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Showing 301 to 320 of 1687 Records
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2023 (9) TMI 1387
Violation of Principles of Natural Justice - Adjudicating Authority did not give opportunity to the Appellant to make its submissions - admitting Section 9 application - HELD THAT:- From the sequence of the events it is clear that the Adjudicating Authority has fixed several dates in Section 9 application after issuance of notice to the Corporate Debtor. On non-appearance of the Corporate Debtor on 22.02.2022, the Adjudicating Authority directed for ex-parte proceedings. The order dated 22.02.2022 was sought to be recalled by the Corporate Debtor by filing an application dated 09.07.2022 which application admittedly was not listed on the date when the Adjudicating Authority heard the Operational Creditor and reserved the matter. The application under Section 9 was filed in the year 2021, where repeatedly notices were issued to the Corporate Debtor.
In the facts of the case and sequence of the events, there are no bonafide reason which can explain the non-appearance of the Corporate Debtor before the Adjudicating Authority. It is true that on 11.07.2022, the counsel appearing on behalf of the Corporate Debtor informed the Court that an application for recall has been filed and the Adjudicating Authority on that date has ordered the application to the listed with the Company Petition but the application stood in defect and could not be listed and the matter was heard by the Adjudicating Authority. Even the vakalatnama of counsel for the Corporate Debtor was in defect and was not before the Court.
It has clearly been held that opportunity was given to the Corporate Debtor to appear and file reply and when after giving reasonable opportunity Corporate Debtor did not appear, order was passed to proceed ex-parte. I.A. filed by the Corporate Debtor having not listed, no fault can be found with the order passed by the Adjudicating Authority. The Adjudicating Authority has given reasons for admitting Section 9 application.
There are no error in the order of the Adjudicating Authority warranting interference in exercise of our appellate jurisdiction - Appeal is dismissed.
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2023 (9) TMI 1386
Seeking restoration of petition - condonation of delay in filing petition - non-prosecution of the case - HELD THAT:- There is no sufficient cause assigned by the Appellant for the purpose of allowing the present appeal. Without going into the merit of the case, it is observed that the Adjudicating Authority has rightly dismissed the petition for non-prosecution.
Appeal dismissed.
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2023 (9) TMI 1385
Approval of Resolution Plan - Non Consideration of GST liability as First Charge - failure to follow the requirements u/s 30(2) of the I&B Code which mandates that the 1st Respondent, to ensure that the ‘Resolution Plan’ conforms to the parameters prescribed in the said provision, in the I&B Code - HELD THAT:- This ‘Tribunal,’ pertinently points out that the ‘Appellant’ / ‘Applicant’ had filed a claim in Form-F for a sum of Rs.54,46,13,819/-, on 12.012.2018, after adjusting the receipts of Rs.30,36,36,873/-, in respect of GST Liability and the same was rejected by the 1st Respondent / Resolution Professional of the Corporate Debtor, because of the fact that the claim was resting upon the Estimates and Best Judgment Assessment orders, in the teeth of Section 62 of the KGST Act, 2017.
Considering the fact that Appellant / Petitioner, came up with the same ‘claim’, ‘sum’, which arose, based on ‘Best Judgment Assessment’ order, made on earlier occasion, and the ‘regular assessment’, was not made, hence, this Tribunal, is of the ‘cocksure’ opinion, that the ‘demand’ was not ‘ascertained’ and not crystalised and placed before the 1st Respondent / Resolution Professional for consideration of the ‘Committee of Creditors’. Suffice it, for this ‘Tribunal’, to pertinently point out that the Appellant / Petitioner, is prohibited, based on the ‘Principle of Res judicata’, and ‘by its conduct, is estopped’ from agitating the likewise, grounds for determination before the ‘Adjudicating Authority’ / ‘Tribunal’.
