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Showing 361 to 380 of 1740 Records
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2019 (9) TMI 1385
Rectification of register of members - removal of name of members from the register - Failure by a company to convene its annual general meeting - section 129 of Companies Act - Whether the respondent/MRC is legally entitled to remove the names of the members, from the register of members, entered without sufficient cause?
HELD THAT:- It is well-settled legal position that it is open to the club to rectify its register of members without seeking an order from this Tribunal provided the names of the persons claiming to be the Members have been entered into the register "without sufficient cause". Here it is fully established that the intervenors'/objectors have not complied with the basic requirements for becoming the members of the club, they could not be treated as such on the basis of the bills, receipt of payments made towards the facilities enjoyed in the club, account statement held with the club, reminder letter sent for payment of bills, the notices issued by the MRC.
The objectors have no right to enjoy any of the facilities of the club and take part in the annual general meetings on extraneous pleas. Therefore, the plea taken by the intervenors'/objectors is devoid of merits and stands rejected.
The question is decided in favour of the club and against the intervenors'/objectors.
However, this Tribunal cannot lose sight of the real controversy involved in the matter, i. e., the names of hundreds of persons have been entered in the register of members of respondent/MRC "without sufficient cause" and their names need to be removed from the register of members before any notice is issued to genuine members of the club for participation in the annual general meetings. It is noted that in order to determine the genuineness of the membership of the persons, whose names are entered in the register of members "without sufficient cause", three enquiries have been conducted, i. e., first, by M/s. Brahmayya and Co., second, by the hon'ble justice Mr. P. K. Sivasubramaniam, and third, by this Tribunal - In all the enquiries conducted, 635 persons failed to prove the genuineness of their membership.
The prayer made in the present application is for seeking direction to respondent/MRC for holding the annual general meetings, on the ground that the club defaulted in holding the annual general meetings under section 96 of the Companies Act, 2013. However, the respondent/MRC has contended that the annual general meetings could not be held for valid and genuine reason, as the club has taken a decision to conduct an audit to determine the correct list of members, to whom the notice is to be issued for holding the annual general meetings.
The present application is also treated as an application/appeal under section 59 of the Companies Act, 2013 and the respondent/MRC is hereby directed to rectify the register by removal of the names of 635 persons from the register of members of the club - Petition allowed.
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2019 (9) TMI 1384
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - It was pleaded that in terms of ‘Debt Asset Swap Agreement’ dated 20th December, 2014, ‘the Aditya Estates Private Limited’ (‘Corporate Debtor’) defaulted to pay the debt - HELD THAT:- In addition to ICICI Bank India and Corporate Debtor, ICICI Bank UK PLC has been separately included in the ‘Debt Asset Swap Agreement’ as a confirming party. Though ICICI Bank UK PLC has not separately signed the ‘Debt Asset Swap Agreement’ inspite of that it is stated therein as a party, however, the same is immaterial as the ‘Corporate Debtor’ has undertaken obligation under the ‘Debt Asset Swap Agreement’ and ICICI Bank UK PLC being a beneficiary of the obligation undertaken by the Corporate Debtor and other parties under the said Agreement - The subsequent ‘Multi-Party Undertaking’ dated 14th April, 2015 placed on record shows that it was executed in favour of both ICICI Bank India and ICICI Bank UK PLC by ‘Corporate Debtor’ re-asserting the rights in favour of ICICI Bank UK PLC to claim its outstanding dues qua ‘M/s Assam Oil Company Ltd’ from the proceed of the sale of the property owned by the ‘Corporate Debtor’.
Clause 5.1 of the said Agreement, created right in favour of ICICI Bank UK by the ‘Corporate Debtor’. Therefore, it is clear that an unequivocal obligation has been undertaken by the ‘Corporate Debtor’ under the Agreement to repay the loans availed by ‘M/s Assam Oil Company Ltd’ from ICICI Bank UK PLC. The acknowledgement liability of financial debt by Corporate Debtor towards ICICI Bank UK PLC for ‘M/s Assam Oil Company Ltd’ is further fortified by the amendments made to its ‘Articles of Association’ by inserting Article 34(c) whereby it lists of Creditors ICICI Bank UK has been shown as lender, in relation to the debts owned by ICICI Bank UK from ‘M/s Assam Oil Company Ltd’.
