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Showing 221 to 240 of 2170 Records
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2019 (4) TMI 1957
CENVAT Credit - inputs - capital goods - “part” or “component” or “accessory” of the capital goods - tower and shelter - entitlement to credit when tower/shelter is “immovable property” - HELD THAT:- Stay of the order passed in Final Order by the Customs, Excise and Service Tax Appellate Tribunal.
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2019 (4) TMI 1956
Exemption u/s 54F in respect of investment in Residential Property outside the country - DR contention that the section does not allow the claim of investment outside the country and should be restricted in India - HELD THAT:- We are of the opinion that the CIT(A) has dealt on the amended provisions to sec. 54 and 54F of the Act which are effective from 1/4/2015 relevant to asst. year 2015-16. Whereas the present case pertains to asst. year 2013-14 and the earlier provision are applicable further the ld DR has argued supporting the orders of the AO. Accordingly we are not inclined to interfere with the order of the CIT(A) who has passed reasoned order and upheld the same and dismiss grounds of appeal of the Revenue.
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2019 (4) TMI 1954
Seniority in Job - Rules of service - once persons from different sources enter a common category, how should their seniority be reckoned? - Is it from the date of their entering and continuously officiating in the service or from the date of their acquiring qualification to reach that common category?
HELD THAT:- The petitioner's date of initial appointment as a primary school teacher was 1-3-1972; then, he had S.S.C. He, however, improved his qualification in 1981, by passing Diploma in Education (D.Ed.). On the other hand, the respondent No. 2 was initially appointed on 1-7-1973; then he too had S.S.C. But he acquired the D.Ed., in 1980; that is, one year before the petitioner could. If the seniority was to be reckoned from the date of initial appointment and continuous officiation, the petitioner would emerge senior. If the seniority was to be counted from the date of the teacher's acquiring the requisite qualification (D.Ed. in the present case), respondent No. 2 would be senior.
The learned Full Bench has observed that an employee must belong to the same stream before he can claim seniority vis-a-vis others. With an improved qualification, the person may join the regular stream. At that point of confluence with the regular stream, those who have already been in the stream "can claim seniority vis-a-vis those who join the same stream later." Emphatic is the observation that "the late comers to the regular stream cannot steal a march over the early arrivals in the regular queue."
This Court's series of judicial pronouncements as cited, with the final cap by the Supreme Court's VIMAN VAMAN AWALE VERSUS GANGADHAR MAKHRIYA CHARITABLE TRUST [2014 (8) TMI 1210 - SUPREME COURT] unmistakably lays down the law: Among Primary Teachers, the seniority is counted from the date of the teacher's joining service. On the other hand, among the Secondary Teachers, the seniority is counted based on when the teachers had been placed in a particular category--for their seniority stands graded and categorized by the date of their very joining. This categorization is qualification-dependent. Placed in the descending order of category, the teachers rise in ranks of seniority with their additionally acquired qualifications under Guideline (2) of Schedule F, appended to Rule 12 of the MEPS Rules.
A teacher who is a member of a lower category can in no manner rank senior to the teacher who is already a member of a higher category. Such a claim could be based neither on his continuous service nor on his acquiring the qualification and reaching the higher category. To be specific a teacher, for example, in Category D, E, or F, on later migration to Category C, cannot steal a march over a teacher already ensconced in that higher Category. That teacher's seniority by length of service and by his or her later acquiring the requisite, additional, or even superior qualifications does not defeat the right of teachers already found placed in Category C. What applies to Primary Teachers cannot apply to Secondary Teachers, for the Rules do keep these two streams of teachers unmixed.
Once, secondary teachers enter a common category from different sources, how should their seniority be reckoned: is it from the date of their entering and continuously officiating or from the date of their acquiring qualification to reach that common category? - The seniority must be reckoned from the date they entered the desired category; that is, from the date they acquired the necessary qualification, but not from the date of their entry into service.
