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Showing 241 to 260 of 1740 Records
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2024 (9) TMI 1502
Rejection of Extra Duty Deposit (EDD) paid by the petitioner as refund claim - time barred in terms of Section 27 of the Customs Act, 1962 - HELD THAT:- There is no justification in the impugned order passed by the respondent rejecting the request of the petitioner for refund of the amount paid by the petitioner pursuant to Circular No.11/2001-Cus dated 23.02.2001 of the Central Board of Indirect Taxes.
The amount that was collected by the Assessing Officer in view of the Special Valuation Branch (SVB) proceedings are nothing to deposit and not a customs duty as is contemplated under Section 12 of the Customs Act, 1962, although such deposit were eligible to be appropriated towards the duty liability of the petitioner after final assessment of the Bill of Entry - As such, amount that has been calculated over and above the tax duty payable by the petitioner is to be refunded back only after the Bill of Entries filed are finally assessed and assessment is completed. Needless to state, such refund will be subject to the petitioner satisfying that there will be no unjust enrichment on account of refund in terms of Section 27 of the Customs Act, 1962.
The impugned order is set aside with consequential relief. The respondents are directed to complete the proceedings within a period of six months from the date of receipt of a copy of this order - Petition allowed.
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2024 (9) TMI 1501
Levy of Customs duty on imported goods destroyed in fire in SEZ units - procurement of duty free goods indigenously by availing exemption in terms of various provisions goods under the SEZ Act, 2005 and SEZ Rules, 2006 - the subject goods for authorized operations not used thereby violating the said provisions - Seeking remission of customs duty - HELD THAT:- This Tribunal has taken a consistent view that in case of any destruction due to natural cause in the SEZ, the SEZ unit is entitled for the remission of duty in terms of Section 23 of Customs Act, 1962. Therefore, as of now there is no dispute on the legal issue that the SEZ unit is eligible for the remission of the customs duty in case the goods is destroyed in the SEZ unit. However, the appellant have not opted for the remission of duty by filing appropriate application before the competent authority.
Therefore, for this limited purpose, the matter needs to be remanded to the Adjudicating Authority. Liberty is granted to the appellant to file an appropriate application in terms of Section 23 of the Customs Act, 1962 and rules made thereunder , if any, along with all the relevant documents for seeking remission of duty which shall be disposed of by the competent authority in accordance with law.
The impugned order is set aside - Appeal is allowed by way of remand to the adjudicating authority for passing a fresh order after observance of principles of natural justice.
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2024 (9) TMI 1500
Maintainability of amended petition filed by the Respondent without a formal application for amendment - fresh petition in the guise of an amendment - complete redraft of the original petition with additional grounds - HELD THAT:- The amendments were substantial in nature though the learned counsel for the Respondent alleges it to be mere explanatory. Admittedly new reliefs have been added in the amended petition as also a new party being impleaded. Further the additional acts of oppression have also been added for which, of course, an opportunity ought to have been granted to the appellant to rebut such a move.
In Aurosagar Estates Private Limited and Ors Vs M.C. Davar Holdings Private Ltd [2017 (8) TMI 867 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, MUMBAI] this Tribunal held 'as the amendment sought with regard to a fresh cause of action which has taken place more than three years back on 15th October, 2012, prayer made in amendment petition being barred by limitation, the Tribunal was not competent to allow the amendment.'
Thus, for such substantial amendments, an application ought to have been moved with such proposed amendments and with a liberty to the appellants to rebut such proposed amendments and only thereafter, the amended petition ought to have been brought on record. The impugned order does not adhere to the principles of natural justice as it did not give an opportunity of being heard to the appellant - appeal disposed off.
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2024 (9) TMI 1499
Commercial transactions undertaken by and between private entities involving acquisition of shares of a life insurance company - Allegations of fraudulent acts and undue profits made by certain entities in the purchase and sale of equity shares of a life insurance company - HELD THAT:- This Court is of the view that where a field is regulated and where an appropriate regulator has either already taken note of and addressed the transaction or is investigating the said transaction, the Court in writ jurisdiction should not interfere. In such a situation, the regulator must be allowed to do its job.
Writ of Mandamus being a public law remedy may be issued against a private body discharging public functions, however, it cannot be used for enforcement of purely private contracts between parties.
The tendency to examine commercial transactions from the perspective of reasonableness in Article 226 jurisdiction is to be eschewed as it would make every valuation, sale, purchase of shares or property or every merger, acquisition, de-merger, subject to judicial review.
If according to the petitioner, there is a criminality involved in the aforementioned transactions, as seems to be unarticulated submission, the petitioner is always at liberty to file appropriate proceedings in accordance with law.
This Court also finds that though a personal allegation has been made against Chairperson SEBI, yet neither the writ petition has been amended nor she has been impleaded as a respondent. This Court is of the view that even if the Chairperson of SEBI has had a professional relationship with Max group in the past, it will not take away the Regulator’s obligation and duty to decide the matter in accordance with law. Also, if the final decision of SEBI is in any manner influenced or affected because of the alleged erstwhile professional relationship of its Chairperson, the Petitioner shall surely be entitled to agitate the said ground at that stage.