This Tribunal, ongoing through the impugned order passed by the ‘Adjudicating Authority’ / ‘NCLT Bengaluru Bench, is of the considered opinion, that the ‘observations’ made in paragraph 18 and 19 to the effect ‘that the claim of Applicant, would not be considered to have ‘First Charge’ at par with secured creditors under the mandatory provisions of Section 82 of the Karnataka Goods and Services Act, 2017, Section 82 of the Central Goods and Services Tax Act, 2017 and Section 20 of the integrated goods and Services Tax Act, 2017 and that ‘Section 20 of the IGST Act provides that certain provisions of CGST Act inter alia, those falling under Demands and recovery section of CGST Act shall, ‘mutatis mutandis’, apply, so far as may be, in relation to integrated tax, as they apply in relation to the ‘Central Tax’, as if they are enacted under the IGST Act etc.’ and that apart, a ‘specific exception to the provisions of the Code’ was prescribed in the aforesaid provisions, and expressly providing and overriding effect to the I&B Code, are ‘free from any legal errors’.
Appeal dismissed.
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2023 (9) TMI 1384
Recall of order admitting Section 7 application - non-service of notice - Appellant challenging the Order contends that it is true that registered office of the Corporate Debtor is at Mumbai however the said office is in the possession of official assignee since the year 2013 hence any notice issued to the said office in the name of Corporate Debtor has never been served.
HELD THAT:- From the facts which has been brought on record it does appear that notice which was sent by the Financial Creditor to the Corporate Debtor pre filing of Section 7 Application and post filing of section 7 application returned with the remark “left”. Affidavit which was filed on behalf of Financial Creditor also clearly mentioned this fact which has been brought on record at page 85 of the Appeal Paper Book - It appears that due to non-service effected on the corporate debtor, the Adjudicating Authority has passed an order for paper publication on 2nd July, 2019. There is no dispute that paper publication was made at Mumbai. In support of submission of the Appellant that registered office of the Corporate Debtor is in the possession of the official assignee since 2013, the Appellant has brought on record the letter issued from Official Assignee’s Office High Court, Bombay 30th July, 2021 (Page 77) which indicates that in pursuance of the Order Notice of Motion No. 1 of 2013, order dated 3rd June 2013 official assignee has asked for handing over the documents.
From the facts stated, it is clear that registered office at Mumbai was not in the possession and control of the Corporate Debtor and after 2013 correspondence was made by the Corporate Debtor from Jaipur Address which was also responded by the Financial Creditor on 08th May, 2014 - In the record, there is no proof that any step was taken for serving the email nor any affidavit was filed by the Financial Creditor before the Adjudicating Authority that both the modes were adopted for service as directed vide Order dated 2nd July, 2019.
The present is a case where corporate debtor was unaware of the proceedings and publication at Mumbai was not effective since registered office was not under the control and possession of the Corporate Debtor.
The objection of the Respondent that Appeal is not maintainable has no legs to stand - appeal allowed.
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2023 (9) TMI 1383
Rejection of application for extension of 60 days’ time from the date of expiry of CIRP for allowing the CoC to consider and vote upon approval of Resolution Plan - rejection on the ground that Appellate Tribunal can only extend the same - rejection also on the ground that Appellant before the Hon’ble Supreme Court was granted liberty of such extension and it cannot be granted to Resolution professional now.
HELD THAT:- This Tribunal by its order passed in GOVIND PRASAD TODI, SIDDHARTHA TODI VERSUS SATYA NARAYAN GUDDETI (LIQUIDATOR/ ERSTWHILE RESOLUTION PROFESSIONAL OF AJANTA OFFSET & PACKAGING LIMITED) , CANARA BANK, CORPORATION BANK, STATE BANK OF INDIA, EXIM BANK, TODI INVESTORS (INDIA) PVT. LTD., VINAYAK DEALERS PVT. LTD., SOUTH CITY PROJECTS (KOLKATA) LTD., EDCL INFRASTRUCTURE LTD., AMRITVANI EXIM PVT. LTD. [2023 (2) TMI 486 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] has extended the CIRP for a period of 90 days which order was challenged by Govind Prasad Todi and Siddhartha Todi before the Hon’ble Supreme Court in GOVIND PRASAD TODI & ANR. VERSUS SATYA NARAYAN GUDDETI & ORS. [2023 (3) TMI 1407 - SC ORDER], where the Hon’ble Supreme Court held After arguing the matter for some time, the learned senior counsel appearing for the appellants seeks leave to withdraw this appeal with a liberty that if occasion arises, he may be permitted to apply for extension of time.
