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Showing 221 to 240 of 1471 Records
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2022 (1) TMI 1254
Continuing offences or not - non filing of annual return and non placing of balance sheet and profit and loss account of the company - service of SCN - applicability of time limitation - whether offences under Section 159 and 220 of the Companies Act, 1956 which are punishable under Section 162 and 220(3) of the Companies Act, 1956, are continuing offences are not? - HELD THAT:- The expression "continuing offence" has not been defined in the Code of Criminal Procedure, 1973. However, the courts have explained the same in number of judgments. In the case of continuing offence, the ingredients of offence continues even after the offence takes place, whereas in an instantaneous offence, the offence took place once and for all, in such case, there is no continuance of offence. For the offence arising out of a failure to comply with a statutory provision, which is involves penalty, the liability continues until the default is complied with complied with and on every moment of such non compliance occurs and recurs, there is an offence committed and it is a continuing offence until the default is complied with.
The Companies Act, 1956, provides different kinds of punishments for various offences committed by the companies. For certain offences, took place once and for all, the Act provide only maximum punishment. For some kind of offences, for example, under Section 159, 160, 161 and 220 of the Act, relating to non filing of returns and some other documents before the Registrar of Companies, the punishment is provided under Section 162 of the Act - there is a clear distinction between the punishment. The penalty of payment of fine for every day till the default continues, indicates that, the offence continues until the default is complied with, which makes the offence a continuous offence.
This court has no hesitation to hold that offence under Sections 159 and 220 of the Companies Act, 1956 are continuing offences and the bar created under Section 468 of Cr.P.C. will not get attracted as those offences are saved by the provisions of Section 472 of Cr.P.C.
Petition dismissed.
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2022 (1) TMI 1253
Disallowance u/s 14A read with Rule 8D - HELD THAT:- Since the facts of the case of the impugned appeal are identical to the facts of the case decided by the Tribunal in assessee’s own case in the preceding assessment years, therefore, respectfully following the decision of the Tribunal in assessee’s own case for the A.Ys. 2009-10 [2014 (7) TMI 1314 - ITAT DELHI], 2010-11 [2016 (8) TMI 1573 - ITAT DELHI], 2011-12 [2019 (11) TMI 1188 - ITAT DELHI], 2012-13 [2021 (3) TMI 1370 - ITAT DELHI], 2013-14 [2021 (2) TMI 1296 - ITAT DELHI] we restore the issue to the file of A.O. with a direction to decide the issue afresh in the light of decision of the Tribunal in assessee’s own case - Needless to say A.O. shall decide the issue as per fact and law after giving due opportunity of being heard to the assessee. Appeal of the Assessee is allowed for statistical purposes.
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2022 (1) TMI 1252
Cancellation of anticipatory bail granted - investigation done by the respondent has been completed or not - Applicability of provisions of section 45 of the PMLA - bail petitions filed by the petitioners are liable to be rejected solely on the ground that the amended provisions of Section 45 of the PMLA bars filing of bail petitions - HELD THAT:- It could be seen that the petitioners are the Directors of the Company, viz., M/s. Disc Assets Promoter India Ltd, who are the persons responsible for the affairs of the company and they had collected money from the public under various investment schemes from the year 2006 with a promise to pay attractive returns in the form of loan or cash, but, they had failed to pay the investors of the promised returns and defrauded the investors/public by the said company and caused pecuniary loss to the tune of Rs.1137 crores to the investors.
With regard to the investment mobilized from the public, the SEBI, by its interim order dated 20.08.2015 and final order dated 30.03.2016, directed the Company and its Directors to wind up the investment schemes and refund the money due to the investors. However, the Directors had failed to refund the money to the investors. Based on the reference from the SEBI and the complaints received from the investors/public, the Economic Offences Wing of the Tamil Nadu Police registered a case in Crime No.6 of 2016, dated 02.06.2016, for the offences under Sections 406, 420, 120B of IPC read with Section 5 of the TNPID Act - So far as application of Section 45 is concerned, the said provision was amended on 19.04.2018.
