|
Advanced Search Options
Case Laws
Showing 221 to 240 of 1442 Records
-
2025 (5) TMI 1222
Taxable Turnover - Works contract - Construction of Road - Build-Operate-Transfer scheme - no actual sale or no transfer of property or goods during the relevant assessment years, and that there was no taxable turnover or business activity until the commencement of toll collection, which only started from 07.06.2001 - HELD THAT:- There is no such transfer of ownership or deemed ownership in favour of the contractor during the construction of the road and during the concessional period under the BOT scheme. The Government always remains the owner of the land both in works contracts or in BOT, and only possession is given to the contractor to construct the road and recover the cost of construction from the public or passengers by way of toll.
As held by the Division Bench of this Court in the case of Ashoka Infraways Private Limited [2024 (10) TMI 559 - MADHYA PRADESH HIGH COURT], apart from the Government, no one has the authority to collect the toll or service charges from any person. If that authority has been given to the contractor in the BOT scheme, instead of making direct payment for the construction of the road, there would be no escape from the tax liability on the contractor.
As per the BOT scheme, the payment to the petitioner for the work done was deferred by way of toll after completion of the concessional period, which doesn't mean that there was no sale during the Assessment Year 2000 – 01. As per the scheme of the commercial tax and entry tax, the tax is liable to be paid every year. Only the mode of payment was deferred, which has not been explained in the definition of 'sale' in Section 2 (t) (i) & 2 (t) (ii) of the Act of 1994. Section 2 (t) (vi) also clarifies that sale, with its grammatical variations and cognate expressions, means that a transfer of right to use any goods for any purpose (for a certain period) for cash, deferred payment, or other valuable consideration will also be treated as a sale.
In the case of Bharat Aluminium v/s The Commissioner of Sales Tax [1996 (4) TMI 451 - MADHYA PRADESH HIGH COURT], this Court held that for exchange of one item for another item is a sale. As per Rule 33 of the M.P. Commercial Tax Rules, 1995 (in short 'the Rules of 1995') also, the dealer shall specify in the return its turnover, the details of the sale/purchase for other than money consideration. The Assessing Officer shall fix the value of consideration in money for the purpose of determining the taxable turnover.
Admittedly, the petitioner is a dealer then certainly liable to pay taxes by filing a return on the goods purchased and brought into the State in execution of the works contract. The words 'project' and 'project cost' are defined in Clauses W3 and W4 of the agreement. According to the project, it shall mean survey, investigation, studies, design, construction, reconstruction, improvement, strengthening and repair. All the work related to the maintenance of the road, renewal of surface, bridge, tunnel, culvert, etc. and the cost offered to invest by the entrepreneur for completion of the aforesaid project shall be a project cost - the period of collection of the toll upon construction of the Dewas By-pass road was fixed for a fixed concession period, i.e. 3941 days for the Katni project and 3351 days for the Mhow – Ghatabillod project, by taking into consideration all the costs and expenses incurred in the construction work. The petitioner was required to make all arrangements for the money for construction of the bypass road, the petitioner was given the right to collect the toll after completion of the construction of the road for which period as above was fixed after considering the total cost of construction of the project and its recovery by way of collection of tolls. After the expiry of the said period, the petitioner shall not have any claim on the road as well as on a toll.
Conclusion - The petitioner is misconstruing the terms of the agreement and the construction of Dewas bypass road on BOT basis that it does not amount to execution of works contract, the petitioner executed the works contract on the land belonging to the State Government and recovered the construction and maintenance cost by way of toll with due permission from the State Government, it is nothing but a deferred payment by a mode of recovery of toll. The land on which roads were constructed by the petitioner remained in the ownership of the State. Hence, there are no substance in these writ petitions.
Petition dismissed.
-
2025 (5) TMI 1221
Process of designation of Senior Advocates - guidelines laid down in the earlier decisions regarding the designation of Senior Advocates under Section 16(2) of the Advocates Act, 1961, particularly those in Indira Jaising-1 and Indira Jaising-2, require reconsideration or modification in light of practical experience and concerns raised about their efficacy and fairness or not - HELD THAT:- In the statement of objects and reasons of the Advocates Act, it was mentioned that the main feature of the Act was the integration of the Bar into a single class of legal practitioners known as Advocates. Perhaps, the need was felt to do so by the Legislature as prior to the commencement of the Advocates Act, there were different classes of legal practitioners such as Supreme Court Advocates, High Court Advocates/Pleaders, Advocates of High Court (OS), District Court Pleaders, Vakils, Mukhtars, Revenue Agents etc. Though the object was to make integration of the Bar into a single class, Subsection (1) of Section 16 created two classes of Advocates, namely, Senior Advocates and other Advocates. The power to designate an Advocate as Senior Advocate is vested with this Court and the High Courts.
There are restrictions imposed by this Court as well as the High Courts on the designated Senior Advocates. For example, clause (b) of Rule 2 of Order (IV) of the Supreme Court Rules, 2013 imposes restrictions on Senior Advocates. One such restriction is that a Senior Advocate shall not file a vakalatnama or act in any Court or Tribunal in India. Another restriction is that he shall not appear without an Advocate-on-Record (for short ‘AOR’) in the Court or without a junior in any other Court or Tribunal in India. Another important restriction is that a Senior Advocate cannot accept directly from a client any brief or instructions to appear in any Court or Tribunal in India. Similar restrictions have been imposed on the Senior Advocates by various High Courts. Under Subsection (3) of Section 16, the Bar Council of India has the power to impose restrictions on the Senior Advocates in the matter of their practice in the interest of the legal profession - there is nothing placed on record to show that the Bar Council of India has framed any Rules in terms of Subsection (3) of Section 16.
It is obvious that an endeavour was made by this Court to bring about uniformity in the norms/guidelines followed by this Court and High Courts in the designation of Advocates as Senior Advocates. This exercise was undertaken, obviously, invoking the jurisdiction of this Court under Article 142 of the Constitution of India as a measure to ensure transparency in the process. This step was also necessitated due to absence of Statutory Rules framed under the Advocates Act. It was an experiment made by this Court to bring about uniformity in approach. An effort was made to make the process more objective. However, this Court was not oblivious of the fact that the guidelines may require changes from time to time.