Consequently, keeping in view the fact that the Petitioner challenges private commercial transactions between commercial entities as well as the fact that shareholders of the public limited company have approved the transactions and in addition insurance and banking sectors are regulated and the independent sectoral regulators, namely, SEBI and RBI are seized of the controversy, this Court is of the view that it should not act as a ‘super regulator’ and interfere in exercise of Article 226 jurisdiction.
Accordingly, this Court disposes of the present writ petition with a direction to SEBI and RBI to complete the investigation as expeditiously as possible. If, after completion of any investigation, any further action is required to be taken, the same shall be taken by independent sectoral regulators in accordance with law.
This Court clarifies that the rights and contentions of all the parties are left open including with regard to the locus standi of the Petitioner and maintainability of the present writ petition.
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2024 (9) TMI 1498
Maintainability of petition filed under Section 7 of the IBC, 2016 - dismissal on the ground that there is no evidence to show the loan given to the Corporate Debtor was due and payable - no record of default or demand letter placed by the Financial Creditor to show debt and default - failure of settlement between the parties - HELD THAT:- The Tribunal was prima facie satisfied the debt is due and not paid on demand, the application needs to be admitted unless it is incomplete, in which case, a notice to be given to the applicant to rectify the defects within seven days of receipt of notice from the Adjudicating Authority, per Innoventive Inds Ltd [2017 (9) TMI 58 - SUPREME COURT]. In Shobhnath & Ors Vs Prism Industrial Complex Ltd [2019 (8) TMI 1700 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI], this Tribunal held the Adjudicating Authority is only required to ensure there is a debt and default on the basis of the record produced before it.
On perusing the record, Balance Sheets of the corporate debtor as also the legal notice of demand prima facie reveal there is no impediment to admit the petition under Section 7 of the Code against the Respondent/Corporate Debtor.
Matter remanded to the Ld. NCLT to proceed further as per law - appeal allowed.
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2024 (9) TMI 1497
Rejection of bail application - Money Laundering - collection of large amounts by promising job opportunities to several persons in various positions in the Transport Department - offences u/s 120B, 419, 420, 467 and 471 of the Indian Penal Code and Sections 7, 12, 13(2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988 - main document relied upon by the ED showing incriminatory material against the appellant is a part of the pen drive seized by the State police from the appellant's premises in connection with scheduled offences.
HELD THAT:- There is also prima facie material to show a deposit of cash amount of Rs. 1.34 crores in the appellant's bank account. At this stage, the contention of the appellant regarding the deposit of remuneration received as MLA and agriculture income cannot be accepted in the absence of any prima facie evidence to show the existence of the appellant's cash income as MLA and the appellant's agriculture income. Therefore, at this stage, it will be very difficult to hold that there is no prima facie case against the appellant in the complaint under Section 44 (1) (b) of the PMLA and material relied upon therein.
Effect of delay in disposal of cases - HELD THAT:- In the offence under the PMLA, the charge has not been framed. In view of Clause (d) of subsection (1) of Section 44 of PMLA, the procedure for sessions trial will have to be followed for the prosecution of an offence punishable under Section 4 of the PMLA. In view of clause (c) of subsection (1) of Section 44, it is possible to transfer the trial of the scheduled offences to the Special Court under the PMLA.
The existence of a scheduled offence is sine qua non for alleging the existence of proceeds of crime. A property derived or obtained, directly or indirectly, by a person as a result of the criminal activity relating to a scheduled offence constitutes proceeds of crime. The existence of proceeds of crime at the time of the trial of the offence under Section 3 of PMLA can be proved only if the scheduled offence is established in the prosecution of the scheduled offence. Therefore, even if the trial of the case under the PMLA proceeds, it cannot be finally decided unless the trial of scheduled offences concludes. In the facts of the case, there is no possibility of the trial of the scheduled offences commencing in the near future - there are no possibility of both trials concluding within a few years.
There are a few penal statutes that make a departure from the provisions of Sections 437, 438, and 439 of the Code of Criminal Procedure, 1973. A higher threshold is provided in these statutes for the grant of bail - reference made to Section 45 (1) (ii) of PMLA, proviso to Section 43D (5) of the Unlawful Activities (Prevention) Act, 1967 and Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The provisions regarding bail in some of such statutes start with a nonobstante clause for overriding the provisions of Sections 437 to 439 of the CrPC. The legislature has done so to secure the object of making the penal provisions in such enactments. For example, the PMLA provides for Section 45 (1) (ii) as money laundering poses a serious threat not only to the country's financial system but also to its integrity and sovereignty.
Considering the gravity of the offences in such statutes, expeditious disposal of trials for the crimes under these statutes is contemplated. Moreover, such statutes contain provisions laying down higher threshold for the grant of bail. The expeditious disposal of the trial is also warranted considering the higher threshold set for the grant of bail - It is a well-settled principle of our criminal jurisprudence that “bail is the rule, and jail is the exception.” These stringent provisions regarding the grant of bail, such as Section 45 (1) (iii) of the PMLA, cannot become a tool which can be used to incarcerate the accused without trial for an unreasonably long time.