Is there any universal principle for this proposition or does it depend on the rules of service? - No. the seniority in any cadre depends on the statutory position--principal or subordinate--that governs the employees of an establishment. Here, it is governed by the Guidelines in Schedule F, under Rule 12, of MEPS Rules.
The writ petitions is allowed holding that:
(a) The two Government Circulars of 24th January 2017 and 14th November 2017 may stand unaffected vis-a-vis the Primary Teachers.
(b) Those two Government Circulars, however, cannot be sustained vis-a-vis the Secondary Teachers, to the extent those GRs mandate that the teachers' seniority be reckoned from the date of their first appointment and continuous service.
(c) The Government and the authorities concerned, including the School Managements, will recalibrate the relative seniority of the Secondary Teachers based on the Category they belong to and based on when they have entered that Category.
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2019 (4) TMI 1953
Liquidation Order - section 33(1) of IBC - CIRP not completed in the manner as it should have been completed and in fact no proper steps were taken to ensure that Resolution process is made successful - HELD THAT:- It is found that no Resolution Plan was approved by the Committee of Creditors and 270 days have passed. The order of liquidation need not be interferd with - the liquidator needs to act in terms of this Appellate Tribunal’s order passed in Y. SHIVRAM PRASAD AND ASSET RECONSTRUCTION COMPANY (INDIA) LTD. VERSUS S. DHANAPAL & ORS. AND SERVALAKSHMI PAPER LTD. & ORS [2019 (5) TMI 386 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] where it was held that Before approval of an arrangement or Scheme, the Adjudicating Authority (National Company Law Tribunal) should follow the same principle and should allow the ‘Liquidator’ to constitute a ‘Committee of Creditors’ for its opinion to find out whether the arrangement of Scheme is viable, feasible and having appropriate financial matrix. It will be open for the Adjudicating Authority as a Tribunal to approve the arrangement or Scheme in spite of some irrelevant objections as may be raised by one or other creditor or member keeping in mind the object of the Insolvency and Bankruptcy Code, 2016.
The appeal is disposed off.
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2019 (4) TMI 1952
Permission for withdrawal of appeal - HELD THAT:- In view of the order passed by the Hon’ble Supreme Court in RELIANCE COMMUNICATIONS LIMITED & ORS. VERSUS STATE BANK OF INDIA & ORS. [2019 (4) TMI 1746 - SUPREME COURT] as nothing subsist in these appeals, the Appellants are allowed to withdraw all these appeals. All the Interim Orders passed in these appeals are vacated.
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2019 (4) TMI 1951
Tenor appointment - appointment of the appellant as Director General, CPRI - tenor of appointment order issued to the appellant vis-à-vis the term of appointment - when the appointment was to be on direct recruitment basis until the date of retirement on attaining the age of superannuation or until further orders, could it have been converted as an appointment for an initial tenure of five years or until further orders?
HELD THAT:- The appointment of the appellant as Director General, CPRI, on a tenure basis is illegal, arbitrary and in violation of Articles 14 & 16 of the Constitution of India. Further, as opined by the Hon'ble Supreme Court in A.K. Doshi (Dr.) Vs. Union of India [2001 (3) TMI 900 - SUPREME COURT] in the case of appointment to a post on tenure basis, the notion of retirement on attaining the age of superannuation does not apply.
Whether, relief could at all be given to the appellant as according to the learned Single Judge, the writ petition filed by the appellant challenging his appointment for an initial tenure of five years only is hit by the principles of delay and laches? - HELD THAT:- There has been inter-departmental communications on the representations made by the appellant. However, the same could not be taken to its logical conclusion on account of the advertisement dated 18th February 2015 issued by the respondent calling for applications for the post of Director General, CPRI, lead to the appellant filing the writ petitions. On account of the filing of the writ petitions before this Court, no further steps were taken on the representations made by the appellant before the respective authorities - The doctrine of delay and laches is a salutary doctrine and it has been applied in innumerable cases by the Hon'ble Supreme Court. In this context, a plethora of decisions of the Hon'ble Supreme Court are available on the issue regarding delay and as to how a Court of equity exercising jurisdiction under Article 226 of the Constitution would have to approach the issue.