This Court has given enough indication that what was done under Indira Jaising-1 was not final. The decision itself noted that the need to reconsider the decision may arise in future.
This Court in Indira Jaising-1 embarked upon the exercise of laying down uniform standard/practice/ procedure/criteria for designation of Advocates as Senior Advocates by this Court and High Courts. In essence, it was an experiment made by this Court, perhaps, only with one object. It was to ensure that every deserving Advocate who satisfies the criteria of Sub-section (2) of Section 16 of the Act gets due consideration resulting in designation as Senior Advocate. Considering the object of the exercise undertaken by this Court, the directions issued in exercise of power under Article 142 were never intended to be final or understood as substitute to Statutory Rules under the Advocates Act. Paragraph 74 of Indira Jaising-1 and paragraph 51 of Indira Jaising-2 clearly contemplate that. This Court will have to make a course correction as expressed in paragraph 74 of Indira Jaising-1 again in exercise of its jurisdiction under Article 142 of the Constitution. The submissions made by the learned Solicitor General of India, appearing for the Secretary General of this Court as well as in his personal capacity, High Courts of Delhi, Karnataka, Madhya Pradesh and Punjab and Haryana, suggest that perhaps the directions issued in Indira Jaising-1 have not worked effectively to achieve the desired objectives.
The experience of the last seven and a half years shows that it may not be rationally or objectively possible to assess calibre, standing at the Bar, and the experience in law of the Advocates who apply for designation on the basis of a pointbased format. That has not achieved the desired objective. There is another important aspect which is relevant. No specific points have been assigned for the character, honesty and integrity. The point-based assessment, as can be seen from the earlier discussion, can hardly be objective, and it tends to be highly subjective.
Looking to the very nature of the process of designation, it is very difficult to arrive at a perfect system. Learing is achieved from experience and the mistakes committed in the past. Therefore, the endeavour of all stakeholders should be to keep on improving the system, so that it can be ensured that not a single deserving Advocate is left out of the process of designation and not a single undeserving person is designated.
Conclusions - It will be appropriate if all the High Courts frame Rules in terms of what is held in this decision within a period of 4 months from today by amending or substituting the existing Rules. The Rules shall be made keeping in view the following guidelines: a. The decision to confer designation shall be of the Full Court of the High Courts or this Court; b. The applications of all candidates found to be eligible by the Permanent Secretariat along with relevant documents submitted by the applicants shall be placed before the Full House. An endeavour can always be made to arrive at consensus. However, if a consensus on designation of Advocates is not arrived at, the decision-making must be by a democratic method of voting. Whether in a given case there should be a secret ballot, is a decision which can be best left to the High Courts to take a call considering facts and circumstances of the given case; c. Minimum qualification of 10 years of practice fixed by Indira Jaising-1 needs no reconsideration; d. The practice of Advocates making applications for grant of designation can continue as the act of making application can be treated as consent of the Advocates concerned for designation. Additionally, the Full Court may consider and confer designation dehors an application in a deserving case; e. In the scheme of Section 16(2), there is no scope for individual Judges of this Court or High Courts to recommend candidate for designation; and f. At least one exercise of designation should be undertaken every calendar year.
ii) The processes already initiated on the basis of decisions of this Court in the case of Indira Jaising-1 and Indira Jaising-2 shall continue to be governed by the said decisions. However, new process shall not be initiated and new applications shall not be considered unless there is a proper regime of Rules framed by the High Courts.
iii) It is obvious that even this Court will have to undertake the exercise of amending the Rules/Guidelines.
iv) Every endeavour shall be made to improve the regime/system of designation by periodically reviewing the same by this Court and the respective High Courts.
Application allowed.
-
2025 (5) TMI 1220
Approval of Resolution Plan without prior approval from the Competition Commission of India (CCI) - assignment of debt by an Asset Reconstruction Company (ARC) to a non-ARC entity under the Resolution Plan - contravention of the SARFAESI Act, 2002 and the Reserve Bank of India (RBI) Master Directions (Asset Reconstruction Companies) 2024 - Debt owed to Respondent No.4- ‘International Finance Corporation’ can be assigned to an entity in India without specific approval by the RBI or not - SRA has dealt with Noida Project Land which is not the asset of the Corporate Debtor -
Approval of Resolution Plan without prior approval from the Competition Commission of India (CCI) - HELD THAT:- As per Section 30(4), the CoC is to approve the Resolution Plan by vote not less than 66% voting share of the Financial Creditors after considering its feasibility and viability and the manner of distribution proposed. The Resolution Plan in the present case has been approved with 73.38% vote share. Resolution Plan approved by the Adjudicating Authority is binding on all including the Dissenting Financial Creditor.
The 1st ground on which order approving the Resolution Plan by the Appellant is challenged on the strength of Section 5 of the Competition Act, 2002. Counsel for the Appellant relied on judgment of the Hon’ble Supreme Court in Independent Sugar Corporation Ltd. [2025 (2) TMI 19 - SUPREME COURT] decided on 29.01.2025. The Hon’ble Supreme Court in the said judgment has laid down that approval of the CCI as contemplated under Section 31(4) proviso of the IBC has to be mandatorily obtained before approval of the plan by the CoC.
Section 6 of the Competition Act, 2002 deals with ‘regulation of combinations’ which contemplated approval by the CCI for such merger and amalgamation amounting to combination. Counsel for the Appellant contended that the assets of the SRA as well as the Corporate Debtor after merger are more than prescribed threshold which are more than Rs.2500 Crore assets in India, hence, meets the threshold of combination under Section 5 of the Competition Act. Thus, mandatory approval from the CCI was required prior approval of the plan by the CoC - The Notification dated 07.03.2024 provided that Section 5 of the Competition Act is not applicable for two years where the value of the assets being acquired, taken control of, merged or amalgamated is not more than Rs.450 Crore in India or turnover of not more than Rs.1250 Crores in India.