ICICI Bank U.K. PLC has successfully made out a case that it is the ‘Financial Creditor’ of the ‘Corporate Debtor’ and the Adjudicating Authority has rightly admitted the application under Section 7 of I&B Code - Appeal dismissed.
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2019 (9) TMI 1383
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- The goods were supplied on demand, however, without any reason the value of the goods have not been paid by the Respondent/debtor. The Invoices raised remained unpaid. As per the Ledger Account along with the Statement of Account the outstanding debt in question was duly acknowledged by the Respondent Debtor. As a consequence, this Bench is of the view that this is a fit case of existence of Debt and Default in payment of the said Debt; hence this Petition deserves “Admission‟ - Further this Bench has also perused the Form–2 i.e. written consent of the proposed Interim Resolution Professional submitted along with this application/petition by the Operational Creditor and there is nothing on record which proves that any disciplinary action is pending against the said proposed Interim Resolution Professional. Hence, after perusal of the provisions of the Code as well as facts and circumstances of this case along with the evidences placed on record by the Petitioner, it is hereby held that this Petition/Application is Admitted.
The Petition is hereby “Admitted” - The commencement of the Corporate Insolvency Resolution Process shall be effective from the date of the Order.
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2019 (9) TMI 1382
Non-prosecution of Appeal - Maintainability of appeal on low tax effect - HELD THAT:- These appeals were on board on the last week as the tax effect indicated therein was less than the threshold limit provided in the CBDT Circular No.17 of 2019 dated 8th August, 2019. However, none appeared in support of these appeals. We had kept these appeals under the caption “for dismissal”.
Today also, none appeared in support of these appeals. It appears that the appellants are not interested in prosecuting these appeals. Hence, these appeals are dismissed for non-prosecution.
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2019 (9) TMI 1381
TP adjustment as regards the reinsurance commission received by the assessee from its AEs - TPO apportioning the total costs of “direct insurance broking segment‟ and “reinsurance segment‟ on a pro-rata basis of the respective incomes received from the said segments instead of taking actual cost - HELD THAT:- In case, the actual bifurcated details of the aforesaid segments viz. (i). reinsurance commission segment; (ii). direct insurance brokerage segment backed with supporting documentary evidence were available with the assessee and was furnished with the TPO, therein there was no justification on his part to have allocated the expenses on a pro rata basis of the respective incomes of the said segments. However, the said claim of the assessee as regards allocation of the expenses on actual basis in respect of the aforesaid segments cannot be accepted on the very face of it and would require necessary verification. Accordingly, we restore the issue to the file of the TPO who shall after making necessary verification as regards the authenticity of the allocation of expenses by the assesse on actual basis in the aforesaid segments shall redetermine the operating cost of the reinsurance segment. The Ground of appeal No. 2 & 6 are allowed for statistical purposes in terms of our aforesaid observations.
International transactions of the assessee forming part of the reinsurance segment - HELD THAT:- Not being able to persuade ourselves to subscribe to the order of the DRP which had upheld the transfer pricing analysis carried out by the TPO in respect of the non-AE transactions, therefore, set aside his order and restore the matter to the file of the TPO with a direction to carry out the transfer pricing analysis only in respect of reinsurance commission received by the assessee from its AEs during the year under consideration - substantial force in the claim of the assessee that the DRP had erred in giving direction to the TPO to compare the ratio of the operating profit to operating cost of the reinsurance commission segment of the assessee with the PLI of 27.96% of the 5 comparables on entity level. As the reinsurance commission segment of the assessee is to be benchmarked, therefore, the TPO ought to have carried out a comparability analysis on the basis of the PLI of the reinsurance commission segment of the said comparables. Accordingly, we further direct the TPO to confine the TP analysis in the course of the set aside proceedings only on the basis of the uncontrolled transactions of receipt of reinsurance commission by the aforesaid 5 comparables and not on the basis of their PLI worked out at an entity level. Grounds of appeal No. 1, 3, 4 & 5 are allowed.