When the appellant filed his first writ petition, he was very much in service. He was relieved from service during the pendency of the first writ petition. This is not a case where after his termination, he instituted the writ petitions by way of an after-thought or after a long slumber, neither is the matter speculative in nature. Further, there was no delay in filing the second writ petition. Both the writ petitions were connected and heard together as the issues raised in them were intertwined. This aspect has been lost sight of by the learned Single Judge. As there was no delay or laches in filing the second writ petition, in order to consider the same, the issues arising in the first writ petition had to be also considered. But, both the writ petitions were not considered on merits and instead, learned Single Judge dismissed the first writ petition filed by the appellant herein on the ground of delay and laches and the second writ petition was rejected as not surviving for consideration.
The first writ petition could not have been dismissed by the learned Single Judge on the ground of delay and laches, particularly when it was entertained in the early part of 2015 and was disposed off only in March 2018 and there was no delay in filing the second writ petition - it is held that the appointment of the appellant on a tenure basis for an initial period of five years is declared as illegal, arbitrary and in violation of Articles 14 and 16 of the Constitution. That the appellant having been appointed by direct recruitment was required to be appointed from the date he assumed charge of the post up to 31st May 2019, the date of retirement on superannuation or until further orders, whichever was earlier. The termination of the appellant on completion of five years was also illegal although the same may have been in accordance with the appointment order issued to him. But, since the appointment on a tenure of five years is declared to be illegal, the termination is also bad in law.
The appellant shall be entitled to be paid 50% (fifty per cent) of his salary plus proportionate Dearness Allowance with effect from 21st March 2015 till 31st May 2019 by taking into consideration the pay revisions and increments, as applicable - Further, the appellant shall be entitled to the pensionary benefits under New Pension Scheme as applicable to the appellant if he had been continued in service to the extent of employer's contribution.
Appeal allowed.
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2019 (4) TMI 1950
Seeking deletion from the array of defendants - plaintiffs have filed this suit as a commercial suit and with respect whereto, timelines for disposal apply and the said timelines cannot be abided by the Court alone if the counsels do not cooperate in the same - HELD THAT:- Similar issue decided in the case of AMEET LALCHAND SHAH AND OTHERS VERSUS RISHABH ENTERPRISES AND ANOTHER [2018 (5) TMI 680 - SUPREME COURT] holding that when there are four agreements involving several parties but all the four for same purpose / commercial project and the averments in the plaint indicate that all four agreements are interconnected, the arbitration clause in the principal / main agreement would cover ancillary agreements and parties thereto also even though the ancillary agreements do not provide for arbitration. It was reasoned that in such eventuality disputes between the parties to various agreements could be resolved only by referring all parties to arbitration. Though the said judgment is in the context of Section 8 of the Arbitration Act but in my view would apply to Section 45 too and to the facts of present case. I have enquired from counsel for plaintiffs, why in accordance therewith, the entire dispute not arbitrable.
The subject matter brought by the plaintiffs by way of the present suit is subject matter of an agreement referred to in Section 44 of the Arbitration Act - Suit disposed off.
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2019 (4) TMI 1949
CENVAT Credit - output transportation charges incurred by them, for delivery of their excisable goods from factory to the premises of the buyer - Penalty - HELD THAT:- The transportation and insurance charges are reimbursed by the buyer of the goods and do not form part of the sale value or transaction value, it is held that the appellant is not entitled to cenvat credit on the outward GTA service received.
Penalty - HELD THAT:- The issue is wholly interpretational in nature. Accordingly, the penalty imposed is set aside.
Appeal allowed in part.
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2019 (4) TMI 1948
Eviction of shop - tenancy - contradictions in the statement of witnesses on the point of occurrence - Whether the Judicial Magistrate was right in holding that a prima facie case is made out against respondent Nos.2 and 3 for commission of the offences punishable under Sections 323, 379 read with Section 34 IPC so as to call upon them to face the trial on merits or whether the High Court was right in holding that no prima facie case has been made out against respondent Nos.2 and 3?