The liberty was granted by the Hon’ble Supreme Court to apply for extension of time. Extension of time in the CIRP has to be applied by the Resolution Professional who is the official conducting the CIRP and further when CoC has instructed the Resolution Professional to seek extension of 60 days, the application could not have been rejected only on the ground that Govind Prasad Todi and Siddhartha Todi who were granted liberty, who have not filed the application. The liberty was granted to Govind Prasad Todi and Siddhartha Todi to also file application for extension but the order of the Hon’ble Supreme Court does not precluded the Resolution Professional to make application for extension of time.
In the facts of the present case, when in the CIRP plans have already been received which have to be voted upon, the ends of justice shall be served in extending the period of CIRP for 60 days.
Appeal allowed.
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2023 (9) TMI 1382
Rejection of Section 7 Application - dismissed as barred under Section 10A of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The liability of corporate guarantor to make the outstanding payment arose only when Corporate Guarantee was invoked vide Notice dated 12th June, 2020 as per the notice invoking the corporate guarantee. 16th June, 2020 was date on which default was committed which is a date admittedly covered by Section 10A prohibition. The Adjudicating Authority did not commit any error in rejecting Section 7 Application as barred by Section 10A.
There are no merit in the Appeal - the Appeal is dismissed.
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2023 (9) TMI 1381
Money Laundering - Enforcement Directorate has an independent right to conduct an investigation into the Teachers’ Recruitment Scam or not - HELD THAT:- Reading the order of the Single Judge in its entirety, it is evident that the Single Judge has duly applied her mind to the question whether the investigation should be stayed. The Single Judge was of the view that such a direction could not be issued at the present stage to stultify the investigation.
There are no reason to interfere with the impugned order since the consequence of doing so would be to stifle the investigation at the incipient stage. However, the petitioner is at liberty to pursue all remedies which are available in law, including under Section 482 of the Code of Criminal Procedure 1973.
Since this Court had permitted the filing of applications before the Single Judge while disposing of the proceedings on 28 April 2023, the direction for the payment of costs would stand deleted - SLP disposed off.
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2023 (9) TMI 1380
Money Laundering - seeking quashing of the ECIR - summons dated 8.6.2023 issued by the Enforcement Directorate - provisional attachment of property - HELD THAT:- In the instant case, cash amounting to a total of Rs. 49.80 Crore and gold & jewellery valued at more than Rs. 5.08 Crore has already been seized from Ms. Arpita Mukherjee, a close associate of Shri Partha Chatterjee. The ED has also provisionally attached properties worth Rs. 71.18 Crores in this recruitment scam by way of issuance of 3 Provisional Attachment Orders (PAOs) so far in addition to the cash and gold seizure. The total seizure and attachment in the case stands at Rs. 126 Crore (approx.).
The E.D. in this case before this Court has relied upon only the 4th Supplementary Complaint. As such, except the statement of Sujay Krishna Bhadra (an accused who is in custody) no materials were produced by E.D. before this Court to relate the petitioner with the ECIR under challenge - no coercive measures would be taken against the petitioner by the E.D. without adhering to Section 19 of the PMLA, 2002.
Revision disposed off.
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2023 (9) TMI 1379
Seeking a direction to the respondent to close / drop the proceedings against the petitioner - money laundering - Predicate offence - HELD THAT:- It is clear that in the case on hand, there is closure of predicate offence and there is no disputation or contestation that this closure of predicate offence has attained finality and has been given legal quietus.
