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Showing 281 to 300 of 2133 Records
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2018 (2) TMI 1854
CENVAT Credit - input services - CHA services - Port Services - lab analyses charges - Held that:- Te Lower Authorities were in error in denying the Cenvat Credit to the appellant in respect of the Service Tax paid on C&F charges, CHA services which were undoubtedly in respect of goods cleared for export. It is the settled law, the goods which were cleared for export on, and the place of removal is considered on the port for export. It is the view of the C.B.E. & C. in Circular No. 267/13/2015-CX8, dated 28-2-2015.
Service Tax paid on the lab analyses charges - Held that:- The appellant has been claiming from the adjudication level that the said lab analysis on in respect of water charges which were used for manufacture i.e. fungisides cleared for export - these services are rendered in relation to the manufacturing activity of the appellant.
Credit allowed - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 1853
Classification of services - tour operator services or not - respondents are providing boarding and lodging to the tourists on direct booking or on the request of the tour operators - Held that:- In the instant case, the respondents are providing the accommodation on the request of the tour operators or sometime on direct reservations. They are not providing transportation nor providing the contract carriage. They are not holding the stage carriage permits. Their activities are confined to the boat in the water. The boat operators have not control over the schedule of the guests. They are not providing any guidance or planning for the stay in Kerala. The boat can be considered as a hotel in the water.
Certainly, the "House Boat Owner" cannot be considered as a tour operator for the reasons that they are not carrying the guests/ tourists from one place to another in the State - appeal dismissed - decided against Revenue.
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2018 (2) TMI 1852
Condonation of delay - reasonable cause for the delay in assessee's filing the appeal in electronic form - Paper appeal filed by the appellant on 14.03.2016 is an invalid appeal as the same was not filed in prescribed form and verified in prescribed manner as stipulated under the statue and hence the same is not maintainable - HELD THAT:- This was the first year of the rule that appeals are to be filed electronically. Further, there is plea by the assessee that there were some technical glitches in the server also. In my considered opinion, the reasonable cause attributed has considerable cogency. Hence, condone the delay in filing the appeal in electronic form before the ld. Commissioner of Income Tax (Appeals). The CIT(Appeals) is directed to consider the issue in appeal on merits and pass a speaking order after giving the assessee proper opportunity of being heard. In the result this appeal by the assessee stands allowed for statistical purposes
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2018 (2) TMI 1851
TP Adjustment - (AMP) expenditure as an international transaction u/s.92B - compensation to be received by the assessee from its Associated Enterprise (AE) for creating marketing intangibles and promoting the brand name of its AE, specifically when the assessee company was promoting marketing intangibles of its AE though the brand belongs to the AE and not to the assessee - HELD THAT:- As decided in assessee's own case [2017 (7) TMI 1188 - RAJASTHAN HIGH COURT] and Maruti Suzuki case [2015 (12) TMI 634 - DELHI HIGH COURT] AMP expenditure incurred by the assessee could not be treated and categorized as an international transaction u/s 92B of the Act and thereby, the adjustment on account of AMP expenditure is hereby deleted and ground of the assessee’s appeal is allowed.
Disallowance of traveling and conveyance expenses - non deduction of tds - company neither specified the nature and purpose of expenses nor any supporting evidence was filed to justify the claim - HELD THAT:- As decided in assessee's own case [2017 (5) TMI 1597 - RAJASTHAN HIGH COURT] has admitted that bills and vouchers of expenses, as desired, were produced for verification which was test checked. The observation of AO that services has been received by the assessee against these payment and therefore he should have deducted tax at source on the value of the gift is ill founded in as much as the payment is not against the services but against the sale of goods to the distributors and therefore TDS provisions are not applicable disallowance made by the AO on this account is deleted.
Disallowance of miscellaneous expenses - claim neither verifiable as no supporting evidence was available and also the same could not be established to have been incurred wholly and exclusively for the purpose of business - HELD THAT:- As decided in assessee's own case [2017 (5) TMI 1593 - RAJASTHAN HIGH COURT] AO has made the disallowance without specifying any particular expenses which is not verifiable or not incurred wholly and exclusively for the purpose of business when he has given a finding at Page 2 of the order that bills and vouchers of expenses as desired were produced for verification and examined on test check basis. We also noted that such adhoc disallowance is not approved by the DRP in A.Y. 07-08. Considering the same, the adhoc disallowance made by AO is deleted - Revenue appeal dismissed.