The appellant has been incarcerated for 15 months or more for the offence punishable under the PMLA. In the facts of the case, the trial of the scheduled offences and, consequently, the PMLA offence is not likely to be completed in three to four years or even more. If the appellant's detention is continued, it will amount to an infringement of his fundamental right under Article 21 of the Constitution of India of speedy trial.
The appellant shall be enlarged on bail subject to fulfilment of conditions imposed - appeal allowed.
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2024 (9) TMI 1496
Levy of service tax - renting of immovable property service - Blue Coast sub-leased commercial spaces in the Plaza to the unit holders - marketing and sub-leasing of commercial space in the hotel project of Silver Resort - extended period of limitation - penalty u/s 78A of the Finance Act.
Whether Silver Resort rendered “renting of immovable property service” to the unit holders? - HELD THAT:- The Silver Resort rendered “renting of immovable property service” to the unit holders. Under the said Agreement DIAL granted the exclusive right and authority to Silver Resort to undertake and implement designing, development, financing construction, ownership, operation and maintenance of Asset Area-3 of the IGI Airport. Silver Resort, in turn entered into a JDA with Blue Coast for joint development of the said project. In terms of this JDA, Blue Coast identified interested unit holders and a tripartite agreement was entered between Silver Resort, Blue Coast and the unit holders for grant of leasehold rights to the unit holders of the commercial units. Blue Coast was entitled to receive consideration from the customers in terms of the tripartite agreement, a part of which was shared with Silver Resort in terms of the JDA. It is on such amount received by Silver Resort that the impugned order has confirmed the demand of service tax by holding that Silver Resort provided “renting of immovable property service” to the unit holders.
In HOME SOLUTIONS RETAILS (INDIA) LTD. VERSUS UNION OF INDIA & ORS [2011 (9) TMI 46 - DELHI HIGH COURT], the constitutional validity of sections 65 and 66 of the Finance Act came up for consideration. The larger bench of the Delhi High Court upheld the validity of these two sections. The consequence of termination of the agreement was neither raised nor decided. This decision would, therefore, not help the department - The confirmation of demand of service tax under this part, therefore, cannot be sustained.
Whether any service was provided either by Joy Hotel or Blue coast under “renting of immovable property service” when the lease deed executed between Joy Hotel and the Chandigarh Administration was terminated? - HELD THAT:- In terms of this agreement, Blue Coast identified interested unit holders and a tripartite agreement was entered between Joy Hotel, Blue Coast and the unit holders for the grant of leasehold rights to the unit holders with respect to the commercial units for a consideration. It is on such amount of Rs. 6,50,00,000/- received by Joy Hotel and the consideration received by Blue Coast from the unit holders that the impugned order has confirmed the demand of service tax by holding that Joy Hotel provided “renting of immovable property service” to Blue Coast, and Blue Coast provided “renting of immovable property service” to the unit holders.
In terms of the lease deed entered between Joy Hotel and the Chandigarh Administration, Joy Hotel was required to get the conversion of such land from industrial to commercial. As the conversion fee was not paid, the lease deed was terminated. The lease deed entered between Joy Hotel and the Chandigarh Administration forms the very basis of the entire transaction between Joy Hotel, Blue Coast and the unit holders. It was terminated and so there is no provision of any service between the parties. The advance amount paid by the unit holders in terms of the tripartite agreement was also refunded by Blue Coast in terms of the Settlement Agreement entered between the parties.
Since the lease deed with the Chandigarh Administration has been terminated, subsequent agreements such as agreement between Joy Hotel and Blue Coast, and the tripartite agreement with the unit holders also stands repudiated. The question of rendition of any service by Joy Hotel or Blue Coast does not, therefore, arise. The confirmation of the demand in the impugned order under this part is, therefore, liable to be set aside.
The impugned order dated 20.06.2016 is liable to be set aside and is set aside - Appeal allowed.
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2024 (9) TMI 1495
100% EOU - Rejection of refund of CENVAT credit - barred by time under section 11B of the Central Excise Act, 1944 - HELD THAT:- The SCN alleges that the documents submitted by the appellant are not sufficient to determine the nature of the service provided and that the “input services” were not used for “output services”. The Assistant Commissioner found as a fact that the appellant had produced all the relevant documents, because it is for this reason that the claim of Rs. 21,901/- was sanctioned to the appellant. The remaining amount would also have been sanctioned, but for the fact that it was found that the claim was made beyond the time prescribed and was, therefore, barred by time. Thus, it follows that the claim has been rejected on a ground not stated in the show cause notice.
The Assistant Commissioner has rejected the refund claim filed by the appellant by calculating the time limit of one year from the date of invoice of the “input services” procured by the appellant. It has been repeatedly held that the relevant date under section 11B of the Central Excise Act for calculating the time limit of one year is the date of receipt of payment for export of services. The Notification dated 14.03.2006, under which the refund was claimed by the appellant, also prescribes that the refund application should not be filed more than once for every quarter in a calendar year.
