Try our new portal www.taxtmi.com for a better experience!

Home

Case Laws

Home Case Index All Cases Income Tax Section Wise 2017 2017 (12) This

Law
Court
Citation	- -
Landmark
Order by

Advanced Search Options

Case Laws

Showing 381 to 400 of 1888 Records

2017 (12) TMI 1512

Smuggling - opium - Section 23(c) of the NDPS Act - acquittal of offence - rigorous imprisonment for a term of 12 years and a fine of ₹ 1,00,000/- with default clause - the prosecution case is that on information about a criminal, the police has raided the place and there was no prior information about the opium being kept by the accused appellant - Held that: - In the present case there is absolutely nothing is available to show as to whether direction issued vide Standing Order No. 1 of 1989 or provisions of Section 52A of the Act have been complied or not - Further there is nothing available to show as how much quantity was taken from each packet and as whether it was properly sealed prior to sending it to the FSL.
No doubt, in the present case, the informant has no prior information regarding the contraband to be kept by the accused appellant. In such a situation, there is no requirement for compliance of Sections 42 and 50 of Act. However, at the same time, once he came to know about having contraband in possession of the accused, he ought to have informed the superior officer about the same and he ought to have proceeded in accordance with the provisions under the NDPS Act but neither he has informed the superior officer as provided under Section 57 of the Act nor he has followed the provisions of Section 55 regarding taking charge of articles seized and delivered nor there is compliance of provisions of Section 52A of the Act or the Standing Orders issued under the aforesaid Act.
Neither the recovered seized articles nor the samples and remaining of the samples sent back by the FSL has been produced before the court nor there is anything to show that it has been kept in Malkhana and there is also nothing on the record in support of the same, neither Malkhana register has been poduced nor Malkhala In-charge has been examined in the present case, which appears to be essential in this case.
The trial court has not considered the aforesaid aspect of the matter and only being swayed by evidence of the police officers, coupled with the fact that recovery of opium and the opinion recorded he had convicted the appellant under Section 18(b) of the Act - the impugned judgment of conviction suffers from several inconsistencies, discrepancies and cumulative effect of the above discrepancies and infirmities certainly dented the finding of guilt recorded in the impugned judgment of conviction. Hence it does not appear to be sustainable in the eye of law.
The judgment of conviction and the order of sentence of the appellant are set aside - appeal allowed.
2017 (12) TMI 1511

Non–compliance of provisions of Section 50(1) of the Act - seizure of contraband item - ganja/psychotropic addictive substance - Held that: - On plain reading of Section 50 of the Act, it appears that the safeguard or protection to be searched in presence of Magistrate or Gazetted Officer has been incorporated in Section 50 of the Act, to ensure that persons are only searched with a good cause.
So far Section 50 of the Act, is concerned, it appears to be mandatory in nature when the search of a person of a suspect is required but the same does not appear to be applicable in a case where the recovery is from dickey or bag etc. - In the present case recovery of contraband is from the dickey of the car, however, person of the appellant has also been searched and as such submission of learned counsel for the appellant that in the above circumstance non compliance of provision of Section 50 of the Act vitiate the conviction of the appellant as though a Circle Officer was present there and there is nothing available on record to show that they have informed the accused person about his statutory right to be searched before a Magistrate or Gazetted Officer.
Facts of the case in hand is also similar to that decided by Hon”ble Apex Court in the case of Dilbag Singh v. State of Punjab [2016 (12) TMI 1 - SUPREME COURT] as in this case also recovery is from the car and not from the possession of the appellant and though person of the appellant was also searched but nothing except one mobile and some sim cards were recovered and as stated above, prosecution is also not relying upon the personal seizure of the appellant.
The contention of appellant regarding non-compliance of Section 50(1) does not appear to be convincing and is certainly of no help, whereas, there are sufficient cogent, consistent and reliable materials available on record with regard to recovery of commercial quantity of ganja/psychotropic addictive substance from the dickey of the car - So far conviction of appellant under Section 476 of Indian Penal Code is concerned, the same appears to be not sustainable and is hereby set aside - appeal disposed off.
2017 (12) TMI 1510