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2018 (2) TMI 1850
Reopening of assessment - information received, pursuant to search conducted in the premises of third party - addition u/s 68 - CIT(A) said that AO did not conduct any sufficient enquiry and given the material that had been placed on record by assessee, the genuineness of the creditors as well as the transactions had been prima facie disclosed which amounted to discharge of onus upon it - ITAT rejected the revenue’s objections - HELD THAT:- The business premises of the appellant actually belonged to M/s Bhushan Steel Ltd. and several other companies were having their registered offices in the same premises. This led to the suspicion that these companies were paper companies.
There is no law that more than one company cannot have its registered of me at one address. There is no law that companies cannot change their registered office. Several companies can have the same registered office. Businesses raise capital and such capital is rotated in economy for increasing is the normal formation of capital in any open economy and the process of capital formation cannot be taken to be representing only unaccounted finds or impeded. All the companies having registered office at that premises undisputedly belonged to Bhushan Group. The sources of capital introduced in these - companies were established during the respective assessment proceedings, including in the case of this appellant company. No evidence was found during the search to indicate introduction of unaccounted cash / finds in the form of share capital in these companies. Therefore, the conclusion based on the facts relied upon by the revenue that the share capital introduced in the companies belonging to Bhushan Group, including the appellant company, are unexplained, is at best premature. - Decided in favour of assessee.
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2018 (2) TMI 1849
Operational Debt - petition filed by Operational Creditor under I&B Code by invoking the provisions of section 9 - whether on receiving the principal operational debt amount during the pendency of the Petition before NCLT, the Petitioner can press for the admission of the Petition only in respect of the Interest amount alleged to be outstanding, firstly without revising the claim of Outstanding Debt and secondly when the eligibility of Interest claim is challenged by the Operational Debtor?
Held that:- The charging of Interest on an outstanding Debt ought to be an Actionable Claim so that admissible under the eyes of Law. Claim of Interest is therefore within the ambits of an Actionable Claim which is enforceable under Law - As far as the question of present controversy related to charging of Interest is concerned, the same is enforceable if it is properly documented and agreed upon. It is also necessary that the rate of Interest should also be agreed upon between the Parties. In the present case, these basic requirements appear to be missing. Rather, the Petitioner had not established to the hilt the eligibility of claim of Interest. Merely a filing of a calculation sheet, that too a computer generated statement, is in our humble opinion, a self-serving document and not a cogent evidence admissible under the Law. The absence of a written instrument acknowledging the Liability of Interest payment as also acknowledging the Liability of the rate at which Interest was to be charged, definitely affect adversely the Claim of the Petitioner.
When the Principal amount of Debt had admittedly been paid and duly accepted by the Petitioner and the claim of Interest remained unsubstantiated in the absence of cogent evidence, the "Operational Debt" in question remained unascertainable - Petition dismissed.
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2018 (2) TMI 1848
Large-scale illegal mining of iron ore and manganese ore in different States in contravention of the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 (the MMDR Act), the Forest (Conservation) Act, 1980, the Environment (Protection) Act, 1986 and other Rules and guidelines issued on the subject from time to time - issuance of fresh mining leases/second renewals - recovery of the amounts due from the mining lease holders.
HELD THAT:- As a result of the decision, declaration and directions of this Court in Goa Foundation, [2015 (8) TMI 723 - SUPREME COURT], the State of Goa was obliged to grant fresh mining leases in accordance with law and not second renewals to the mining lease holders.
The State of Goa was not under any constitutional obligation to grant fresh mining leases through the process of competitive bidding or auction.
The second renewal of the mining leases granted by the State of Goa was unduly hasty, without taking all relevant material into consideration and ignoring available relevant material and therefore not in the interests of mineral development. The decision was taken only to augment the revenues of the State which is outside the purview of Section 8(3) of the MMDR Act. The second renewal of the mining leases granted by the State of Goa is liable to be set aside and is quashed.
