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Showing 41 to 60 of 2028 Records
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2019 (7) TMI 1989 - ALLAHABAD HIGH COURT
Validity of Arbitral Award - contract entered between the parties - appellant herein raised number of objections and the court below mechanically dismissed them holding that it cannot sit in appeal over the award and objections under Section 34 came to be rejected on the cryptic unreasoned order - HELD THAT:- On the contours of Arbitration Act, 1996, it cannot be said that the proceedings were under the old Act of 1940 and, therefore, interest rate which has been granted should not have been 18%. It is submitted by Sri Tandon for the respondents that the statutory rate of interest should be 1 or 2 per cent higher or lower than the bank rate.
While going through the record and the award it appears that while considering the claim of the contractor, the arbitrator was himself a engineer was taken pain to look into the amount which could be granted and which could be discarded - The contractor was subjected to filing of suit for appointment of arbitrator which was also vehemently opposed on the ground that it was a unregistered firm. It was only after intervention of the Court that arbitration proceedings continued. Though the arbitrator was appointed by concess objections were raised to contend that he had committed misconduct as he was a engineer with the State.
As far as the rate of interest is concerned, the arbitral award and the order of the Court below shall stand modified to the extent that the rate of interest shall be 9% and not 18% as ordered by arbitrator.
The appeal is partly allowed.
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2019 (7) TMI 1988 - DELHI HIGH COURT
Continuation of suspension of petitioner - particulars of the case not produced - HELD THAT:- The petitioner has held back the particulars of the case registered against him by the CBI, and particulars of the case made out against him under the PMLA. In all fairness, he should have disclosed all the relevant facts, since they are most material and pertinent to assess the petitioner’s grievance.
No doubt, in the present case, the charge sheet – either in the criminal case, or for holding the departmental enquiry against the petitioner has not been issued till date. Investigation is still underway by the CBI - Similarly, the fact that the investigation is underway under the PMLA, could also not have been ignored by the Government. These are serious and valid considerations to justify the continued suspension of the petitioner.
In STATE OF TAMIL NADU VERSUS PROMOD KUMAR AND ORS. [2018 (8) TMI 2120 - SUPREME COURT], the Supreme Court, while referring to AJAY KUMAR CHOUDHARY VERSUS UNION OF INDIA THROUGH ITS SECRETARY & ANR. [2015 (6) TMI 592 - SUPREME COURT], wherein the Supreme Court had frowned upon the practice of protracted suspension and held that suspension must necessarily be for a short duration, eventually held that the suspension of the respondent in that case would not serve any useful purpose, on the basis of the material on record of that case. The same cannot be said in the facts of the present case considering the fact that the investigation under the Prevention of Corruption Act, and the IPC is underway by the CBI, and by the Appropriate Authority under the PMLA.
The petitioner is a senior, highly ranked government officer and was occupying a high position at the time of his suspension. He was in a position to influence witnesses and tamper with the evidence. He has been released on bail. Pertinently, the petitioner has also not placed, the order passed by the Court granting him bail which may have, if produced, thrown light on the allegations against the petitioner. Considering all these aspects as well, it is not satisfying that the suspension of the petitioner should not have been continued in the present case.
There are no merits in the impugned order - petition dismissed.
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2019 (7) TMI 1987 - CESTAT MUMBAI
Provisional release of confiscated goods - Benefit of Notification No. 84/97-Cus.dated 11.11.97 as amended which were assessed provisionally and the assessment should not be finalized accordingly - manner in which the project implementing authority certificate, which is the basis for claiming and allowing the benefit of exemption, has been countersigned - recovery of Customs Duty alongwith interest and penalty - HELD THAT:- Investigations conducted by DRI, establish beyond an iota of doubt that the signatures on the certificates submitted by the importer at the time of importation were forged. The Commissioner found these signatures as forged and has proceeded against the importers and all others concerned with importation - there is no dispute about the finding recorded by the Commissioner that the certificates produced before the Customs Authority for clearance of the goods at time of importation were having counter signatures which were forged.
From the wording of the Notification, it is abundantly clear that the Joint Secretary, countersigning the certificate certifies the same thing which has been stated by the executive head. The certificate produced, continues to be the one which has been given by the executive head of Project Implementing Authority. Hence even after countersignature by the Joint Secretary, it cannot be said to be the certificate issued by him, but is only certifying the authenticity of the certificate issued.
