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Showing 301 to 320 of 1434 Records
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2021 (8) TMI 1134
Maintainability of application - initiation of CIRP - Dues are on the company or on the director in his personal capacity - Mortgage - Financial Creditors - Financial Agreement - right or title over any immovable property - Section 17 of the Registration Act, 1908 - HELD THAT:- The Appellant itself admitted the fact that the loan amount was released by the Appellant by way of RTGS to the account of the Managing Director of the Respondent Company. The Learned Adjudicating Authority also recorded the fact that the Appellant filed Statement of Account of State Bank of India (SBI) for the period from 01.04.2015 to 01.03.2017. From the said statement of account, a sum of ₹ 50,00,056/- was paid into the account of Mr. A. Francis, on 20.10.2015 through RTGS. From the records it is clear that the loan amount has not come to the account of the Respondent Company. The transaction between the Appellant, a partnership firm and the Director of the Respondent Company in his personal capacity.
There is no doubt that the Financial contract means, a contract between a Corporate Debtor and Financial Creditor. However, the MoU dated 05.07.2019 does not fit in this clause, in view of its genuineness, as Questioned by the Respondent.
This Tribunal does not find any illegality in the Order passed by the Adjudicating Authority - Appeal dismissed.
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2021 (8) TMI 1133
Maintainability of application - documents of doubtful origin annexed with the application - time limitation - whether the Section 9 application is legally maintainable in view of the claim that documents are of doubtful origin annexed with the application, and whether the Section 9 application is within limitation? - HELD THAT:- The IBC provides for action u/s 65 of IBC against the person who initiates proceeding under the IBC fraudulently or with malicious intent, for the purpose other than the resolution of Insolvency or liquidation under the Code. To levy a penalty under Section 65 of the Code, the decision is required to be arrived at by the Adjudicating Authority. In view of the provision in Section 65 (1), we feel that Adjudicating Authority is the correct forum to agitate this issue and we desist from commenting any further on this matter.
On a close perusal of documents submitted by the operational creditor and other parties lead us to the conclusion that the application u/s 9 was not submitted within limitation and it contained documents of doubtful origin which do not inspire confidence, and which formed the basis of admission order. The allegations of collusion between the Operational Creditor and the corporate debtor raise reasonable doubt. Documents filed to hold debt was due, or payable do not raise confidence. Initiation of CIRP of a company which is a going concern, on the basis of a short defence note without a proper reply/defence called from the corporate debtor, and based on such documents attached with the admission application is certainly not proper and defeats the purpose and intent of the IBC in letter and spirit.
The Interim Resolution Professional/Resolution Professional shall hand back charge of Corporate Debtor. Adjudicating Authority will pass orders regarding fees to be paid to Interim Resolution Professional/ Resolution Professional. The Corporate Debtor is released from the rigours of ‘moratorium’ and CIRP - appeal allowed.
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2021 (8) TMI 1132
Addition of interest on overdue deposits - ascertained liability or not - Additions made in the rectification proceedings u/s 154 - CIT(A) deleted the addition made in rectification on the ground that addition made under normal provisions was also deleted by the Learned CIT(A) in appeal against order u/s 143 (3) by the assessee holding that liability is ascertained liability - HELD THAT:- We find that in assessment year 2009-10 the matter was restored by the Tribunal to the file of the Assessing Officer. Assessing Officer in his order passed in compliance to the order of the Tribunal, has allowed the claim of the assessee of interest on overdue deposits. In the circumstances, when the Assessing Officer himself has accepted the claim of the assessee in assessment year 2009-10, then action of the assessing officer in rectifying the assessment order and making addition on the same ground in assessment year 2013-14 i.e. present assessment year, is not justified. We accordingly, uphold the order of the Learned CIT(A) on the issue in dispute. The ground of the appeal raised by the Revenue is dismissed.