ALP of the “common corporate costs" - TPO had taken the ALP of the aforesaid common corporate costs viz. “managerial services;‟ at nil, for two fold reasons, viz. (i). that, the assessee had not incurred any expenditure in respect of “managerial services‟; and (ii). that, no services in lieu of incurring of the impugned costs had been received by the assessee - HELD THAT:- We are afraid that as observed by us hereinabove, the very basis for taking the ALP of the aforesaid “common corporate costs‟ viz. “managerial services‟ at nil by the TPO falls beyond the scope and gamut of his limited jurisdiction. We thus not being persuaded to accept the upholding of the ALP of the “common corporate costs‟ viz. “managerial services‟ at nil by the DRP, set aside its order. Accordingly, the A.O is directed to take the ALP of the aforesaid “common corporate costs‟ viz. “managerial services‟ - Ground of appeal No. 8 is allowed.
Common corporate costs viz. I.T costs charged by the assessee in its accounts - HELD THAT:- Admittedly, the assessee had placed on record substantial documentary evidence with the TPO in order to substantiate its aforesaid claim of expense which however was not looked into by the TPO. Be that as it may, in our considered view, the very basis for taking the ALP of the aforesaid “common corporate costs‟ viz. “I.T costs‟ at nil by the TPO falls beyond the realm of his limited jurisdiction. In fact, we find that the TPO by embarking on the aforesaid exercise had clearly exceeded his jurisdiction and had tried to assume the jurisdiction as that of an A.O. We thus not being persuaded to accept the taking of the ALP of the “common corporate costs‟ viz. “I.T costs‟ at nil by the DRP, set aside its order. Accordingly, the A.O is directed to take the ALP of the aforesaid “common corporate costs‟ viz. “managerial services‟.Ground of appeal No. 9 is allowed.
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2019 (9) TMI 1380
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- There is some mutual understanding between both the parties and in view of that the corporate debtor paid an amount of ₹ 25,00,000/- to the operational creditor as an advance with a condition to repay said amount as and when the operational creditor is successful to recover the same from M/S. Flovel Valves Private Limited who has defaulted in payment - the documents attached to the application itself shows that there exists pre- dispute regarding the claim amount. The e-mail communication from the respondent company, placed at page No. 10 to the reply clearly shows that there is/was pre-existing dispute.
Since the very objective of the Code is re-organization and insolvency resolution of corporate persons, no objective will be served by subjecting a solvent company to insolvency resolution process. Further, recovery is an individual effort by a creditor to recover its dues through a process that has debtor and creditor on opposite sides. When creditors recover their dues - one after another or simultaneously from the available assets of the firm, nothing may be left in due course. Thus, while recovery bleeds the corporate debtor to death, resolution endeavors to keep the corporate debtor alive. In fact, the I & B code prohibits and discourages recovery in several ways.
The Adjudicating Authority is of the considered view that the instant petition is not maintainable on the ground that prior to filing the application on 14th November, 2018, there is/are pre-existing dispute raised by the respondent in respect of container detention charges - Petition dismissed.
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2019 (9) TMI 1379
Draft order u/s 143 (3) r.w.s.144C - order in the name of the predecessor of the amalgamated company - amalgamation scheme informed to AO - HELD THAT:- As decided in MARUTI SUZUKI INDIA LIMITED [2019 (7) TMI 1449 - SUPREME COURT] despite the fact that the AO was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law. No merit in the present appeal and no question arises for consideration.
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2019 (9) TMI 1378
CENVAT Credit - capital goods - HR Coil, HR Plate, MS Bar, MS Flat, MS Angle etc. (structural items) used for installation/commissioning of the distillery division and for repairs and maintenance of various capital goods within the sugar division - time limitation - HELD THAT:- The Certificate dated 2 November 2011 from the Chartered Engineer evidences the use of the structural items in installation/commissioning of the Distillery Division. Therefore, the Adjudicating Authority clearly misdirected himself in questioning the receipt and the duty paid nature of these items without any evidence to the contrary - the contentions of the Appellant is agreed that such iron and steel article used for installation of the Distillery Division are eligible for credit both as inputs as well as capital goods within the meaning of Rule 2(k) and Rule 2(a) respectively of the CCR. We find that the definition of input as contained in Rule 2(k) of the CCR was amended by insertion of Explanation 2 to specifically exclude iron and steel articles used in foundation or for making structures to support capital goods from its purview.
