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Showing 321 to 340 of 2063 Records
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2019 (1) TMI 1746
Refund claim - area based exemption - N/N. 33/99-CE dated 08.07.1999 - only ground cited by the Revenue is that the Assistant Commissioner sanctioned the refunds, which were not proper in view of the subsequent investigation and the show-cause notice issued by DGCEI - HELD THAT:- The refund claims were sanctioned after due scrutiny of the supporting documents by the jurisdictional Assistant Commissioner. Revenue has not highlighted any irregularities or mistakes in such documentary evidences on the basis of the refund claims have been sanctioned. It is also seen from the record that the show-cause notice issued by DGCEI was on a date subsequent to the date of sanction of the refund claim. Hence, since the jurisdictional Assistant Commissioner did not have any occasion to consider the fact of issue of such show-cause notice.
The issue of show-cause notice on a later date cannot be a valid ground for recalling of refund claims already paid - Appeal dismissed - decided against Revenue.
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2019 (1) TMI 1745
GTA Service - reverse charge mechanism - whether appellant is required to pay service tax for receipt of services from Container Corporation of India Ltd, when admittedly the tax amount has been charged and paid on the invoices issued by the said service provider? - HELD THAT:- The service provider is a Govt of India Undertaking and the genuineness of the documents issued by it cannot be doubted. Even though the appellant was required to pay service tax under reverse charge, they cannot be saddled with further demand on account of procedural lapse when admittedly tax has been duly paid to the service provider - the appellant cannot be made liable to pay service tax on this count and hence, the demand of service tax of ₹ 4,69,461/-, interest and penalty thereon under the category of GTA service are set aside.
Imposition of penalty of ₹ 85,227/- for service tax paid in audit proceedings before the issuance of SCN - HELD THAT:- The said amount of tax was ascertained in the audit consequent to computation error which was never disputed by the appellant. The short paid tax was made good with interest well before the issuance of Show Cause Notice - penalty set aside.
Appeal allowed - decided in favor of appellant.
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2019 (1) TMI 1744
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - failure to issue notice before admission of application u/s 9 of IBC - violation of principles of natural justice - HELD THAT:- In the present case admittedly no notice was issued by the Adjudicating Authority to the ‘Corporate Debtor’ before admitting the application under Section 9 of the I&B Code. For the said reason an order cannot be upheld having passed in violation of principles of natural justice as already held in M/S. STARLOG ENTERPRISES LIMITED VERSUS ICICI BANK LIMITED [2017 (7) TMI 74 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL].
The Adjudicating Authority having failed to issue any notice to the ‘Corporate Debtor’ before admission of the application under Section 9, it prejudiced the ‘Corporate Debtor’, who could have shown pre-existence of dispute and thereby with a request to dismiss the application - The ‘Resolution Professional’ has filed its affidavit, similar plea has been taken as 1st Respondent has taken but as ‘Resolution Professional’ has no role for admission of Section 9, it is not open to him to support or oppose one of the party on the question of fact except to dispute or admit one or other fact.
The application preferred by the 1st Respondent under Section 9 of the I&B Code is dismissed.
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2019 (1) TMI 1743
Adjournment of the case twice - the ‘Committee of Creditors’ passed order in terms of sub-section (4) of Section 30 of the ‘Insolvency and Bankruptcy Code, 2016’ and the ‘Resolution Professional’ placed the matter before the Adjudicating Authority (National Company Law Tribunal) on 26th October, 2018 for passing order in terms of Section 31 of the ‘I&B Code’ - HELD THAT:- It is not clear as to why after the decision of the Hon’ble Supreme Court and the approval of the ‘Committee of Creditors’ and placement of the ‘Resolution Plan’, the Adjudicating Authority, Ahmedabad Bench, has adjourned the twice.
It is informed that the matter is likely to be listed on 7th January, 2019, therefore, we are not making any observation with regard to nondisposal of the matter on an early date in spite of the Judgement of the Hon’ble Supreme Court - Appeal disposed off.