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2021 (8) TMI 1131
Interest on delayed refund - the amount of which the refund is sought, was paid under protest - relevant time - refund from the date of deposit till its realization or not - HELD THAT:- The facts of the case are not in dispute that the appellant paid the amount during the period 2008-09 and 2009-10 under protest wherein the Revenue is of the view that the appellant is liable to pay the duty on zinc ash and zinc skimming. Later on, the levy was held unconstitutional. It was the understanding of the appellant that they are liable to pay duty, that’s why they paid the duty under protest. In these circumstances, the amount deposited under protest is not to take the benefit of time limit, but liability of duty as alleged - Further, if Revenue is of the view that this amount could not be collected at that stage, the Revenue was free to refund the said amount but the respondent enjoyed the amount without any authority of law.
The ld. AR failed to show that in case the amount deposited under protest is governed under Section 11AB of the Act for claims of interest.
The appellant is entitled for interest on delayed refund from the date of deposit till its realization @12% p.a. - Appeal allowed.
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2021 (8) TMI 1130
Issuance of prosecution sanction - non-application of mind - Allegation of taking Bribe - it was alleged that the petitioner was having an amount of ₹ 34,500/- in his pocket which was duly explained by the petitioner. - infringement of constitutional right of the petitioner or not - breach of rule of natural justice - requirement to remand the matter or not - HELD THAT:- This Court is of the firm view that if the Authority has not acted in accordance with the provisions as laid down and failed to exercise its discretion which is required to be exercised or failed to act according to the law as it is required to, this Court can interfere and set aside an order wherein the aforesaid principles are not followed. The State Government had already issued a circular on 15.5.2012 to the Head of Department to independently apply their mind before passing prosecution sanction - Admittedly, the Principal Secretary, Transport Department has only filled up the dotted lines. While issuing prosecution sanction dated 5.10.2017, he failed to take notice of the observations in the investigation report of the ACB. Thus, it is a case where this Court is satisfied that there has been a complete non-application of mind while issuing prosecution sanction.
This Court deems it appropriate to quash the prosecution sanction dated 5.10.2017 issued by the Principal Secretary, Transport Department and the same is accordingly quashed.
Whether the matter should be remitted back to the Authority for reconsideration of the matter and to pass a fresh order of sanction? - HELD THAT:- This Court finds that the petitioner has already attained superannuation and taking into consideration the allegations and observations made by the ACB investigation relating to the amount of ₹ 5160/- being as the personal amount and the opinion of Assistant Director (Prosecution) which has been taken notice in the connected criminal misc. petition, this Court is satisfied that no purpose would be served in remanding the matter to the authorities for prosecution sanction after a period of almost 9 years and this Court is inclined to give a quietus to the case so far as it relates to the petitioner. Accordingly, the proceedings against the petitioner are directed to be closed.
Petition allowed.
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2021 (8) TMI 1129
As per J. INDIRA BANERJI]
Substitution of a legally valid irrevocable Bank Guarantee - Scheduled Bank - whether the Division Bench, after having held that the order impugned before it was appealable, should have dismissed the appeal and allowed the direction on the Appellant to substitute the Bank Guarantee of ICBC with a fresh bank guarantee of a Scheduled Indian Bank, to stand?
HELD THAT:- As a Scheduled Bank and a banking company within the meaning of the Banking Regulation Act, ICBC is governed by the regulatory provisions of the RBI Act and the Banking Regulation Act and the Rules, Regulations, Orders, Notifications etc. issued thereunder. The circulars and directives of the Reserve Bank of India with regard to Bank Guarantees/ Demand Guarantees are binding on ICBC - The RBI Act only defines ‘Scheduled Banks’ which includes Scheduled Foreign Banks operating in India. The RBI Act or the Second Schedule thereto does not segregate Scheduled Indian Banks. There is no definition of Scheduled Indian Bank in the RBI Act. The regulatory provisions of the RBI Act apply equally to all scheduled banks.