Further, such items also qualify as capital goods by applying the user test evolved by the Hon’ble Supreme Court in COMMISSIONER OF C. EX., COIMBATORE VERSUS JAWAHAR MILLS LTD. [2001 (7) TMI 118 - SUPREME COURT]reported in COMMISSIONER OF CENTRAL EXCISE, JAIPUR VERSUS M/S RAJASTHAN SPINNING & WEAVING MILLS LTD. [2010 (7) TMI 12 - SUPREME COURT]. Even if these items were used for repairs and maintenance of capital goods, the same were eligible for credit in view of the decision of the Hon’ble Allahabad High Court in DSCL Sugar.
Appeal allowed on merits as well as on limitation.
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2019 (9) TMI 1377
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- The CD has defaulted in making repayment of loan/CC to the petitioner-bank and the date of default is January 5, 2014. The statement of accounts and the CIBIL reports submitted by the applicant-bank confirm the default committed by the corporate debtor - The petitioner-bank has filed the petition within the period of limitation, as the date of mortgage of the property is November 18, 2010, the SARFAESI proceeding initiated in 2014, the Debts Recovery Tribunal proceedings started in 2017, one-time settlement (OTS) revised offer (from ₹ 12 crores to ₹ 14.56 crores) letter dated June 1, 2016 was submitted by the corporate debtor to the applicant-bank and the credits have come into the loan accounts on March 31, 2017.
The present IB petition is filed by duly authorised official of the petitioner-bank in a prescribed format under section 7 of the I and B Code annexing copies of loan documents confirming the existence of debt default and proposed a name of resolution professional to act as an interim resolution professional (IRP).
This Adjudicating Authority is satisfied that,-
(a) the corporate debtor availed of the loan/cash credit from the petitioner ;
(b) existence of debt above rupees one lakh ;
(c) debt is due ;
(d) default has occurred on November 5, 2014 ;
(e) the petition had been filed within the limitation period ;
(f) copy of the application filed before the Tribunal has been sent to the corporate debtor and the application filed by the petitioner-bank under section 7 of the IBC is found to be complete for the purpose of initiation of the corporate insolvency resolution process against the corporate debtor-company.
Hence, the present IB petition is admitted with certain directions/ observations - The date of admission of this petition is September 20, 2019.
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2019 (9) TMI 1376
Classification of services - Renting of immovable property service or storage and warehousing services - letting out godowns for storage purpose - demand along with interest and penalty- HELD THAT:- Reliance placed in the appellant own case PUNJAB STATE WAREHOUSING CORPORATION VERSUS CCE, CHANDIGARH [2018 (2) TMI 154 - CESTAT CHANDIGARH] where it was held that the appellants are engaged in the activity of providing of space for storage and warehousing as well as keeping the records thereof and providing insurance & security service. As the appellant is providing various other services apart from the space for storage, therefore, the services appropriately fall under the category of Storage and Warehousing Services. Further, as these services are for agricultural produce, which is not in dispute, therefore, the appellant is not liable to pay service tax on Storage and Warehousing which has been exempted from service tax as per section 65 (105) zza) of the Finance Act, 1994.
Thus, the appellant is not liable to pay service tax under the category of ‘Renting of Immovable Property Service’ or under the category of ‘Storage and Warehousing Service’. As the same are exempted as per Clause (d) of Section 66D (Negative list of services) of the Finance Act, 1994 relevant for the period w.e.f. 01.07.2012 wherein the services relating to agriculture or agricultural produce by way of renting of leasing of vacant land with incidental its use is exempted from payment of service tax, therefore, the appellant are not liable to pay service tax.
Appeal allowed - decided in favor of appellant.
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2019 (9) TMI 1375
CENVAT credit - exempt goods - Reprocessed Polypropylene Granules (RPG) - Rule 6(3)(b)/Rule 6(3)(i) of the Cenvat Credit Rules, 2004 - HELD THAT:- PP granules are used in the manufacture of dutiable goods i.e. BOPP film and waste/scrap. Since both the goods manufactured using PP granules are dutiable in nature, Rule 6 of the Rules is not applicable in the case of the company. Hence, the question of demanding duty to the extent of 10% / 6% / 5% of the value exempted RPG will not arise.