The Ministry of Environment and Forest was obliged to grant fresh environmental clearances in respect of fresh grant of mining leases in accordance with law and the decision of this Court in Goa Foundation and not merely lift the abeyance order of 14th September, 2012.
The decision of the Bombay High Court in Lithoferro v. State of Goa (and batch) [2014 (8) TMI 1171 - BOMBAY HIGH COURT] giving directions different from those given by this Court in Goa Foundation is set aside.
The mining lease holders who have been granted the second renewal in violation of the decision and directions of this Court in Goa Foundation are given time to manage their affairs and may continue their mining operations till 15th March, 2018. However, they are directed to stop all mining operations with effect from 16th March, 2018 until fresh mining leases (not fresh renewals or other renewals) are granted and fresh environmental clearances are granted.
The State of Goa should take all necessary steps to grant fresh mining leases in accordance with the provisions of the Mines and Minerals (Development and Regulation) Act, 1957. The Ministry of Environment and Forest should also take all necessary steps to grant fresh environmental clearances to those who are successful in obtaining fresh mining leases. The exercise should be completed by the State of Goa and the Ministry of Environment and Forest as early as reasonably practicable.
The State of Goa will take all necessary steps to ensure that the Special Investigation Team and the team of Chartered Accountants constituted pursuant to the Goa Grant of Mining Leases Policy 2014 give their report at the earliest and the State of Goa should implement the reports at the earliest, unless there are very good reasons for rejecting them.
The State of Goa will take all necessary steps to expedite recovery of the amounts said to be due from the mining lease holders pursuant to the show cause notices issued to them and pursuant to other reports available with the State of Goa including the report of Special Investigation Team and the team of Chartered Accountants.
Petitions and SLP disposed off.
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2018 (2) TMI 1847
Maintainability of appeal - Section 128 of the Customs Act, 1962 - error in the invoice - Held that:- Without commenting on the correctness of such claim, we note that correct legal course is to bring it to the notice of the assessing authority for his acceptance or otherwise resulting in a reassessment of the duty liability based on the revised facts, by the assessing authority - In the present case no such course of action has been taken by the appellant.
In the present case, the original assessment stands and the grievance is directly to the appellate authority without the original authority examining the purported error made by the appellant - the order of the Commissioner (Appeals) cannot be interfered with.
Appeal rejected.
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2018 (2) TMI 1846
Validity of Circular dated 19th April, 2017 as also the order dated 4th July, 2017 - prohibition on affiliated Schools from selling books, both NCERT and non-NCERT, stationery items, as also uniform from shops within the School premises - validity of Circular dated 24th/25th August, 2017 - commercial activities of selling books and stationery through vendors within the School premises.
"Commercialization‟ used in the context of school affiliation bye-laws of CBSE as well as the various circulars issued by the C.B.S.E. - what can be termed as „commercialization‟ in the context of schools as it is the common case of the parties that commercialization is prohibited by the Affiliation Bye-laws of CBSE, the provision of the RTE as well as the provisions of DSEAR? - whether, there is any justifiable basis, for the classification sought to be done by the CBSE by placing uniforms and non NCERT books in a category different than NCERT books and stationery items? - Whether, there is any justifiable basis, for the classification sought to be done by the CBSE by placing uniforms and non NCERT books in a category different than NCERT books and stationery items?
Herld that:- The use of the school buildings for purposes of education, would put a corresponding duty on the school management to ensure that the students are provided with all necessary facilities so as to help them pursue education in the school. The availability of books, both NCERT and non NCERT, stationery items and uniform in the School premises would only add to the convenience of the parents and the students. The admitted case of the parties is that the aforesaid items in the school shops would be available only to the students of the school and not to outsiders and, therefore, there is no element of commercialization in sale of these essential items in the school shops. If the sale of books and uniform in the school shops without any coercion on the students/parents to buy the same from these shops, is treated as „commercialization‟, there is no reason as to why even the sale of food items in canteen facilities would also not be treated as „commercialization‟. Such an interpretation would lead to a wholly absurd situation where on the analogy sought to be propounded by the Respondents, a request for prohibition of sale of food items may also be raised. This, in my opinion, cannot be the intent of the provisions in the bye-laws or the Rules, relied on by Respondents, while prohibiting commercialization in schools. The term „commercialization‟ in schools, would thus mean only carrying out of activities wholly unconnected with education. The availability of uniform, non-NCERT reference books or even food items for sale only to the students of the school, in my opinion, does not fall in the category of and cannot at all be considered as „commercialization‟.