No doubt, the legislature has the power to cure the underlying defect pointed out by a Court, while striking down a provision of law and pass a suitable amendment. When such a law is passed, the legislature basically corrects the errors which have been pointed out in a judicial pronouncement. Resultantly, it amends the law, by removing the mistakes committed in the earlier legislation, the effect of which is to remove the basis and foundation of the judgment. 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. Therefore, there is a presumption in favour of constitutionality since the amended section 45(1) of the PMLA has not been struck down.
This court does not believe that the petitioner are not guilty of the alleged offences and in such circumstances, this court cannot give a finding that the petitioners are not likely to commit offence while on bail. It is also alleged that if the petitioners are enlarged on bail, there is every likelihood that the petitioners may flee the jurisdiction of this Court to avoid the process of law - Petition dismissed.
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2022 (1) TMI 1251
CENVAT Credit - bagasse and pressmud - dutiable as well as exempt goods - Explanation 1 & 2 in Rule 6(1) of CENVAT Credit Rules, 2004 - HELD THAT:- Both the show-cause notices which were adjudicated upon have dealt with the general provisions of CENVAT Credit Rules, 2004 and not the newly inserted Explanation 1 & 2 in Rule 6(1) that came into effect from 01.03.2015.
As has been argued by the learned Counsel for the appellant in M/S BALRAMPUR CHINI MILLS LTD. THROUGH ITS GENERAL MANAGER VERSUS UNION OF INDIA, MINISTRY OF FINANCE DEPARTMENT OF REVENUE [2019 (5) TMI 972 - ALLAHABAD HIGH COURT], Hon'ble Allahabad High Court had given a clear finding to the effect that the ratio laid down in the judgment of Hon'ble Supreme Court in UNION OF INDIA VERSUS DSCL SUGAR LTD. [2015 (10) TMI 566 - SUPREME COURT] case still holds the field after the insertion of explanation that was further explained through the Circular date 25.04.2016 (after the disputed period) treating bagasse to be none excisable goods, for which the Circular was quashed that was issued to explain the insertion of Exception 1 & 2 in Rule 6(1) w.e.f. 01.03.2015. It is needless to mention here that pressmud is a similar by-product and treated at par with bagasse, to which effect several decisions including the one reported in SAHAKAR MAHARSHI BHAUSAHEB THORAT SSK LTD VERSUS C.C.E. & S.T. NASIK [2020 (2) TMI 140 - CESTAT MUMBAI] has been cited by the learned Counsel for the appellant.
Appeal allowed.
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2022 (1) TMI 1250
Delay in filing the Application before the Adjudicating Authority - HELD THAT:- Learned Counsel for the Appellant is allowed three weeks’ time to file Additional Affidavit explaining the delay in filing the Application before the Adjudicating Authority. Shri Krishnendu Datta, Learned Senior Counsel who appears for the Respondent may also file reply to the said Affidavit.
List the matter on 15.02.2022.
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2022 (1) TMI 1249
Levy of GST - mining lease/royalty - HELD THAT:- Similarity of the issue at hand and operation of the interim orders passed by this Court at Allahabad are not disputed by the learned counsel appearing for opposite parties. For the same very reasons, as have been recorded in the order in M/S A.D. AGRO FOODS PRIVATE LIMITED VERSUS UNION OF INDIA [2021 (12) TMI 656 - ALLAHABAD HIGH COURT], the payment of GST for grant of mining lease/royalty by the petitioner shall remain stayed.
Parties are granted six weeks time to exchange affidavits.
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2022 (1) TMI 1248
Permission for withdrawal of petition - petitioner wishes to withdraw the present writ petition with liberty to raise all the grounds urged in the present petition as also such other grounds which may be available in law, with the appropriate legal authority - HELD THAT:- The present writ petition stands disposed of.