Also, since for the small quantity of lubricants used in the RPG plant, no credit is availed by the company based on internal consumption records, there is no requirement to pay duty on the same under Rule 6 of the Rules by the company. The department has failed to take into consideration this interpretation of Rule 6 and the demand is therefore unsustainable.
Appeal allowed - decided in favor of appellant.
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2019 (9) TMI 1374
Constitutional Validity of Section 25(4) of the Customs Act, 1962 as amended by the Finance Act, 2016 - Increase in duty on crude palm oil from 30% to 44% - Electronic publication of notification versus publication of notification in the official gazette -Notification No.29/2018-Cus dated 01.03.2018 - infringement of fundamental rights of the petitioner to trade and otherwise - whether amended sub-section (4) of Section 25 of the Customs Act creates any amount of confusion, absurdity and contradiction to sub-sections (1) and (2A) of Section 25 of the Customs Act. If so, sub-section (4) of Section 25 of Customs Act be declared as arbitrary and illegal?
HELD THAT:- Section 25(1) of the Customs Act is not amended and according to Section 25(1) of the Customs Act, if the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, exempt generally either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification goods of any specified description from the whole or any part of duty of customs leviable thereon. But, Section 25(4) has been amended and the pre-amended and post-amended clauses are tabulated hereunder - As per pre-amended Act of Section 25(4), every notification issued under sub-section (1) or sub-section (2A) is deemed to have come into force on the date of issue of notification by the Central Government for publication in the official gazette. Clause (b) of the pre-amended Act further says that notification shall also be published and offered for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi.
Clause (b) of Section 25(4) of pre-amended Act is totally omitted and the notification is deemed to have come into force on the date of its issue by the Central Government for publication in the official gazette remained intact. Therefore, the pre-amended provisions of Sub-sections (1), (2A) and (4) are not reconciling with one another, but on account of deletion of Clause (b) of sub-section (4) of Section 25, a friction was created and both Sections 25(1), (2A) and 25(4) are not reconciling with one another - On account of amendment, such public interest becomes redundant or otiose and issuance of notification for publication in the gazette is sufficient. Therefore, there is any amount of inconsistency between Sub-sections (1), (2A) and (4) of Section 25 of the Act.
The law declared by various courts is consistent and if a particular provision of law is amended in the enactment, notification in the official gazette for grant of exemption is mandatory and such exemption shall be given effect only from the date of publication in the official gazette - In the present case, an anomalous situation is created on account of amendment of sub-section (4) of Section 25 of Customs Act, keeping the public or at least the assessee totally in dark who are concerned with such notification issued for publication is an arbitrary exercise of power by the Legislature and it would cause not only inconvenience to the assessee or the person concerned with such notification, it is nothing but absurdity creating friction and it would also create any amount of confusion as to the rate of customs duty payable on the imported goods as on the relevant date of presentation of ex bond bills of entry for clearance for home consumption as per the Customs Act.
When the amended provision or any provision of the statute creates serious inconvenience, serious absurdity, confusion or friction, contradiction and conflict between its various provisions, the same is illegal and amendment of sub-section (4) of Section 25 giving effect to the notification from the date of its issue for publication in the gazette is an arbitrary exercise of power by the Legislature and it is totally contrary to the purport of sub-section (1) and sub-section (2A) of Section 25 of the Act, which mandates publication of notification in the official gazette. Therefore, to avoid inconvenience, serious absurdity, confusion or friction, contradiction and conflict between various provisions, amended provision of sub-section (4) of Section 25 which is enacted by arbitrary exercise of power by the Legislature, is liable to be struck down.
Sub-section (4) of Section 25 created absurdity, confusion and friction. The very collection of customs duty @ 44% on the imported goods belonging to these petitioners prior to the publication of notification in electronic mode is an illegality. Therefore, the petitioners are entitled to claim refund of the amount paid in excess of 30% of the original rate of customs duty as on the date of presentation of ex bond bills of entry for clearance of import goods for human consumption. Therefore, the respondents are liable to repay the excess amount which they collected from the petitioners beyond 30% of customs duty.