HELD THAT:- First error is that the High Court did not examine the case with a view to find out as to whether the allegations made in the complaint prima facie make out the offences falling under Sections 323, 379 read with Section 34 IPC or not - Instead the High Court in Para 6 gave importance to the fact that since there was a dispute pending between the parties in the Civil Court in relation to a shop as being landlord and tenant, it is essentially a civil dispute between the parties - This approach of the High Court is faulty.
The High Court failed to see that mere pendency of a civil suit is not an answer to the question as to whether a case under Sections 323, 379 read with Section 34 IPC is made out against respondent Nos. 2 and 3 or not - The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizance is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.
The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence - the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case.
The reasoning and the conclusion arrived at by the High Court for quashing the complaint filed by the appellant against respondent Nos. 2 and 3 is not legally sustainable and hence it deserves to be set aside - Appeal allowed - decided in favor of appellant.
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2019 (4) TMI 1947
Search proceedings - addition on account of cash payment for purchase of shops - ITAT deleted the addition as seized papers were not found from the premises of the assessee and hence presumption u/s. 132(4A), u/s. 292C - HELD THAT:- Assessee is an individual. He was the partner of the firm. The Income Tax Department had carried out search and seizure operation during which certain loose papers were collected. On the basis of loose papers additions were made in the hands of the individual partners and on protective basis on the hand of the firm. While deleting such addition in case of the present assessee the Tribunal noted that the documents nowhere show that any payments were made by same persons, no enquiry or verification was made with the seller of the shops or the developer. Tribunal therefore concluded that entries of the loose papers were not corroborated with any other evidence on record.
The entire issue is based on appreciation of evidence on record. The Tribunal noted that the loose papers entries were not clear and not corroborated by any independent evidence. No question of law therefore arises.
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2019 (4) TMI 1946
CENVAT Credit - duty paying documents - basic contention of Revenue in support of confirmation of the adjudged demands is that the appellant had contravened the provisions of Rule 9 of the Cenvat Credit Rules, 2004 in not maintaining proper register/records prescribed under the statute - HELD THAT:- It is found that contradictory stand have been taken by both sides in respect of the submission of the relevant records/register, showing availment of Cenvat credit on the invoices issued by the service providers. Since availment of Cenvat credit based on the invoice and maintenance of proper records are purely a question of fact, which can very well be appreciated at the original stage, the matter should be remanded to the original authority for proper verification of the records maintained by the appellant, showing the particulars of availment of Cenvat credit on the disputed invoices.
The appeal is allowed by way of remand to the original authority for verification of the records regarding availment of the disputed Cenvat credit on the basis of the invoices issued by the service providers. Since the amount involved in this appeal is quite substantial, it is expected that the appellant should properly co-operate in the proceedings by submitting all the required documents for verification by the original authority.
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2019 (4) TMI 1945
Classification of services - rate of GST - electrification work to the APEPDCL for procurement of plan, design, supply, install and commission certain facilities viz., providing underground cable work in Visakhapatnam city, package-1 and package-3 (replacement of existing 33/11 KV substation of Zone-1 division Visakhapatnam with underground power cable network on turnkey basis - Applicability of N/N. 20/2017-Central Tax (Rate), dated 22-8-2017 and No. 24/2017-Central Tax (Rate), dated 21-9-2017 - Government or a Government authority by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of, with respect to certain specified works services or not - whether APEPDCL would fit into the definition of ‘business’ as per Notification No. 17/2018, dated 26-7-2018? - challenge to AAR decision - HELD THAT:- The term “business” as defined above will not be applicable to the said transaction, as the transaction is not undertaken by the State Government in which it is engaged as public authority, but it is the activity undertaken by the APEPDCL, which is a company incorporated under the Companies Act, 1956 and having its registered office at Sai Shakti, Opp. Saraswathi Park, Daba Gardens, Vishakhapatnam-530020, for carrying on the business of Distribution and Retail Supply of electrical energy within the Area of Supply (as defined in this License) and with the powers and upon the terms and conditions specified therein. Moreover ‘APEPDCL is a Government entity and it does not fall under the explanation provided for ‘business’ vide Notification No. 17/2018, dated 26-7-2018, which includes transaction undertaken by the Central Government, State Government or any local Authority only.