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2022 (1) TMI 1247
Cancellation of GST registration of petitioner - non- deposition of GST for last three consecutive financial years - HELD THAT:- The appellate authority is directed to decide the pending appeal expeditiously and preferably within a period of three months from the date of presentation of an attested copy of this order. It is also made clear that in case the petitioner makes a workable proposal for deposit of the GST before the appellate authority, the same shall be considered while deciding the pending appeal so that the trading rights of the petitioner are not affected to his disadvantage - Subject to deposit of 20% of the outstanding liability within a period of 15 days from today, the coercive measures shall remain in-abeyance for a period of three months which shall abide by the outcome of this appeal.
Petition disposed off.
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2022 (1) TMI 1246
Permission to withdraw the present Special Leave Petitions - petitioner proposes to avail another remedy, which may be available under the law - HELD THAT:- Without expressing anything on the aforesaid, the petitioner are permitted to withdraw the present Special Leave Petitions.
The present Special Leave Petitions stand dismissed as withdrawn.
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2022 (1) TMI 1245
Related party transaction - Company proposed to enter into a transaction with one Neelkanth Realtors Private Limited for purchase of 40,000 sq. ft. of residential space - Extra-Ordinary General Meeting was convened for rescinding the resolution in which, the related parties also voted - violation of Regulation 23 of the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015 - whether the appellants were justified in voting for rescinding the resolution dated 15th July, 2014 inspite of being related party entities? - HELD THAT:- From a perusal of Section 188 of the Companies Act it is apparently clear that no member of the Company shall vote on such resolution to approve any contract or arrangement which may be entered into by the Company, if such member is a related party. Admittedly, in the instant case, when the resolution of 15th July, 2014 was passed, the appellants being related party had abstained from voting and, therefore, they had complied with Section 188 of the Companies Act as well as Regulation 23(7) of the LODR Regulations.
Section 188 of the Companies Act as well as Regulation 23 of the LODR does not prohibit related party entities from voting for recalling/rescinding resolution which was passed earlier by the Company. In the absence of any such prohibition it was open to the appellants to participate in the resolution of 16th December, 2016. The bar under Section 188 of the Companies Act and Regulation 23(7) of the LODR Regulations is that no related party can vote to approve any contract or arrangement in which he is a related party.
As per clear provisions in Section 188 of the Companies Act and Regulation 23 of the LODR Regulations, we find that the appellants did not commit any violation. The AO committed an error in holding that they had violated Regulation 23 of the LODR Regulations. The impugned order cannot be sustained and is quashed. The appeal is allowed
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2022 (1) TMI 1244
Avoidable transactions - relevant date - Section 43 and 66 of I&B Code - HELD THAT:- Admittedly all the transactions of money transfer done with Respondent 2, 3 & 4 are in the year 2018 from February upto June 2018. As per section 46 this transaction fall within the parameters decided under section 46 for related parties being section 46(1)(2), as the CIRP order passed on 08.08.2091.
In view of the above the application stands allowed.
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2022 (1) TMI 1243
Revision u/s 263 - CIT jurisdiction u/s. 263 of the act on an order passed by the AO pursuant to the direction of DRP - assessment order was passed after transfer pricing adjustment were made by the TPO - Whether CIT has erred in initiating proceedings under section 263 of the Act when the original assessment order has been passed under section 143(3) r.w.s. 144C(13) of the Act on the basis of the direction of the DRP? - HELD THAT:- Admittedly, this is not a case, where draft assessment order is being revised. This is a case where final assessment order passed pursuant to the direction of DRP u/s. 144(3) is being revised by Ld.CIT. Ld. Counsel of the assessee in this regard submits that from the Finance Act, 2009, memorandum explaining the rationale behind the insertion of section 144C of the Act by the Finance Bill, 2009 as also the CBDT Circular No. 5 of 2010 dated 3 June 2010 issued explaining the said insertion, the notes on clauses, etc., it can be seen that consequential amendments have been made to various provisions of the Act as a result of insertion of section 144C in the Act. Such consequential amendments have been made to section 13 1, section 246A and section 253 of the Act. That however, no amendment is made in section 263 of the Act as a consequence of insertion of section 144C of the Act to deem such orders being capable of being revised. That therefore, the memorandum, circular, etc. support the Assessee's stand that once the Assessing Officer passes an order in accordance with the Directions issued by a superior authority (being DRP) the same cannot be revised by the CIT under section 263 of the Act
