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Showing 381 to 400 of 1733 Records
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2019 (6) TMI 1355
Valuation of imported goods - Aluminium waste as raw material for self consumption - rejection of declared value - enhancement of value of imported goods based on contemporaneous imports of NIDB data - HELD THAT:- The appellant is a regular importer and have given the consent for clearance of the goods.
On identical facts in the appellant own case for earlier period CENTURY METAL RECYCLING PVT. LTD. AND ANOTHER VERSUS UNION OF INDIA AND OTHERS [2019 (5) TMI 1152 - SUPREME COURT] it was held that the adjudication order in original is flawed and contrary to law for it does not give cogent and good reason in terms of Section 14(1) and Rule 12 for rejection of the transaction value as declared in the bill of entry. The order in original is not in accordance with Section 14 and Rules 3 and 12 as the mandate of these provisions has been ignored.
The enhancement of value is to be set aside - appeal allowed - decided in favor of appellant.
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2019 (6) TMI 1354
Restoration of name in the register of companies - restoration of name rejected on the ground that the company was not in operation and carrying on any business - HELD THAT:- The undisputable legal preposition, as embodied in section 248 (1)(c) of the Companies Act, 2013 being that a company not carrying on any business or in operation for a period of two immediately preceding financial years is liable to be removed from the register of companies, the onus of proof that the appellant company was carrying on business and conducting operations during the aforesaid period lay on the appellant who failed to discharge the same by not even responding to the statutory notice.
In absence of any material to dislodge the finding recorded by the NCLT, such finding cannot be termed erroneous much less perverse. We are convinced that the instant case is one where the appellant company, pursuant to its incorporation, failed to carry on business. There is no documentary evidence on record to establish even a semblance of commencement of operations by the Appellant Company from its very inception.
Appeal lacks merit and is dismissed.
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2019 (6) TMI 1353
Initiation of Corporate Insolvency Resolution Process - default in repayment of total amount alongwith the interest - section 7 of Insolvency & Bankruptcy Code, 2016 (I&B Code) - HELD THAT:- The present proceedings are not concerned with the validity of the lease deed, the existence of security interest upon an asset of the Corporate Debtor. The present proceedings under section 7 of the I&B Code are only concerned with the existence of Debt and Default. The credit facility was extended to the Borrower, and the same was secured by hypothecation and mortgage. Thus, it would not make any difference whether the Petitioner has a secured interest on an asset belonging to the Corporate Debtor or not as it is having a security interest in the assets of the Borrower Company.
The Corporate Debtor has admitted that it has executed the Corporate Guarantee dated 06.11.1987 in its letter dated 20.05.2017 addressed to the Petitioner. Thus, the fact of the execution of Corporate Guarantee is admitted by the Corporate Debtor. When the deed was signed at the time of taking a loan, the Guarantor now cannot contend that the deed is treated as revoked based on its notice to the Petitioner and Lenders as this can only be adjudicated by a Court of appropriate jurisdiction.
The Petitioner has been assigned the loans by the Lenders of the Borrower Company. The Corporate Debtor is a Corporate Guarantor of the Borrower Company. The Petitioner is thus a Financial Creditor of the Corporate Debtor within the meaning of section 5(7) of the I&B Code - The Corporate Debtor has not denied the sanction and disbursement of loan from the Lenders to the Borrower Company. The said loan is in default is also not disputed.
The Application under sub-section (2) of Section 7 of I&B Code, 2016 is complete - the application is admitted - moratorium declared.
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2019 (6) TMI 1352
Admissibility of petition - Initiation of Corporate Insolvency Resolution process - Corporate debtor - Section 9 of the Insolvency and Bankruptcy Code, 2016 (in short, IB Code, 2016) r/w Rule 6 of the Insolvency and Bankruptcy (Application of Adjudicating Authority) Rules, 2016 (for brevity, IB Rules 2016) - HELD THAT:- On perusal of material documents placed before this Bench, it is clear that the invoices are reflecting supply of materials and also demand for payments towards the materials supplied to the Corporate Debtor herein. Since the Operational Creditor furnished the proof to believe that debt and default are in existence, for their being no dispute from the Corporate Debtor side against the claim made by the Operational Creditor, this Bench, having satisfied with the proof filed by the Operational Creditor in compliance with the provisions of Sections 8 and 9 of the I&BC, 2016 admits the instant Company Petition 1243/IB/2018 filed under Section 9 of the I&BC.