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2019 (1) TMI 1742
Corporate Insolvency Resolution Process - Whether the ‘Axis Bank Ltd.’ was also ‘Counter Corporate Guarantor’, comes within the meaning of ‘Financial Creditor’ as defined under Section 5(7) & (8) of I&B Code? - It was held that maturity of claim or default of claim or invocation of guarantee for claiming the amount has no nexus with filing of claim pursuant to public announcement made under Section 13(1)(b) r/w Section 15(1)(c) or for collating the claim under Section 18(1)(b) or for updating claim under Section 25(2)(e) - HELD THAT:- The appeal is dismissed.
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2019 (1) TMI 1741
Validity of Settlement Plan - the present CIRP against the corporate-debtor ought to have been terminated by the CoC and RP by accepting the offer of settlement - right of the borrower to settle the outstanding debt at any stage of the proceedings by redeeming the debt - HELD THAT:- The provisions of the IB Code are made having an overriding effect under section 238 of the Code on any other law in force and, in the present IB Code, the mode of settlement of debt has been made permissible only by way of an application to be moved under section 12A of the Code and not otherwise. As per the above stated provision, it is made open to the applicants to move such application only through the RP and the CoC before this court provided 90 per cent. members of the CoC have approved such settlement offer. Before introducing such section 12A, it was not open to the Adjudicating Authority to settle the debts or accept settlement offer after admission of the petition under the IB Code. The post admission settlement was not permissible because it is a settled legal position that once the petition is admitted, it becomes remedy in rem not in personem under the scheme of the Code and it was not made open even for the applicant/financial creditor to seek withdrawal of the CIRP on the pretext of subsequent settlement arrived at in the matter.
To consider and examine the scope of settlement within the purview of section 60(5) of the IB Code would not be proper when the specific provisions for settlement of debts under section 12A have already been incorporated in the Code and if such an application for settlement is considered under the provisions of section 60(5) of the IB Code, it may amount to deviation from the expressed statutory provisions because it is a settled legal position that if a particular thing is not allowed to do directly, it cannot be done indirectly.
Application not found maintainable within the ambit and scope of section 12A and section 60(5) of the IB Code and, hence, it is rejected on this limited ground that it is not maintainable before this Adjudicating Authority - application dismissed.
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2019 (1) TMI 1740
Rectification of mistake - Disallowance u/s 14A read with Rule 8D to the Book Profit while computing the MAT u/s 115JB - disallowing interest being proportionate interest expenditure which was alleged to be incurred towards extending interest free loans and advances to sister concerns - disallowance of employees contribution to Provident Fund as the payment in respect of the same was not made within the due date specified in the Act - disallowing expenses by alleging the same to be prior period expenditure have not been decided by the Tribunal, which amounts to mistake apparent from record - Accordingly, we recall the order with a limited scope of deciding the ground 5,6,7 & 8.
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2019 (1) TMI 1739
Late fees u/s 234E - processing the statement of tax deducted at source u/s 200A - amendment brought in the Finance Act 2015 w.e.f. 01.06.2015 paved the way for levying the fee u/s 234E of the Act in the statement processed u/s 200A - HELD THAT:- Following the decisions given by us in the case of State Bank of India, Genda Chowk and others [2018 (12) TMI 1229 - ITAT INDORE] and M/s. Madhya Pradesh Power Transmission Ltd. & others [2018 (12) TMI 1323 - ITAT INDORE] are of the opinion that Ld. CIT(A) erred in confirming the levy of late fees u/s 234E of the Act by the assessing officer. Accordingly findings of ld. CIT(A) in all these 93 appeals are set aside and revenue is directed to delete the levy of fees u/s 234E of the Act in all these 93 cases. Thus, common issue raised in these bunch of appeals is decided in favour of the assessee.