However, since there is a list of Scheduled Foreign Banks in India categorized separately in the Second Schedule by Gazette Notifications, it may be presumed that all other banks listed in the Second Schedule in the various categories except the category of Scheduled Foreign Banks, that is, Scheduled Public Sector Banks, Scheduled Private Sector Banks, Scheduled Small Finance Banks, Scheduled Payments Banks, Scheduled Regional Rural Banks are all Scheduled Indian Banks, even though Scheduled Indian Banks do not constitute any distinct category in the Second Schedule to the RBI Act. Since ICBC has its principal branch registered in the People’s Republic of China and is listed in the category of Scheduled Foreign Banks in India, the High Court made a distinction between ICBC and a ‘Scheduled Indian Bank’.
In the absence of any adverse material against ICBC and in the light of a plethora of reports showing its financial soundness, the High Court erred in directing the Appellant to replace the Bank Guarantee of ICBC, already furnished pursuant to an order of Court passed on 12.02.2019, with another Bank Guarantee, oblivious of the practical realities in the arena of banking activities, specially the difficulties in obtaining a Bank Guarantee from banks with which the applicant has no transaction and ignoring the cost already incurred by the Appellant by way of bank charges for obtaining the guarantee.
All that is required for invocation of the Bank Guarantee is an order of the High Court in the proceedings relating to the Arbitral Award. The statement that the guarantee is subject to the URDG does not dilute the guarantee or make it conditional - Appeal allowed.
As per V. Ramasubramanian, J.
These special leave petitions do not deserve to be entertained under Article 136 of the Constitution of India in view of the fact (i) that the very same Judge who passed the first Order dated 12.02.2019, clarified the same by his subsequent Order dated 09.04.2019; (ii) that the same learned Judge dismissed on 16.05.2019, the petition to recall the Order dated 09.04.2019; (iii) that the Commercial Division Bench of the High Court dismissed the appeal arising out of the Order dated 16.05.2019; and (iv) that the Commercial Division Bench again reiterated its orders, by dismissing the review petition.
The question whether there exists statutorily, a distinction between “a Scheduled Indian Bank” and “a Scheduled Bank located in India” does not arise for consideration in this case, as the dispute primarily revolves around what was offered in Court by one of the parties, what was accepted in Court, and what was recorded in the Order and clarified later. If without any offer from the petitioner, an adjudication had been made by the Court directing the petitioner to furnish bank guarantee of a particular type of bank and a dispute had been raised thereafter, it is only then that a question of law as to the status of such a bank with reference to the statutory provisions, would have arisen - SLP dismissed.
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2021 (8) TMI 1128
Inhuman condition of quarantine centres and for providing better treatment to corona positive - HELD THAT:- It is a normal practice, which is also desirable, that such matters of public importance are dealt with by the Bench presided over by the Chief Justice, but since the constitution of Benches is the prerogative of the Chief Justice, it would be for the Chief Justice of the High Court to consider such aspect and pass appropriate orders.
Further while again appreciating the efforts of the judges of the High Court in looking to the matter in depth while passing orders, we are of the opinion that the High Court should normally consider the possibility of the implementation of the directions given by it, and such directions which are incapable of being implemented should be avoided. The doctrine of impossibility, would be equally applicable to Court orders as well.
Considering the totality of the facts and circumstances, the impugned order dated 17.05.2021 is stayed. However, we make it clear that further proceedings before the High Court are not being stayed - this matter be now listed on 14.07.2021.
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2021 (8) TMI 1127
Attachment of Bank Account of petitioner - lack of jurisdiction in issuing the attachment order - HELD THAT:- The representation made by the petitioner is already pending before respondent no.3 - the said attachment order dated 14.1.2021 was passed on the date on which a search was carried out at the premises of the petitioner under Section 67 of the Central, GST, 2017. Therefore, there was no inherent lack of jurisdiction in issuing the attachment order.