Since the Operational Creditor has not recommended the name of Interim Resolution Professional (IRP), we appoint Mr.S. Sivarama Krishnan as IRP from the list provided by the IBBI Panel. The IRP is directed to take charge of the Respondent/Corporate Debtor management immediately. The IRP is also directed to cause public announcement as prescribed under section 15 of the I&B Code, 2016 within three days from the date of copy of this order is received and call for submissions of claim in the manner as prescribed - Moratorium declared.
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2019 (6) TMI 1351
Condonation of delay of 387 days in filing appeal - sufficient cause - HELD THAT:- It is imperative to note that the order in original was passed on 12th January 2012. There was a delay in challenging the order in original before the Commissioner (Appeals) and, thus, the said appeal came to be dismissed as having been filed beyond the stipulated period of limitation, on 30th November 2016. The delay of 387 days in assailing the said order before the Tribunal, evidently, occurred at the second stage.
It is true that the Court is expected to lean in favour of condonation of delay so that the lis is determined on merits. The Courts and Tribunal generally adopt a liberal approach and the expression, 'sufficient cause' is construed rather generously so as to advance substantial justice. However, the cause ascribed by a litigant must relate to the events which transpired in proximity to the passing of the order sought to be assailed.
In the case at hand, the principal reason assigned for not filing the appeal is the death of one of the Partners of the petitioner No.1 firm. The said event occurred in the year 2010. The death of the partner of the petitioner No.1 occurred even before passing of the order in original. Since the order sought to be impugned before the Tribunal, was passed on 30th November 2016, the Tribunal was justified in refusing to condone the delay on account of a cause which had no causal connection with the period in question. If the said cause is discounted, then it seems to be a case of no specific and bonafide explanation relatable to the period of delay - The material on record, on the contrary, indicates that the petitioners have not been diligent in pursuing the remedies as the delay occurred in preferring the appeal against the order in original before the Commissioner (Appeals) and also in assailing the order passed by the Commissioner (Appeals) before the Tribunal.
The impugned order cannot be said to be either perverse or unreasonable so as to warrant interference by this Court in exercise of extraordinary jurisdiction under Article 226 and 227 of the Constitution of India - petition dismissed.
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2019 (6) TMI 1350
Valuation - undervaluation of goods - demand based on consumption of fuel, increase in price of goods after initiation of investigation etc - demand of ₹ 3,28,68,656/- has been made on the ground that the Appellant had undervalued the goods on the basis of statements of buyers - HELD THAT:- We find that except the statements of some buyers no evidence has been put on record. The evidence in the form of details of cash receipts from buyers, any document proving cash transaction on account of undervaluation has not been brought on record. We also find from the statement of buyers that the statements were inconsistent as initially they stated that the cash amount was given to Appellant through Angadias or their Tiles dealers. However in subsequent statements they stated that the amount was handed over to Shri Hiteshbhai, employee of Appellant Unit. During investigation no evidence of any unaccounted money having been received by the appellant from any of the tile manufacturers was found.
The main plank of investigation was that the excess amount was routed through shroffs, angadias and dealers of tile manufacturers. However, no instance of any money having been received through these agencies have been cited in the show cause notice. Admittedly no evidence of the appellant having received the huge amount in unaccounted manner from more than 26 customers to whom frit was sold from February 2005 to February 2010 was found. Even the cross examination of persons whose statements has been relied upon to allege undervaluation was not provided. Not a single insistence of cash receipt at Appellant’s end is on record. In such case when the allegation is based upon the statements of buyers which is not supported by even a single evidence and in the light of the fact that no cross examination of such persons whose statements were relied upon was allowed, thus the demand does not sustain.
Also the Appellant has adequately justified the increase in prices in subsequent years due to increase in prices of raw material and change in machinery. We find that no adverse reasoning has been given against such contention of Appellant. Even otherwise the allegation of undervaluation of goods is based merely upon statements and not any evidence. We are thus of the view that the demands on account of undervaluation which is based merely upon the statement of some buyers are not sustainable.