As regards THE DEPUTY DIRECTOR, DIRECTORATE OF ENFORCEMENT VERSUS EMTA COAL LIMITED & ORS. ETC. [2023 (7) TMI 885 - SC ORDER], we remind ourselves of the principle as laid down in KUNHAYAMMED AND OTHERS VERSUS STATE OF KERALA AND ANOTHER [2000 (7) TMI 67 - SUPREME COURT] to say that Hon'ble Supreme Court has declined to interfere with the Delhi High Court order which vide paragraph 16 specifically deals with the stand alone offence argument but the Hon'ble Supreme Court has put in a caveat and the caveat is recording of statement of learned Additional Solicitor General that in the event of any further action in respect of the predicate offence liberty has to be preserved for the Enforcement Directorate for reviving the proceedings. To be noted, this is captured in the third paragraph of the 06.07.2023 order of Hon'ble Supreme Court - this caveat will apply to the case on hand also and therefore when we accede to the prayer in the captioned WP it will clearly be with a similar caveat.
The prayer of the writ petitioner answered in the affirmative.
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2023 (9) TMI 1378
CENVAT Credit - input service - Deposit Insurance Service provided by Deposit Insurance and Credit Guarantee Corporation - nexus of such service with the actual performance of the banking service provided by the respondents/assessees - HELD THAT:- The issue in the present proceedings is certainly not different which has fell for consideration of the Larger Bench in the case of M/S. SOUTH INDIAN BANK VERSUS THE COMMISSIONER OF CUSTOMS, CENTRAL EXCISE AND SERVICE TAX-CALICUT [2020 (6) TMI 278 - CESTAT BANGALORE] - It is found that the Larger Bench has taken into consideration the statutory scheme of DICGC as also the mandatory requirement under the Reserve Bank of India directives to be complied by the bank like the assessee and the compliances of which were mandatory. It is in the course of availing such insurance service for the benefit of the depositors, the petitioner was required to pay the premium on which service tax was paid, and of which, input tax credit was sought to be availed. The CESTAT has rightly observed that the issue stands squarely covered by the decision of the Larger Bench.
It can be construed from a plain reading of section 66D that the negative list is compiled of the services stated therein and is relied on to bring the assessee within the negative list is clause-(n) i.e. services by way of extending deposits, loans, advances etc. in so far as the consideration is represented by way of interest or discount. The expression used in clause-(n) begins with the words ‘extending deposits, loans or advances’, and such activity is represented by way of interest or deposit of money. The determining word in the clause is ‘extending deposits, loans or advances etc.’ ‘Extending deposits’ literally understood is the deposits, loans etc. extended by the assessee. The acceptance of deposits is a pure and simple money transaction. But the realm in which the controversy operates is after receiving the deposits from public, the assessee is under statutory obligation to insure the deposits received for conducting the bank business and extends under law services on which service tax is paid. The services provided by the assessee are not falling within the negative list. Therefore, there is relatability on a hostile consideration of business in banking between the services availed and services rendered.
Thus, no substantial question of law arises in the present appeals - appeal dismissed.
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2023 (9) TMI 1377
Non-payment of service tax - Works Contract Service - Erection, Installation and Commissioning Service - Repair and Maintenance Service - reverse charge mechanism - Penalty on Director u/s 78A of the Finance Act, 1994.
Works Contract services including sub-contracts in respect of Railways - HELD THAT:- The department has interpreted the word "Railways" in the aforesaid notification and restricted it's meaning to cover only “Railways meant for public carriage of passengers or goods" - It is observed that there is no such restriction available in the Notification. A plain reading of the Notification reveals that the exemption is available to all Railways whether it is run by Government or the tracks are laid at private Firms. The exemption notification has a wider impact and it is sufficient to cover any infrastructure as Railway. As there is no mention of the fact that the structure has to be used for public carriage, we hold that the exemption is available to all Railway infrastructure.
In the case of KONKAN RAILWAY CORPORATION LTD VERSUS COMMISSIONER OF CGST & CENTRAL EXCISE [2023 (2) TMI 1175 - CESTAT MUMBAI], the Tribunal has held The ‘taxable service’ in Finance Act, 1994 excluding ‘railways’ from the ambit of the service did not place any restriction on benefit going to private railways. The statute, too, did not consider it necessary to fall back on the definition of ‘railways’ in another statute for determination of taxability and it is not open to the adjudicating authority to arrogate that privilege in an executive capacity. The intent of exclusion prior to 1st July 2012, and exemption for the period, therefore, is abundantly clear.
Thus, the exemption is available to all Railway infrastructures. Accordingly, the demands confirmed are not sustainable.