In the Consolidated Reply filed by the Resolution Professional, balance sheets of the Corporate Debtor as on 31.03.2023 and 31.03.2024 have been referred to and brought on record. As per the balance sheets of the Corporate Debtor who is being acquired under the Resolution Plan, the value of the Corporate Debtor is Rs.70.76 Crore and the turnover is Rs.13.72 Crores. The value of the Corporate Debtor as above is clearly covered by exemption provided in Notification dated 07.03.2024 - Section 5 of the Competition Act, 2002 is not applicable in the facts of the present case and there was no requirement of any prior approval from CCI. Hence, the submission advanced by the Appellant cannot be accepted.
Assignment of debt by ARC - permissible to non-ARC or not - HELD THAT:- On looking into Section 9(1)(e) of the SARFAESI Act, 2002, settlement of dues payable by the borrower is also one of the measures contemplated for purposes of asset reconstruction. We are of the view that the settlement of dues is a phrase of wide import which can take measure for settlement of dues payable by the borrower. In the present case, Resolution Plan submitted by the Respondent No.2 which is approved by requisite vote share of the CoC provides for the payment of dues of the Financial Creditor. The debt has been categorised in sustainable and unsustainable debt and sustainable debt discharge is the payment proposed by the Resolution Applicant to the secured Financial Creditors whereas unsustainable debt is the balance amount claim of secured creditors which is noticed in paragraph 7.2 of the impugned order. The plan proposes the secured financial creditors Rs.99.05 Crores within 30 days of the approval of the Resolution Plan.
Sustainable debt is being discharged by payment to the financial creditors and unsustainable debt being assigned to the Resolution Applicants, it is the commercial wisdom of the CoC to approve or not approve the mode and manner of settlement of dues and in the present case, when settlement of dues have been approved by the CoC by 73.38% vote share, it is not persuaded to accept the submission that the assignment of the unsustainable debt to the Resolution Applicants violates any provision of the IBC or CIRP Regulations or any provisions of the SARFAESI Act, 2002 - there are no substance in the submission of the Appellant.
Debt owed to Respondent No.4- ‘International Finance Corporation’ can be assigned to an entity in India without specific approval by the RBI or not - HELD THAT:- The CoC as well as the SRA had submitted that approval of the RBI, if required for assignment of debt of Respondent No.4 is to be obtained within one year from approval of the Resolution Plan. As per provision of Section 31(4) of the IBC, the SRA can obtain approval from RBI after approval of the Resolution Plan once the assignment has been approved. There are no error in the above part of the Resolution Plan which proposes assignment of debt of Respondent No.4 to the Resolution Applicant. Approval, if any, can be obtained within one year from the RBI as per Section 31(4), hence, on the said ground approval of Resolution Plan cannot be faulted.
SRA has dealt with Noida Project Land which is not the asset of the Corporate Debtor - HELD THAT:- The Noida Project Land along with building structure was obtained by sub-lease deed dated 18.01.2008 and lease deed dated 23.06.2008 from Moser Baer India Ltd. (MBIL). MBIL went into liquidation under the Code and liquidator of MBIL vide letter of termination dated 30.03.2019 addressed to the Corporate Debtor has cancelled the said sub- lease and the Noida Project Land along with the pending litigation has been assigned to Palika Towns LLP by the Liquidator of MBIL. The submission of SRA in the above regard is that lease was terminated prior to initiation of CIRP. With regard to which the litigation is pending before the NCLT, SRA has acknowledged the pending litigation and offered to pay the lessor Rs.7,20,00,000/- as a solution to ending the dispute regarding the project. The money offered to the lessor is in addition to the payments to be made to the financial creditors under the Resolution Plan of the SRA
Appellant cannot raise any grievance nor above clause in the Resolution Plan dealing with the manner proposing a solution for Noida Project Land and continue the litigation by SRA with regard to Noida Project Land does not violate any provisions of the IBC or CIRP Regulations. The Resolution Plan cannot be said to have violated any provisions of the law in the above regard. There are no substance in the above submission.
Conclusion - i) The Competition Act's provisions on combination and CCI approval do not apply, and the Resolution Plan's approval without CCI consent is valid. ii) No violation of SARFAESI Act or RBI directions was found; the assignment of debt to a non-ARC entity under the Resolution Plan is valid. iii) The assignment of debt from the ECB lender to the Resolution Applicant is permissible, subject to subsequent RBI approval. iv) The plan's provisions regarding the Noida Project Land comply with the IBC and CIRP Regulations and do not violate any legal provisions. v) The CoC's commercial wisdom in approving the Resolution Plan and rejecting the revised offer is binding and not subject to interference.
There are no substance in any of the submissions of the Counsel for the Appellant. There is no merit in the Appeal. The Appeal is dismissed.
-
2025 (5) TMI 1219
Recovery of CENVAT Credit with penalty - payment of duty under Sugar Cess Act, 1982 can be claimed as Cenvat Credit when the Cenvat Credit Rules does not provide payment of cess under the Sugar Cess Act, 1982 as not being eligible under Rule 3 of the said Rules or not - Sugar Cess imposed under the provisions of the Cess Act can assume the characteristic of the Central Excise Duty or not - non-consideration of provisions of sub-section (4) of Section 3 of the Cess Act, which is for the purpose of levy and collection of cess relating to Sugar - cess paid under a different statutory provisions which is not related or connected with the duties payable under the Central Excise Act can qualify as a credit component under the Cenvat Excise Act and as such, since the Sugar Cess does not qualify the eligibility criteria fixed in the said Rules or not.