Scheme of the Act itself does not provide any interference in the direction of the DRP as the law containing section 144C(13) directs that the AO shall pass an order inconformity with the directions of the DRP without providing any further opportunity of being heard to the assessee. When the Act itself provide, that order has to be passed by the AO without providing any opportunity to the assessee pursuant to the direction of the DRP, the direction given in this order u/s. 263 by the Ld.CIT to the AO to call for the details of allowability of various deductions claimed by the assessee, in light of the observations discussed by him is quiet contrary to the sanguine provisions of law. Even otherwise, the order passed by the Ld.CIT is an exercise in futility inasmuch as, if the AO proceeds to pass an order by giving the assessee an opportunity of being heard, the same will be against the mandate of section 144C(13). Furthermore, it is also settled law that in assessment u/s. 144C, AO has to invariably pass a draft assessment order and give the same to the assessee for filing objection before DRP. Hence, the direction by the Ld.CIT to the AO to pass an order by-passing the provisions of passing the draft assessment order is also not sustainable in law.
Now, we examine the constitution of DRP. As evident from the above, the DRP constitutes a collegium comprising of three Principal Commissioners or Commissioners of Income-tax, the directions given by them is binding upon by the AO.
Members of the DRP are three in numbers and are individually equivalent in rank to the CIT, who is initiating proceedings u/s. 263 against the order passed by the AO pursuant to their direction. Now as far as equivalence of single CIT to a ‘colliguem of 3 CIT is concerned, it is settled law that bench comprising single persons is not higher/superior than a collegiums of three persons. Hence, it is abundantly clear that the DRP stands at a higher pedestal than the CIT passing an order alone.
We set aside the orders of Ld.CIT and hold that he cannot legally assume jurisdiction u/s. 263 of the act on an order passed by the AO pursuant to the direction of DRP. This is over and above our other observations in para ‘14’ of this order, where we have noted that Ld.CIT has passed this order without properly appreciating the assessment order. Since, we have quashed assessment order on jurisdiction itself, we are not dealing with the merits of the case.
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2022 (1) TMI 1242
Seeking provisional release of seized goods - neither prohibited nor restricted goods - goods imported from Abu Dhabi - HELD THAT:- Let Notice be issued to the respondents, returnable on 3rd February 2022. Direct service is permitted.
On the returnable date, notify this matter on top of the Board.
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2022 (1) TMI 1241
Fraudulent trading or wrongful trading - Seeking directions be issued to the respondents to provide for and make good to the corporate debtor for the losses caused due to the respondent's indulgence in fraudulent transactions - seeking reference of matter to IBBI in view of the provisions under section 236 of the Insolvency and Bankruptcy code, 2016 - section 66 of the Insolvency and Bankruptcy code, 2016 - HELD THAT:- The contention of the respondent Nos. 1 to 4 is that these shareholding transfer never come within the purview of Section 66 of the IBC, 2016. In terms of Section 66, there are two ingredients, which constitute the fraudulent trading or wrongful trading; first one is the business of the Corporate Debtor has been carried on, the creditors are intended to be defrauded of the Corporate Debtor or second one for any fraudulent purpose.
On consideration of averments and the reply of respondent Nos. 1 to 4 in terms of Section 66, then it is found that the respondent Nos. 1 to 4 have not explained any reason to sell their shares to a Company, which is own and managed by them and they have also not explained the reason, why the said Committed Care Kargo Limited again resold the shares to these respondents.
If the respondent Nos. 1 to 4 claims that these transactions do not come within the purview of Section 66 of the IBC, 2016 then onus is upon them to establish that said transaction was not with intent to de-fraud the creditors. But the respondent Nos. 1 to 4 have failed to establish this, therefore, these shareholding transactions were made with intent to defraud the creditors of the corporate debtor comes under the purview of Section 66 of the IBC, 2016.