Once it is found that the sale of these items in the school shops without coercing the students/parents to buy them only from those shops, cannot be termed as „commercialization‟, the connected issue would be as to whether the CBSE, upon receipt of complaints that the students/parents were being coerced by the school to buy the said items from these shops, could have outrightly prohibited their sale in these school shops or whether it ought to have only regulated the same by ensuring that stringent action is taken against those erring schools, which coerce the student/parents to buy these items from the school shops only.
The prohibition imposed vide the impugned Circulars, does not satisfy the test of „reasonable restrictions‟ under Article 19(6) of the Constitution of India.
Justifiable basis for classification by CBSE by placing uniforms & non-NCERT books in a category different than NCERT books and stationery items - Held that:- Once the Respondent has itself permitted the sale of NCERT books and stationery items in the School, there is no justification or reason as to why sale of only non NCERT books and uniform should be prohibited in the School. There is no reason for placing the NCERT books and stationery items in the permissible category while placing the non NCERT books and uniform in the non-permissible category. There is no valid reason for this classification which is discriminatory on the face of it as it cannot be denied that all these items including uniform, are essential requirements of the students.
Whether the impugned Circulars dated 24th/25th August, 2017 and 18th December, 2017 issued by the CBSE could override the provisions of the statutory bye-laws and rules? - Held that:- Once I have come to a conclusion that the sale of these items in the School, does not amount to any kind of commercialization, the issuance of the said circulars permitting the said sale in the school shops in any manner, cannot be said to be contrary to the statutory bye-laws and rules which prohibit commercialization.
The circular dated 19th April, 2017 issued by CBSE is quashed and set aside - It is further directed that the Petitioners shall not be prohibited from selling of non NCERT books and uniforms also in the tuck shops which have been allowed to be set up in the CBSE affiliated schools for selling NCERT books and stationery items vide circular dated 24th/25th August, 2017 - petition allowed.
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2018 (2) TMI 1845
Short-payment of service tax - additional liability towards Service Tax in excess of ₹ 3 lac - part amount was admitted and was paid alongwith cess and interest thereon - admission of the applications for settlement - adjustment of total amount of duty and interest from the amount already deposited - grant of immunity from payment of penalty as well as immunity from prosecution under Section 32K of the Act - applicant only disputed ₹ 37,391 and paid ₹ 2,997/-. Thus, the total disputed amount was ₹ 37,391/- - abatement at 75% or 30%? - N/N. 2/2013-S.T., dated 1-3-2013.
Held that:- From 1-3-2013 any unit would qualify for taxable amount of 25% if either the carpet area is less than 2000 sq. ft. or consideration is less than 1 crore; in other words, 30% taxable value would only be applicable when the carpet area is more than 2000 sq. ft. and consideration is more than 1 crore - In the present case, as is undisputed by the Department, the consideration is less than 1 crore on all the units on which the applicant was claiming the exemption and therefore, for the period from 1-3-2013 to 7-5-2013, they are duly eligible for claiming the exemption of 75% of the value and taxable amount would be 25%.
Since during the period from 1-3-2013 to 7-5-2013, the exemption of 75% was given to residential units having carpet area less than 2000 sq. ft. or where even consideration is less than one crore and since the consideration received was less than one crore in the case of the applicant during the period from 1-3-2013 to 7-5-2013, the exemption notification is applicable to them and they have to pay tax on 25% of the amount charged. Accordingly, ₹ 37,391 demanded by the Department does not sustain.
Penalty - Held that:- The applicant has completely co-operated with the Department during the period of audit and accepted the non-paid amount which was apparently a result of non-comprehension of technicalities relating to reverse charge mechanism. The applicant has also co-operated with the Commission while pleading his case and the Commission is of the view that the applicant has made a full disclosure of his taxable amount and paid the tax immediately on detection without any delay. (The audit was conducted from 8-2-2014 to 11-2-2014 and non-payment was detected and the payment was made on 26-2-2014 i.e. barely within 15 days). Thus, the Commission is convinced that the applicant had no intention to evade tax and decides not to impose any penalty on the applicant.