A larger bench of the Tribunal in Span Infotech [2018 (2) TMI 946 - CESTAT BANGALORE] examined the issue of limitation in the content of ‘export of service’ and held that it has to be calculated from the last date of quarter in which the FIRC’s are received.
The Commissioner (Appeals), however, upheld the view taken by the Assistant Commissioner that the time limit of the one year has to be calculated from the date of invoice when the “input services” were procured by the appellant - In view of the decision of the larger bench of the Tribunal in Span Infotech, it will not be possible to sustain this view.
The impugned order dated 09.08.2012 passed by the Commissioner (Appeals), therefore, deserves to be set aside and is set aside - Appeal allowed.
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2024 (9) TMI 1494
Levy of service tax with interest and penalty - banking and other financial services provided by the appellant to the associate enterprise - giving corporate guarantees to various banks/financial institutions on behalf of the associate enterprises for their loan/overdraft facility - HELD THAT:- It is not in dispute that such corporate guarantees were provided by the appellant without any consideration. This is also clear from the SCN which mentions that no commission or interest or fee was charged by the appellant from the associate enterprises for providing corporate guarantee.
This issue has now stand settled by a decision of the Tribunal in COMMISSIONER OF CGST & CENTRAL EXCISE MUMBAI EAST VERSUS EDELWEISS FINANCIAL SERVICES LTD [2022 (2) TMI 1359 - CESTAT MUMBAI]. The department contended that service tax would be leviable on corporate guarantee given for subsidiary company without any consideration. This contention was not accepted by the Tribunal and it was observed 'Any activity must, for the purpose of taxability under Finance Act, 1994, not only, in relation to another, reveal a 'provider', but also the flow of 'consideration' for rendering of the service. In the absence of any of these two elements, taxability under section 66B of Finance Act, 1994 will not arise. It is clear that there is no consideration insofar as 'corporate guarantee' issued by respondent on behalf of their subsidiary companies is concerned.'
The Civil Appeal filed by the department against the aforesaid order for the Tribunal in Edelweiss Financial Services was dismissed by the Supreme Court and the decision in COMMISSIONER OF CGST AND CENTRAL EXCISE VERSUS M/S EDELWEISS FINANCIAL SERVICES LTD. [2023 (4) TMI 170 - SC ORDER] where it was held that 'No effort was made on behalf of the Revenue to assail the above finding or to demonstrate that issuance of corporate guarantee to group companies without consideration would be a taxable service. In these circumstances, in view of such conclusive finding of both forums, we see no reason to admit this case basing upon the pending Civil Appeal, particularly when it has not been demonstrated that the factual matrix of the pending case is identical to the present one.'
Thus, the impugned order dated 07.12.2018 deserves to be set aside and is set aside - The appeal is, accordingly, allowed.
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2024 (9) TMI 1493
Levy of service tax - operation and maintenance & repair of the Ropeway - Activity of maintenance of the battery-operated vehicle and existing road train and prevailing track in the Science City Authority - Operation and maintenance of external coal handling system - Service tax under Reverse Charge Mechanism on Rent a cab, Security Service, Works Contract Service, Manpower Recruitment Service & Legal Services - Demand of service Tax on the operation and maintenance & repair of the Bridge at Jaleswar - Denial of CENVAT Credit utilized for discharging the Service Tax Liability - non-payment of service tax on advances - Reversal of CENVAT on account of non-payment to supplier/contractor.
Operation and maintenance & repair of the Ropeway - HELD THAT:- It is observed that the appellant was awarded the right to operate and maintain the ropeway for which a license fee was paid to the respective state governments. A perusal of the agreements executed by the appellant with the respective state governments clearly reveal that the appellant operated the Aerial Ropeway by charging value of tickets from the riders of the ropeway. They paid yearly license fee at specific rate to the respective governments of Sikkim and Jharkhand. Rest of the money earned is appropriated by them for operation and maintenance of the said Ropeway - the appellant has rendered the service of transportation of passengers by Rope Way, which has been specifically exempted from payment of service tax. The activities undertaken by the Appellant by way of transportation of passengers by ropeway was not taxable under any of the category under the positive list and was exempted under Serial No. 23(c) of N/N. 25/2012 ST dated 20.06.2012, under the negative list regime - the demands of service tax confirmed on this count are not sustainable.
Activity of maintenance of the battery-operated vehicle and existing road train and prevailing track in the Science City Authority - HELD THAT:- The appellant was entrusted with the task to collect money from the visitors by selling tickets and giving a part of it to Science city authority as royalty. Thus, the money has been collected only for allowing the visitors in to the science city, which is not a taxable service. The said activity was not taxable under any of the category under the positive list and was exempted under Serial No. 23(c) of Notification No.25/2012-ST dated 20.06.2012, under the negative list regime. Accordingly, the demands of service tax confirmed on this count in the both the orders is not sustainable.