On the basis of this bank statement, the respondent Nos. 1 to 4 had although tendered their resignation but still they were having their control over the management and finance of the Corporate Debtor and the resignation was tendered only with intent to de-fraud with the creditors or for the fraudulent purposes. And that is the reason, the bad debts were written off at the instance of Respondent No. 1 to 4 even after their resignation.
The cash transactions receiving cash from debtors admittedly Vyke Logistics and Vyke International, the respondent No. 9 owes the debts and they have debtors of the Corporate Debtor, as per the books of Corporate Debtor, total amount is of Rs. 20,12,383/- and Rs. 22,20,651/- and the claim of these respondents are they have settled the amount on full and final payment after making payment of Rs. 3 lakhs as cash. A total debt of Rs. 42,33,034/- was settled only after making payment of Rs. 3 lakhs that has not been disclosed either by the respondent Nos. 1 to 4 and respondent No. 9 - The respondent Nos. 9 and 10 by filing their reply claimed that they never owe any debt and they are not the debtor of the Corporate Debtor. The respondent No. 9 further claimed that the amount had already been settled after making the payment of Rs. 3 lakhs. We failed to understand how the Rs. 42,33,304/- will be settled only on the payment of Rs. 3 lakhs. Therefore, these transactions also comes under the category of the fraudulent transactions.
The cash transactions and the written off debt made with respondent Nos. 9 and 10 comes under the category of fraudulent transaction and same was done during the tenure of Respondent No. 1 to 4 and even after their resignation, they were having financial control in the affairs of the corporate debtor, therefore they are liable for these transactions - the respondent Nos. 1 to 4, the Suspended Board of Directors/Promoters of the Corporate Debtor have been carried on business with intent to de-fraud the creditors of the Corporate Debtor or with fraudulent purpose and in this way, they have written off the debt of respondent No. 9 & 10 and also settled the amount on the payment of Rs. 3 lakhs against the total debt of Rs. 42,33,304/-. Hence, they are liable to make contributions the amount which was misuse or misappropriated by the Suspended Board of Directors/Promoters with intent to de-fraud the Creditors.
Application allowed.
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2022 (1) TMI 1240
Assessment u/s 153A - Whether incriminating material found during the course of search? - additions made on account of difference in interest income and on account of prior period expenses - HELD THAT:- It is observed that search was conducted on 09/11/2017 and accordingly, as per the notice issued by the AO, the assessee had filed its return of income u/s 153A of the Act on 21/03/2018. AO made the additions on the basis of the books of account only without referring to any incriminating material found during the course of search. In respect of interest income, there was a difference in the financial statements and Form 26AS only, We find that the difference has been offered by the assessee in the subsequent assessment years, which is clear from the order of the CIT(A). In respect of prior period expenses, the assessee had debited it in P&L Account and the addition made on this count also by the AO only based on the books of account of assessee, which were audited without referring to any incriminating material found during the course of search. On both the additions made, no incriminating material found with regard to these issues in the search operations. It clearly shows that the basis of additions is only from the books of account of the assessee.
Thus we set aside the order of the CIT(A) and direct the AO to delete the additions made on account of difference in interest income and on account of prior period expenses - Decided in favour of assessee.
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2022 (1) TMI 1239
Seeking to refund the money equivalent to the Bank Guarantee - mobilisation advances invoked and encashed during the CIRP without any termination of contract - HELD THAT:- The Bench notes that the encashment of these Bank Guarantees were done by the Respondent, Engineering Projects (India) Limited without termination of contract and without any valid reason of dispute between Corporate Debtor and the Respondent. The Bench also notes that these Bank Guarantees were renewed annually and on timely basis. It is also clear from the records of the Corporate Debtor that the Respondent took illegal benefit of initiation of CIRP of the Corporate Debtor on 27.03.2019 and recovered unlawfully Bank Guarantees in violation of Section 14 of the Code.