Section 25(4) of the Customs Act is declared as arbitrary and contrary to Section 25(1) and (2A) of the Customs Act, 1962 and that the respondents are liable to repay the amount collected from the petitioners for clearance of import goods for home consumption beyond the original rate prevailing on the date of prior to date of publication of notification i.e. ₹ 2,88,16,200/- with interest paid by the petitioner from the date of deposit till the date of payment.
Petition allowed.
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2019 (9) TMI 1373
Maintainability of application - time limitation - Appeal has been filed 26 days beyond the 30 days period for preferring the Appeal - Jurisdiction of Appellate Tribunal to entertain the appeal - HELD THAT:- The Appeal has been filed 26 days beyond the 30 days period for preferring the Appeal and, therefore, this Appellate Tribunal has no jurisdiction to entertain the Appeal in terms of sub-section (2) of Section 61 of the Insolvency and Bankruptcy Code, 2016 (for short I&B Code). Learned Counsel for the Appellant tried to explain the reasons for preferring the appeal after 56 days from the impugned order, i.e., 26 days beyond the 30 days period prescribed for filing the Appeal, but the question of condonation of delay does not arise.
The learned Counsel for the Appellant submitted that they are the allottees. On the other hand, according to the learned Counsel for the Respondent the installment amount having been not paid by the Appellants in terms of the Agreement, the Agreement was cancelled in the year 2015 and the amount was refunded. Subsequently, the Appellants have moved before the Consumer Forum for refund of the said amount.
Appeal dismissed.
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2019 (9) TMI 1372
Revocation of Customs Broker License - forfeiture of security deposit - misconduct conducted by applicant - HELD THAT:- Regulation 18(c) empowers the Principal Commissioner or the Commissioner of Customs to either revoke the licence of a Customs Broker and order for forfeiture of part or whole of the security furnished by it or impose penalty not exceeding ₹ 50,000/- in case of the Customs Broker committing any “misconduct”, which in the opinion of the Principal Commissioner or the Commissioner renders him unfit to transact any business in the Customs Station. The word “misconduct” has not been defined in either the Act or the CBLR. In the absence thereof it would have to be interpreted to mean violation or contravention of the provisions of the relevant regulations of CBLR, such as Regulations 10, 11, 12, 13, 14, 15, 17 and 17 of CBLR. Neither the show cause notice nor the Inquiry Report, on the basis whereof the impugned order has been passed, indicate as to the alleged “misconduct” which has been committed by the appellant firm for which its CB licence became liable to revocation by the Commissioner or for the Commissioner to be satisfied that the appellant had rendered itself unfit to transact any business in the Customs Station. In the absence thereof, the impugned order is contrary to Regulation 18(c) of CBLR - Further, in the show cause notice there is no allegation of any omission or commission, under either the Act or the CBLR, by the appellant as a Customs Broker. There is also no allegation that the appellant was involved with importation of any of the subject consignments involved or in any manner aided or abetted the importation of the subject consignments or in the alleged wrongful actions in the said importation by the persons concerned.
There is also no material disclosed in either the Inquiry Report or the impugned order as to how and on what basis it could be held that the appellant had failed to bring the alleged serious lapses of Sadguru Forwarders Pvt. Ltd. to the Customs authorities, in the absence of there being any evidence on record to establish that the appellant firm was aware of the alleged activities of the said Sadguru Forwarders Pvt. Ltd. It is thus apparent that this finding is based on assumptions and presumptions and hence is unsustainable.
This allegation of the appellant not complying with Regulation 11(d) is neither in the show cause notice nor in the Inquiry Report. The Commissioner has therefore traversed beyond the show cause notice - the allegations and findings are exclusive to the said Sajal Das and it has been concluded that Sajal Das had committed gross misconduct by participating in the acts of omission and commission stated therein. However without assigning any reason or basis in support thereof, simpliciter on the basis of the said conclusion, without any discussion or reasoning, the appellant has been held as unfit to transact any business in the Customs Station and its licence has been revoked, along with forfeiture of its entire security deposit. This is patently erroneous and impermissible.