Repair and maintenance service provided to Railways - HELD THAT:- The Appellant has already paid service tax amounting to Rs.45,51,838/- along with interest thereon. For the balance tax of Rs. 14.69,556/-, they stated that they are not liable to pay the tax, as the abatement benefits as provided under Rule 2A of Service Tax (Determination of Value) Rules, 2006 has not been properly considered in respect of the parties M/s Rites (Haldia) and M/s Rites (Chandrapura). The abatement has been completely denied on the service provided to M/s Bhushan Steel Limited. - The balance demand of service tax of Rs. 14.69,556/-,is not sustainable and therefore, the same is set aside.
Demand under reverse charge mechanism under the category of "Goods Transport Agency Service", "Legal Consultancy Service", "Repair & Maintenance Service" and Rent a Cab Service" - HELD THAT:- In the SCN only payment of Rs. 17,98,959/-has been considered. The appellant stated that the balance tax of Rs.76,148/-is not payable by them. The Appellant explained the reasons for the same which are detailed in their submissions mentioned in Paras 6, 7.1, 7.2 and 7.3 supra. The reasons for the difference is mainly due to wrong adoption of effective rate of RCM, incorrect abatement given to GTA service and incorrect adoption of rate of service tax. We agree with the calculation submitted by the Appellant mentioned in Paras 6, 7.1, 7.2 and 7.3 supra . Accordingly, the balance tax of Rs.76,148/- is not sustainable and therefore, we set aside the same.
Penalty on Director u/s 78A of the Finance Act, 1994 - HELD THAT:- The Appellant has already paid the service tax along with interest and the same has been appropriated in the impugned order. There is no evidence brought on record to establish suppression of fact with an intention to evade payment of tax. Accordingly, we hold that no penalty imposable under section 78 of the Finance Act, 1994 and the same is set aside. No penalty imposable under Section 77(1)(a) of the Finance Act, 1994 and the same is set aside. There is no evidence available to implicate the Director of the Firm in non payment of service tax. As all the demands confirmed in this order has already been paid along with interest and the sane has already been appropriated in the impugned order, the penalty imposed on the Director under section 78A of the Finance Act, 1994 is set aside.
Appeal disposed off.
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2023 (9) TMI 1376
Levy of service tax - Business Auxiliary Services - providing travel relating services to both domestic as well as international travellers - export of services - HELD THAT:- The appellant filed four appeals before the Tribunal but the Tribunal vide its Final Order dated 28.07.2016 disposed of three appeals only and the present appeal could not be tagged with the earlier appeals as the same was transferred to the CESTAT, Chandigarh for disposal.
While disposing of the ROM Application, the Tribunal in Para 9 has held that appeal No. ST/188/2010 filed by Revenue against the impugned order dated 29/10/2009 is rejected. The Cross Objection filed by the assessee is also disposed of. Appeals filed by BTPL (ST/104/2010, ST/55430/2013 and ST/54736/2014) were disposed of in view of above findings on export of services.
The department appeal before the Hon’ble Apex Court was also dismissed as not pressed for as reported in the Supreme Court Website.
Following the ratio of the said decision in the appellant’s own case M/S BIRD TRAVELS (P) LTD. VERSUS CCE, NEW DELHI. [2017 (3) TMI 1930 - CESTAT DELHI], the appeal of the appellant allowed on the same terms as was allowed in terms of the decision of the CESTAT, New Delhi in M/S BIRD TRAVELS (P) LIMITED VERSUS CCE, DELHI-I AND CST-DELHI-I (VICE-VERSA) [2016 (8) TMI 720 - CESTAT NEW DELHI].
Appeal disposed off.
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2023 (9) TMI 1375
Levy of Service Tax - Commercial and Industrial Construction service (CICS) - activity of Trenching and Laying of PLB pipes and cable works for BSNL - HELD THAT:- In the admitted facts and circumstances, the Appellant has not provided any taxable service under any clause or sub-section (105) of Sec 65 of the Finance Act, 1994 in respect of their activity of laying cables under or alongside roads for BSNL.