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2019 (1) TMI 1738
Classification of imported goods - Business Projectors - benefit of N/N. 24/2005-Cus. dated 1.3.2005, N/N. 2/2008 dated 1.3.2008 at S. No. 63 and N/N. 29/2010-Cus. dated 27.2.2010 - HELD THAT:- There is no reason to deviate from the view expressed by the Appellate Tribunal whilst following the earlier decisions on the matter in issue, which had attained finality including on account of dismissal of two appeals by this Court.
Appeal dismissed.
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2019 (1) TMI 1737
Concessional rate of duty - goods falling under CTH 9022 were chargeable to CVD @ 4% - Benefit of N/N. 58/2008-C.E., dated 7-10-2008 and 24/2010 dated 27-2-2010 - appellant submitted that the benefit provided under the Notifications dated 7-10-2008 and 27-2-2010 should be available to the appellant inasmuch as the said Notifications were in vogue at the time of importation of the goods - HELD THAT:- The imported goods, in question, were assessed under sub-heading No. 90221300 of the CTH, which reads as “other for dental uses”. Serial No. 30 of the Table appended to Notification No. 10/2006-C.E., dated 1-3-2006 vide column (4) has substituted the rate of duty from 8% to 4% by Notification No. 58/2008-C.E., dated 1-2-2008. Further, the Table appended to Notification No. 20/2006-Cus., dated 1-3-2006 though has prescribed 4% SAD for the goods required for medical, surgical, dental or veterinary use under heading No. 9022 of the CTH, but the said base Notification was amended vide Notification No. 24/2010-Cus., dated 27-2-2010, prescribing the rate of SAD as nil. In both the cases, the goods were imported by the appellant after issuance of the amending Notifications dated 7-10-2003 and 27-2-2010. The Assessing Officer at the time of assessment of the Bill of Entry had not extended the duty benefit provided under the said Notifications - Thus, the appellant had appropriately filed the appeal before the Learned Commissioner (Appeals) for extending the benefit provided under the said Notifications.
The fact is not under dispute that the duty exemption/concessional rate of duty provided under the said Notifications were not subjected to fulfilment of any condition by the importer of the goods. Since the exemption has been provided for the goods falling under CTH 9022, the benefit should also be available to the appellant.
Appeal allowed - decided in favor of appellant.
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2019 (1) TMI 1736
Confiscation - imposition of penalty - Detrimental consequences arising from what is considered to be a mere oversight having negligible impact on duty and arising from their own volunteering of information - HELD THAT:- It is clear from the records that, after the assessment of the warehousing bill of entry, the importer realized the error in the declaration of value and sought intervention under the statutory provision appropriate for the circumstances. That the goods were purchased while on high seas and the differential value was not of such significance could have led to the oversight and, in any case, was hardly worth evading. Doubtlessly, the goods being entered for warehousing would have been subject to assessment again at the time of clearance. There appears, therefore, no prejudice to the interest of Revenue.
In these circumstances, resort to confiscation under Section 111(m) and penalty under Section 112 of Customs Act, 1962 does not appear to be justified.
The appeal is allowed by setting aside the confiscation and penalty.
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2019 (1) TMI 1735
Violation of principles of natural justice - cross-examination of the witnesses not allowed - rejection of transaction value - Rejection of DEPB benefit - confiscation - HELD THAT:- There was no dispute on the PMV arrived at on the basis of necessary market inquiry with cloth merchants M/s. Mangalam Textiles and M/s. Teratex. The export value of the goods was ascertained as ₹ 45.80 per yard by adding the transportation charges, packing charges, marking/lebeling, freight and profit margin. Further, he has observed that even though the departmental proceedings is not Court proceedings necessarily requiring the examination and cross-examination of the witnesses, the appellant’s request was accepted as per Tribunal’s order and since notices sent to the address of the said Mangalam Textiles and Teratex were returned with remark “Left”, cross examination of the witnesses could not materialize. In nutshell, thus cross-examination of M/s. Mangalam Textiles and M/s. Teratex could not be completed in accordance with the direction of this Tribunal.