Demand of ₹ 2,95,33,205/- has been made against the Appellant on the basis of gas consumption - alleged excess consumption of gas - HELD THAT:- Except alleging excess consumption of gas no evidence in the form of procurement or excess consumption of raw materials has been brought on record. Frit is manufactured from eight raw materials and none of the said raw materials has been shown to have been procured in illicit manner or consumed in excess. In such case the demands has no legs to stand - the demands based upon consumption of natural gas is not sustainable as the same is not supported by procurement of any raw material, its processing or transportation and identification of any buyer.
Demands of ₹ 81,784/- has been made against the Appellant on the ground that they have cleared goods on parallel invoices - HELD THAT:- In case of one of the invoices though the alleged consignee M/s Swagat Ceramics has accepted the receipt of goods, no evidence of such removal has been found from the Appellant’s end. Even the format of such alleged parallel invoice is different from the invoice format of the Appellant and there is no corroborative evidence of transportation of goods - In case of other 5 parallel invoices, the buyers of the goods have refused receipt of any goods. The officers had recorded the statement of Shri Samir Parekh, the proprietor of the Appellant concern who also has refused supply of goods and issue of parallel invoice. In such case we do not find any reason to uphold the demand against the Appellant.
SSI Exemption - Demand of ₹ 62,67,000/- has been made against the Appellant on the ground that after addition of the value of undervalued and clandestine removal, the sale value of the Appellant crosses the SSI Exemption limit and the Appellants are not entitled for SSI exemption in respective years - HELD THAT:- Since the charges of undervaluation and clandestine removal of goods are not sustainable against the Appellant, hence there is no reason to deny them the benefit of SSI Exemption - subject demand is therefore not sustainable.
Appeal allowed - decided in favor of appellant.
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2019 (6) TMI 1349
Clandestine removal - confiscation of seized goods loaded in the intercepted truck on the ground that the same has been cleared without payment of duty - Revenue’s case is that the said excise invoice was raised subsequently by assessee on receiving the information of interception of the truck - HELD THAT:- There is no dispute with the finished goods intercepted by the officers tallied with the depot challan (transporter copy) accompanying the consignment with regard to the item code, quantity and description of the goods. Though Shri Ajay Kumar Shah who was accompanying the consignment made a call to his factory but the subject matter of the call is not available with the Revenue. Making a call by itself intimating the office persons as regards interception of the truck will not go to prove that the excise invoice was made on receipt of such information. The said findings of the Lower Authorities are based upon the assumption and presumption.
As such, inasmuch as the goods found loaded in the truck and intercepted by the officers have already discharged their duty burden, there is no reasons to confiscate the same.
Shortages of goods - HELD THAT:- There is no evidence to show that the said goods have been cleared by the assessee without payment of duty - It is well settled law that findings of clandestine removal cannot be upheld on the basis of shortages detected in the stock at the time of visit of the officers - the Central Excise officers have not presented any evidence to show removal of the said goods, the demand of duty cannot be upheld on the basis of only shortages - demand set aside alongwith penalty.
Confiscation of Currency - HELD THAT:- Apart from the fact that the Currency in question was not recorded in the cash book records, Revenue has not advanced any reason to show that the same was the sale receipts of the smuggled goods - confiscation of the Indian Currency is set aside.
Penalties - HELD THAT:- Inasmuch as the demand have been set aside against M/s Prabhat Zarda Factory (India) Ltd. alongwith setting aside of confiscation of Indian Currency, the penalties imposed upon them as also on the other two appellants are required to be set aside - the confiscation of the truck is also required to be set aside.
Appeal allowed - decided in favor of appellant.
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2019 (6) TMI 1348
CENVAT credit - inputs - steel melting scrap - it was alleged that the steel melting scrap which is an input for appellant No.1 does not include any of the items mentioned in the description of the goods found during the course of investigation - HELD THAT:- There is no allegation in the SCN that the goods in question have not been received by appellant No.1 from appellant No.2. In the SCN the only issue is that the goods in question cannot be the inputs to manufacture final products by the appellant No.1. To ascertain such fact, no visit was made by the Revenue in the factory premises of the appellant No.1. No process of manufacturing has been brought on record. Moreover, no evidence has been produced by the Revenue that the said goods have not been diverted to be used by the appellant-manufacturer to manufacture final products, therefore, the allegation made against the appellant is only on the basis of assumptions and presumptions.