So far as the amount collected from the service receiver and deposited by the Appellant, it is held that the taxes have been rightly deposited and Appellant shall not be entitled to any refund of the same. In the circumstances, all penalties imposed are set aside.
Demand set aside - appeal allowed.
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2023 (9) TMI 1374
Levy of Service Tax - Residential Complex Service - carrying out activity of Construction of Residential Complex (With material) as a developer, where the contract was executed before 01.06.2007 and where services were provided before and after 01.06.2007 - refund of service tax paid during investigation - refund is barred by Section 73 (3) of Finance Act, 1994 or not.
Whether the construction of residential complex with material is taxable before 01.06.2007? - HELD THAT:- In this case undisputedly the construction of residential complex was provided by the appellant along with material which stands established and admitted as per the show cause notice wherein the demand was raised after extending the abatement of 67% which is given only when the service is provided along with material. Therefore, the fact that the construction was provided along with material is not under dispute. If this is be so then the service is clearly classifiable under works contract service and up to 01.06.2007, the service tax was not leviable on works contract service was held by the Hon’ble Supreme Court in the case of Total Environment Building System P. Ltd [2022 (8) TMI 168 - SUPREME COURT].
As regard the period post 01.06.2007, the demand is not sustainable on the ground that despite the service of works contract service, the demand was raised under construction of residential complex. Since the service tax of works contract service demanded under different head i.e. Construction of Residential Complex the same is not legal and correct.
It is found that as per the Board Circular No. 108/02/2009 dated 29.01.2009, the construction service provided by the builder/developer was not taxable up to 01.07.2010. This particular issue has been considered by this Tribunal in the case of COMMISSIONER OF CUSTOMS, CENTRAL EXCISE & SERVICE TAX, VISAKHAPATNAM - I VERSUS M/S PRAGATI EDIFICE PVT LTD (VICE-VERSA) [2019 (9) TMI 792 - CESTAT HYDERABAD] where it was held that It is well settled legal position that whether the service is rendered as service simpliciter or as a works contract, no service tax can be levied on construction of residential complex prior to 01.7.2010.
Thus, up to 01.07.2010 there was no service tax on the Construction of Residential Complex. Therefore, for this reason also the demand is not sustainable, hence, the same is set aside.
Refund in respect of the deposit made against the aforesaid demand - HELD THAT:- Since the demand itself is set aside, the appellant is entitled for the refund as consequential benefit. The contention of the revenue is that the deposit made by the appellant is covered by the provision of Section 73 (3) of Finance Act, 1994 - It is found that in case of payment made under 73 (3), firstly the assessee is required to pay the amount of service tax along with interest and same need to be intimated to the department and simultaneously the department is not supposed to issue the show cause notice - In the present case admittedly the appellants were issued show cause notice demanding service tax, therefore, this case is not covered by provision of 73 (3) of the Finance Act, 1994. Hence, the rejection of refund on that count is baseless and not tenable.
The demand of service tax is set aside. Consequently, the appellants are entitled for the refund - Appeal allowed.
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2023 (9) TMI 1373
Method of Valuation - Related party transaction - Sale to inter-connected undertakings for the period prior to 01.03.2013 - applicability of rule 11 of the Valuation Rules read with rule 4 and rule 2 (b) - case of the Revenue is that the duty should have been paid on the price at which the appellant had sold the goods to independent buyers in the greatest aggregate quantity.
HELD THAT:- In the impugned order, and the OIO the value was determined as per Rule 11 read with Rule 4. We find that Rule 11 can be applied only when the situation is not covered by any of the previous valuation rules. It is undisputed that the appellant and JSPL and JPL are related persons. Therefore, it must be examined if they can be covered by Rule 10 (a) or Rule 10(b) - If the appellant and JSPL an JPL were related persons only because they were interconnected undertakings and they were not also related in any of the other three ways [clauses (i) (ii) or (iv) of clause (b) of sub-section (iii) of Section 4] or the appellant and JSPL or JPL are the holding or subsidiary companies of each other, then valuation should be done as if they are not related persons.