HELD THAT:- The Hon’ble Court after taking note of the above submissions proceeded to first take up for consideration the question as to whether the cess paid under the Act is a fee or tax. After elaborate discussions and after referring to several decisions of the Hon’ble Supreme Court in Shree Renuka Sugars Ltd. [2019 (2) TMI 1242 - SC ORDER] including the Constitutional Bench of the Hon’ble Supreme Court it was held that the traditional view that there must be actual quid pro quo for fee has undergone a sea change in the recent years. The tax recovered by a public authority invariably goes into the Consolidated Fund, which ultimately is utilized for public purposes; whereas a cess levied by way of fee is not intended to be and does not become a part of the Consolidated Fund. Thereafter, the Court took into consideration Article 266 ad 270 of the Constitution of India and with the following reasoning it was held that the sugar cess paid under the Act is tax and to be precise it is duty of excise and not fee.
The other contention which was raised by the revenue in Shree Renuka Sugars Ltd. which is also argued before us is that to be eligible for Cenvat credit, it is necessary that the Act should have been mentioned in Rule 3 of the Cenvat Credit Rules. This issue was answered by the Court after taking into consideration Section 3 of the Central Excise Act, 1944 which is the charging section and the other provisions of the Act and the Cenvat Credit Rules and it was held that excise duty is leviable under the Central Excise Act and also the Sugar Cess Act, 1982 - Ultimately, the Court held that Section 3 of the Act provides for levy and collection as a cess for the purpose of Sugar Development Fund Act, 1982, a duty of excise on all sugar produced by any sugar factory in India and, therefore, the cess leviable and collected is at the stage of production of sugar in the sugar factory. Because it is a tax on production, it is described as a duty of excise.
Conclusion - i) The sugar cess levied under the Sugar Cess Act, 1982, is a duty of excise and not a fee, as its proceeds are credited to the Consolidated Fund of India and utilized for public purposes, negating the traditional quid pro quo characteristic of fees. ii) The cess paid under the Sugar Cess Act is eligible for CENVAT credit under the CENVAT Credit Rules, 2004, and the assessee is entitled to refund claims arising therefrom.
The appeal filed by the revenue is dismissed and the substantial questions of law are answered against the revenue.
-
2025 (5) TMI 1218
Short payment of tax by following realization basis as against the accrual basis prescribed under the POT Rules by comparing the “gross amount billed and “gross amount received” as reflected in the ST 3 returns of the Appellant - short-payment of tax based on an improper comparison of select GL Codes appearing in the Trial Balance of the Appellant vis-à-vis the income reflected in the ST 3 returns for the relevant period.
Short payment of tax by following realization basis as against the accrual basis prescribed under the POT Rules by comparing the “gross amount billed and “gross amount received” as reflected in the ST 3 returns of the Appellant - HELD THAT:- On going through the finding recorded by the learned Tribunal, it is found that the learned Tribunal has examined the factual position and observed that the adjudicating authority has not given any finding contrary to the reconciliation report submitted by the assessee. Furthermore, the Department has not produced any other evidence to substantiate short payment of further demand on this count and only a sum of Rs. 18,128/- needs to be confirmed on this score which is the demand of service tax payable under the category ‘Business Auxiliary Service’ and the remaining demand was set aside.
On perusal of the adjudication order, it is found that the assessee was issued a show cause notice for which the assessee submitted their reply and the adjudicating authority disagreed in arriving at a taxable value of the issue and to remove the same the adjudicating authority decided to appoint a registered chartered accountant under Section 72A of the Finance Act, 1994 to justify the veracity of the allegation. Accordingly, a chartered accountant was appointed and the terms of reference were specified in the order passed by the adjudicating authority.
Short payment of tax based on improper comparison of select G.L. Codes appearing in the Trial Balance of the assessee vis-à-vis the income reflected in the ST 3 returns for the relevant period - HELD THAT:- The learned Tribunal on this issue observed that the assessee has submitted a detailed reconciliation report duly certified by the chartered accountant along with the reply to the show cause notice and upon perusal of the report the Tribunal was satisfied that there was no difference in the income reflected in the Trial Balance and the income reflected in the ST 3 returns and also pointed out that the adjudicating authority has not given any finding on the return in the order of adjudication. This aspect also is entirely factual and no substantial question of law arises for consideration. Therefore, the contention of the revenue that the order passed by the learned Tribunal suffers from perversity and does not fit for acceptance.
In the facts and circumstances of the case on hand, there was no material brought on record by the adjudicating authority to establish that the assessee had made willful mis-statement and suppressed the material facts with an intent to evade payment of tax.
Conclusion - i) The adjudicating authority failed to discharge its burden of proof regarding short payment of service tax on both issues (no.3 and no.4). The Tribunal's reliance on the reconciliation report certified by the assessee's Chartered Accountant was justified due to the absence of contrary evidence or reasoned findings by the adjudicating authority, including disregard of the Special Audit Report without explanation. ii) The adjudicating authority's failure to examine and give reasons on the Special Audit Report amounted to a breach of procedural fairness and natural justice.
Thus, no question of law much less substantial question of law arises for consideration in this appeal - appeal dismissed.
-
2025 (5) TMI 1217
Clandestine removal - Central Excise duty evasion of Polyester Texturised Yarn (PTY), which was manufactured and cleared by M/s Bhagyashali Textile Mills (P) Limited through the warehouse of the appellant, by misdeclaration and undervaluation - imposition of penalty under Rule 209A of the Central Excise Rules, 2004 - period of dispute relates to financial years 1997-98, 1998-99 - HELD THAT:- From plain reading of the legal provisions under the Central Excise Act, 1944 and the Central Excise Rules, 1944, it is clear that a penalty may be imposed on any person under Rule 209A ibid, if it is established that in relation to ‘excisable goods’ which are liable to confiscation under Rule 173Q ibid or Rule 209A ibid, such a person had knowledge or had reason to believe, that any act or omission to do an act by him, would enable violation of Central Excise statute, and would lead to confiscation of such excisable goods. In fact, the appellant is the warehouse operator, and had actually stored the excisable goods manufactured by BTMPL before its delivery to the customers of BTMPL, on the basis of Delivery Orders and Central Excise Invoices issued by BTMPL.
Thus, it is not the case of the Revenue, that in the factual matrix of the present case, that the impugned excisable goods were clandestinely removed by the appellant, or that the appellant is in any way concerned with preparation of documents for undervaluation or misdeclaration of the excisable goods alleged to have been removed clandestinely without payment of appropriate central excise duty.