Prosecution - Held that:- The Bench considers it a fit case for grant of immunity from prosecution to the applicant.
Application disposed off.
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2018 (2) TMI 1844
Jurisdiction - power to rectify the mistake under Section 74 of the Finance Act, 1994 - Rebate of service tax - rejection on the ground that she did not have power to amend/modify her own order - Held that:- It is noticed by the Government at the outset that the revision application has been filed after the gap of 10 months from the receipt of the OIA by the applicant in this case. Whereas as per Section 35EE(2) of the Central Excise Act, 1944, made applicable to the service tax matters by virtue of Section 83 of the Finance Act, 1994, the revision application was required to be filed within 3 months from the date of the order of the Commissioner (Appeals). This enormous delay is sought to be condoned on the ground that they had filed appeal wrongly against the order of the Commissioner (Appeals) before CESTAT on 28-10-2015 and it has been dismissed by the CESTAT as non-maintainable vide this order dated 3-5-2016 only and they have filed the revision application soon after that on 30-5-2016.
Whereas as per sub-section (3) of Section 35EE of Central Excise Act, 1944, a revision application is to be accompanied by a fee of ₹ 1,000/- when the amount of duty, etc., levied by any Central Excise Officer is more than ₹ 1.00 lakh. This requirement of payment of fee before or at the time of filing the application is mandatory and no relaxation in this regard is provided under the aforesaid provision or any other Section. Thus if any application is not accompanied by the specified fee, such application cannot be accepted as properly filed and cannot be considered by the Government by virtue of the above-mentioned provision.
The Government does not agree with this averment as Section 74 is meant for correcting a mistake apparent on the face of the order and does not authorize any one for issuing a fresh order to modify or nullify the previous order. Whereas it is manifest that the second order passed by the Deputy Commissioner on 30-9-2014 is not for correcting any apparent mistake in the earlier order dated 21-5-2013 but is a fresh order with a clear intention to override/modify the earlier order for which the Deputy Commissioner was not empowered under Section 74 of the Finance Act. Therefore, the Government is in agreement with the Commissioner (Appeals)’s view that the Deputy Commissioner did not have power to review her earlier order or readjudicate the case which had already been decided by her.
The revision application is not found maintainable on the ground of time limitation as well as merit.
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2018 (2) TMI 1843
Rebate claim - export of services - Rules 5 of Export of Services Rules, 2005 read with Notification No. 11/2005-S.T., dated 19-4-2005 - rebate rejected for the reason that for no foreign exchange against export of services is received in this case and in addition out of the rebate claim of ₹ 1,09,72,290/- claim of ₹ 52,57,641/- is also time-barred as per Section 11B of Central Excise Act, 1944 - Held that:- The Government agrees with the views of the Assistant Commissioner and the Commissioner (Appeals) who have reached the conclusion that the Rule 3(2)(b) of Export of Services Rules, 2005 has not been satisfied in this case. Consequently it cannot be accepted that the applicant has exported service in this case as per Rule 3(2)(b) of the Export of Services Rules and accordingly the rebate of Service Tax is not admissible to the applicant under Notification No. 11/2005-S.T., dated 19-4-2005. The case laws relied upon by the applicant as mentioned in Para 2(c) are not found relevant in the present proceeding as in none of these decisions it has been held that receipt of payment in foreign currency in a bank situated in a foreign country can be considered as payment in foreign currency in India.
Time Limitation - Held that:- The applicant has conveniently overlooked the vital fact that Section 11B has been specially borrowed under Section 83 of the Finance Act and as a result time limitation of one year as stipulated under Section 11B of the Central Excise Act is applicable for the maintainability of the rebate of Service Tax under the Finance Act. Therefore, the lower authorities have rightly held rebate claim of ₹ 52,57,641/- as time-barred.
The Government does not find any fault in the order of the Commissioner (Appeals) - the Revision Application is rejected.