Smuggling - Heroin - Sections 21 of NDPS Act - whether, in the light of evidence on record, compliance of Section 50 of NDPS Act has been properly made in this case by the prosecution or not?
Held that: - It is mandatory for the prosecution to prove that the accused was apprised of his right to be searched in presence of a Magistrate or a Gazetted Officer. In case such right has not been apprised the conviction would vitiate.
The compliance of provision of Section 50 of NDPS Act is extremely important right of the accused, non-compliance of which would make the recovery suspect - In the case at hand, it is apparent that the accused was given option of being taken before a Magistrate or a Gazetted Officer for being searched to find whether he possessed any contraband substance - It would be noted here that the provisions of Section 50 have been amended with effect from 2.10.2001 by adding Clause 5 and 6 also, but in this case those clauses would not be operational because the occurrence belongs to the year 1995 when the unamended Act was in force, provisions of which have been reproduced by the learned lower court in judgment - In the case at hand, in the light of evidence on record, it is apparent that the accused was given option to be taken before a Magistrate or a Gazetted Officer as has been stated by both the witnesses of fact i.e. PW-1 and PW-3 and entry in that regard has also been made in the recovery memo, but they certainly had not apprised him about his legal right of being searched before a Magistrate or a Gazetted Officer in right earnest, in letter and spirit, as has been laid-down in the Vijaysinh Chadubha Jadeja's case (Supra) which goes to the extent to lay down that an endevour should be made to produce the suspect before the nearnest Magistrate who enjoys more confidence of common man, hence this Court finds that compliance of section 50 of NDPS Act was not made in right earnest by apprising the accused of his legal right that he could opt to be searched before a Magistrate or a Gazetted Officer, but only such option was given to him, hence the finding of lower court in this regard is found to be erroneous.
Whether the prosecution has been able to prove that the alleged recovered contraband (Heroin) from the accused was the same which was sent for being examined by the FSL and was found to be heroin and whether not recording the weight of recovered contraband, would cause prejudice to the accused? - Held that: - when the contraband material from the accused was brought to police station with the accused and the recovery memo along with sample seal, the entry of the same ought to have been proved by the prosecution to have been made in the Malkhana register, to prove that the said contraband material along with the sample seal were deposited in Malkhana and were kept there in safe custody till it was taken out for being sent to the FSL and thereafter also when the same material was received back from the FSL with seal which was used by FSL. The same should have been kept at safe place until at the time of trial, when the case property was supposed to be opened before court for being exhibited. Then only it could have been held that substance which was examined and found to be heroin by the FSL was produced before court at the time of examination of witnesses in intact condition. Therefore, link evidence is found to be missing in this case.
Non-compliance of Section 57 of the NDPS Act - Held that: - non-compliance of Section 57 by itself may not be held to vitiate the conviction or trial in this case but certainly it would have adverse impact on probabative value of the evidence adduced by the proseuction. In the case at hand, it has to be taken into consideration and to see whether non-compliance of this provision has caused any prejudice to the accused. Here a very small quantity of heroin is alleged to have been recovered from the accused which can easily be procured and may be planted, hence, looking to the fact that huge penalty has been provided under law under Section 21 of the NDPS Act, therefore, it was strict liability of the prosecution to prove the said recovery genuinely from the accused. For this, they ought to have prepared a report under Section 57 of NDPS Act of arrest of the accused and seizure of the recovered contraband and should have sent it to the superior authority within stipulated time or even beyond that with a proper justification of delay which has not been done. It certainly has caused prejudice to the accused.
This court finds that prosecution has failed to adduce proper evidence on record which weakens the prosecution's case. It has not been able to prove its case to the hilt beyond shadow of doubt against the accused regarding illegal recovery of heroin - accused is held not guilty of offense under Section 21 of NDPS Act and deserves to be released forthwith in this case - appeal allowed.
2017 (12) TMI 1509