Operation and maintenance of external coal handling system - HELD THAT:- The activities of the appellant relating to transportation of coal in a specific manner and at a specific point cannot be considered as infrastructural support and maintenance services. In this regard, reliance placed on the Board Circular No. 232/2/2006 CX 4 dated 12.11.2007, wherein it has been clarified that if transportation of coal is undertaken by mechanical systems, such as ropeway system, no service tax would be chargeable. It is further observed that the appellant started paying service tax w.e.f. 01-07-2012 on the entire activity undertaken by them and have paid Rs.42,95,835/-(through Cash of Rs.36,36,634 and CENVAT Credit of Rs. 6,59,201] out of the total demand of Rs.54,12,061/-. However, the adjudicating authority failed to adjust this amount against the demand confirmed. Since there is no service tax payable for the period prior to 01.07.2012 and appropriate service tax has already been paid by the appellant for the period after 01.07.2012, there is no further liability on the appellant. However, the issue is remanded back to the adjudicating authority for verification and confirmation of payment of Rs.42,95,835/- as claimed by the appellant.
Service tax under Reverse Charge Mechanism on Rent a cab, Security Service, Works Contract Service, Manpower Recruitment Service & Legal Services - HELD THAT:- The appellant claimed that they have already paid the total amount of Service Tax of Rs. 1,45,860/- along with interest of Rs. 44,853/-. It is observed that there is no suppression of facts in this case and the intention to evade payment of tax has not been established. Since the entire demand confirmed in the impugned order is paid along with interest, no penalty imposable on the appellant. Accordingly, the penalty equal to the tax confirmed on this count is set aside.
Demand of service Tax on the operation and maintenance & repair of the Bridge at Jaleswar - HELD THAT:- It is observed that the said service related to maintenance of bridges and thus are exempted from payment of service tax. Accordingly, the demand confirmed on this count is set aside.
Denial of CENVAT Credit utilized for discharging the Service Tax Liability - non-payment of service tax on advances - Reversal of CENVAT on account of non-payment to supplier/contractor - HELD THAT:- It is observed that the appellant has not produced the relevant documents earlier. Now, they claim that they have the documents with them readily and if the issue is remanded back to the adjudicating authority, they will be able to explain the issue. Accordingly, these issues are remanded back to the adjudicating authority for the purpose of verification of the documents and pass an appropriate order regarding eligibility of the credit.
Appeals disposed off.
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2024 (9) TMI 1492
Levy of service tax - Cargo Handling Services - profit margin made on the freight - liability to pay Service Tax on Commission received as an agent - HELD THAT:- These issues stand settled in the appellant’s own case in FLYJAC LOGISTICS VERSUS COMMISSIONER OF GST AND C. EX, CHENNAI SOUTH COMMISSIONERATE [2018 (3) TMI 631 - CESTAT CHENNAI] where in the Tribunal observed 'The impugned order infer that these fees/charges are to be attributed to the ‘Cargo Handling Service’ without identifying the presence of physical handling of cargo by the appellant. We find that there is no evidence to identify the appellant’s activities as “Cargo Handling Agent”. Accordingly, the service tax liability on this account will not survive.'''
Further it was held that 'Regarding tax liability under BAS for incentives received from liners, we note that the matter stand settled by the Tribunal decision in the case of BAX GLOBAL INDIA LTD. VERSUS COMMISSIONER OF SERVICE TAX, CHENNAI [2017 (9) TMI 1264 - CESTAT CHENNAI]. Following the said ratio, we hold that service tax liability of the appellant on this issue cannot sustain.”
The matter stands settled in favour of the appellant, on both the issues with regard to Cargo Handling Services and Business Auxiliary Services, in their own case for the different period. Consequently, the impugned order is set aside and the appeal is allowed.
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2024 (9) TMI 1491
Denial of SSI exemption - denial on the ground that goods cleared by the appellant bore brand name ‘YES’ and ‘SAFE’ and both the brand names are not registered in the name of appellant - penalties.
Denial of SSI exemption - Demand of central excise duty on clearance of mineral water bearing brand name ‘SAFE’ - appellant had contended that the brand “SAFE” was owned by it and it was not owned by any other person - HELD THAT:- The appellant has come out with a categorical case that it purchase the brand “SAFE” from one Abhay Kumar Jain, proprietor of M/s Siddhi Corporation, Jodhpur under a sales agreement dated 06.06.2008.
It is no doubt true that the sales agreement was not registered and that the brand name was not reflected on the site of Trade Make, but the appellant has come out with a case that Siddhi Corporation had not got the brand name registered in its name from the Trade Mark Authority. Merely because the appellant did not get the brand name registered in its own name, it cannot be urged that the exemption cannot be denied for the reason that nothing has been brought on record by the department to show that the brand name is in the name of some other person.
Reference can be made to the decision of the Tribunal in Mukur Pharmaceuticals Co. P. Ltd. vs. Commr. of C.Ex., Chandigarh [2000 (3) TMI 668 - CEGAT, NEW DELHI], wherein it was observed 'The onus of proof is on the department to show that the brand name belongs to another person.'