The appellant held no responsibility for the warehoused goods, and in the event of theft or fire, it is the responsibility of the manufacturer BTMPL, and accordingly the goods were insured by themselves. Upon receipt of the PTY/goods from BTMPL for warehousing/storage in their godowns, they use to enter the receipt of materials in general ledger book and prepare Goods Receipt Notes (GRNs), copies of which were given to the manufacturer/BTMPL.
The appellant was unaware of the exact quality/description of the goods and followed the numbers printed/written on the bags/carton by BTMPL for re-cognising the identity of the goods and for its delivery, in providing warehousing and storage facility to BTMPL. Further, it is found that there is no specific finding given in the impugned order, for proving that the appellant having been done an act or omitted to have done certain act, or having a reasonable belief or understanding that such action done or omitted to have been done by him would lead to confiscation of impugned goods. From the above factual position, the penalty under Section 209A ibid cannot be imposed on the appellant.
The SCN did not propose for confiscation of the seized goods under panchanama dated 07.07.1999, which was subsequently released provisionally upon execution of bond and bank guarantee by BTMPL, and the learned Commissioner also did not confiscate the impugned goods. In the absence of confiscation of goods in the impugned order under Rule 173Q ibid or Rule 209 ibid, which are alleged to have been undervalued and clandestinely removed, it is not feasible to fasten the liability on the appellant on the ground that they had knowledge of such goods being liable to confiscation, when those were stored in their warehouse on behalf of BTMPL - imposition of penalty under Rule 209A ibid without providing such an important ingredient of the existence of knowledge on the part of the appellant or reasonable ground to believe that their act of storage/warehousing would lead to confiscation of impugned goods does not have the sanction of law and thus, to this extent the impugned order imposing penalty under Rule 209A of the Central Excise Rules, 1944 on the appellant, is not legally sustainable.
Further, in the case R.C.Jain [2014 (12) TMI 1223 - CESTAT AHMEDABAD] the Co-ordinate Bench of this Tribunal have held that the penalty under Section 112(b) of the Customs Act, 1962 and Rule 209A of the Central Excise Rules, 1944 is not sustainable in the absence of establishing that the appellant was aware for forgery or fake nature.
It is found that in the case Nirmal Transports [2011 (1) TMI 758 - CESTAT, MUMBAI] the Coordinate Bench of this Tribunal have held that the penalty under Rule 209A of the Central Excise Rules, 1944 is not imposable on mere allegation and the act of aiding and abetting of the appellant is to be proved by the department.
The impugned order imposing penalty on the appellant under Rule 209A of the Central Excise Rules, 1944, is not legally sustainable.
Conclusion - i) Penalty under Rule 209A of the Central Excise Rules, 1944 cannot be imposed unless it is established that the person had knowledge or had reason to believe that the goods were liable to confiscation under the Act or Rules. ii) In the absence of confiscation of goods or evidence of knowledge or intent, imposition of penalty under Rule 209A is not legally sustainable. iii) Mere allegation or suspicion of aiding and abetting evasion without concrete evidence is insufficient for penalty.
The impugned order dated 31.12.2012 to the extent it had imposed penalty on the appellant is set aside and the appeal is allowed in favour of the appellant.
-
2025 (5) TMI 1216
Benefit of concessional rate of excise duty under Notification No. 01/2011-C.E. dated 01.03.2011 and Notification No. 16/2012-C.E. dated 17.03.2012 - Bamboo Mat Corrugated Sheets - Bamboo Mat Ridge Caps - invocation of extended period of limitation - HELD THAT:- It is observed that concessional rate of duty @1% and 2% has been provided for the goods “Resin Bonded Bamboo Mat Board, with or without veneer in between” vide N/N. 01/2011-C.E. dated 01.03.2011 (Sl. No. 52) and N/N. 16/2012-C.E. dated 17.03.2012.
“Bamboo Mat Board”, “Bamboo Mat Corrugated Sheets” and “Bamboo Mat Ridge Caps” are all identical products and classifiable under the same heading of 4412 1000 of the Tariff. In this regard, it is observed that N/N. 01/2011-C.E. dated 01.03.2011 and Notification No. 16/2012-C.E. dated 17.03.2012 fixes the rate of duty for “Resin Bonded Bamboo Mat Board, with or without veneer in between” initially to 1% and later, to 2% and there is no separate Notification for Bamboo Mat Corrugated Sheets and Bamboo Mat Ridge Caps as the nature of these products are almost identical. The raw materials and the process of manufacture is also same for all the three products.
The “Bamboo Mat Corrugated Sheets” and “Bamboo Mat Ridge Caps” manufactured by the appellant are also required to be clubbed along with “Resin Bonded Bamboo Mat Board, with or without veneer in between”. Accordingly, all the three products manufactured by the appellant would be eligible for the benefit of concessional rate of duty as provided under N/N. 01/2011-C.E. dated 01.03.2011 and N/N. 16/2012-C.E. dated 17.03.2012. Thus, the demands confirmed in the impugned orders by denying the concessional rates of duty in respect of the two products namely “Bamboo Mat Corrugated Sheets” and “Bamboo Mat Ridge Caps" is legally not sustainable and hence we set aside the same.
Since the demand of Central excise duty is not sustainable, the question of demanding interest and imposing penalties does not arise.
Time limitation - Suppression of facts or not - HELD THAT:- It is observed that the various letters have been sent by the appellant to the Revenue and no information has been suppressed by them from the Department with the intent to evade payment of duty. Therefore, since the appellant was always in correspondence with the Department and have time and again sought clarification, we are of the view that there has been no suppression of facts on the part of the appellant in this case. Hence, the demand confirmed in the first Show Cause Notice dated 09.07.2015 by invocation for the extended period of limitation is not sustainable - the demands confirmed by invoking the extended period of limitation are not sustainable.
