at by us as above, the petitioners are liable to succeed in these writ petitions.
Accordingly, the writ petitions are allowed; the 2nd respondent is directed to withdraw the approval granted to the petitioners under Section 10(23C) of the Act with effect from the date of applications made by the petitioners for being notified under Section 10(46) of the Act; and process the petitioners’ applications dt. 07.03.2017 and 08.03.2017 filed for being notified under Section 10(46) of Act in accordance with the provisions of the Act, from the previous year relevant to the date of applications, filed.
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2021 (7) TMI 1263
Appellant seeks clearance of lease rent and maintenance bill for the year 2019-2020, alongwith Interest - seeking clearance of water bill dated 07.02.2020 as well - Resolution Plan approved by Adjudicating Authority - HELD THAT:- In this case, there is apparent mistake that the lease rent and the electricity and water bill all are essential supply and should form part of Insolvency Resolution Process cost vide Chapter –IX IBBI (Insolvency Resolution Process for Corporate Persons) Regulation 2016, Regulation 31& 32 and R/w Section 5(13) (e) and 14(2) of the Code - The Adjudicating Authority has approved the ‘Resolution Plan’ which is at Annexure-E page - 70 of the Appeal paper book vide Clause 6.2 has clearly stated that in case the actual CIRP is higher than the estimated CIRP cost the Resolution Applicant will pay the higher amount.
The Resolution Applicant is liable to pay the principal amount due for the specified period of the bill i.e for the CIRP Period, without considering the interest components as part of Insolvency Resolution Process Cost which he is liable to pay - It is settled law that the Insolvency and Bankruptcy Code, 2016 is a complete Code. Hence, all concerned are required to comply with the express provisions of the Code without any deviation.
Appeal allowed in part.
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2021 (7) TMI 1262
Sanction of Scheme of Amalgamation - Section 230 - 232 and other applicable provisions of the Companies Act, 2013 - HELD THAT:- The Petitioners have made the instant Petition before this Tribunal, among other things, seeking final sanction to the proposed Scheme of Amalgamation - The date of hearing of the Petition filed jointly by the Petitioners for sanctioning of the Scheme is fixed on 13.09.2021.
Notice of hearing of the Petition in form NCLT 3A shall be advertised once in English newspaper "Financial Express" and in Bengali newspaper "Aajkal" not less than 10 (Ten) clear days before the aforesaid date fixed for hearing.
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2021 (7) TMI 1261
Rejection of refund claim of service tax - construction of Government buildings - refund arising as a result of restoration of exemption benefit of N/N/. 12/2012 and 25/2012 dated 20/06/2016 - Prospective effect or retrospective effect - Rule 173-S of the Central Excise Rules, 1944 - it was held by High Court that the notification No. 12/2012 & 25/2012 ceased to exist w.e.f. 01/04/2015. The exemption was revived by notification dated 01/03/2016. But since it was prospective in effect, the appellant was not entitled for any exemption, which the appellant was aware of and with open mind and eyes deposited the service tax due with interest.
HELD THAT:- There are no infirmity in the view taken by the first authority, which has been rightly affirmed by the Customs, Excise and Service Tax Appellate Tribunal, as well as the High Court. There is no merit in this appeal - appeal dismissed.
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2021 (7) TMI 1260
Classification of services - contract for supply of mud and spreading and dumping of earth on agricultural land - classifiable under site formation and clearance service, excavation, earth moving and demolition service or not - period 01 October, 2007 to 31 March, 2008 - time limitation - it was held by CESTAT that findings of the Adjudicating Authority that since the agricultural land was subsequently converted into commercial land, the activity undertaken by the appellant prior to the said conversion would become taxable subsequent to conversion of the land, cannot be agreed upon.
HELD THAT:- There are no reason to interfere with the impugned order - appeal dismissed.
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2021 (7) TMI 1259
Maintainability of appeal - Classification of services - Whether or not, the Boards and the University are educational institutions. If the Boards and University are found to be educational institutions, the services provided to them are exempt? - it was held by High Court that Once it is held that the service recipients are educational institutions, the impugned show-cause notices are rendered unsustainable.