The Revenue has not come with any evidence to show that the said inputs cannot be used by the appellant-manufacturer to manufacture their final products. No expert opinion has been obtained by the Revenue. No statement of transporter has been recorded to allege diversion of the goods. Therefore, the credit cannot be denied.
Diversion of goods and non receipt of goods by the appellant- manufacturer - scope of SCN - HELD THAT:- As there is no such allegation in the show cause notice to allege that the goods were never received by the appellant-manufacturer and supplied by the dealer, in that circumstance, the adjudicating authority has gone beyond the scope of show cause notice.
Appeal allowed - decided in favor of appellant.
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2019 (6) TMI 1347
Garnishee Order - adjustment of dues - CST Act - HELD THAT:- The petitioner is given liberty to request first respondent to pass orders for recalling the garnishee order issued to Axis Bank. If such a request is made, the petitioner is maintaining minimum balance of 8 lakh rupees towards security for answering the claim of respondents, the Assistant Commissioner of Sales Tax passes an order on the request of the petitioner for recalling the garnishee order within two weeks from the date of receipt of such request. Minimum balance amount of ₹ 8 lakhs now directed to be maintained is subject to further or final orders on Ext.P5.
Petition disposed off.
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2019 (6) TMI 1346
Enquiry issued under Section 47(6) of the Kerala Value Added Tax Act, 2003 - ex-parte order - denial of opportunity of hearing - principles of natural justice - whether the quick succession of dates from Exts.P1 to P4, amounts to affording reasonable opportunity or there is violation of principles of natural justice? - HELD THAT:- This Court has difficulty in accepting the contention now vehemently put forward by the learned Government Pleader, for the petitioner at no point of time tried to procrastinate the enquiry and the one adjournment, which he is otherwise legally entitled to is also brushed aside in haste.
Ext.P4 is set aside as contrary to principles of natural justice - The matter is remitted to first respondent for consideration and disposal in accordance with law - petition allowed by way of remand.
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2019 (6) TMI 1345
Constitutional validity of sub-rule (5) of Rule 41 of the Assam Value Added Tax Rules, 2005 - validity of circulars dated 08.09.2011, 18.11.2011, 14.03.2012, 14.03.2012 and 18.05.2012 - power vested with the Commissioner to issue circulars - HELD THAT:- Through the proviso, the Commissioner is empowered to direct the relevant information in the electronic format to be uploaded. Such proviso is a part of the Rule which is framed by the Government by which it provides for the Commissioner to issue appropriate directions. The same cannot be considered as sub-delegation of the power. Hence, the contention in that regard cannot be accepted and the decisions rendered would not be relevant for the said purpose.
Levy of penalty - failure to upload the documents in electronic form - documents required to accompany the goods - Held that:- Though sub-rule (5) to Rule 41 provides for uploading the documents in electronic format, the non-compliance of the same does not indicate any consequence nor the circulars issued in that regard specifies any consequence for non compliance. The circular only indicates the ease with which the checking could be completed at the check posts. In that background, when penalty is to be imposed for non-compliance of the requirement of production of the documents provided for in Section 75(3) and Rule 41(9) and when presumption of evasion of taxes is rebuttable by production of the documents, the Authorities were required to apply their mind to this aspect of the matter.
The documents as referred to by the petitioners in their reply dated 7.1.2014 were to be examined to find out as to whether the said documents were genuine and whether the documents were in existence as on the date of movement of the goods. In that regard, if the authorities were satisfied that the documents in the physical form was available as on the date of the movement of the goods, in such event a consideration was necessary to be made as to whether penalty was leviable only because the uploading in the electronic format was not done.