Confirmation of the demand on mineral water cleared under the brand name ‘YES’ during the period from October, 2014 to August, 2016 - appellant contends that mineral water with ‘YES’ brand was cleared to M/s. Bhagwati Beverages, Jodhpur under an agreement which allows the appellant to process, pack and sell mineral water with brand name ‘YES’ to them alone and not to consumers or in the market - HELD THAT:- M/s. Bhagwati Beverages clearly knew that the brand name did not belong to the appellant and, therefore, the brand name did not in any way indicate any connection in the course of trade between such specified goods and the appellant. According to the appellant, all the packing materials printed with brand name ‘YES’ were provided by M/s. Bhagwati Beverages, who in fact sold such packed goods to the customers who know that they were buying mineral water with the brand name ‘YES’ of M/s. Bhagwati Beverages - appellant would, therefore, be entitled to exemption under the exemption notification dated 01.03.2003.
The penalty imposed upon the appellant or upon Tapan Rai or upon Manju Jain cannot also be sustained.
The impugned order dated 17.05.2019 passed by the Commissioner (Appeals), therefore, deserves to be set aside and is set aside - Appeal allowed.
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2024 (9) TMI 1490
Undervaluation of final product cleared by the appellant - demand based upon the evidences such as the statements of various dealers who had stated that the tiles which are manufactured and cleared by the appellant are sold at a price more than the MRP/RSP declared on such tiles - HELD THAT:- The orders impugned in the instant case were similar in the case to the orders impugned in the cases decided in the decision of Acme Ceramics [2014 (3) TMI 164 - CESTAT AHMEDABAD]. When the matter came up before this bench, the aforesaid decision of Tribunal in the case of Acme Ceramics was doubted and the matter was referred to the Larger Bench - the Larger Bench held that 'It is not permissible to ascertain the retail sale price of goods removed from the place of manufacture, without declaring the retail sale price of such goods on the packages or declaring a retail sale price which is not the retail sale price or tampering with, obliterating or altering the retail sale price declared on the package of such goods after their removal from the place of manufacture, in respect of clearances made prior to 01.03.2008, on which datethe Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008 came into force'.
It is apparent that the interim order removes the doubts raised by this bench with respect to the decision in case of Acme Ceramics. Consequently, the earlier decision of Tribunal in the case of Acme Ceramics becomes a binding precedent decision that needs to be followed in the instant case.
Consequently, following the decision in case of Acme Ceramics the matters are disposed of in identical terms - the demand for the period prior to 01.03.2008 are set aside as also the penalty imposed on the manufacturer assessee and other individuals. For the period post 01.03.2008, the demands are set aside and matters remanded back to the adjudicating authority to reconsider the same.
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2024 (9) TMI 1489
Local Body Tax (Entry Tax) - Constitutional Validity of Chhattisgarh Sthaniya Kshetra me Mal Ke Pravesh Par Kar Adhiniyam, 1976 - seeking quashing of notification dated 04/03/2014 - violative of Article 301 and 304 of Constitution of India and also violative of Article 14 of the Constitution of India - whether the impugned legislation is violative of Article 304 (a) of the Constitution of India? - whether entire State can be declared as local area in light of Judgment of the Hon’ble Supreme Court in Jindal’s case? - HELD THAT:- The validity of Act of 1976 came up for consideration before this Court in Steel Authority of India Vs. State of Chhattisgarh and others (and other cases), [2009 (9) TMI 911 - CHHATTISGARH HIGH COURT] in which this Court upheld the validity of the Act of 1976. The same was subject to challenge by petitioners therein before the Hon’ble Supreme Court. After the reference was answered by the Hon’ble Supreme Court in Jindal’s case (9 Judges). The matter were placed before the regular bench of the Hon’ble Supreme Court and liberty was reserved in favour of the petitioners to file a fresh writ petitions in light of Judgment of the Hon’ble Supreme Court in Jindal’s Case [2016 (11) TMI 545 - SUPREME COURT (LB)].
The argument of higher tax being imposed on goods imported from other state is violative of article 14 of Constitution of India cannot hold water in view Malwa Bus Service (Private) Ltd. v. State of Punjab and others [1983 (4) TMI 290 - SUPREME COURT] wherein Hon’ble Supreme Court held that a difference in the rate of tax by itself cannot be considered to be discriminatory and offensive to the equality clause.
The Power to State to grant tax reduction to local goods non discriminating as observed by the Hon’ble Supreme Court in Jindal’s Case (9 Judges) [2016 (11) TMI 545 - SUPREME COURT (LB)]. It has been further observed that constitutional validity of any taxing statute has, therefore, to be tested only on the anvil of Article 304 (a) and if the law is found to be non discriminatory, it can be declared to be Constitutionally valid without legislation having to go through the test or process envisaged by Article 304(b). It has been further observed that suffice to say that a fiscal statute shall be opened to challenge only under Article 304 (a) of the Constitution without being subjected to test of Article 304(b) either in terms of existence of public interest or reasonableness of the levy. Therefore, the validity of the impugned legislation and the notification to be tested on the anvil of Article 304 (a). The Court has to see as to whether the impugned legislation and notification are the tested of Article 304 (a) of Constitution of India.