Conclusion - i) The benefit of concessional rate of duty provided under N/N. 01/2011-C.E. dated 01.03.2011 and N/N. 16/2012-C.E. dated 17.03.2012at the rates of 1% and 2% respectively are available to all the three products viz. “Bamboo Mat Board”, “Bamboo Mat Corrugated Sheets” and “Bamboo Mat Ridge Caps” during the periods under dispute. Hence, the demands confirmed in the impugned orders are not sustainable and accordingly, the same is set aside. ii) Since the demands against the appellant are not sustainable, the demand of interest and imposition of penalties thereon are also not sustainable and consequently, the same are set aside.
The impugned order set aside - appeal allowed.
-
2025 (5) TMI 1215
Demand made in Form GST APL 04 - challenged the order under Section 107 of the CGST/WBGST Act, 2017 - mandate of Section 112 (8) - HELD THAT:- Since the petitioner has been able to make out a prima facie case and having regard to the mandate of Section 112 (8) of the said Act, the petitioner should be directed to deposit 10% of the remaining amount of tax in dispute in addition to the amount already deposited under Section 107(6) of the said Act.
There shall be an unconditional stay of the demand made in Form GST APL 04 dated 9th December, 2024, for a period of four weeks from date.
In the event, the petitioner deposits 10% of the balance amount of tax in dispute, in addition to the amount already deposited in terms of Section 107(6) of the said Act, within four weeks from date, the interim order passed herein, shall continue till the disposal of the writ petition or until further order whichever is earlier.
-
2025 (5) TMI 1214
Best judgment assessment - non- issuance of notice under Section 46 of GST - no opportunity of hearing - Violation of principles of natural justice - sine qua non for exercising the power under Section 62 - HELD THAT:- On a plain reading of the provisions, it is clear that if a person fails to furnish the return, it is incumbent upon the assessing authority to serve notice under Section 46 of GST Act and in the event, he fails to file the return even after the notice, recourse to Section 62 of GST Act is available. It is also clear that even while exercising the power vested by virtue of Section 62, it is incumbent upon the assessing authority to take into account all the relevant material which are available or which have been gathered, thus, it is clear that the order under Section 62 of GST Act is to be based upon some material. In the present case, there is no mention that a notice under Section 46 of GST Act was served upon the petitioner. Even, the order under Section 62 of GST Act does not reflect any material based upon which the assessment has been finalized.
Finding the order to be contrary to the mandate of Section 46 of GST Act as well as lacking in reasonings which are sine qua non for exercising the power under Section 62 of GST Act, both the orders i.e. 27.08.2019 & 29.01.2025 cannot be sustained and are quashed.
-
2025 (5) TMI 1213
Extension of time limit of issuance of Show Cause Notice SCN) u/s 73 / 74 - Validity and vires of Notification No. 9/2023-Central Tax and Notification No. 9/2023-State Tax - procedural requirements under Section 168A for prior to the issuance of notifications - Challenging the SCN and impugned order - HELD THAT:- On a perusal of the reply to the Show Cause Notice dated 24th November, 2023, it would show that various grounds have been raised by the Petitioner which have not been considered in the impugned order at all.
Accordingly the matter is remanded for fresh adjudication by the Adjudicating Authority.
It is however made clear that the issue in respect of the validity of the impugned notifications is left open. Any order passed by the Adjudicating Authority shall be subject to the outcome of the decision of the Supreme Court in M/s HCC-SEW-MEIL-AAG JV v. Assistant Commissioner of State Tax & Ors. and of this Court in Engineers India Limited v. Union of India & Ors [2025 (4) TMI 60 - SC ORDER] qua the State notification.
Accordingly, the impugned order is set aside.
The reply filed by the Petitioner dated 24th November, 2023, along with the submissions made by the Petitioner in the personal hearing shall be considered before passing the fresh order.
All the rights and remedies of the parties are left open. Access to the GST Portal, if not already available, shall be ensured to be provided to the Petitioner to enable access to the notices and related documents.
Petition is disposed of in these terms.
-
2025 (5) TMI 1212
Extension of time limit of issuance of SCN u/s 73 / 74 - Violation of the principles of natural justice - validity and vires of Notification Nos. 56/2023-Central Tax, 9/2023-Central Tax, 56/2023-State Tax, and 9/2023-State Tax - procedural requirements under Section 168A for prior to the issuance of notifications - No opportunity to file a reply to the SCN - Challenging the SCN and impugned order - HELD THAT:- This Court is of the opinion that since the Petitioner has not been afforded an opportunity to file a reply and to be heard and the consequent impugned order have been passed without hearing the Petitioner, an opportunity ought to be afforded to the Petitioner to contest the matter on merits.
Accordingly, the impugned order is set aside. The Petitioner is granted time till 10th July 2025, to file the reply to SCN. Upon filing of the reply, the Adjudicating Authority shall issue a notice for personal hearing to the Petitioner.
The reply filed by the Petitioner to the SCN along with the submissions made in the personal hearing proceedings shall be duly considered by the Adjudicating Authority and fresh order with respect to the SCN shall be passed accordingly.
However, it is made clear that the issue in respect of the validity of the impugned notifications is left open. Any order passed by the Adjudicating Authority shall be subject to the outcome of the decision of the Supreme Court in M/s HCC-SEW-MEIL-AAG JV v. Assistant Commissioner of State Tax & Ors. and of this Court in Engineers India Limited v. Union of India & Ors. [2025 (4) TMI 60 - SC ORDER].
All rights and remedies of the parties are left open. Access to the GST Portal, shall be provided to the Petitioner to enable uploading of the reply as also access to the notices and related documents.
The present writ petition is disposed of in above terms.
-
2025 (5) TMI 1211
Extension of time limit of issuance of SCN u/s 73 / 74 - Validity and vires of Notification No. 9/2023-Central Tax and Notification No. 9/2023-State Tax - procedural requirements under Section 168A for prior to the issuance of notifications - cancellation of registration retrospectively - No knowledge of the issuance of SCN - Challenging the SCN and impugned order - HELD THAT:- Clearly, there has been a miscommunication in this matter as the Petitioner did not have access to the GST portal at the time when the SCN was issued. The Petitioner shall, accordingly, be given access to the portal for a period of at least two months.