HELD THAT:- The Special Leave Petition under Article 136 of the Constitution, need not be entertained - the Special Leave Petition is accordingly dismissed.
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2021 (7) TMI 1258
Seeking grant of Bail - procedure under Section 19 PMLA was followed or not - Enforcement Directorate can be complainant and the Investigating Officer at the same time or not - effect of declaration of twin conditions under Section 45 of the PMLA have been declared unconstitutional and ultra virus.
Non-compliance under Section 19 of the PMLA - HELD THAT:- Admittedly, Bimal Jain was arrested in execution of the NBW by the learned Special Judge, PMLA while taking cognizance of prosecution complaint filed by the Enforcement Directorate and thus there was no occasion to comply with the requirement of Section 19 of the PMLA. The very fact the complaint was filed by the Enforcement Directorate arraying petitioner Bimal Jain as accused No.2, prima facie show there were reasons to believe the person was guilty of offence punishable under Section PMLA as the complaint is filed only against a person who is presumed to be guilty. Admittedly, the learned Special Judge, PMLA took cognizance of the complaint filed by the Enforcement Directorate as he reasonably believed petitioner Bimal Jain, being guilty of offence of money laundering.
Whether the complainant and the Investigating Agency cannot be same? - HELD THAT:- Issue decided in the case of MUKESH SINGH VERSUS STATE (NARCOTIC BRANCH OF DELHI) [2020 (9) TMI 419 - SUPREME COURT] where it was held that merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal.
Twin conditions of 45 of the PMLA - HELD THAT:- Admittedly the Hon’ble Supreme Court in Nikesh Tarachand Shah (supra) declared the Section 45 of the PMLA as it stood then, as unconstitutional and violative of Articles 14 and 21 of the Constitution of India, but the defects pointed out by the Hon’ble Supreme Court in NIKESH TARACHAND SHAH VERSUS UNION OF INDIA AND ANR. [2017 (11) TMI 1336 - SUPREME COURT] were cured by the Legislature and an amendment to section 45(1) was made vide the Finance Act, 2018 (No.13 of 2018). Under the amendment Act, section 45(1) was revived and for the words “punishable for a term of imprisonment of more than three years under part A of the Schedule”, the words “under this Act” were substituted in section 45(1) of the PMLA.
Therefore, merely because the entire section is not re-enacted would be of no consequence since the provision even after being declared unconstitutional, does not get repealed or wiped out from the statute book and it only becomes unenforceable. Therefore, once the Parliament steps in and cures the defect pointed out by a Constitutional Court, the defect appears to be cured and the presumption of constitutionality is to apply to such provision - there is a presumption in favour of constitutionality since the amended section 45(1) of the PMLA has not been struck down.
If Section 45(1) of the PMLA is ignored, whether the petitioners are entitled to bail per parameter of Section 439 Cr P C.? - HELD THAT:- The investigation conducted by the Directorate of Enforcement so far has revealed Naresh Jain along with his brother Bimal Jain and other accomplices hatched a criminal conspiracy to cause loss to the exchequer and banks by indulging in illegal foreign exchange transactions on the basis of forged/ fabricated documents. For the furtherance of conspiracy, documents like identity proof, birth and education certificate, voter ID, PAN Card and signatures were forged/fabricated to incorporate entities, operating bank accounts, facilitating bogus/over-invoiced/ under invoiced import and export transactions and rotation of the funds through web of shell companies to cause undue benefit to the parties involved and loss to the exchequer and banks. Naresh Jain also facilitated parking of funds abroad by Indian nationals through his international Hawala transaction structure created in India and in various other jurisdictions - During the investigation conducted so far, out of 450 shell companies, 603 bank accounts of 311 companies have been examined and it has been gathered that Naresh Jain and his accomplices including the Bimal Jain rotated funds approximately to the tune of ₹ 96,000 Crores for providing accommodation entries of approximately ₹ 18,679 Crores to 973 beneficiaries. Petitioner Bimal Jain was made a director in various companies in which proceeds of crime generated by Naresh Jain and his accomplices were projected as untainted properties and is in possession of proceeds of crime to the tune of ₹ 35,78,53,638/-.