Post decisional hearing was to be afforded by respondent no.3 after it had issued, the attachment order dated 14.1.2021 (Annexure-3 to the writ petition). In that regard, the petitioner has already filed a written objection dated 25.3.2021. That was received by respondent no.3 on 1.4.2021 - no useful purpose would be served in keeping the present petition pending or calling for a counter affidavit, at this stage.
Petition disposed off.
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2021 (8) TMI 1126
Seizure of imported goods - Provisional release of goods and for re-testing - Validity of seizure memo being disputed on the basis of test reports - contract with Aureole Trading (U.A.E) for supply of product Naphtha - HELD THAT:- From reading of the affidavit-in-reply of the respondent, it appears that no parameters were suggested by the petitioner pertaining to the test of goods as Natural Gasoline Liquid. Even if the letters dated 16.02.2021 and 17.02.2021 which are pressed into service by Mr. Nankani are considered as creating a doubt about the Custom House Laboratory what is indicated is that though the lines of investigation was in context of whether the goods was Naphtha, the CRCL report dated 28.05.2021 (page 447 of the paperbook) in accordance with the parameters prescribed by the authorities in the test memo indicate unequivocally that the consignment is that of Natural Gasoline Liquid.
What is evident therefore in context of the pleadings in the petition and the response of the Union of India is that this court in exercise of powers under Article 226 is called upon to decide the legality and validity of a seizure memo by weighing the pros and cons of the test reports on the quality of the product, reports divergent which are produced by the petitioner and the respondent - The Court in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution Of India cannot enter into a roving inquiry on the basis of conflicting test reports to decide the validity of a seizure memo.
The exercise of seizure is an interim measure pending investigation. What is evident from the affidavit-in-reply filed by the investigating agency is that based on the statements recorded under Section 108 of the Customs Act, 1962, the investigation is pending. Reading of the provisions of the Customs Act, 1962 Sections 111 and 112 which provide for confiscation of goods post an investigation, the authorities are required to issue a show-cause notice under Section 124 of the Customs Act, 1962 before confiscation of goods. That stage has yet not reached.
The entire issue of the seizure memo being disputed on the basis of test reports essentially being in the realm of disputed questions of facts we do not propose to exercise jurisdiction under Article 226 of the Constitution of India in favour of the petitioner and entertain the petition in context of the prayers made herein - Petition dismissed.
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2021 (8) TMI 1125
Initiation of action for recovery of the dues - SARFAESI Act - issue of priority over the charge - HELD THAT:- The petitioner in fact claims that they hold priority over the charge as they are secured creditors. The 1st respondent/revenue equally claims the priority over all other charges as it is arrears of tax and State revenue. Further, the 1st respondent-Commercial Tax department claims that actions for recovery of arrears of tax was initiated long back and during the pendency of the proceedings under the taxation law, the bank has dealt with the property and therefore, they cannot claim any priority over the property, as far as the tax arrears are concerned.
Such disputed fact cannot be adjudicated by the High Court in a writ petition under Article 226 of the Constitution of India. Which are all the proceedings initiated at the first instance and which proceedings has to be construed as an initial proceedings, are the disputed facts which are all to be adjudicated by scrutinising the original documents and evidences made available. An enquiry has to be conducted in this regard.
The TNVAT Act contemplates appeals to the authority. The appellate authority under the said Act are exercising the power of the Quasi judicial authorities. Therefore, they have to adjudicate the issue, by affording opportunity to all the parties concerned and take a decision in respect of such claims. As far as the tax laws are concerned, both the assessee and the revenue are preferring appeal before the appellate authorities and before the tribunal - Similarly, the bank being aggrieved from and out of the action initiated by the 1st respondent, Commercial Tax department, is entitled to file an appeal before the appellate authority for adjudication of complete facts and circumstances. The appellate authorities are the final fact finding authority.
Petition disposed off.