Government Entity or not - HELD THAT:- As per Serial No. 3 of Entry No. vi(a) of Notification No. 24/2017-Central Tax (Rate), dated 21-9-2017, the services provided by the appellant towards APEPDCL does not qualify “the category of services provided to Government Authority meant predominantly for use other than for commerce”, as the services supplied by the appellant are purely commercial in nature even though the service recipient i.e., APEPDCL is a Government entity.
With reference to the letters submitted by the appellant quoting various State Government Authorities such as, the Executive Director, APEPDCL, The Spl. Chief Secretary, Land & DM, and Commissioner for DM & EO Secretary to Government (FAC) Project Director, NCRMP/APDRP stating that the activities of APEPDCL are non-commercial in nature attracting 12% GST, it is considered that these opinions had no legal validity as per the Act, in view of the classification of the services. Hence we do not find any merit in the above contention and rejecting the same due to the lack of legal or statutory support to the argument.
The decision of AAR upheld.
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2019 (4) TMI 1944
Scope of Advance Ruling application - applicant is not the service provider - eligible party to seek for Advance Ruling - Section 98(2) of GST Act - liability to pay tax on the services supplied to them and not on the supplies made by them - HELD THAT:- The interpretation of the Authority for Advance Ruling that the applicant is recipient of the services and not supplier of services is arbitrary, illegal, against the APGST Act, 2017 as the applicant is stake holder and the services are undertaken by the applicant - The applicant who is the Authority for undertaking the above works, providing and sanctioning taxes in the estimates on behalf of Govt., authority for implementation of APGST Act, 2017. He is also an authority for applying TDS under APGST Act, 2017 and it cannot be said that the applicant is not in relation to the supply of goods or services or both being undertake or proposed to be undertaken as per definition of Advance Ruling under Section 95(a) - The applicant who is also an authority for applying TDS under APGST Act, 2017 has no other option to get clarification on the above applicability of GST for the said works other than from the Authority for Advance Ruling/Appellate Authority for Advance Ruling.
As per the definition of Advance Ruling, it is very clear that the application can be made by the person who is in relation to the goods or services taken up or proposed to be taken up.
The applicant failed to comply with the provisions of Rule 106 of the APGST Act - Accordingly the DFO, Chintur was informed vide this office ref. No. CCST/AAAR/01/2019, dated 5-3-2019 to comply with the requirement as per the Act, but no response has been received by this office from the applicant. However, a notice for personal hearing on 12-3-2019 has been sent to the applicant vide this office reference dated 3-4-2019, duly providing an opportunity for hearing.
Appeal rejected.
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2019 (4) TMI 1943
Gift - Consideration - certain customized lifestyle goods procured by BMW India either from a third party local supplier or imported from outside India for supply of goods during promotion/marketing events organized by the Company - whether goods will qualify as used in the course or furtherance of business in terms of the provisions of the Central Goods and Services Tax Act, 2017? - input tax credit - goods supplied under the marketing events - Section 17 (5) of the CGST Act - HELD THAT:- Section 16 (1) of the CGST Act provides that “Every registered person shall, subject to such conditions and restrictions as may be prescribed and in the manner specified in section 49, be entitled to take credit of input tax charged on any supply of goods or services or both to him which are used or intended to be used in the course or furtherance of his business and the said amount shall be credited to the electronic credit ledger of such person”.