In this case, there is no allegation or evidence that JSPL and JPL are connected to the appellant in any of the other three ways. There is no allegation that the appellant is either the holding or the subsidiary company of either JSPL or JPL. The only allegation is that they are associated companies and hence they are interconnected undertakings. It has also been alleged that JPL is the subsidiary of the JSPL, i.e., one of the buyers is the subsidiary of another buyer. Therefore, this case falls squarely under section 10 (a) of the Valuation Rules and duty was required to be paid as if the appellant and JSPL and JPL were not related persons, i.e., on the transaction value.
The demand of duty under Rule 11 of Valuation Rules cannot, therefore, be sustained and needs to be set aside - impugned order set aside - appeal allowed.
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2023 (9) TMI 1372
Clandestine Removal - Applicability of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 - failure to file declaration under rule 6 of Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 - suppression of installed machinery - scope for any mitigating circumstances to be considered for levy under any other provision of law or to be left out of assessment or not - presumption of having commenced production on the appointed date - Recovery alongwith interest and penalties - HELD THAT:- The claim of the appellant that licence for manufacture of ‘gutkha’ had not been obtained appears to have been overlooked even though it should have been possible to have this aspect verified. Sadly, that did not happen. It was improper on the part of the adjudicating authority to assume to the contrary and to presume that either the administration of the state government was lax or that the appellant had operated outside the law with not a whiff of illegal activity coming to the public eye. No inquiry was taken up to ascertain destination of ‘impugned product’, if any, had been manufactured from deployment of machine intended for manufacture of licenced product.
There is no evidence of clandestine production. There is no evidence to suggest that appellant had used available machines to manufacture ‘gutkha’ during the disputed period. The impugned order is silent about the state of affairs that prevailed prior to the Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 coming to force or any valid reason to suspect that appellant was manufacturing the product. The presumption owing to which the Rules were said to be applicable is not acceptable and the collection of tax on such assumptions is unthinkable.
The appeal is allowed.
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2023 (9) TMI 1371
Recovery of excess refund sanctioned to the assessee in the initial month where the Cenvat credit was not fully utilized - HELD THAT:- The similar issue has been dealt with by this Tribunal in the case of M/s Singla Cables [2015 (2) TMI 381 - CESTAT NEW DELHI], wherein this Tribunal has recorded overall there was no excess availment of exemption under Notification No. 56/2002-CE, as the excess quantum of refund under Notification No. 56/2002-CE during February 2006 to April 2006, was neutralized by lesser quantum of refund under this notification during December 2006.
The refund claim of the appellants for the subsequent period, could not be rejected on the ground that the appellant has taken excess refund for the period prior to 22.12.2002, therefore, no demand is sustainable against the appellant as demanded in view of the letter dated 03.06.2003 by the Deputy Commissioner and the refund for the period August, 2006 to October, 2006 were not required to be appropriated.
Appeal allowed.
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2023 (9) TMI 1370
Compounded Levy Scheme - Abatement of duty - appellant availed abatement of duty for the days the machine was sealed and not in operation - HELD THAT:- The appellant have followed the procedure for taking abatement of duty provided under Rule 10 of “Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008”.
From the plain reading of the Rule 10 it is clear that the abatement is available to the appellant on following the condition laid therein. As per the condition the appellant has to intimate the jurisdictional officer in advance regarding sealing and de-sealing of the machines. In the present case there is no dispute that the intimation was given well in advance and the Jurisdictional Range Superintendent has de-sealed and re-sealed the machine and the machine was operated only during that period - In the present case, the appellant is eligible for abatement in principle and under no circumstances the full duty can be demanded for the period of abatement when the machine was not in operation. This issue has been considered in various judgments.
In the case of THE COMMISSIONER VERSUS M/S THAKKAR TOBACCO PRODUCTS P. LTD. [2015 (11) TMI 319 - GUJARAT HIGH COURT] the Hon’ble Gujarat High Court considered the same issue, where it was held that When the rules do not provide for the manner in which duty is required to be abated, nor do they provide that abatement shall be by an order of the Commissioner or any authority, but nonetheless provide for abatement of duty and the extent of entitlement to such abatement, no fault can be found in the approach of the assessee in suo motu taking the benefit of such abatement.