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2021 (8) TMI 1124
Addition u/s 68 - share capital of more than ₹ 316 Crores invested by the foreign company in assessee - argument of the appellant is that no show cause notice was issued before the addition was made by resorting to Section 68 - HELD THAT:- The statutory provision does not specifically state that a show cause notice is required to be issued. What is required is that where any sum is found credited in the books of the assessee and it is pointed out by the Assessing Officer, the assessee is required to offer an explanation about the nature and source thereof and if the assessee offers no explanation or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the sum so credited may be charged to income tax. Admittedly, in the instant case, the assessee has been put on notice and the assessee had participated in the assessment proceedings and submitted their explanation.
AO questioned the source for the fund for the share application money and the assessee stated that an amount of ₹ 127,47,05,650/- was received from M/s.Rakeen (P.) Ltd., Mauritius and ₹ 5,00,000/- was received from Indian Promoter. The Assessing Officer has stated that there was no proof filed by the assessee to substantiate its existence and claimed to have 100% share capital transferred from Rakindo Developers PJSC (FZE) Dubai. Further, the company has no entity, but it is just a conduit to transfer funds to India from Mauritius and this, according to the Assessing Officer, is evident from the consolidated balance sheet of the Dubai company. Assessing Officer proceeds to analyse the Dubai company and has mentioned that on perusal of the balance sheet of the Dubai company, it is noticed that the promoters of the Dubai company had diverted/transferred funds to various concerns during the year. Once again, the assessee has been called upon to explain and the assessee was represented by an authorized representative, who had stated that Reyada Investment Ltd., was holding 48% of shares in the Dubai company originally.
On a perusal of the above findings, as recorded by the Assessing Officer, it will be evidently clear that the entire controversy involved in the matter is fully factual.
We do not agree with the submission that the assessee did not have adequate opportunity to put forth their case, as the Assessing Officer has recorded that the assessee has been represented by the authorized representative and if according to the assessee, the documents have not been properly appreciated or to be appreciated in the manner as decided by the assessee, it is for the assessee to agitate the same before the appellate authority and there is no justifiable or valid reason for the assessee to bypass the appellate remedy available under the Act. - Decided against assessee.
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2021 (8) TMI 1123
Seeking grant of Bail - availment of fake input tax credit - generation of invoices without actual supply of goods - offence u/s 132 of Central Goods and Service Act, 2017 - HELD THAT:- This complaint alleges commission of an economic offence of huge magnitude and therefore, a thorough and detail investigation is essential. Further, considering the enormous materials collected and placed before this Court, vide the record, in respect of manipulation of invoices, etc and thereby allegedly evading tax by the petitioner to the tune of ₹ 28,97,85,917/- by way of illegally availing ITC, the enlargement of the petitioner on bail, at this stage is likely to hamper the investigation and tamper evidence which may amount to compromising with the entire investigation of the case.
This Court has also taken note of the fact that the investigation of the case, involves a huge number of documents to be examined at different levels and at different places necessitating reasonably sufficient time to the Investigating Agency.
Petition disposed off.
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2021 (8) TMI 1122
Transition of VAT Credit - the credit of the amount in Form GSTR-3B not allowed - petitioner contends that, it is into the business of non-banking financial company engaged in financing automobiles in the form of loans and financial leases to its customer and has operations in 14 States across India, including in the State of Telangana - HELD THAT:- Though the respondents filed a lengthy counter-affidavit, it neither denied or disputed the ARN number generated from their systems and the email received by the petitioner of successful filing of GST TRAN-1 Form. In the absence of any denial to the ARN number or email sent to the petitioner, it is not open for the respondents now to turn around and allege the petitioner to be a non-filer. Further, no explanation is offered by the respondents as to which transaction the ARN number referred to by the petitioner is relatable to, if under the said ARN number, the petitioner has not filed Form GST TRAN-1 on 27.12.2017.