The impugned order of the Commissioner revoking the appellant’s CB licence and forfeiting its deposit with the Department is erroneous and unsustainable - appeal allowed - decided in favor of appellant.
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2019 (9) TMI 1371
Area Based Exemption - substantial expansion - benefit of N/N. 01/2010-CE dt. 06.02.2010 on 09.06.2015 - respondent undertook substantial expansion by way of increase by not less than 25% of the value of fixed capital investment in plant and machinery and have commercial production for such expansive capacity w.e.f. 22.08.2014 - HELD THAT:- The respondent has undertaken substantial expansion by way of increase by not less than 25% of the value of fixed capital investment in plant and machinery for the purpose of expansion of capacity and have commercial production for such expansive capacity on or after 06.02.2010. The Notification simply provides that if unit is in existence before 06.02.2010 and have invested more than 25% in fixed capital and production as started after 06.02.2010, the assessee is entitled to avail the benefit of the said Notification - Admittedly, the respondent has complied with the condition of the said Notification, in that circumstance, there are no infirmity with the impugned order wherein the authorities below have hold that the expansion has taken after 06.02.2010 and commercial production has also started after 06.02.2010.
Appeal dismissed - decided against Revenue.
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2019 (9) TMI 1370
Valuation - iron ore concentrate removed to its factory at Jamshedpur - to be valued as per Rule 8 or Rule 9 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 or not - HELD THAT:- Rule 9 of the Valuation Rules provides that when the assessee so arranges that the excisable goods are not sold by an assessee except to or through a “related person”, the value of the goods shall be the normal transaction value at which such goods are sold by the related persons at the time of removal to buyers not being related person or where such goods are not sold to such buyers, to buyers not being related person, who sells such goods in retail - there are force in the contention of the appellant that this provision can have no application to the instant case. It is not a case herein of valuation of goods sold to or through TML, assuming as held in the impugned order that it is a subsidiary company of the appellant and therefore a “related person” within the meaning of Section 4(2)(b) of the Act. The goods whose valuation is the subject matter in the instant case are the goods which are transferred for captive consumption to the appellant’s factory at Jamshedpur - In the instant case the facts on record, as stated in both the show cause notices and the impugned order, establishes that such is not the case. Hence the condition precedent for applicability of Rule 9 of the Valuation Rules has not been satisfied.
The appellant’s contention is also agreed that that Rule 10 of the Valuation Rules also, even on the finding of the Commissioner that TML is a subsidiary company of the appellant, is inapplicable in the instant case. The said provision is applicable only in cases where the assessee so arranges that excisable goods are not sold by him except to or through an inter-connected undertaking. The facts on record explicitly demonstrating that such is not the case herein, Rule 10, and, consequently, Rule 9 cannot have any application.
Thus, the appellant had correctly valued the subject goods transferred to its Jamshedpur factory in terms of Rule 8 of the Valuation Rules at 110% of the cost of production thereof, determined as per CAS-4 and, hence, there was no undervaluation of the said goods cleared to the factory of the appellant at Jamshedpur for captive consumption therein and, therefore, no short payment of duty - appeal allowed - decided in favor of appellant.
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2019 (9) TMI 1369
Maintainability of application - CIRP process - undervaluation of cars - Sections 35(1)(n), 45 and 66 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The Adjudicating Authority (National Company Law Tribunal, Kolkata Bench, Kolkata) by Impugned Order dated 25th July, 2019 having considered all the relevant facts came to a definite conclusion that there is no undervalued or fraudulent transaction on the part of Corporate Debtor and rejected the Application.
Having heard learned Counsel for the Appellant, we are not inclined to decide whether the sale of a car is undervalued or not while sitting in Appeal.
Appeal dismissed.
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2019 (9) TMI 1368
Refusal to grant voting right to the applicant in terms of Section 5(28) of the Insolvency & Bankruptcy Code, 2016 by Resolution Professional (RP) - HELD THAT:- It is accepted by the applicant that its claim was filed only after the decision of the Hon’ble NCLAT in the case of Andhra Bank (supra). The claim has been admitted. However, voting rights were not given by the RP on the ground that the debt has not crystallised and as such the voting rights cannot be determined.