The findings of the Learned Commissioner (Appeals) relying upon the opinion of M/s. Mangalam Textiles and M/s. Teratex without subjecting them to cross-examination, cannot carry any evidentiary value, hence ought to be discarded. Also, it is found that the Learned Commissioner himself observed that the entire FOB value declared by the appellant has been received and necessary BRC was filed with the Customs. In these circumstances, reducing the DEPB benefit on the basis of PMV, which could not be established by way of cross-examination of the cloth merchants namely, M/s. Mangalam Textiles and M/s. Teratex and confirming consequential action on the basis of said market inquiry, in our opinion, cannot be sustained.
Appeal allowed - decided in favor of appellant.
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2019 (1) TMI 1734
Valuation of imported goods - fashion apparel - related person in terms of Rule 2(2) of the Customs Valuation Rules, 2007 - includibility - Annual franchisee fee - institutional advertising and promotional campaign charges - advertising expenditure.
It was held by High Court that franchisee fee will be includible in the assessable value in terms of Rule 10 (1) (c) of the Customs Valuation Rules; the appellant is required to remit an amount @ 2% and unless such amounts are paid, they will not be entitled to import goods from the foreign principal, towards share of institutional advertising and promotional campaign; and there is no justification to load the invoice value, on value of purchase, to this extent.
There is no need to interfere with the impugned order - impugned order upheld - appeal dismissed.
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2019 (1) TMI 1733
Classification of imported goods - Visi coolers (Refrigerators) falling under Chapter Heading 84.18 of the Central Excise Tariff Act, 1985 - whether classified under 7008 of the Customs Tariff Act, 1975 or under CTH No. 7005? - liability for payment of anti-dumping duty in terms of Notification No.04/2009 dated 06.01.2009.
HELD THAT:- The supplier M/s. Jinan Wenshing Glass Co. Ltd. had furnished a detail technical right-up on the characteristics of insulated glass and also confirmed that the door glass supplied by them to the appellant herein falls under the category of insulated glass panels, which were manufactured as per the size and specification furnished by the appellant - Further, the technical specification furnished by the overseas supplier is also confirming to the HSN notes, to justify classification of the imported goods under CTH 7008. Since, goods of Chapter 7008 is not finding place in the notification dated 06.01.2009 for the purpose of levy of anti-dumping duty, in our considered opinion, such duty levied through adjudication process on the appellant cannot be sustained. The goods cannot be liable for confiscation and no penalty can be imposed on the appellant, since there is no mis-declaration of goods.
Appeal allowed - decided in favor of appellant.
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2019 (1) TMI 1732
Product development expenses incurred in foreign currency - CIT(A) has taken a view that expenditure for development of products cannot be reduced from export turnover as against the view taken by the Assessing Officer otherwise - HELD THAT:- CIT(A) has deleted this addition by following the Tribunal orders by the time the decision of Special Bench in M/S ZYLOG SYSTEMS LIMITED VERSUS THE INCOME TAX OFFICER [2010 (11) TMI 76 - ITAT, CHENNAI] has also come, which confirms the finding of the ld. CIT(A) that development of product is different from rendering of technical services and therefore, it is not required to be excluded from the export turnover. Consequently, by respectfully following the Special Bench decision(supra)we cannot allow the grounds raised by the Revenue.
Reopening of assessment u/s 147 - HELD THAT:- We are in agreement with the ld. CIT(A) as the Assessing Officer has formed the opinion that income to that extent has escaped assessment.
Expenses claimed by the assessee with regard to taking over of contracts with clients alongwith their business as claimed by the assessee (at 1/5th) - CIT(A) failed to note that the expenditure incurred by the assessee is for the purpose of warding of competition and hence the same is to be disallowed as capital in nature - HELD THAT:- We find that the facts of this issue are incomplete and further investigation of facts regarding application of 35DD or otherwise is required. The Tribunal being the final fact finding body, it becomes imperative that the issue should be churned afresh to cull out the exact facts of an issue. Hence, we restore this issue to the file of the Assessing Officer. The decisions relied on by both the parties on the issue shall be taken into consideration by the Assessing Officer. The Assessing Officer shall decide the issue anew after giving opportunity of hearing to the assessee. The grounds raised by the Revenue are allowed for statistical purposes.