In an identical situation, in petitioner’s own case, the Bombay High Court in BMW INDIA FINANCIAL SERVICES PVT. LTD., VERSUS UNION OF INDIA, STATE OF MAHARASHTRA, GOODS AND SERVICE TAX COUNCIL, GOODS AND SERVICES TAX NETWORK (GSTN) NEW DELHI [2020 (10) TMI 1217 - BOMBAY HIGH COURT] considering a similar issue of transitional credit of ₹ 17,07,673/- claimed through TRAN-1 filed on 27.12.2017 not being transitioned into the petitioner’s electronic credit ledger despite successful filing, while observing that the action of the respondents is unfair and unjust - the Bombay High Court allowed the writ petition and directed the respondents to take such action as may be necessary for transitioning the credit of such amount into petitioner’s credit ledger/electronic credit ledger within four weeks from the date of the order.
In the facts of the present case, there are no reason to take a different view from the one as expressed by the Bombay High Court, merely because the respondents chose to file a counter in the present writ petition alleging negligence on the part of the petitioner, which in our concerned view, as detailed herein above is without any basis, unsubstantiated apart from being reprehensible.
The respondents are directed to transition the credit of amount of ₹ 21,07,574/- claimed by the petitioner, into petitioner’s electronic credit ledger in Form GST PMT-2 maintained on the portal, within a period of four weeks from the date of the order - petition allowed.
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2021 (8) TMI 1121
Provisional attachment of goods - bogus invoices - writ court granted relief to the respondent - Section 83 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- Admittedly, what was put to challenge was only the order of provisional attachment and the statutory machinery provides for a mechanism for filing objections against such provisional attachment. As rightly pointed out by the learned counsel appearing for the respondent/writ petitioner, the respondent appears to have understood the factual and legal provisions in a proper manner and has given a representation/objection, dated 18.03.2021, seeking to lift the order of attachment under Section 83 of the CGST Act. This application is undoubtedly an application to be reckoned under Rule 159(5) of the CGST Rules. However, the fact remains that the appellant/Department has not disposed of the said application by passing a reasoned order.
The respondent has failed to comply with the conditions imposed by this Court while granting bail vide order dated 19.02.2021. No doubt, the respondent have preferred Special Leave Petition before the Hon'ble Supreme Court, in which, notice has been ordered. Thus, as on date, the respondent have not complied with the order passed by this Bail Court and the objections filed under Rule 159(5) of CGST Rules have not been disposed of by passing a reasoned order - The respondent, having sought for lifting the attachment by filing representation/objection dated 18.03.2021, ought to have pursued the same. Without pursuing the said objections, a challenge to the provisional attachment order has to be held to be premature.
Appeal allowed.
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2021 (8) TMI 1120
Validity of assessment order - Input tax credit - alleged mis-match between returns and the returns filed by the sellers - HELD THAT:- This Court is inclined to pass the order as in the case of M/S. CHAKARAVARTHY READYMADES VERSUS THE STATE TAX OFFICER, VANDAVASI, TIRUVANNAMALAI DISTRICT [2019 (2) TMI 1447 - MADRAS HIGH COURT] where it was held that the matters have been remanded for fresh consideration the petitioners/dealers are not entitled to raise a plea of limitation, when fresh show cause notices are issued and they are directed to submit their explanation to enable the assessing officers to adjudicate their case.
The impugned orders of assessment are set aside - Petition allowed.
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2021 (8) TMI 1119
Recovery of excess amount collected as service tax - Recoveries to be made u/s 73 or 73A - document for computation of demand of service tax - Form 26-AS or Balance Sheet? - extended period of limitation - penalty - Whether the excess recovery of the service tax can be recovered under Section 73 of the Finance Act, 1994 or Section 73-A of the Finance Act, 1994? - HELD THAT:- If any amount is collected more than the actuals, the said amount is recoverable from the assessee under Section 73-A of the Act. Although show cause notice invoked the provisions of Section 73-A of the Act, but the adjudicating authority has not invoked the provisions of Section 73-A of the Act and the said findings of the adjudicating authority have not been challenged by either of the side before any appellate authority - the confirmation of the excess amount recovered by the appellant cannot be demanded under Section 73 of the Act. Therefore, the demand confirmed under Section 73 of the Act excess recoveries made by the appellant on account of service tax cannot be demanded under Section 73 of the Act.