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2018 (2) TMI 1842
Duty Drawback - rejection for the reason that although the applicant exported their goods to M/s. DHL-FTZ, who are a consolidator in FTWZ, yet the export proceed was not received from M/s. DHL-FTZ - Rule 30(8) of SEZ Rules, 2006 - Held that:- Actually the goods have been finally exported to M/s. Utexam Logistics Ltd., Ireland through M/s. DHL, a SEZ unit in India. The applicant itself has strongly asserted in the Revision Application that M/s. Utexam Logistics is the real buyer of the goods exported by the applicant and M/s. DHL is merely a conduit for M/s. Utexam Logistics. Considering this fact, the applicant’s claim for drawback in this case is not covered under C.B.E. & C. Circular No. 43/2007-Cus., dated 5-12-2007.
The eligibility of drawback of duty against any export of goods by a DTA Unit to a SEZ unit is governed by Section 26(d) of the SEZ Act, 2005, Rule, 30(5) and Rule, 30(8) of the SEZ Rules, 2006 which are referred to in the C.B.E. & C’ s above mentioned circular. Rule, 30(8) of the SEZ Rules specifically provides that the drawback against supply of goods by DTA supplier shall be admissible provided payment for the supply are made from the foreign currency account of the SEZ Unit. Thus, to be eligible for claiming drawback of duty, it is imperative that the payment in foreign currency should be received by the DTA Unit from the SEZ Unit only.
Revision application rejected.
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2018 (2) TMI 1841
Maintainability of revision application - rejection on the ground of time bar - communication/service of order - change in address - Jurisdiction - revisionary power under Section 86 of the Finance Act, 1994 - Held that:- As per Section 83 of Finance Act, 1994, read with Section 35EE of the Central Excise Act, 1944, a Revision Application is to be accompanied by a fee of ₹ 1,000/- where the amount of Service Tax levied by any officer is more than ₹ 1.00 lakh. This requirement of payment of fee before or at the time of filing the application is mandatory and no relaxation in this regard is provided under the aforesaid provision or any other Section - Thus if any application is not accompanied by the specified fee, such application cannot be considered as proper Revision Application by virtue of the above-mentioned provision.
Since in this case the fee of ₹ 1,000/- has been paid only on 21-4-2014, the proper Revision Application in this case can be considered to have been filed only on 21-4-2014 by which this application is time-barred as the Revision Application can be filed only within 3 months from the date of communication of the Commissioner (Appeals) order as per sub-section (2) of Section 35EE of Central Excise Act, 1944 which was received in this case on 5-9-2013.
Jurisdiction - Held that:- It is also evident from the Revision Application and orders of lower authorities that the issue involved in the present case is regarding refund of accumulated Cenvat credit under Rule 5 of Cenvat Credit Rules, 2005, read with Notification No. 12/2005, dated 19-4-2005, for which the Government does not have revisionary power under Section 86 of the Finance Act, 1994, read with Section 35EE of Central Excise Act - the Revision Application has been filed wrongly before the Government.
Revision Application is rejected as time-barred and not maintainable before the Government.
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2018 (2) TMI 1840
Duty Drawback - rejection on the ground since the goods had been put to use by the applicant, 98% drawback of duty of Customs is not admissible by virtue of Section 74(2) of the Act - Section 74 of the Customs Act, 1962 - Held that:- Testing of goods is considered as use of goods. The order of the Commissioner (Appeals) holding that testing of goods amounts to use of goods is not denied by the applicant also. But it is claimed that they had only inspected the goods and not tested. But no evidence has been provided to support their above claim. It does not sound otherwise also logical as the defects in the product like lanterns cannot be found out merely on physical verification and the functional defects can be actually found out on testing of the lantern.
The applicant has also not produced any copy of correspondence with the Chinese supplier of lanterns to ascertain the type of defects found in the lanterns from which it can be ascertained whether the defects in lanterns could be found out on mere physical inspection or testing of the goods was required - Whereas the Commissioner (Appeals) has clearly held in his order that the goods in question were tested and comes under the category of used goods as envisaged under Section 74 of the Customs Act, 1962. The applicant has failed to rebut his finding and, therefore, the Government does not find any reason for interfering in the order of Commissioner (Appeals).