The Bench notes that this act of the Respondent is a clear violation of the provisions of Section 14 of the Code i.e. moratorium and the Respondent should not have proceeded with encashing the Bank Guarantee during the CIRP period. The Bench also notes that these Bank Guarantees are covered within the definition of the Terms Security Interest and is hit by Section 14(1)(c) of the Code.
The Bench directs the Respondent, Engineering Projects (India) Limited to refund an amount of Rs. 34,28,000/- which has been wrongfully encashed by the Respondent by invoking Bank Guarantee during the CIRP. The Bench directs that this refund be made to the account of the Corporate Debtor within one week of the pronouncement of this order - Application allowed.
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2022 (1) TMI 1238
Attachment of the land in question -Tax recovery proceedings - title and the ownership of the Non- Agricultural parcel of land situated at Bodakdev, bearing Survey No.177/2 admeasuring 4047 Sq. Mtrs. - HELD THAT:- Let Notice be issued to the respondents returnable on 15.02.2022. Direct service is permitted.
On the returnable date, notify this matter on top of the Board as the controversy involved appears to be in a narrow compass.
We want the respondents Nos.4 and 5 respectively to clarify as regards the title and the ownership of the Non-Agricultural parcel of land situated at Bodakdev, bearing Survey No.177/2 admeasuring 4047 Sq. Mtrs. We would like to understand from the respondents Nos.4 and 5 respectively as to on what basis, the Income Tax Department asserts that the said parcel of land is owned by one Vikas Arvindbhai Shah. We have no idea who is this Vikas Arvindbhai Shah. We would also like to know from the Tax Recovery Officer, Central, Ahmedabad, as to why he has not looked into the various representations filed by the writ applicants so far.
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2022 (1) TMI 1237
Seeking withdrawal of application filed under Section 9 of I&B Code (which was admited) - HELD THAT:- Since, the fee of Interim Resolution Professional has not been settled so far, so in the interest of justice, issue notice of this application to the Interim Resolution Professional within two weeks. The applicant shall collect the notice from the Registry and send the same immediately to the respondent at its registered address by speed post along with copy of the application and the entire paper book and the copy of this order as well as at the email address of the respondent.
List this application on 19.01.2022.
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2022 (1) TMI 1236
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - failure on the part of petitioner that he supplied the building material to the respondent - existence of debt and dispute or not - HELD THAT:- From the bare perusal of the file it can be inferred that admittedly there is no agreement entered into between parties submitted for supply of building material despite the fact both the applicant is alleged to have been dealing in supply of building material, whereas, the respondent is builder. Moreover, only one bill had been put on record, but the same was never endorsed by any authorized representative of the respondent - There is nothing on record to establish the fact that the respondent ever made any demand of supply of the bricks etc. to the applicant herein.
These all facts shows that the bill raised is forged and fabricated to make out false ground to put the respondent under CIRP. These all act and omissions on the part of the applicant and respondent clearly shows that there is an active collusion between them to defraud the other creditors and to facilitate the respondent to enjoy the rigors of the IBC Code. Further, had there been any genuine admission on the part of the respondent, respondent might have paid the disputed amount despite the fact the said petition is pending before this Tribunal year and alleged amount is only of one lac. It is a well settled principle of law that NCLT can’t be allowed to be played at the hands of the unscrupulous parties.
This tribunal is of affirm view that the present petitioner failed to establish on record that he actually supplied the building material to the respondents and an amount of rupees one lac was due rather the petition is collusive in nature - Petition dismissed.
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2022 (1) TMI 1235
Maintainability of petition - requirement of pre-deposit under Section 129E of the Customs Act, 1962 - before the order of EOD certificate could be obtained, the impugned order has been passed - HELD THAT:- Considering the fact that the petitioner has an alternate remedy before the Appellate Tribunal, this writ petition is disposed off by directing the respondent to workout the remedy before the Appellate Tribunal by filing an appeal within a period of thirty days from the date of receipt of a copy of this order. If such appeal is filed, the Registry of the Tribunal may number the Appeal and list the Appeal for final disposal on merits.
Petition disposed off.
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