Which figures are to be taken for computation of demand of service tax, (a) Form 26-AS or (b) Balance Sheet? - HELD THAT:- Balance sheets figures records all the transactions done by the appellant by way of issuing invoices and receipts amounts thereof and the said Balance sheets have been certified by the Chartered Accountant. In that circumstance, figures of the balance sheets are more authenticate to compute the service tax recoverable from the appellant. But the adjudicating authority chose the figures whichever is higher comfortable to him/her which is not correct. As balance sheets’ figures are certified by the Chartered Accountant and the same are more authentic figures, therefore, the service tax demand is to be computed on the basis of balance sheets figures - impugned order qua computation on the basis of balance sheets needs examination at the end of the adjudicating authority.
Whether extended period of limitation is invokable in the facts and circumstances of the case or not? - HELD THAT:- In this case, extended period of limitation is not invokable as it is a case of availment of benefit of Notification No. 30/2012-ST dt. 20.06.2012 and computation of taxable turnover and no fact has been suppressed by the appellant from the respondent. The activity as well as payment of service tax were in the knowledge of the department, therefore, in the absence of any malafides on the part of the appellant, extended period of limitation is not invokable - any demand pertaining to extended period of limitation is set aside.
Whether the penalty can be imposed on the appellant or not? - HELD THAT:- As extended period of limitation is not invokable, therefore, no penalty is imposable on the appellant.
Appeal disposed off.
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2021 (8) TMI 1118
Maintainability of appeal - appeal dismissed for the reason that it was filed beyond the statutory period contemplated - section 85(3A) of the Finance Act, 1994 - HELD THAT:- In the present case, admittedly the order of the adjudicating authority was received by the appellant on March 15, 2015 but the appeal was presented before the Commissioner (Appeals) on July 02, 2015. It was clearly not presented within the period of two months nor within the extended period of one month. The Commissioner (Appeals) dismissed the appeal after placing reliance on the decision of Supreme Court in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [2007 (12) TMI 11 - SUPREME COURT].
The provisions of section 35 of the Central Excise Act, 1944 are pari materia with section 85(3A) of the Finance Act. The Supreme Court in Singh Enterprises, held that the period upto which the prayer for condonation can be accepted is limited by the proviso to sub-section (1) of section 35 of the Central Excise Act and the position is crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of thirty days after the expiry period of sixty days. In other words, the appellate authority can entertain the appeal by condoning the delay only upto 30 days beyond the normal period for preferring the appeal, which is 60 days.
Appeal dismissed.
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2021 (8) TMI 1117
Levy of service tax - liability on activity of sub-contractor when main contractor has discharged the service tax liability - suppression of facts or not - extended period of limitation - penalty - HELD THAT:- It is seen that the amount received from the clients have been subjected to Service Tax at the hands of the main contractor. However, since the appellant, as a sub-contractor, has provided services to the main contractor, is liable to discharge Service Tax on the consideration received from the main contractor namely, M/s. ACL - This issue is no longer res integra and is settled by the decision of the Larger Bench of the Tribunal in the case of COMMISSIONER OF SERVICE TAX VERSUS MELANGE DEVELOPERS PVT. LTD. [2019 (6) TMI 518 - CESTAT NEW DELHI] where it was held that A sub-contractor would be liable to pay Service Tax even if the main contractor has discharged Service Tax liability on the activity undertaken by the sub-contractor in pursuance of the contract.
Thus, the appellant / sub-contractor is liable to pay the Service Tax even if the main contractor has discharged the liability. The issue on merits is found against the assessee and in favour of the Department.