Smuggling - charas - Section 8/20 of N.D.P.S. Act - compliance under Section 50 N.D.P.S. Act - whether the provisions of Section 50 of N.D.P.S. Act would be applicable in the present case or not for which evidence on record has to be seen? - Held that: - It is apparent from the above evidence on record that the alleged contraband was recovered from the accused all of a sudden by the police party and after the recovery having been made, the police came to know about the same being charas from its smell and on being told by the accused about it. There was no prior information to the police that the accused would be carrying charas, pursuant to which his arrest might have been made - the provisions of section 50 of N.D.P.S. Act would not be applicable.
Whether the prosecution has been able to prove beyond reasonable doubt that the contraband material which was recovered from the accused and subsequently seized was the same, out of which the sample was taken and sent to the F.S.L. for determining whether the same was charas or not? - Held that: - it was duty of the accused to disclose as to how he came in possession of the contraband Charas. He has simply denied the recovery of such substance and has taken the plea that he has been falsely implicated by police, in statement under section 313 of the Criminal Procedure Code. Why the police has falsely implicated him and what was enmity of police with him, has not been brought on record by examining any witness. It would not be out of place to mention that the quantity recovered from the accused is huge, which is difficult to be planted looking to its value in the International market.
The statement of police witnesses recorded by the prosecution in this case cannot be disbelieved only because they were police witnesses, in absence of any public witness being available. These witnesses did arrest the accused with alleged contraband substance in the normal course of duty harboring no enmity towards him, hence it cannot be held that they might have given false statement against the accused only to ensure that the charge sheet submitted by police stands vindicated.
Compliance of section 57 of NDPS Act - Held that: - The compliance of section 57 could only have adverse impact on the probative value of the evidence of the prosecution, in case the prosecution had led weak evidence in regard to recovery from the accused. But that is not the case here.
Non-compliance of the provisions of section 32 B of the NDPS Act - Held that: - the Court has expressed opinion that it is not mandatory while awarding punishment under sections of NDPS Act, wherein minimum punishment is provided, to award higher punishment than the minimum prescribed without taking into consideration the grounds which are mentioned in sub section (a) to (f) of section 32 B of NDPS Act - if the said section be read with greater attention, it would reveal that the words used in it are "it may deem fit", therefore word 'may' would indicate that it would be discretionary for the Court to take the grounds into consideration which are mentioned in sub-section (a) to (f) of the said section, while awarding punishment higher than the minimum prescribed.
This Court has already held that the prosecution has been successful in proving the recovery of contraband substance from the accused, of which he could show no license to possess, on the basis of entire evidence, therefore, this view of the Court may not be upset only because of the above mentioned lacuna being pointed out in investigation - The conviction of the accused appellant is upheld but his punishment is reduced to 10 years R.I., fine of ₹ 1,00,000/- and in default of payment of fine, he shall further undergo S.I. of three months - appeal allowed in part.
2017 (12) TMI 1508

Smuggling - Charas - the accused in his statement recorded under Section 313 Cr.P.C. has denied any such recovery of contraband substance to have been made from him and has stated that he has been falsely implicated due to enmity - Held that: - although the compliance of provisions of Section 57 of NDPS Act is not mandatory but directory. The compliance may be made even with delay with sufficient explanation therefor. The court conducting trial of an accused under the provisions of NDPS Act has to take into consideration whether non-compliance of this provision has resulted in causing prejudice to the accused. If yes, then certainly the benefit may be given to the accused. From the record it apparent that the prosecution has not made compliance of Section 57 of NDPS Act as nothing has come on record indicating that any such arrest and seizure report was prepared in respect of charas having been recovered from him which might have been sent to the higher authority within 48 hours or with delay with any explanation therefor. Hence, this Court is of the view that this certainly would cause prejudice to the accused.
Whether the prosecution has been able to prove the recovery of 01kg charas from the accused from the place of occurrence as alleged? - Held that: - the prosecution has failed to establish beyond reasonable doubt that 01kg charas was recovered from accused-appellant, hence without establishing the recovery, the burden under Section 35 & 54 of NDPS Act could not be thrust upon the accused to disclose as to how he came in possession of the said contraband.
The court below has failed to take into consideration the infirmities pointed out by this Court in the body of this judgement. It is held that the court below did not make proper appreciation of evidence on record in right perspective particularly with regard to identification of recovered contraband substance (Charas) which is being alleged to have been recovered from the accused on the spot, to be the same, the sample of which has been found by the F.S.L. to be Charas. This being of core importance in this case, the same could not be allowed to be taken lightly. In view of the severe punishment provided under the Act, this aspect ought to have been taken into consideration with all circumspection which appears to be lacking.
The appellant is held not guilty of charges under section 20(b)(ii) of NDPS Act. He be released from jail forthwith in this case, if not detained in any other case - The case property/recovered contraband (charas) be destroyed in accordance with rules after the period of appeal, provided if any, expires or if the law provides otherwise - appeal allowed.
2017 (12) TMI 1507

Smuggling - Heroin - offences u/s.8(c) r/w 21(c), 8(c) r/w 27(A), 8(c) r/w 28 & 8(c) r/w 29 of NDPS Act, 1985 amended by Act 9/2001 - acquittal of offences - quantitative analysis report in Ex.P50 - Held that: - On consideration of the quantitative analysis report in Ex.P50, Court below rightly has found the quantum of heroin carried and sought to be exported by appellant to be commercial quantity - Ex.P50 informs that the same has been prepared by one Karthikeyan, Assisant Director and Assistant Chemical Examiner to Government. Such official is a Government Scientific Expert and as such his report falls with the purview of Section 293 Cr.P.C. - appeal dismissed.
2017 (12) TMI 1506