Hon’ble NCLAT in the case of Andhra Bank [2018 (7) TMI 1896 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] has held that admittedly, the corporate debtor has counter indemnity obligation in respect of guarantee given by it to Andhra Bank and held that the Andhra Bank comes within the definition of ‘financial creditor’ as defined under Sections 5(7) r/w (8) of the Code.
The present position of the resolution process is therefore, akin to the position of the resolution process on the date when the Hon’ble NCLAT passed order dated 13.07.2018. The claim of the present applicant that it comes within the definition of ‘financial creditor’ under Section 5(7) of the Code is based upon the decision dated 13.07.2018 of the Hon’ble NCLAT.
Extension of CIRP Period - The directions of Hon’ble NCLAT were that only if the resolution plan is not in accordance with Section 30(2) then a valid objection can be raised by Andhra Bank who has been added as a member of CoC otherwise the CoC will approve it having already found it to be viable and workable. However, SBI did not approve the original resolution plan on the ground that the offer by the resolution applicant in the original resolution plan is much lower than the liquidation value of the corporate debtor - It is considered reasonable to accept the contention of the resolution applicant that the CoC be directed to consider the resolution plan of the resolution applicant. As recorded in order dated 30.08.2019, SBI has conveyed its no objection for holding a fresh meeting to consider revised resolution plan by the resolution applicant.
CIRP process is stayed by ‘a court of law or the Adjudicating Authority or the Appellate Tribunal or the Hon’ble Supreme Court.
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2019 (9) TMI 1367
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- The Additional Affidavit filed by the CD on 3/09/2019 shows that the Occupational Certificate was applied by the CD on 5-7-2018 and the same was received by it on 31-5-2019 and the Email for the termination of the Agreement was sent on 08-12-2018 which was 5 months after the occupational certificate was obtained from the authorities by the CD. Hence the CD had fulfilled its obligation of applying for the occupational certificate with in the time frame.
Also vide letter dated 14-6-2019, the CD has written to the FC stating that the Apartment No. CD -A6-02-203, Type-3 BHK, Floor 2, Tower A6 in Corridors, Sector 67A, Dhumaspur, Gurgaon is ready for possession.
This Tribunal is of the opinion that it is not a fit case to initiate Insolvency process as prayed for by the petitioner/applicant - application dismissed.
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2019 (9) TMI 1366
Benefit of abatement in terms of N/N. 1/2006-ST dated March 01, 2006 - reversal of cenvat credit with interest attributable to inputs/input services - whether amounts to non-availment of credit or not - whether subsequent reversal of credit makes BHEL ineligible to benefit under the said Notification?
HELD THAT:- In the case of COMNR. OF CENTRAL EXCISE & CUSTOMS VERSUS M/S. PRECOT MERIDIAN LTD. [2015 (11) TMI 323 - SUPREME COURT] the benefit of exemption Notification No. 5/99-CE dated February 28, 1999 was available to the assessee therein subject to certain conditions being satisfied, one of which was that the assessee had not taken any modvat credit under Rule 57A or Rule 57B or Rule 57Q of the erstwhile Central Excise Rules, 1944 in the process of dyeing, printing, bleaching or mercerising in the manufacture of dyed, printed, bleached or mercerised yarn. The assessee had utilised the modvat credit in the previous two years prior to February 28, 1999 and while not availing or utilising any modvat credit after the issuance of the Notification, the assessee returned or paid back in January, 2005 even the earlier modvat credit it had taken and utilised - This decision fully covers the instant case and on respectful application thereof it is conclusive that the impugned order of the Commissioner is legal, valid and proper and that the instant appeal of the Revenue is without any merit or substance.
The other contention of the Revenue that BHEL could not furnish relevant records and particulars is also incorrect. The impugned order of the Commissioner and the findings contained therein clearly shows that the relevant records and particulars were before the Commissioner, which is perused and scrutinised to arrive at findings against each project as stated in the show cause notice. No material has also been disclosed by the Revenue in support of this contention. As such, this contention is unsustainable.
Appeal dismissed - decided against Revenue.
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