Even the allegations are the petitioners have forged their medical certificates and Naresh Jain continues the criminal activities while in Jail and the investigation in the case is still going on and a large number of activities/fact accounts/witnesses /employees and beneficiaries are involved - It is also alleged if enlarged on bail there is every likelihood the petitioners may flee to Dubai or elsewhere to avoid the process of law and they are flight risks.
Bail cannot be granted to both the petitioners - petition dismissed.
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2021 (7) TMI 1257
Validity of three adjudication orders made passed exparte - challenge on account of the fact that for one tax period and for one dispute, there can only be a single adjudication order - HELD THAT:- Undisputedly, three periods for which the orders had been passed are overlapping. Notice dated 22.12.2020 was issued by respondent no.2 for the period July 2017 to March 2018. It covers the entire period and dispute being sought to be adjudicated in the other two notices as well.
At the same time, it is found that by notice dated 22.12.2020, next date fixed was 05.01.2021 but the petitioner could not participate in the same on account of the spread of pandemic COVID-19. Also, in that regard, it has been brought to our notice that realizing the difficulties from the spread of pandemic COVID-19, the Government had itself issued an order dated 01.05.2021 extending the period to submit reply and responses, up to 30.05.2021. Subsequently, it was extended up to 30.06.2021. In light of that fact, the order dated 09.06.2021 is clearly an ex-parte order, which has been passed without allowing due opportunity of hearing to the petitioner.
Orders quashed - Matters restored back.
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2021 (7) TMI 1256
Money Laundering - Proceeds of crime - scheduled offences - cheating more than 13,000 investors who are the members of the Society - mis-used of funds of the public and re-investment of the money - diversion of deposits from the Financial Institutions to other businesses - Section 420 of IPC - HELD THAT:- The ED produced the documents and also the petitioner counsel has produced an Observation Report, which reveals that the petitioner is one of the Directors; one Harish was the President; Siddegowda was the Vice President and there were other 13 Directors. All other Directors and President were not arrested by the ED except this petitioner. The observation report reveals that the total investment was ₹ 650,41,68,190/-. The reserved amount is ₹ 12,93,42,844/-; the share investment is ₹ 24,74,89,000/-; the loan obtained for an amount of ₹ 6,09,73,928/-. The investment is ₹ 6,35,12,658/-. The Property is 7,68,69,008 and the loan lent is ₹ 702,28,44,385/-. As per the report of the petitioner, the Society was running under profit, but not under loss. But the contention of the respondent is that the accused himself has borrowed huge loan without security and has reinvested in various businesses like Kanva Fashion, Kanva Developers, Kanva Health Care, Kanva Resorts and other businesses - Looking to the entire facts reveals that the petitioner was involved in reinvesting the money by borrowing it from the Society out of the deposits which is nothing but proceeds of the crime is nothing but Money Laundering which attracts the offence under the PML Act. On merits, absolutely there is no case for the petitioner.
Looking to the entire medical documents, it reveal that the petitioner is in danger due to various ailments and therefore, he require proper treatment in the good multi-Specialty Hospital at Bengaluru. It is not possible to provide proper treatment by the Jail Authorities which requires more expenses, which cannot be borne by the Government. The Government cannot spend tax payers money.
The Court will not grant bail to the accused where economic offences are involved and huge public money is involved. But only on the ground for the purpose of providing medical treatment this Court is required to consider medical ground but not on merits of the case. Therefore, by looking to the facts and circumstances of the case, in order to provide proper medical care and protection to the petitioner, if bail is granted to the petitioner, no prejudice would be caused to the prosecution case - the petitioner is required to be released on bail on medical ground.
Both the criminal petitions are allowed.
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2021 (7) TMI 1255
Benefits as far as the Chit Fund Companies - Nature of activity of "chit fund business" - cash management / fund management - whether classifiable under the category of "banking and other financial services"? - HELD THAT:- This Court is of the considered opinion that the benefits conferred by the Supreme Court is to be extended and in respect of all other allegations, an adjudication is to be entertained with reference to the findings made by the Original Authority/Appellate Authority - the Original Authority or the Appellate Authority, as the case may be, made certain findings in respect of the claim made by the petitioner.