Release of Bank Guarantee - Petitioners took the stand that they are not to liable to pay the service tax for the period prior to 1st June 2007. It is for that reason that instead of paying service tax under protest they furnished a BG in favour of Respondent No.1 - Held that: - If the AAI (Airports Authority of India), on its own, deposited the service tax with the Central Government, the AAI would be entitled to refund thereof in accordance with law - the Court is of the view that there is no justification for Respondent No.1 to continue retaining the BG issued in its favour. Accordingly Respondent No.1 is directed to forthwith return to the Petitioners BG No. PBG 2007/70029 dated 16th February 2008 issued in its for a sum of ₹ 70 lakhs and, in any event, not later than 30th September 2017 - petition allowed.
2017 (12) TMI 1505

Time limitation - validity of SCN - subsequent SCN - Held that: - A finding of fact has been recorded that non-filing of documents as required by summons and non appearance before the authorities is a deliberate violation of law and, therefore, the charge of suppression of facts is clearly borne out from the conduct of the Appellants - It was held that the notices issued on 8th September 2004 were not in continuation of notices for the previous period. The finding of fact is that, the notices issued on 8th September 2004 were not based on identical facts or identical evidences - demand is not barred by limitation.
Appeal dismissed.
2017 (12) TMI 1504

Levy of service tax - service provided in SEZ units - case of Revenue is that in the absence of all the agreement copies, there is every possibility that the assessee may have provided services at places outside the SEZ in respect of other units also - Held that: - Under Notification No.4 of 2004 dated 31.03.2004, taxable services of any description, as defined in Section 65(1)(90) of the Finance Act, 1994, provided to a developer of a SEZ or a unit of a SEZ by any service provider is exempted from the whole of the service tax leviable thereon, subject to conditions.
The Tribunal failed to note that the assessee produced invoices clearly indicating that the services provided by him were in a SEZ - As the Tribunal did not take note of these factual aspects while considering the application filed by the assessee for waiver of the predeposit and stay and straight away directed deposit of the entire assessed liability as a condition precedent, consequent upon which the appeal itself came to be dismissed thereafter owing to his failure to do so, we are of the opinion that the orders under appeal cannot be sustained and the Tribunal necessarily has to examine the matter afresh - matter on remand.
2017 (12) TMI 1503

Levy of service tax - composite works contract - whether the service tax can be levied on indiisible Works Contract Service(WCS) prior to 01/06/2007 i.e. the date of introduction of WCS under Section 65(105)(zzzza) of the Act? - Held that: - issue is no more res integra and has been settled by the Hon’ble Supreme Court in the case of L&T Ltd. [2015 (8) TMI 749 - SUPREME COURT] wherein the Hon’ble apex court has held that prior to 01/062007, there was no charging section to specifically levy service tax on WCS, or mechanism to tax service tax element derived from gross amount charged for works contract less value of the property in goods transferred in execution of works contract.
This Tribunal in the appellant s own case, ABB LTD. Versus COMMISSIONER OF SERVICE TAX, BANGALORE [2010 (7) TMI 335 - CESTAT, BANGALORE] has allowed the appeal of the appellant by discussing all the sub-contracts in the main contract which form part of the composite contract.
Appeal allowed - decided in favor of appellant.
2017 (12) TMI 1502

CENVAT credit - sole selling commission - input service or not? - Held that: - the sales commission is directly attributable to the sales of the product. Any activities which amounts to sale of the product is deemed to be sales promotion activity in the normal trade parlance. The commission is paid on the sale of the product / services with an intention to boost the sale of the company. In view of this, the sales commission has a direct nexus with the sales which in turn is related to the manufacture of the product - credit allowed - appeal allowed - decided in favor of appellant.
2017 (12) TMI 1501

Penalty u/s 76 and 78 - non-payment of service tax - Management, Repair and Maintenance Service - Held that: - there is no suppression on the part of the assessee to attract Section 78 - penalty u/s 78 set aside.
Penalty u/s 76 - Held that: - the appellant has already paid service tax of ₹ 7,38,873/- and also penalty under Section 78 amounting to ₹ 1,86,765/- being 25% of the penalty imposed and penalty under Section 76 amounting to ₹ 1,35,300/- and penalty under Section 77 ₹ 1,000/- and interest of ₹ 1,43,802/- as per the challans attached with the appeal. Since the assessee has paid the penalties under Section 76 and 78 which are not warranted and in view of my discussions above, I partially allow the appeal of the appellant and drop the penalties imposed under Section 76 and 78.
Penalties set aside - appeal dismissed - decided against Revenue.
2017 (12) TMI 1500