The applicant has drawn a clear distinction between goods given as gifts and goods given on free of cost basis. The applicant also draws a sharp contrast between gift which is transferred voluntarily and not as a result of contractual obligations and free of cost (FoC) supplies which are intended to strengthen the customer base. The applicant further holds that these free of cost supplies are made with an intention to receive consideration (in case or in kind) and has accordingly held that a clear distinction should be drawn between a gift and free cost of supply - So, as per the applicant these marketing events are advertisement, sales and promotion activities organized to earn consideration in the form of reciprocity from customers and increase in sales and brand value of the company and these items provided in the promotional events are not in the nature of gifts.
What is consideration? - HELD THAT:- The consideration could be monetary as well as non-monetary. This payment can be in advance or after the supply has been made. This payment may be made by the recipient or by any other person. A consideration may be the monetary value of any act or forbearance i.e. the monetary value of doing something or refraining from doing something. But this payment made or to be made or any such act or forbearance must be in respect of or in response to or for the inducement of the supply of goods and services or both -
As far as the supply of goods to the potential customers is concerned, the issue of consideration does not arise because the potential customers may not be actual customers/ buyers of the applicant company’s motor cars and motor bikes. The company has itself maintained that these free of cost supplies are made with an intention to earn consideration. This statement itself reflects that there is no consideration involved at the time of making of these free of cost supplies. It is also important to refer to the proviso to the definition of consideration as provided under the CGST Act. It contains that a deposit given in respect of the supply of goods or services or both shall not be considered as payment made for such supply unless the supplier applies such deposit as consideration for the said supply. It is not the case of the applicant that any part of the amount received or to be received from the existing customers or the potential customers, as the case may be, at the time of supply of taxable products by the applicant company is applied to the goods provided on free of cost basis in these promotional events.
The types of supply mentioned under the GST Act are taxable supply, exempted supply and nil rated supply. There is no provision of supply on free of cost basis under the CGST/SGST Act. The supply of goods on free of cost basis might be a part of company’s policy but certainly not in conformity with the provisions of the CGST/SGST Act and a company’s policy cannot override the provisions of law. The items distributed in the promotional events are gifts and section 17 (5) (h) bars credit of input tax with respect to gifts made by a registered person.
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2019 (4) TMI 1942
Classification of goods - rate of GST - Stadiometer being diagnostic medical equipments - Infantometer being diagnostic medical equipments - to be covered in 12% GST slab or otherwise? - HELD THAT:- Infantometer, as the name suggests, is used for the purpose of measuring height/ length of infants. As per wiktionary definition, Infantometer is an instrument for measuring the size of young children. The product is described as useful for research, clinical and hospital purpose - Stadiometer is described as piece of medical equipment used for measuring human height. It is used in routine medical examination and for clinical tests and experiments.
Chapter 90 of Section XVIII covers optical, photographic, cinematographic, measuring, checking, precision, medical or surgical instruments and apparatus; parts and accessories thereof - The Heading 9018 incorporates instruments and appliances used in medical, surgical, dental or veterinary sciences, including scientigraphic apparatus, other electromedical apparatus and sight-testing instruments. The sub-heading 9018 90 covers other instruments and appliances - Further, Heading 9017 covers drawing, marking-out or mathematical calculating instruments (for example, drafting machines, pantographs, protractors, drawing sets, slide rules, disc calculators); instruments for measuring length, for use in the hand (for example, measuring rods and tapes, micrometers, callipers), not specified or included elsewhere in this chapter. The tariff item 9017 80 10 mentions measuring rods and tapes and dividing scales with rate of tax being 18%.
The above definitions make it clear that both these instruments, the stadiometer and the Infantometer, have clinical used and are described as medical equipments. Therefore, these can be described as diagnostic instruments and apparatus.
Both Stadiometer and Infantometer are medical instrument used exclusively for clinical and medical experimental purposes and are not scale rods or divided scales of general nature. Hence, these are covered under tariff item 9018 90 19 (other category) with rate of tax being 12%.