As far as the benefits conferred by the Hon'ble Supreme Court in the case of UNION OF INDIA AND ORS. VERSUS M/S. MARGADARSHI CHIT FUNDS (P) LTD. ETC [2017 (7) TMI 224 - SUPREME COURT], are concerned, the same is to be extended and as pointed out by the learned Senior Standing Counsel for the respondent, the benefits have already been extended in favour of the petitioner - However, the Appellate Authority may segregate the issues and accordingly proceed with an adjudication. If any appeal is preferred by the petitioner, challenging the order in original and the show cause notice, which are under challenge in the present writ petitions.
This being the factum, the petitioner is at liberty to file an appeal within a period of four weeks from the date of receipt of a copy of this order in a prescribed format and by complying with the Statute and the Rules and the Appellate Authority, on receipt of any such appeal from the petitioner, shall condone the delay, if any and entertain the appeal and adjudicate the issues on merits and in accordance with law - Petition disposed off.
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2021 (7) TMI 1254
Cancellation of bail granted - allegations of tempering of evidence and influencing the witnesses - fake and non-existing firm - HELD THAT:- It is trite law that considerations relevant at the time of grant of bail are different than the considerations at the time of cancellation of bail after the accused has remained in custody. Admittedly, the investigation had started in the year 2018 and was continuing when the petitioner was arrested on 9th February, 2021 and was granted bail on 9th March, 2021 - It may be noted that the petitioner was already in custody and despite having been granted bail on 9th March, 2021 till date complaint has not been filed and in case the petitioner was in custody in the event of the complaint not being filed in 60 days, he would have been entitled to default bail.
The finding of the learned CMM was that the investigation qua the petitioner was almost complete. There is no averment of the respondent that any further recovery is required to be made from the petitioner. In case other offenders are evading arrest, the same cannot be a ground to cancel the bail granted to the petitioner.
Till the next date of hearing, the operation of the impugned order dated 17th July, 2021 is stayed and the NBWs issued against the petitioner are kept in abeyance - List on 7th September, 2021.
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2021 (7) TMI 1253
Maintainability of appeal - pre-condition for filing the appeal - Demand of tax of ₹ 1,89,810 and equivalent amount of penalty imposed in the penalty order - HELD THAT:- Identical issues have been raised in M/S ABHISHEK SALES VERSUS STATE OF U.P. AND 2 OTHERS [2020 (1) TMI 515 - ALLAHABAD HIGH COURT] has proceeded to direct the petitioner to deposit 20% of the remaining amount of tax in dispute in accordance with Section 112 (8) of the Act within three weeks from the date of order and in which event, the recovery proceedings for the balance amount shall remain stayed till disposal of the writ petition.
All the respondents are granted eight weeks' time to file counter affidavit on behalf of State respondents. The rejoinder affidavit, if any, may be filed within one week thereafter. List thereafter - it is directed that the petitioner shall deposit 20% of the remaining amount of tax in dispute in accordance with Section 112 (8) of the Act within four weeks from today and in which event, the recovery proceedings for the balance amount shall remain stayed till disposal of the instant petition.
Application disposed off.
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2021 (7) TMI 1252
Rebate Claim - rejection on the ground that the application seeking rebate was not filed within the time prescribed - exports effected by the appellant during August 2015 to March 2016 - section 11B of CEA - HELD THAT:- A reading of Section 11B of the Act makes it explicitly clear that claim for refund of duty of excise shall be made before the expiry of one year from the relevant date. The time prescribed under Section 11B of the Act was earlier six months which was later on amended on 12.05.2000 by Section 101 of the Finance Act, 2000. Rule 18 of the Central Excise Rules and the Notification dated 06.09.2004 did not prescribe any time for making any claim for refund as Section 11B of the Act already mandated that such application shall be filed within one year. Section 11-B of the Act being the substantive provision, the same cannot yield to Rule 18 of the Rules or the Notification dated 06.09.2004.
In the present case too the application filed by the appellant claiming rebate was beyond the period of one year. Consequently, the respondent was right in rejecting the claim of appellant on the ground that it was belated.
Appeal dismissed - decided against appellant.
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