In the case of COMMISSIONER OF CENTRAL EXCISE, DELHI-I VERSUS SHAKTI FRAGRANCES PVT. LTD. UNIT-II [2015 (10) TMI 1040 - DELHI HIGH COURT], the Hon’ble Delhi high Court also considered the similar issue where it was held that On a collective reading of Rules 9 and 10 of the PMPM Rules, the Court is of the view that the failure to make the payment of duty on fifth day of every month cannot result in depriving the assessee of the pro rata abatement of duty which he is in any way entitled to since admittedly in the present case there has been a closure of the factory from 14th to 31st August, 2012 and an abatement order has also been passed on 28th August, 2012. However, the assessee would be liable to pay the interest for the period of late deposit of duty.
The demand is not sustainable. Accordingly, the impugned order is set aside. Appeal is allowed.
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2023 (9) TMI 1369
Time limitation - present Writ Petition was filed by the petitioner on 04.07.2022 immediately after the impugned order dated 01.06.2022 was served within the statutory period prescribed for filing the appeal before the expiry of limitation for filing statutory appeal before the Appellate Authority had expired - Wrongful determination of taxable turnover under Rule 8(5)(d) of the TNVAT Rules, 2007, r/w Section 5 of the TNVAT Act, 2006.
HELD THAT:- Section 5(1) of the TNVAT Act, 2006 is the charging provisions for works contract. The taxable turnover is to be determined under Rule 8(5) of the TN VAT Rules,2007. Only the amounts specified in Clauses (a) to (i) to Rule 8(5) of the TNVAT Rules, 2007 are to be allowed to be deducted for determining the taxable turnover in the case of works contract - If amount is not ascertainable from the books of accounts maintained and produced by a dealer before the assessing authority, deduction shall be of such amount as is calculated at the rate specified in column (3) of the Table to Rule 8(5) of the TNVAT Rules, 2007.
Since, it is the case of the petitioner that few more TDS certificate have been issued to the Petitioner by the Greater Corporation of Chennai, the petitioner is directed to furnish the same to the respondent within a period of thirty (30) days from the date of receipt of a copy of this Order.
The 1st respondent is directed to issue a corrigendum to the impugned order by revising the tax liability after adjusting the TDS certificates said to have been issued during the pendency of this Writ Petition, within a period of sixty (60) days from the date of receipt of a copy of this order.
The petitioner shall thereafter file an appeal before the Appellate Authority under the provisions of the TNVAT Act, 2006, within a period of ninety (90) days from the date of receipt of a copy of this order.
Petition dismissed.
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2023 (9) TMI 1368
Principles of natural justice - rejection of application for recovery of arrears in mechanical manner without assigning any reasons - authority to adjust under Rule 51 of the Bombay Sales Tax Rules, 1959 against dues payable under the Maharashtra Purchase Tax on Sugarcane Act, 1962 - HELD THAT:- The reply affidavit does not justify order dated 21st August 2019 passed by the Deputy Commissioner of State Tax in rejecting the Petitioner’s application under Section 7 of the Maharashtra Settlement of Arrears of Tax, Interest, Penalty or Late Fee Ordinance, 2019. It does not furnish any reasons whatsoever to disentitle the Petitioner for such settlement. Insofar as the refund adjustment order is concerned, it also appears that the Deputy Commissioner has proceeded to issue such orders patently without jurisdiction as he could not have assumed jurisdiction of an authority under the 1962 Act. On such count, the impugned refund adjustment order is rendered bad and illegal.
It appears that although such refund order is passed on 25th July 2019, the Deputy Commissioner has proceeded to exercise jurisdiction under Rule 51 of the Bombay Tax Rules, 1959 (the 1959 Rules), whether it was at all permissible to invoke the provisions of the 1959 Rules is another question, which also goes to the root of the matter. Be that as it may, the refund adjustment order cannot be sustained for want of jurisdiction.
The impugned order dated 21st August 2019 is quashed and set aside. The refund application of the Petitioner would be required to be restored to the Deputy Commissioner to be decided in accordance with law - Petition allowed.
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