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2019 (4) TMI 1941
Classification of goods - rate of IGST - sub-assemblies supplied by the Pathredi unit to the Chennai unit - HELD THAT:- From the explanatory note VII, it is clear that complete or finished articles presented unassembled or disassembled are to be classified in the same heading as the assembled article only if there is assembly operation is involved. But in the present case assembly operation as well as addition of components is being done to prepare the parent assembly and thereafter being supplied to Indian Railways. Therefore, the goods supplied from Pathredi Unit to Chennai Unit cannot be classified in the same heading as the assembled article is classified - Further, as per para 4 of the Circular No. 30/4/2018-GST dated 25.01.2018 issued by CBIC, it has been clarified that: Only the goods classified under Chapter 86 supplied to the Railways attract 5% GST rate with no refund of unutilized input tax credit and that Other goods (falling in any other chapter) would attract the general applicable rates to such goods, even if supplied to railways.
Thus, the goods which would be supplied from the unit at Pathredi to the unit situated in Chennai cannot be classified under chapter 86; hence, they would attract the general applicable rate of duties as per the classification of each item in their respective chapters.
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2019 (4) TMI 1940
Maintainability of application - time limitation expired for applicant who was to appear before this Authority - Rate of GST - Mineral Mining Rights in lieu of which royalty is being paid - whether taxable at the rate of 5% (Rate applicable on extracted raw material) or 18% (Residual category)? - HELD THAT:- In order to decide the admissibility of the application, the applicant was called upon to appear before this Authority on 12.04.2019 vide memo no. 664 dated 09.04.2019, but none appeared on behalf of the applicant. Thereafter, notice of appearance was sent for 22.04.2019 vide memo no. 676 dated 16.04.2019. The applicant failed to appear on the 22.04.2019 said date also - Since, the Authority for Advance Ruling is bound to pronounce ruling within 90 days of the receipt of application as per Section 98(6) of the CGST/HGST Act. The applicant cannot be granted any further opportunity of hearing. Hence, the application of Advance Ruling is rejected under Section 98(2) of the CGST/HGST Act.
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2019 (4) TMI 1939
Classification of goods - rate of GST - non-woven bags made up of polypropylene manufactured by the applicant and the price of which is below ₹ 1000/- per unit - Whether the product manufactured by the applicant will fall under Chapter 63 Heading 6305 or otherwise? - HELD THAT:- The Sub-heading 6305 33 00 includes sacks and bags, of a kind used for the packing of goods of man-made textile materials, other than flexible intermediate bulk containers but of polyethylene or polypropylene strip or the like. The article falling under sub-heading are taxed at 5%, if their sale value does not exceed ₹ 1000/- per piece, otherwise taxed at 12%. But the PP non-woven bags manufactured by the applicant are not made up of polypropylene strip rather they are carved out of sheets through cutting - Heading 3923 articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics. The goods covered under this Heading are taxable at 18%.
Polypropylene (PP), also known as polypropene, is a thermoplastic polymer used in a wide variety of applications. It is produced via chain-growth polymerization from the monomer propylene. Polypropylene belongs to the group of polyolefins and is partially crystalline and non-polar. As per this definition, it is amply clear that the PP non-woven bags fall under the category of plastics - Also, Circular No. 80/54/2018-GST issued by Tax Research Unit, Department of Revenue, Ministry of Finance, Government of India dated 31.12.2018 clarifies that Polypropylene woven and non-woven bags and PP woven and non-woven bags laminated with BOPP would be classified as plastic bags under HS code 3923 and would attract 18% GST.
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2019 (4) TMI 1938
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - pre-existing dispute or not - time limitation - HELD THAT:- It appears that the Corporate Debtor is taking every efforts to starve off the proceedings initiated by the Operational Creditor under the provisions of the I&B Code, 2016. As regards the limitation issue, it is noted that the claim has been filed on the basis of a Decree passed by the Civil Court. The time period for execution of any Decree under Article 136 of the Limitation Act, 1963 is 12 years. In other words, the Decree holder has every right to demand the decretal amount during the said period. Therefore, this right cannot be curtailed by taking a view that as per the provisions of Article 137 of the Limitation Act, 1963, the time period for filing Application under Section 9 of the I&B Code, 2016 is three years only. But, this Article will not be applicable to the demand made under the Decree passed by the Civil Court. Therefore, the Application filed under Section 9 of the I&B Code, 2016 by the Operational Creditor is within the period of limitation. Hence, the objection that has been raised by the Counsel for the Corporate Debtor that the Application is time barred stands rejected.