The impugned order is set aside. The Petitioner is granted time till 10th July 2025, to file the reply to SCN. Upon filing of the reply, the Adjudicating Authority shall issue a notice for personal hearing to the Petitioner.
The reply filed by the Petitioner to the SCN along with the submissions made in the personal hearing proceedings shall be duly considered by the Adjudicating Authority and fresh order with respect to the SCN shall be passed accordingly.
However, it is made clear that the issue in respect of the validity of the impugned notifications is left open. Any order passed by the Adjudicating Authority shall be subject to the outcome of the decision of the Supreme Court in M/s HCC-SEW-MEIL-AAG JV v. Assistant Commissioner of State Tax & Ors. and of this Court in Engineers India Limited v. Union of India & Ors.[2025 (4) TMI 60 - SC ORDER].
All rights and remedies of the parties are left open. Access to the GST Portal, shall be provided to the Petitioner to enable uploading of the reply as also access to the notices and related documents.
The present writ petition is disposed of in above terms.
-
2025 (5) TMI 1210
Extension of time limit of issuance of SCN u/s 73 / 74 - Validity and vires of Notification No. 9/2023-Central Tax and Notification No. 9/2023-State Tax - procedural requirements under Section 168A for prior to the issuance of notifications - Excess availment of Input Tax Credit (ITC) - Challenging the SCN and impugned order - HELD THAT:- Considering the fact that the Petitioner has already been relegated to avail of the appellate remedy during the pendency of the challenge to the impugned notifications, and bearing in mind the recent order of the Supreme Court, this Court is of the opinion that the appeal filed by the Petitioner shall now be adjudicated on merits and shall not be dismissed on the ground of limitation.
However, it is made clear that the issue in respect of the validity of the impugned notifications is left open. Any order passed by the appellate authority shall be subject to the outcome of the decision of the Supreme Court in M/s HCC-SEW-MEIL-AAG JV v. Assistant Commissioner of State Tax & Ors. and of this Court in Engineers India Limited v. Union of India & Ors.[2025 (4) TMI 60 - SC ORDER].
The present petition is disposed of in said terms.
-
2025 (5) TMI 1209
Extension of time limit of issuance of SCN u/s 73 / 74 - Seeking amendment of the petition - validity of Notification No. 56/2023-Central Tax and Notification No. 09/2023-Central Tax - procedural requirements under Section 168A for prior to the issuance of notifications - Challenging the SCN and impugned order - HELD THAT:- This Court is of the opinion that since the Petitioner has been unable to file a reply as at the relevant point in time, the Petitioner had challenged the SCN itself along with the Notifications, one opportunity can be given to the Petitioner to file a reply and to contest the matter on merits.
Accordingly, the impugned order is set aside. The Petitioner is granted time till 10th July 2025, to file the reply to SCN. Upon filing of the reply, the Adjudicating Authority shall issue a notice for personal hearing to the Petitioner.
The reply filed by the Petitioner to the SCN along with the submissions made in the personal hearing proceedings shall be duly considered by the Adjudicating Authority and fresh order with respect to the SCN shall be passed accordingly.
However, it is made clear that the issue in respect of the validity of the impugned notification is left open. Any order passed by the Adjudicating Authority shall be subject to the outcome of the decision of the Supreme Court in M/s HCC-SEW-MEIL-AAG JV v. Assistant Commissioner of State Tax & Ors. [2025 (4) TMI 60 - SC ORDER].
All rights and remedies of the parties are left open. Access to the GST Portal shall be provided to the Petitioner to enable uploading of the reply as also access to the notices and related documents.
The present writ petition is disposed of in above terms.
-
2025 (5) TMI 1208
Extension of time limit of issuance of SCN u/s 73 / 74 - Validity and vires of Notification No. 56/2023-Central Tax and Notification No. 09/2023-Central Tax - procedural requirements under Section 168A for prior to the issuance of notifications - No knowledge of the issuance of SCN - Challenging the SCN and impugned order - HELD THAT:- There is no doubt that after 16th January 2024, changes have been made to the GST portal and the ‘Additional Notices Tab’ has been made visible. However, in the present case, since the SCNs were issued on 24th December, 2023, the same were uploaded on the ‘Additional Notices Tab’. Thus, considering the fact that the Petitioner did not get a proper opportunity to be heard and no reply to the SCNs has been filed by the Petitioner, the matter deserves to be remanded to the concerned Adjudicating Authority.
Accordingly, the impugned order is set aside. The Petitioner is granted time till 10th July 2025, to file the reply to SCNs. Upon filing of the reply, the Adjudicating Authority shall issue a notice for personal hearing to the Petitioner.
The reply filed by the Petitioner to the SCNs along with the submissions made in the personal hearing proceedings shall be duly considered by the Adjudicating Authority and fresh order with respect to the SCNs shall be passed accordingly.
However, it is made clear that the issue in respect of the validity of the impugned notifications is left open. Any order passed by the Adjudicating Authority shall be subject to the outcome of the decision of the Supreme Court in M/s HCC-SEW-MEIL-AAG JV v. Assistant Commissioner of State Tax & Ors.[2025 (4) TMI 60 - SC ORDER].
All rights and remedies of the parties are left open. Access to the GST Portal, shall be provided to the Petitioner to enable uploading of the reply as also access to the notices and related documents.
The present writ petition is disposed of in above terms.
-
2025 (5) TMI 1207
Extension of time limit of issuance of SCN u/s 73 / 74 - validity and vires of Notification No. 56/2023-Central Tax, Notification No. 9/2023-Central Tax, and Notification No. 9/2023-State Tax - procedural requirements under Section 168A for prior to the issuance of notifications - No knowledge of the issuance of SCN - Challenging the SCN and impugned order - HELD THAT:- There is no doubt that after 16th January 2024, changes have been made to the GST portal and the ‘Additional Notices Tab’ has been made visible. However, in the present case, the writ petition was filed in the year 2024, raising issues as to the validity of the impugned notifications. Under such circumstances, considering the fact that the Petitioner did not get a proper opportunity to be heard and no reply to the SCN has been filed by the Petitioner, the matter deserves to be remanded back to the concerned Adjudicating Authority.