In the instant case, no such exercise has been done, but the penalty has been imposed only on the observation that on-line declaration had not been made. Insofar as the tax levied at ₹ 50,475/-, in any event, the same was required to be paid and the petitioner having paid the same, has secured the release of the goods through interim order passed by this Court, which has only stayed the recovery of penalty. In that circumstance, it would be appropriate to set aside the orders dated 22.05.2014 and 30.05.2014 and remit the matter to the Superintendent of Taxes to take a decision at the outset and, thereafter, to enable the Inspector of Taxes to take a decision thereafter - petition allowed by way of remand.
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2019 (6) TMI 1344
Dishonor of Cheque - Complaint by Power of Attorney Holder who have no knowledge of facts - whether respondent is a ‘wakf’ or not - Scope of Affidavit filed with complaints - Maintainability of summon orders - Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- The affidavits appear to prima facie fulfil the parameters of observations in para 8 of the said verdict (A.K.K. NAMBIAR VERSUS U.O.I. [1969 (10) TMI 79 - SUPREME COURT]) in the circumstances put forth. However, the same does not suffice to bring forth the maintainability of the complaints as of date.
The trustees are joint owners of the trust property and a Trust does not have a legal existence of its own and no single trustee can sue in the name of the Trust and all trustees must be impleaded in the suit and the trustees execute a power of attorney empowering one of them to represent all and cannot do so by passing a resolution and that all trustees should join the suit.
It is thus indicated that Rabea Begum, Executant No.3 died on 5th October, 1949 and Hakim Mohammad Said, Executant No.2 was declared an evacuee and his share was taken possession of by the Custodian of Evacuee Property and thus Mr. Hakim Abdul Hameed, Executant No.1 became the sole surviving Wakif-Mutawalli and all rights, powers and duties of Wakif Mutawalli conferred by the Deed thus vested in him and it was mentioned thereby that he would be construed to mean the sole surviving Wakif-Mutawalli in relation to the all rights, powers and duties provided for the Wakif Mutawallis in the Wakf Deed as it has been submitted through the submissions made on behalf of the petitioner and which have not been refuted on behalf of the respondent that even the said Shri Hakim Abdul Hameed who executed the Power of Attorney in favour of Javed Akhtar has since expired, there is nothing that has been put forth on the record by the respondent to indicate that there is any other Chief Mutawalli that has been appointed apart from the factum that it has already been laid down by this Court that the respondent is not a Wakf.
Petition not maintainable and the summoning orders are thus quashed.
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2019 (6) TMI 1343
Depreciation on wheel loaders and wheel graders - @ 40% OR 25% - HELD THAT:- The details of the fixed assets on which depreciation has been claimed are also filed before us. On perusal of the same, we find that the wheel loaders and graders are motor vehicles as held by the Coordinate Bench of this Tribunal in the case of NAC Infrastructure Equipment Ltd [2016 (7) TMI 1528 - ITAT HYDERABAD], assessee’s sister concern. Therefore, respectfully following the decision of the Coordinate Bench, we do not see any reason to interfere with the order of the CIT (A). Therefore, the Revenue’s appeals are dismissed.
Disallowance of claim of leave encashment on provision basis - HELD THAT:- Though the issue is covered in favour of the assessee by the decision of the Hon'ble Calcutta High Court in the case of Exide Industries Ltd vs. Union of India [2007 (6) TMI 175 - CALCUTTA HIGH COURT] and the Coordinate Bench of the Tribunal in the case of DCIT vs. A.P Seeds Development Corporation Ltd [2014 (3) TMI 1004 - ITAT HYDERABAD] has followed the same to hold that the provisions made towards leave encashment is allowable as a deduction, he submitted that the decision of the Hon'ble Calcutta High Court has been stayed by the Hon'ble Apex Court [2008 (9) TMI 921 - SC ORDER] and the issue is pending for adjudication. As prayed that the issue may be remanded to the file of the AO to pass the final order after the Apex Court decides the issue - we deem it fit and proper to remand the issue to the file of the AO with a direction to give effect to the Hon'ble Supreme Court’s decision in the case of Exide Industries Ltd (Supra). Thus, ground treated as allowed for statistical purposes
Disallowance of labour charges - AO disallowed 5% of the labour charges -CIT (A) restricted the disallowance to ₹ 5.00 lakhs - HELD THAT:- AO has made an adhoc disallowance without pointing out any discrepancy or defects in the books of account. The CIT (A) observed that the disallowance on the labour charges is on a higher side and hence restricted it to ₹ 5.00 lakhs. We are of the opinion that only such expenditure which is not substantiated by proper bills & vouchers or which could not be explained by the assessee can be disallowed. Even for making the adhoc disallowance, there has to be a basis or comparative analysis. Since there is no such material on record, we are satisfied that the adhoc disallowance is not sustainable.