The multifaceted defence that has been projected by the Corporate Debtor is inconsistent and a mere bluster. Therefore, the pleas taken by the Corporate Debtor including the plea about existing of dispute, stand rejected.
The Operational Creditor has fulfilled all the requirements of law for admission of the Application. This Bench is satisfied that the Corporate Debtor has committed default in making payment of the outstanding debt claimed by the Operational Creditor. Therefore, Application is admitted and the commencement of the Corporate Insolvency Resolution Process is ordered which ordinarily shall get completed within 180 days, reckoning from the day this order is passed - Application admitted - moratorium declared.
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2019 (4) TMI 1937
Approval of Resolution Plan - validity of finding of the Adjudicating Authority that the ‘earnest money deposit’ is unreasonable - HELD THAT:- It is not in dispute that the ‘Resolution Professional’ fixed the ‘earnest money deposit’ as per decision of the ‘Committee of Creditors’ and issued ‘Information-Memorandum’ and invited ‘expression of interest’ on 14th May, 2018. Total 18 ‘expression of interest’ were received from the ‘resolution applicants’ but 17 ‘resolution applicants’ did not choose to deposit ₹ 100 Crores. It is also not in dispute that ‘M/s. BRS Ventures Investment Limited’ (BRSVIL) not only deposited a sum of ₹ 100 Crores towards ‘earnest money deposit’ but also filed a ‘resolution plan’ - It is also not disputed that other 17 ‘resolution applicants’ have not deposited ₹ 100 Crores and they have also not submitted the ‘resolution plan’ within the time. The total debt outstanding as adzmitted by the ‘resolution professional’ on 5th September, 2018 was ₹ 1356.89 Crores and the requirement of the ‘expression of interest’ is ₹ 100 Crores , which is less than the outstanding dues.
It is true that the clause relating to forfeiture of ₹ 100 Crores was arbitrary but persons having not challenged the ‘expression of interest’ published on 14th May, 2018, till the ‘resolution plan’ was approved by the ‘Committee of Creditors’, we are of the view that after approval of ‘resolution plan’, it was not open to any person to challenge the same - The shareholders and promoters being ineligible to file the ‘resolution plan’ under Section 29A, they have no right to raise their grievance with regard to the ‘expression of interest’ published on 14th May, 2018 fixing ‘earnest money deposit’ of ₹ 100 Crores - In this background, it was not open for the Adjudicating Authority to entertain Interlocutory Application Nos. 409/2018 and Interlocutory Application Nos. 450/2018, which were filed by the ‘shareholders’ and ‘promoters’, who were ineligible to submit the ‘resolution plan’ and that too after approval of the ‘resolution plan’ by the ‘Committee of Creditors’.
In the present case, it is found that two Interlocutory Applications preferred by the shareholders and promoters were not maintainable, as they were not eligible as ‘resolution applicants’. The other ‘resolution applicant’ namely ‘M/s. Well-Do Holdings and Exports Private Limited’ having not submitted the ‘resolution plan’ within the time nor the ‘earnest money’. Further, ‘M/s. Well-Do Holdings and Exports Private Limited’ having not moved before the Adjudicating Authority before the last date of submission of the ‘resolution plan’ and the Interlocutory Applications was filed without challenging the approved ‘resolution plan’, the Interlocutory Application should have been rejected.
Matter remitted to the Adjudicating Authority with directions to pass appropriate order under Section 31, taking into consideration the ‘resolution plan’ of ‘M/s. BRS Ventures Investment Limited (BRSVIL)’ as approved by the ‘Committee of Creditors’ - appeal allowed by way of remand.
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