Revision application dismissed.
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2018 (2) TMI 1839
Duty Drawback - Section 74 of the Customs Act, 1962 - rejection on the ground that identity of the re-exported High Carbon Ferro Manganese Fines could not be established with the imported High Carbon Ferro Manganese Fines on the basis of documents submitted at the time of import and export - Held that:- While Government agrees with the applicant’s contentions that physical examination of the goods is not only the sole method for verification of identity of goods, each item must be identified by methods appropriate to the nature of goods and that the applicant has exported high carbon ferro manganese to the Korean company, no convincing evidence has been adduced by the applicant to establish that high carbon ferro manganese fines imported from South Africa only has been re-exported to the Korean company. The Government is convinced that identity of the exported goods with the imported goods cannot be established merely by one reason that the description of goods is common in both the imported as well as exported goods. Therefore, merely because high carbon ferro manganese has been exported by the applicant does not automatically mean that the applicant has exported the same high carbon ferro manganese fines which they had imported earlier.
As the imported high carbon ferro manganese had been cleared by Customs under RMS without physical examination thereof and high carbon ferro manganese is of various qualities in terms of content etc., it cannot be accepted on the basis of the applicant’s claim only that high carbon ferro manganese exported to South Korea is the same as was imported earlier - Thus apart from tallying of description and quantity of the exported goods with the imported goods, matching of contents of exported high carbon ferro manganese fines with the imported variety of high carbon manganese fines is of very crucial importance in this case to establish the identity of the exported goods with the imported goods.
As per test report of Assmang Manganese Division Cato Ridge Works manganese contents are reported as 72.09%. But in respect of exported goods the manganese contents are reported as 68.02% by Customs House Lab. Thus there is a major difference in manganese content in the imported and exported high carbon ferro manganese fines as per these two reports also. The applicant has relied upon the other two test reports received from M/s. Inspectorate Griffity India Pvt. Ltd. and M/s. Posco Center Korea to claim that difference in manganese content is not very significant. But the Government does not consider these two reports relevant to the issue as these two test reports have not been given in respect of the samples drawn from exported goods in the presence of Customs officers and, therefore, their authenticity is not free from doubt.
The applicant has not provided any convincing material on the basis of which it can be accepted at this juncture that the exported goods were the same which the applicant had imported earlier from South Africa. Hence, Government does not find any fault in the Order of Commissioner (Appeals) - Revision application rejected.
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2018 (2) TMI 1838
Fast Track Corporate Insolvency Resolution Process - HELD THAT:- Any person may intervene and may bring the facts to the notice of the Adjudicating Authority. So far as the Respondent (Intervener) is concerned, we leave the question open for Adjudicating Authority to decide the issues as raised and alleged by the 2nd Respondent (Intervener) keeping in mind the question of maintainability of the application as raised by the Appellant.
The Appellant has already served the copy of the paper book to the learned counsel for the 2nd Respondent (Intervener) which includes petition under Section 55 to 58 and therefore the service of petition under Section 55 to 58 to the 2nd Respondent (Intervener) stands complied.
The case be remitted back to the Adjudicating Authority to decide all the issues including the question of maintainability of the intervention petition keeping in mind the allegations made therein and the penal provisions including Section 65 as referred to above.
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2018 (2) TMI 1837
Corporate Insolvency Resolution Process - outstanding debt - HELD THAT:- This petition insofar the first petitioner is concerned it cannot be admitted but coming to the case of petitioners No. 2 and 3 they have got every right to trigger corporate insolvency resolution process because financial debt is due to them and there is occurrence of default. Moreover, the pendency of Company Petition filed by petitioners against the respondent company is not a ground to take a different view in this matter. The points that would come up for consideration is altogether different qua the rights of shareholders whereas in this petition the Adjudicating Authority has to see whether there is existence of financial debt and occurrence of default. Since these two things are satisfied, this petition in respect of petitioners No. 2 and 3 deserves to be admitted and it is accordingly admitted.