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2019 (1) TMI 1731
Principles of natural justice - revival of adjudication proceedings after 14 years - no document relevant for the show cause notice was given - HELD THAT:- The respondents after keeping the impugned show cause notice in the call book, have not chosen to follow up it for unduly long period. It is very evident from the affidavit in reply filed by the respondents that on 29-12-2003, the show cause notice was issued and thereafter, nothing has been done by the respondent though petitioners filed detailed reply/written submissions in respect of the said show cause notice. Thereafter, on 10-4-2018, after a period of 14 years, the respondent passed the order by confirming the demand against the petitioners without considering the replies made by the petitioner from time to time.
The action on the part of the authorities to keep the show cause notice for long period and thereafter, reviving it to confirm the order of demand as has been held in various decisions resulted in infraction of the principles of natural justice rendering the show cause notice as well as consequent order vitiated - Appeal allowed - decided in favor of appellant.
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2019 (1) TMI 1730
Valuation of imported goods - polished marble slabs imported into containers - rejection of declared value - HELD THAT:- The documents are silent as to whether they placed an order for polished marble or otherwise. Until the Customs opened the container and examined, it was never discovered that they actually imported unpolished marble. An ex post facto undated letter from their supplier does not, in any way, alter the confiscability of the goods which have been imported. If it is held to the contrary the entire system of restrictions on imports in the country become meaningless. Anybody can import any prohibited goods and simply produce an e-mail or a letter from their overseas supplier saying that prohibited goods were sent to them by mistake. Holding such a view would defeat all the legal provisions of the country under various enactments with respect to restrictions on imports.
The goods in question are liable for confiscation under Section 111 of the Customs Act. Redemption fine imposed by the adjudicating authority was already reduced by the first appellate authority to ₹ 3,50,000/- which is a fair amount of redemption fine and we find no reason to interfere with it.
Penalty - HELD THAT:- In so far as the penalty under Section 112(a) is concerned, the penalties imposed on the importer firm also need to be upheld - As far as the personal penalty is concerned, there are no sufficient justification to impose a personal penalty on Shri L.N. Maru in this case and set it aside - As far as the penalty on the CHA, M/s. Nanda International is concerned, the allegations in the show cause notices and in the Order-in-Original are that they failed to discharge their obligations as a CHA. Section 112 is not the provision under which penalty can be imposed for violations of CHA Licensing Regulations. Therefore, the penalty on the CHA is unsustainable and needs to be set aside.
Appeal allowed in part.
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2019 (1) TMI 1729
Method of Valuation - Section 4 of the Central Excise Act, 1944 or not - validity of Circulars issued by the second respondent dated 2-11-1999 and 28-10-2002 - HELD THAT:- This Court is of an opinion that the instructions/circulars issued by the competent authorities can supplement the provisions of law. However, such circulars/instructions can never supplement the provisions of statutes. Thus, the provisions of the statutes alone should prevail over and the powers conferred on the authority competent to adjudicate the issues on facts and based on the materials and the provisions of the statutes can never be diluted or taken away by way of a circular by the Commissioner or by any other authority.
Section 37B(a) denotes that “provided that no such orders I instructions or directions shall be issued - a) so as to require any Central Excise Officer to make a particular assessment or to dispose of a particular case in a particular manner” - The above provision is unambiguous that the Central Excise officer is competent to adjudicate the facts and the materials available on record and pass an assessment order in respect of the tax liabilities and other charges to be paid by the assessee concerned. Such a power when provided under the provisions of the statute, the writ petitioner cannot challenge the show cause notices by stating that the show cause notices are in contravention with the circular issued by the Commissioner.
Circulars/instructions are issued for the purpose of clarifying certain procedures to be followed or to provide instructions to the Subordinate officials. Such circulars/instructs would not have any statutory enforceability and the same cannot be equivalent with the statutes or rules as a matter of fact. Thus, it is made clear that the instructions/circulars cannot have any enforceability as far as the statutory provisions are concerned and therefore, the very ground raised in this regard by the writ petitioner deserves no merit consideration.