Extended period of limitation - penalty - HELD THAT:- There is no clear allegation that the appellants have wilfully suppressed facts with the intention to evade payment of Service Tax. In the present case, the main contractor / M/s. ACL collected the full consideration including Service Tax from the clients, which is clear from the records. Appellants from the very beginning have raised the contention that they were instructed by M/s. ACL that they are not required to pay the Service Tax - there are no factual basis for invoking the extended period.
Appeal fails on merits - However, we hold that the demand for the extended period of limitation, if any, cannot sustain and the impugned order to this extent is set aside, without disturbing any demand that falls within the normal period.
Decided partly in favor of assessee.
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2021 (8) TMI 1116
Wrongful availment of CENVAT Credit - outward freight - sale on FOR basis - place of removal - extended period of limitation - HELD THAT:- As far as interpretation under the Central Excise laws is concerned, the “transfer of possession with title of goods by one person to another” is the crux of the sale transaction. Therefore, until and unless the goods are delivered to the buyer, and the possession with title of goods is transferred unto the buyer, the sale does not take place and it cannot be said that goods have been sold. Though it may not always be the physical delivery and physical possession.
Present is the case of F.O.R. destination sales. It therefore becomes important to understand its meaning. Section 19 of the Sale of Goods Act, 1930 explains as to when property in goods passes.
F.O.R. destination means the seller retains the risk of loss until the goods reach the buyer. Historically this term was used only to refer goods transported by ships to U.K. but it has since been expanded to include all types of transportations. F.O.R. destination as different from FOB origin means that the seller retains the risk of goods until the goods reach the buyer - The possession in the goods remain with the seller during the transit, and the possession is transferred to the purchaser only when the goods reach him.
Since the buyer had a right to reject the goods after receiving them at his place and he was supposed to make the payment at his place, that too after inspecting the goods also. Also since the appellant had a right to sell the goods to someone else, before the goods reach to the buyer at his destination, it become ample clear that the control and possession of propriety in the goods remained with the appellant till they reach the place of his buyer. Hence when appellant engaged the transporter, he instead of his buyer becomes the service recipient of freight / transport service, and the same, becomes his input.
The circular dated 08.06.2018 also cannot be made retrospectively applicable to the period in question (April 2015 to June, 2017). At the relevant time, circular No. 988/12/2014 CX dated 20.10.2014 / Circular No. 97/8/2007-CX dated 23.8.2007 were applicable. It has been time and again been settled by the Hon’ble Supreme Court that the beneficial circular cannot be retrospectively withdrawn. Consequently benefit of the said circular shall continue to be available to the appellant.
Extended period of limitation - HELD THAT:- It is apparent on record that credit has been shown in the ER-1 returns filed by the appellant from time to time. Neither suppression nor misrepresentation of facts can be alleged against the appellant. The alleged suppression of facts on part of the appellant that too with an intent to evade payment of duty is therefore not sustainable. It is accordingly held that the Department was not entitled to invoke the extended period of limitation.
Appeal allowed - decided in favor of appellant.
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2021 (8) TMI 1115
Recovery of erroneous Refund of interest on delayed payment of differential duty - price variation clause - Rejection on the ground that since the appellant was liable to pay interest on the price variation amount, he is not liable to get the refund thereof - HELD THAT:- The Hon’ble Apex Court in the case of M/S. STEEL AUTHORITY OF INDIA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIPUR [2019 (5) TMI 657 - SUPREME COURT] has adjudicated the same issue i.e. whether the interest is payable on differential excise duty with retrospective effect that becomes payable on the basis of escalation clause, where it was held that The fact that it is known, later cannot detract from the fact, that the later discovered price would not be value at the time of removal. Most significantly, section 11A and section 11AB as it stood at the relevant time did not provide read with the rules any other point of time when the amount of duty could be said to be payable and so equally the interest.
The appellant was liable to pay the interest on subsequent price variation with effect from the date of removal of the goods involved - the refund of the amount of interest already paid by the appellant was erroneous.
Appeal dismissed.
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