It has to be brought on record that by virtue of any legislation, the party has suffered loss or it is restricted to perform trade and commerce in the given State in which the legislation is enacted. The impugned notification only prescribes the rates on the goods imported from outside and goods inside the State. The notification does not debar the petitioner to trade and commerce inside the State of Chhattisgarh - The power to impose tax is a plenary power with the State subject to the fact that while imposing higher tax rate on the goods imported from outside is not discriminatory. The fact remains as stated above that the notification does not debar the petitioners for trade and commerce in the State of Chhattisgarh.
The legislation cannot be declared ultra vires lightly. The taxing statute cannot be challenged only on the ground that the rate of taxation is higher. Until and unless it is said be colourable piece of legislation. It has not been established by the petitioner that the impugned legislation is enacted with colourable exercise of power or it is fraud on the legislative power. The argument was advanced that since there is a higher tax imposed on the goods imported from outside of the state hence it is discriminatory and cannot pass the test of Article 304 (a) of Constitution of India - it is also admitted that entire State is not local area and it is defined in section 2 (d) of definition clause of the Act of 1976. It is to be seen that there is no ambiguity in the definition clause. As to whether the petitioners suffered entry tax at multiple levels has not been substantially demonstrated. Hence, appropriate writ as claimed in this regard cannot be issued.
Placing reliance on the judgments of the Hon’ble Supreme Court and the discussion made herein, the petition is dismissed.
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2024 (9) TMI 1488
Dishonour of cheque - Seeking to set aside Summoning Order - petitioner described as managers and are the wives of the Directors - accused or not - Petitioners' role in the functioning of the company - appellants are busy with the day-to-day affairs of the Company - vicarious liability under Section 141 of the NI Act to the Petitioners.
Whether the Petitioner herein, who have been described as managers and are the wives of the Directors, can be arrayed as accused or not? - HELD THAT:- The Principal accused is the company, i.e. M/s RBT Pvt. Ltd., and Accused No.2, 3, 4, 5 & 6 are the Directors of the Accused No. 1 company; Accused No. 7 & 8 are the Petitioners herein, who have been described as Managers - There is no averment in the Complaint that the Petitioners herein were involved in the transaction against which the cheques in question were issued. There is no averment in the complaint as to what is the role of the Petitioners herein in the functioning of the company.
It is well settled that there is no vicarious liability in the criminal law. Section 141 of the NI Act has an explanation which postulates that if the persons an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
The requirement of sub-section (1) of Section 141 of the NI Act is something different and higher. Every person who is sought to be roped in by virtue of sub-section (1) of Section 141 of the NI Act must be a person who at the time the offence was committed, was in charge of and was responsible to the Company for the conduct of the business of the Company. Merely because somebody is managing the affairs of the Company, per se, he does not become in charge of the conduct of the business of the Company or the person responsible for the Company for the conduct of the business of the Company. For example, in a given case, a manager of a Company may be managing the business of the Company. Only on the ground that he is managing the business of the Company, he cannot be roped in based on sub-section (1) of Section 141 of the NI Act.
Petitioners' role in the functioning of the company - appellants are busy with the day-to-day affairs of the Company - HELD THAT:- The allegation that they are in charge of the Company is neither here nor there and by no stretch of the imagination, on the basis of such averment, one cannot conclude that the allegation of the second respondent is that the appellants were also responsible to the Company for the conduct of the business. Only by saying that a person was in charge of the Company at the time when the offence was committed is not sufficient to attract sub-section (1) of Section 141 of the NI Act - On a plain reading, it is apparent that the words “was in charge of” and “was responsible to the Company for the conduct of the business of the Company” cannot be read disjunctively and the same ought be read conjunctively in view of use of the word “and” in between."
Thus, what would apply to a Director should also apply to a Manager and in the present case, the Petitioners are only the wives of the Accused No. 3 & 4 in the complaint. There is nothing in the Complaint which shows that there is any role of the Petitioners herein the day-to-day functioning of the company. In the absence of any specific averment against the Petitioners herein in the complaint, this Court is of the opinion that the complaint against the Petitioners cannot be sustained.
Petition disposed off.
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2024 (9) TMI 1487
Dismissal from service without inquiry - whether a conviction of an employee under the Negotiable Instruments Act would involve moral turpitude? - HELD THAT:- The Hon’ble Kerala High Court (Division Bench) in the case of Saseendran Nair [1995 (5) TMI 296 - KERALA HIGH COURT], has laid that an offence under Section 138 of the Act need not necessarily take within its wings the offence of cheating as per the Indian Penal Code. It has further been held that the question whether the act of issuing a cheque without sufficient funds will involve moral turpitude has to be considered de hors the element of cheating. Reference has also been made to the Corpus Juris Secendum as per which, moral turpitude implies something immoral in itself, regardless of whether it is punishable by law as a crime, since an act may involve moral turpitude even though it is not a crime. It further states that the term moral turpitude "does not refer to conduct which, before it was made punishable as a crime, was generally regarded as morally wrong or corrupt, as offensive to the moral sense as ordinarily developed.”
Though the past conduct may be a relevant consideration in a matter of this nature, when there was no enquiry and the dismissal is only on the account of a conviction by a Court without framing any definite charges, the aforesaid would not be a relevant consideration. This Court is fortified in reaching to the above conclusion in as much as the impugned order of dismissal dated 17.10.2014 does not refer to any past conduct of the petitioner and is issued only on the basis of the conviction of the petitioner in a proceeding under Section 138 of the NI Act.