This Court is of an undoubted opinion that the writ petitioner has not raised any acceptable ground for the purpose of granting the relief as such sought for in the writ petitions - Petition dismissed.
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2019 (1) TMI 1728
Maintainability of Application for settlement of dispute - the applicant Maheshchandra Sharma had been penalized earlier in another case of the applicant - Section 127L of Customs Act - HELD THAT:- It is a fact that Maheshchandra Sharma was imposed with a penalty in a case M/s. Anika Global Impex wherein the application for settlement was disposed of by an Order. The finding recorded in the order as it concerns imposition of penalty on Maheshchandra Sharma - It will be thus seen that Maheshchandra Sharma was imposed with penalty due to his role in undervaluation leading to evasion of duty and rendering the impugned goods (in the case of M/s. Anika Global Impex) liable to confiscation. It is notable that the findings of the Bench do not concern the status of Maheshchandra Sharma-whether “de facto owner” or otherwise. The statements of Maheshchandra Sharma and also of his son Aditya Sharma (in M/s. Anika Global Impex case) were recorded under Section 108 of the Act and are admissible as evidence against them. It was not the case of Maheshchandra Sharma that these statements were ever retracted.
In view of Section 127L of the Act, Maheshchandra Sharma is not entitled to apply for settlement in the present case of M/s. Aditya International Trade Co. He being the proprietor of M/s. Aditya International Trade Co., both are legally indistinguishable and both the applications cannot be proceeded with under Section 127B of the Act.
The applications for settlement are not admitted.
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2019 (1) TMI 1727
Maintainability of settlement agreement - Recovery of wrongly availed CENVAT credit - fake invoices - allegation that CENVAT credit availed on the basis of fraudulent invoices and without actual receipt of goods - issuance of fraudulent invoices and fake Lorry Receipts without delivery of the goods - HELD THAT:- Essentially, the instant case is a case of availment of Cenvat credit and reversal thereof on paper only, without receipt of goods. Though in their application, the applicant has accepted that the credit was availed wrongly as alleged in the SCN, but they have not accepted any amount of the duty demand (as made in the SCN), nor any interest. They contend that the wrong credit was reversed on the same day/month on issuance of invoices, so there is neither any duty nor interest payable. During the hearing, the Ld. Consultant fairly submitted that these are only paper transactions to inflate the business turnover.
At the outset, the Bench finds that there are pertinent issues of maintainability of the present application. Since the entire case is a case of availment of Cenvat credit on paper without clearance, movement (transportation) and receipt of inputs; and reversal thereof to inflate business turnover (as fairly submitted by the Ld. Consultant during the hearing), the present case does not appear to be a bona fide case for settlement as envisaged under the law; particularly, Section 32E and ‘case’ as defined under Section 31(c) of the Central Excise Act, 1944.
Without expressing any opinion on the legal validity or otherwise of the duty demanded in the said SCN, the Bench finds that the applicant, by contesting the duty demanded in the SCN in entirety and not accepting any of it, does not meet the eligibility criterion of settlement as set out in Section 32E of the CEA, 1944. What the applicant has been seeking in fact is the validation of their action as it existed prior to issuance of the SCN, which to our mind is legally outside the ambit of settlement as provided in law. On merits, they have been challenging the entire duty demand under the SCN. Even for arguments sake, accepting the plea of the applicant that SCN demanding duty in this case [is] not valid and if we hold so, it would in effect negate the mandate of sub-para (b) of Section 32E as above. Thus, the application is not maintainable under the law, as it fails to meet the eligibility criterion under Section 32E ibid.
The applications filed by the applicant M/s. Pet Metals Pvt. Ltd. and the Co-applicant Shri Amit Singla are rejected as not maintainable - It is clarified that the rejection of these applications is, without prejudice to any other action that may be taken against the applicants under any other law for the time being in force.
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