Tax collected but not paid - Advertising Agency Services - penalty u/s 77 and 78 - Held that: - the service tax was collected by the appellant from its customers and has not been deposited in the Government account. Further there are no justifiable reason for not depositing the service tax in the Government account - appellant paid the service tax along with interest only after it was detected by the Department - penalty upheld - appeal dismissed - decided against appellant.
2017 (12) TMI 1499

Penalties u/s 73, 77 and 78 of the FA, 1994 as also u/s 70(a) of the Act read with Rule 7 and Rule 7C of the STR, 1994 - late registration with the Service Tax Department for not paying the Service Tax of ₹ 34,262/- on Reverse Charge Basis and the late filing the ST-3 returns - Held that: - the Tribunal in number of decisions, has held that when the law is not clear, the assessee cannot be held guilty of any suppression etc in the absence of any evidence to the contrary - There could be a doubt entertained by the assessee. When the assessee is reflecting all their business activities in their balance sheet, no malafide can be attributed to them - penalty set aside - appeal allowed - decided in favor of appellant.
2017 (12) TMI 1498

Penalties - non-payment of service tax - Annual Maintenance Contract Services - payment of tax with interest on being pointed out - Held that: - the legal issues, during the relevant period, were not very clear, thus, giving doubts to the assesses. In as much as, the services were a part of the appellant’s record, there was no escape for the appellant to deposit the Service Tax. In this scenario, no mala-fide intention can be attributed to the assessee so as to attract penal provisions - penalty set aside - appeal allowed.
2017 (12) TMI 1497

Rebate claim - export of services - Time limitation - Section 11B of CEA - Held that: - in the present case, rebate claims have been filed within one year from the date of receipt of foreign exchange, which is relevant date for computation of limitation - appeal allowed - decided in favor of appellant.
2017 (12) TMI 1496

Refund of unutilized CENVAT credit - input services or not - denial on the ground of nexus - All the services have been held to be input service in various decisions relied upon by the appellant and the details of the invoices have also been given along with the appeal memorandum - also, the original authority has committed computation error in determining the amount of refund which is eligible by wrongly applying the method for computation of refund - the original authority directed to recompute the refund amount in accordance with law - appeal allowed.
2017 (12) TMI 1495

Refund claim - service tax paid which is not payable - Rejection on the ground of time limitation - Section 11B of the CEA, 1944 - Held that: - It is admitted fact that the appellant is service provider in the state of Jammu & Kashmir and for the services provided by the appellant in the state of Jammu & Kashmir, no service tax is payable. In that circumstance, the amount paid towards service tax by the appellant is not an amount of service tax - when it is not an amount of service tax than the provisions of Section 11B of the Act are not applicable to the facts of this case - refund allowed - appeal allowed - decided in favor of appellant.
2017 (12) TMI 1494

Maintainability of appeal - Penalty - Valuation - Held that: - the decision in the case of Commissioner of Customs, Central Excise and Service Tax, Indore Versus Avtec Limited [2017 (12) TMI 1424 - MADHYA PRADESH HIGH COURT] shall apply mutatis-mutandis in the present case also, where it was held that if multiple questions are involved in the matter, then the department has to raise all these issues before the Supreme Court by filing an appeal under Section 35L of the Central Excise Act, 1944 - present appeal also dismissed following the above case.
2017 (12) TMI 1493

Levy of service tax - tour operator service - exemption Notification No. 20/2009-S.T., dated 7-7-2009 - Held that: - the services of the type rendered by the appellant have been exempted from payment of service tax vide Notification No.20/2009. This notification has further been amended to give retrospective effect as per Section 75 of the Finance Act, 2011. The retrospective benefit has been granted for the period with effect from 01/04/2000 - demand of tax not justified.
Similar issue decided in the case of A. MANIMEGALAI Versus COMMISSIONER OF C. EX. (SERVICE TAX), SALEM [2014 (6) TMI 490 - CESTAT CHENNAI], where it was held that activity undertaken by the appellants was exempted by Notification No. 20/2009-S.T., dated 7-7-2009 and the retrospective effect was granted to the exemption through Section 75 of the Finance Act, 2011 and the same is applicable from 1-4-2000.
Appeal allowed - decided in favor of appellant.