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2018 (2) TMI 1836
Insolvency Resolution Process for Corporate Persons - whether the order of ‘Moratorium’ will cover the current charges payable by the ‘Corporate Debtor’ for supply of water, electricity etc. or not? - HELD THAT:- From sub-section (2) of Section 14 of the ‘I&B Code’, it is clear that supply of essential goods or services to the ‘Corporate Debtor’, as may be specified by the ‘Insolvency and Bankruptcy Board of India’, cannot be terminated or suspended or interrupted during the period of ‘Moratorium’.
Regulation 31 relates to ‘Insolvency Resolution Process Costs’ whereas Regulation 32 relates to ‘Essential Supplies’. As per Regulation 31, the amounts due to suppliers of essential goods and services under Regulation 32 are to be included in the ‘Insolvency Resolution Process Costs’.
It is clear that the amount as is due towards supply of essential goods and services, including electricity, water, telecommunication services and information technology services, if they are not a direct input to the output produced or supplied by the ‘Corporate Debtor’, require to be included towards ‘Insolvency Resolution Process Costs’ as per sub-section 13(e) of Section 5.
From sub-section (2) of Section 14 of the ‘I&B Code’, it is also clear that essential goods or services, including electricity, water, telecommunication services and information technology services, if they are not a direct input to the output produced or supplied by the ‘Corporate Debtor’, cannot be terminated or suspended or interrupted during the ‘Moratorium’ period.
From the provisions of ‘I&B Code’ and Regulations, we find that no prohibition has been made or bar imposed towards payment of current charges of essential services. Such payment is not covered by the order of ‘Moratorium’. Regulation 31 cannot override the substantive provisions of Section 14; therefore, if any cost is incurred towards supply of the essential services during the period of ‘Moratorium’, it may be accounted towards ‘Insolvency Resolution Process Costs’, but law does not stipulate that the suppliers of essential goods including, the electricity or water to be supplied free of cost, till completion of the period of ‘Moratorium’.
Payment if made towards essential goods to ensure that the Company remains on-going as made in the present case for the month of December, 2017, such amount can be accounted towards ‘Insolvency Resolution Process Costs’, but it does not mean that supply of essential goods such as electricity to be supplied free of cost and the ‘Corporate Debtor’ is not liable to pay the amount till the completion of the period of ‘Moratorium’. If the ‘Corporate Debtor’ has no fund even to pay for supply of essential goods and services, in such case, the ‘Resolution Professional’ cannot keep the Company on-going just to put additional cost towards supply of electricity, water etc. In case the ‘Corporate Debtor’ (Company) is non-functional due to paucity of fund, and has become sick the question of keeping it on going does not arise.
In absence of specific prohibition for payment of current charges and in view of the fact that the ‘Corporate Debtor’ has already paid the current electricity charges for the month of December, 2017, we pass the following orders: -
(i) The ‘Resolution Professional’ will pay the outstanding current charges for supply of electricity for the month of September, 2017 and January, 2017 to the Appellant by 28th February, 2018. The current electricity charges for the month of October, 2017 and February, 2017 be paid by 16th March, 2018. The current charges towards the electricity for the month of November, 2017 and March, 2018 be paid by 15th April, 2018.
(ii) The Appellant will not levy any late payment surcharges for delayed payment of current charges, nor disconnect the supply of electricity in view of sub-section (2) of Section 14 of the ‘I&B Code’.
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2018 (2) TMI 1835
Reopening of assessment - notice issued beyond period of four years - eligible reason to believe - HELD THAT:- When the assessment is already completed under Section 143(3) or under Section 147 of the Act, after expiry of four years from the end of the relevant assessment year, no actions can be taken under Section 147 unless income chargeable to tax has escaped assessment because of failure of the assessee to file return under Section 139 or in response to notice issued under Section 142(1) or 148 or to disclose fully and truly all material facts necessary for assessment.
It appears that during the course of original assessment proceedings, assessee has furnished details. The reasons recorded are totally silent in respect of the failure on the part of the assessee to disclose fully and truly material facts. If we peruse the reasons recorded by the Assessing Officer, it reveals that at the time of recording of these reasons, Assessing Officer had examined original assessment records and no fresh material was found by him. Therefore, it can be said that the concerned Assessing Officer has recorded the reasons on the basis of the same fact of materials and records which were available at the time of framing of original assessment. - Decided in favour of assessee
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