Accordingly, the impugned order is set aside. The Petitioner is granted time till 10th July 2025, to file the reply to SCN. Upon filing of the reply, the Adjudicating Authority shall issue a notice for personal hearing to the Petitioner.
The reply filed by the Petitioner to the SCN along with the submissions made in the personal hearing proceedings shall be duly considered by the Adjudicating Authority and fresh order with respect to the SCN shall be passed accordingly.
However, it is made clear that the issue in respect of the validity of the impugned notifications is left open. Any order passed by the Adjudicating Authority shall be subject to the outcome of the decision of the Supreme Court in M/s HCC-SEW-MEIL-AAG JV v. Assistant Commissioner of State Tax & Ors. and of this Court in Engineers India Limited v. Union of India & Ors.[2025 (4) TMI 60 - SC ORDER].
All rights and remedies of the parties are left open. Access to the GST Portal, shall be provided to the Petitioner to enable uploading of the reply as also access to the notices and related documents.
The present writ petition is disposed of in above terms.
-
2025 (5) TMI 1206
Extension of time limit of issuance of SCN u/s 73 / 74 - Validity of Notification No. 56/2023-Central Tax as also the Notification No. 56/2023-State Tax - procedural requirements for compliance of signature and opportunity of hearing - Challenging the SCN and impugned order -HELD THAT:- In cases where the challenge is to the parallel State Notifications, the same have been retained for consideration by this Court. The lead matter in the said batch in Engineers India Limited v. Union of India & Ors. [2025 (4) TMI 60 - SC ORDER].
The Show Cause Notice as also the impugned order are not signed by the concerned authority and hence, the same are not valid. Further, an opportunity to file a reply has not been granted to the Petitioner.
Considering the fact that the Petitioner was not granted a proper opportunity to be heard, in the opinion of the Court, the matter deserves to be remanded back to the concerned Adjudicating Authority.
However, it is again made clear that the issue in respect of validity of the impugned notifications is left open and the order of the Adjudicating Authority shall be subject to the outcome of the decision of the Supreme Court and this Court.
Petition is disposed of in these terms. All pending applications are also disposed of.
-
2025 (5) TMI 1205
Extension of time limit of issuance of SCN u/s 73 / 74 - validity of Notification No. 56/2023-Central Tax - procedural requirements under Section 168A for prior to the issuance of notification - No opportunity of personal hearing - Challenging the SCN and impugned order - HELD THAT:- In view of the fact that the Petitioner did not avail of the opportunity of personal hearing, the Petitioner is permitted to file an appeal by 10th July, 2025 along with pre-deposit.
However, it is made clear that the issue in respect of the validity of the impugned notifications is left open. Any order passed by the Appellate Authority shall be subject to the outcome of the decision of the Supreme Court in M/s HCC-SEW-MEIL-AAG JV v. Assistant Commissioner of State Tax & Ors. [2025 (4) TMI 60 - SC ORDER].
All rights and remedies of the parties are left open. Access to the GST Portal, if not already available, shall be ensured to be provided to the Petitioner to enable access to the notices and related documents.
Petition is disposed of in these terms.
-
2025 (5) TMI 1204
Seeking to avail appellate remedy under Section 107 - Extension of time limit of issuance of SCN u/s 73 / 74 - Validity of Notification No. 9/2023-Central Tax, Notification No. 56/2023-Central Tax - procedural requirements under Section 168A for prior to the issuance of notifications - No opportunity to appear - violation of the principles of natural justice - Challenging the SCN and impugned order -HELD THAT:- A perusal of the record would show that the Petitioner has thereafter, filed a reply on 28th October, 2023. In fact, the Petitioner has relied on various documents in the reply. Further, the Petitioner has been given an opportunity to appear and subsequently, his accountant had appeared in the matter on 24th December, 2023. Considering these circumstances, the impugned order has been passed.
The above order is a reasoned order.
Thus, in the opinion of the Court, this is a fit case for permitting the Petitioner to avail of the appellate remedy under Section 107 of the Central Goods and Service Tax Act, 2017 – albeit belatedly.
Let an appeal be filed by 10th July, 2025 with pre-deposit. If the same is filed within the stipulated date, it would not be dismissed on ground of limitation and the same shall be heard on merits.
However, it is made clear that the issue in respect of the validity of the impugned notifications is left open. Any order passed by the Adjudicating Authority shall be subject to the outcome of the decision of the Supreme Court in M/s HCC-SEW-MEIL-AAG JV v. Assistant Commissioner of State Tax & Ors.[2025 (4) TMI 60 - SC ORDER].
Petition is disposed of in these terms.
-
2025 (5) TMI 1203
Extension of time limit of issuance of SCN u/s 73 / 74 - Validity of Notification No. 56/2023-Central Tax - procedural requirements under Section 168A for prior to the issuance of notification - Challenging the SCN and impugned order -HELD THAT:- Considering the fact that the Petitioner has not been granted a proper opportunity to be heard, in the opinion of the Court, the matter deserves to be remanded back to the concerned Adjudicating Authority. Let a reply be filed by 10th July, 2025.
However, it is made clear that the issue in respect of the validity of the impugned notifications is left open. Any order passed by the Adjudicating Authority shall be subject to the outcome of the decision of the Supreme Court in M/s HCC-SEW-MEIL-AAG JV v. Assistant Commissioner of State Tax & Ors.[2025 (4) TMI 60 - SC ORDER].
All the rights and remedies of the parties are left open. Access to the GST Portal, if not already available, shall be ensured to be provided to the Petitioner to enable filing of reply and access to the notices and related documents.
Accordingly, the impugned order is set aside and the petition is disposed of in these terms.
............
|
9911796707