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2019 (6) TMI 1342
Taxability - contract for sectioning of Sunamuhin Drainage Channel (From Narsinghapatna Bridge to Brahmadeva Resort) and from pond near Harachandi mouth to outfall of Chilika in Orissa - Government Entity - clause 2 (zfa) of N/N. 9/2017 Integrated Tax (Rate) dated 28/06/2017 - applicability of Sl 3A vide Notification No. 2/2018-Integrated Tax (Rate) dated 25/01/2018 - whether the supply being made is a composite supply, where supply of goods constitutes not more than 25% of the value of the composite supply? - whether the recipient is government, local authority, governmental authority or a government entity? - whether the supply is in relation to any function entrusted to a Panchayat or a Municipality under the Constitution?
HELD THAT:- The functions of a Panchayat under the Constitution needs to be discussed. Article 243G of the Constitution discusses the powers, authority and responsibilities of Panchayats. It states, “Subject to the provisions of this Constitution the Legislature of a State may, by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self- government subject to such conditions as may be specified therein, with respect to the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule,”.
It appears from the description of the work that it improves the navigability of the riverbed and channels - an activity toward development of irrigation and waterways. It is, therefore, an activity in relation to the function listed under Sl No. 5 of the Eleventh Schedule, as entrusted to a Panchayat under Article 243G of the Constitution of India.
Exemption under Sl No. 3A of the Exemption Notification is, therefore, applicable to the Applicant’s supply of the above works contract service.
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2019 (6) TMI 1341
Taxability - contract for sectioning of Makara River (Right Drainage) and Garanimunha branch of Makara River (Part A, Makara Right Drainage) in Orissa - Government Entity - clause 2 (zfa) of N/N. 9/2017 Integrated Tax (Rate) dated 28/06/2017 - applicability of Sl 3A vide Notification No. 2/2018-Integrated Tax (Rate) dated 25/01/2018 - whether the supply being made is a composite supply, where supply of goods constitutes not more than 25% of the value of the composite supply? - whether the recipient is government, local authority, governmental authority or a government entity? - whether the supply is in relation to any function entrusted to a Panchayat or a Municipality under the Constitution?
HELD THAT:- The functions of a Panchayat under the Constitution needs to be discussed. Article 243G of the Constitution discusses the powers, authority and responsibilities of Panchayats. It states, “Subject to the provisions of this Constitution the Legislature of a State may, by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government..subject to such conditions as may be specified therein, with respect to..the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule,”.
It appears from the description of the work that it improves the navigability of the riverbed and channels - an activity toward development of irrigation and waterways. It is, therefore, an activity in relation to the function listed under Sl No. 5 of the Eleventh Schedule, as entrusted to a Panchayat under Article 243G of the Constitution of India.
Exemption under Sl No. 3A of the Exemption Notification is, therefore, applicable to the Applicant’s supply of the above works contract service.
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2019 (6) TMI 1340
Levy of GST on supply - supply even if the recipient is using the dwelling unit for residential purpose - Sl No. 12 of Notification No. 12/2017-CT (Rate) dated 28/06/2017 (corresponding state Notification No. 1136 - FT dated 28/06/2017) - HELD THAT:- It appears that the dwelling units rented to individuals, as described in the relevant contracts, are meant for residential accommodation. The dwelling unit rented to M/s. Larsen & Toubro Ltd is a flat in the housing complex named South City. The South City Apartment Owners’ Association certifies that the Applicant owns the flat and it is a residential flat and cannot be used for any other purpose. The said association further confirms that an employee of M/s. Larsen & Toubro Ltd is staying at the flat.