This Court is unable to agree with the procedure adopted for imposing the penalty of dismissal vide the impugned order dated 17.10.2014 and accordingly the same is set aside. Consequently, the petitioner is directed to be reinstated in service.
Petition allowed.
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2024 (9) TMI 1486
Detention of goods - detention on the ground that correct documents were not travelling with the truck - HELD THAT:- It is clear that these goods were purchased from the Steel Authority of India Ltd. by a third party, who sold to the petitioner who subsequently re-sold to the consignee. Accordingly, there are no justification for the detention carried out by the authorities.
The detention order along with the subsequent orders including the order passed under Section 129(1) of the GST Act are quashed and set aside. Consequential reliefs to follow - Petition disposed off.
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2024 (9) TMI 1485
Cancellation of petitioner’s GST Registration - seeking revocation of cancellation - seeking relief to declare Section 16 (2) (c) and Rule 86B of the Rules framed ultra vires the GST Act, 2017 - HELD THAT:- Section 49A of the Act prescribes conditions for utilization of input tax credit provided under Section 49; and Section 49B provides a restriction for utilization of input tax credit - The respondents have not answered in their reply to the petitioner’s contention that Rule 86B of the Act itself is not backed by any statutory provision. Rule 164 enables the Rule making authority to frame the Rule 86B or other Rules, but the Rules must have backing in the main body of the statute. Otherwise the Rule would be ultra vires - there are no force in the petitioner’s contention that Rule 86B of the Act has no statutory backing and appears to be ultra vires the provisions of the HPGST Act, 2017.
Since the tax liability of the petitioner towards output tax stood discharged, no prejudice has been caused to the respondents. It was unnecessary for the respondents to cancel the GST Registration and they could have considered any other penalty which is more proportionate to the violation of law - the cancellation of GST Registration on the pretext of violation of Rule 86B is a disproportionate punishment imposed on petitioner and is liable to be interfered in exercise of the power conferred on this Court under Article 226 of the Constitution of India.
Consideration by the court of alleged violation of Rule 21 (b) and Rule 21 (e) - HELD THAT:- How a “prima facie” investigation could be the basis of an order of cancellation of GST Registration without the investigation being completed, is not explained by the counsel for the respondents. The respondents ought to have waited for the investigation to be completed before imposing the drastic penalty of cancellation of GST Registration - It shocks the conscience of the Court to find an extreme penalty of the nature of cancellation of GST Registration being imposed on a business on the basis of a “prima facie” investigation conducted by the respondents - The said action of the respondents is thus clearly arbitrary, unreasonable and violates Article 14 of the Constitution of India.
The impugned order Annexure P-1 dt. 09.02.2024 is set aside, and the respondents are directed to restore the GST Registration of the petitioner, forthwith - the Writ petition is allowed.
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2024 (9) TMI 1484
Dismissal of appeal on the ground that the appeal was filed even beyond the condonable period of limitation - provision in the Tamil Nadu Goods & Service Tax Act, 2017 to condone the delay and entertain the appeal - mismatch between GSTR - 3B and ITC auto populated in GSTR - 2A - HELD THAT:- In the instant case, on going through the assessment order, it is seen that a total tax liability of Rs. 49 lakhs together with 10% penalty has been imposed against the petitioner on the ground that there was a mismatch of the input tax claim between GSTR - 3B and the ITC auto populated in GSTR - 2A. The petitioner has come up with a clear case that no opportunity was given before passing the assessment order. Hence, they filed an appeal before the first respondent. However, the appeal itself was dismissed by the impugned order as it was filed beyond the condonable period. However, this Court is inclined to afford an opportunity to the petitioner by putting the petitioner on terms.
The impugned order passed by the first respondent is hereby set aside. The delay in filing the appeal before the first respondent is condoned. The appeal filed by the petitioner shall be taken on file by the first respondent.
Petition allowed.
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2024 (9) TMI 1483
Challenge to action of the respondents in not adjusting the ITC appearing in GSTR-2A - petitioner was issued two different GSTIN against one single Permanent Account Number (PAN) - HELD THAT:- Circular No.183/15/2022- GST would apply in the present case. Furthermore, the judgment in the case of M/s. Santosh Kumar [2023 (10) TMI 936 - ALLAHABAD HIGH COURT] is on similar factual matrix and the said judgment is agreed upon where it was held that 'adopting the similar view, this Court in the case of Commissioner of Sales Tax Vs. S/s. Agrawal Rolling Mills, Mirzapur, [2003 (4) TMI 550 - ALLAHABAD HIGH COURT] has held that the benefit of circular, which came into existence during the pendency of the appeal, even up to the stage of revision, the benefit of same cannot be denied to the assessee.'
Thus, the impugned order dated December 22, 2023 is quashed and set aside with a direction upon the respondent No.4/Joint Commissioner, CGST & Central Excise, Kanpur to pass a fresh order in terms of the Circular No.183/15/2022-GST.
Petition allowed.
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