The Applicant’s service is classifiable as rental or leasing service involving own/leased residential property (SAC 997211). Applicability of Sl No. 12 of the Exemption Notification depends upon whether the dwelling unit is used as residence. It appears from the documents produced that all the above dwelling units are being used for residence, irrespective of whether they are let out to individuals or a commercial entity. The Applicant’s service of renting/leasing out the dwelling units for residential purpose is, therefore, exempt under SI No. 12 of the Exemption Notification.
The Applicant’s service of renting/leasing out the dwelling units for residential purpose, as described in para no. 4.1, is exempt under Sl No. 12 of Notification No. 12/2017-CT (Rate) dated 28/06/2017 (corresponding State Notification No. 1136 - FT dated 28/06/2017), as amended from time to time. The Applicant is, therefore, not liable to pay tax on supply of such service.
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2019 (6) TMI 1339
Classification of supply - pure service or a composite supply? - Applicant supplies the organic manure and solid waste scrap if any to customers - whether the supply being made is pure service or a composite supply, where supply of goods does not exceed more than 25% of the value of the supply? - whether the recipient is government, local authority, governmental authority or a government entity? - whether the supply is being made in relation to any function entrusted to a panchayat or a municipality under the Constitution? - HELD THAT:- The recipient is a municipal corporation, which is a local authority as defined under section 2(69) of the GST Act.
The Applicant is made responsible for collection, segregation, storing, transport and disposal of municipal solid waste from the municipal area of the BMC. They will organize a house-to-house collection of municipal solid waste, collect waste from slums, hotels, slaughterhouses etc. They will segregate the non-bio-degradable and inert waste and dump it at the Landfill within the Project premise. The Applicant may build a suitable Processing and Composting Plant. The Applicant shall bear the expenditure for maintenance of the collection equipment and pay rental on the equipment taken on lease from the BMC. The consideration to be paid measures the work done in terms of the quantity of the garbage lifted and removed. Based on the above document, it may, therefore, be concluded that the Applicant’s supply to BMC is pure service.
Article 243W of the Constitution that discusses the powers, authority and responsibilities of a Municipality, refers to the functions listed under the Twelfth Schedule as may be entrusted to the above authority. Sl.No. 6 of the Twelfth Schedule refers to public health, sanitation, conservancy and solid waste management. The Applicant’s supply to HMC is a function mentioned under Sl.No. 6 of the Twelfth Schedule - Applicant’s service to BMC, therefore, is exempt under Sl No. 3 of the Exemption Notification.
Section 51(1) of the Act provides that the Government may mandate inter-alia a local authority to deduct TDS while making payment to a supplier of taxable goods or services or both. As the Applicant is making an exempt supply to the BMC, the provisions of section 51 and, for that matter, the TDS Notifications do not apply to his supply - Supply of unbranded organic manure, unless packed in containers, is classifiable under HSN 3101. Municipal waste is classifiable under HSN 3825. Supplies of both of them are exempt under Sl Nos. 108 and 110 of the Exemption Notifications (Goods), respectively. If the Applicant’s turnover consists entirely of exempt supplies, he is not liable to registration in terms of section 23(1)(a) of the GST Act.
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2019 (6) TMI 1338
Rectification of two entries in the purchase details already submitted by the petitioners - HELD THAT:- To test the reasonableness of the findings and the procedure followed by the respondents while rejecting the request, a few permutations and combinations are illustratively tested during and in the course of arguments. At the bottom of above effect a concrete solution warranting dismissal of writ petitions is not made out and so many questions now raised by the petitioners are remain unanswered. This Court keeping in view the stage at which the request is made namely that even before the initiation of penal proceedings is of the view that the issue decided in Ext.P2 requires re-consideration by the 1st respondent.
This Court since is unable to accept the findings recorded by the 1st respondent and however at the same time does not want to record a finding by examine the merits of case now pleaded by the petitioners is of the view that after Ext.P2 order could be set aside the matter remitted to 1st respondent for consideration and disposal by keeping in mind the standard accountancy practices, the effect of proposed rectification and pass orders within four weeks from today - Petition allowed by way of remand.
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2019 (6) TMI 1337
Profiteering - Vitrified Tiles - benefit of reduction in the rate of tax not passed on - increase in the MRP of the product after the rate of tax was reduced - contravention of the provisions of Section 171 of the CGST Act, 2017 - penalty - HELD THAT:- It is revealed that the Central Govt. vide Notification No.41/2017-Central Tax (Rate) dated 14.11 2017 had reduced the rate of GST from 28% to 18% in respect of the tiles with effect from 15.11.2017, the benefit of which was required to be passed on to the recipients by the Respondent as per the provisions of Section 171 of the CGST Act, 2017.
It is revealed that the Respondent had increased the base price of the product from ₹ 750/- to ₹ 814/when the rate of tax was reduced from 28% to 18% with effect from 15.11.2017. Thus, by increasing the base price of the product, post-GST rate reduction, the benefit of reduction in tax rate was not passed on to the Applicant No. 1 by the Respondent.
It is established that the Respondent has acted in contravention of the provisions of Section 171 of the CGST Act, 2017 and has not passed on the benefit of reduction in the rate of tax to his recipients by commensurate reduction in the prices. Accordingly, the amount of profiteering is determined as ₹ 54,67,149/- as per the provisions of Rule 133 (1) of the CGST Rules, 2017 - The Respondent is therefore directed to reduce the prices of his products as per the provisions of Rule 133 (3) (a) of the CGST Rules, 2017, keeping in view the reduction in the rate of tax so that the benefit is passed on to the recipients - The Respondent is also directed to deposit the profiteered amount of ₹ 54,67,149/- along with the interest to be calculated @ 18% from the date when the above amount was collected by him from the recipients till the above amount is deposited. The Respondent is further directed to refund an amount of ₹ 75/- (750* 1.28 = 960 -750*1.1.8 = 885) to Applicant No. 1. along with the interest @ 18% - Since rest of the recipients in this case are not identifiable, the Respondent is directed to deposit the amount of profiteering of ₹ 27,33,537/- in the Central Consumer Welfare Fund (CWF) and ₹ 27,33,537/- in the Uttar Pradesh State CWF as per the provisions of Rule 133 (3) (c) of the CGST Rules, 2017, along with 18% interest.
Penalty - HELD THAT:- The Respondent had issued incorrect invoices while selling the above product to his recipients as he had incorrectly shown the base prices and had also compelled them to pay additional GST on the increased prices through the incorrect tax invoices which would have otherwise resulted in further benefit to the recipients. It is also established from the record that the Respondent has deliberately and consciously acted in contravention of the provisions of the CGST Act, 2017 by issuing incorrect invoices which is an offence under Section 122 (1) (i) of CGST Act - penalty under Section 122 (1) (i) of CGST Act read with Rule 133 (3) (d) of the CGST Rules, 2017 upheld - Since he has not submitted his reply on the issue of penalty, therefore, in the interest of natural justice before imposition of penalty a notice is issued to him asking him to explain why penalty should not be imposed on him.
Application disposed off.
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2019 (6) TMI 1336
Maintainability of appeal - waiver of pre-deposit stipulated in Section 129E of the Customs Act, 1962 - grievance of the Petitioner is that the order of the Additional Commissioner dated 6th September, 2018 contains error apparent on record, which has lead to imposition of a penalty much higher then what, according to the Petitioner, can be imposed in law - HELD THAT:- It is a settled position that a right of appeal is a statute given right and in the absence of statute providing for the same, there is no natural or fundamental right to file an appeal before the Appellate Authorities under the Act. This right of appeal can always be bestowed subject to such conditions, as are thought fit by the legislature.
The Act provides that any party aggrieved by an order of Officer of the Customs below the rank of Commissioner of Customs, is entitled to file appeal under Section 128 of the Act to the Commissioner of Customs (Appeals). However, this right of appeal is not unconditional. It is circumscribed by the requirement of the party, seeking to appeal making necessary pre-deposit of 7.5% of the duty and penalty which has been confirmed by the lower authority. This deposit has to be made under Section 129E of the Act.
The dismissal of this Petition will not preclude the Petitioner from adopting any other remedy available to it under the Act, if permissible, such as rectification application in terms of Section 154 of the Act - petition dismissed.
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