Penalty - HELD THAT:- Appellant 2 had acted under a bonafide belief, and the charge of negligence cannot be upheld this decision of tribunal cannot be applied to the facts of present case. Thus, the penalty imposed on Appellant 2 under Section 112 (a) cannot be sustained.
The appeals filed by Appellant 1 and Appellant 2 against the impugned order allowed.
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2019 (7) TMI 1986 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI
Approval of Resolution plan - Maintainability of petition - winding-up petition against the Corporate Debtor is already pending before the Hon’ble High Court of Bombay, Nagpur Bench - Approval sought for closure of two units and revival of only one unit - HELD THAT:- This Company Petition No. 66/2017 is maintainable as no order of liquidation was passed, and only a Provisional Liquidator was appointed. Therefore, MA No. 105/2018 has been filed by Primo Pick N Pack Private Limited [2018 (11) TMI 559 - BOMBAY HIGH COURT] is rejected, keeping in view the order passed by the Hon’ble Bombay High Court in Jotun India Private Limited v PSL Limited [APPEAL LODGING NO. 68 OF 2018], ORDER DATED 26.07.2018 [2018 (7) TMI 1741 - BOMBAY HIGH COURT] to state that pendency of a winding up petition before the Hon’ble High Court cannot be a ground to reject any claim/ application made under IBC.
As far as MA 689/2017 for approval of Resolution Plan u/s 30(6), IBC read with Regulation 39(4) of CIRP Regulations for approval of the resolution plan submitted by Dalmia, is concerned, it is understood that the plan has been approved by 100% vote share of the Committee of Creditors in the 11th CoC meeting held on 20.12.2017.
With due regard to the decision of the Hon’ble Supreme Court in K Sashidhar & Indian Overseas Bank &Ors.[Civil Appeal No. 10673/2018], Date of order: 05.02.2019, [2019 (2) TMI 1043 - SUPREME COURT] the role of COC now is quite vital for deciding the fate of the company. It has been held that the Adjudicating authority is not required to go into the merits or reasoning of the decision taken by the COC for approval or rejection of a resolution plan. The only benchmark which is set up to be determined by the AA is to see whether the plan has been approved by 66% voting of the COC or not. Therefore, the commercial wisdom is not allowed to be interfered with.
In this case, it is seen that the Resolution Plan provides for a total payment of ₹401,62,00,000/-, as against the liquidation value of the Corporate Debtor which is ₹231,10,00,000/-. Hence, one of the justifications for approval of the Resolution Plan is that the Liquidation Value is less comparing the proposals made in the Resolution Plan - It is noticed that despite the liquidation value payable to Operational Creditors being nil, the plan provides for payment of statutory dues and the liability towards the statutory dues is not extinguished.
The Resolution Applicant wishes to run this business by reviving the cement undertaking as a going concern and selling the paper and solvent extraction units of the business - If the CoC is of the view that the Corporate Debtor is capable of being revived by reopening only one unit and the plan being approved by 100% CoC, it is presumed that sale of the two units of the Corporate Debtor is also a part of the commercial wisdom exercised by the CoC. Therefore, the same need not be interfered.
On perusal of the resolution plan submitted by the Resolution Applicant Dalmia Cement (Bharat) Ltd, the bench has observed that the Resolution Plan does not discuss the “Source of Funds” of the Resolution Applicant and the same was submitted by the RP for Approval of the Bench. As per the Resolution Plan, clause 2.2.2 under the head “Source of Funds”, it is stated that “Resolution Applicant Commitment or by the Resolution Applicant”. It is quite strange that even the CoC and RP have approved the Resolution Plan without ensuring whether the funds are coming from the reserve and surplus, internal accruals of the Resolution Applicant or Loans from the Bank etc.
Suggestions to the Government - Any haircut of more than 25% in cases where the total outstanding is more than Rs. 500 crores is not an ordinary course of business and shareholders who are the ultimate owners of the Financial Creditors and without their approval would undermine their ultimate rights as Shareholders and corporate democracy - May be, to begin with, approval of shareholders of Resolution Applicant, which is a listed Company can be made compulsory when the Resolution Plan consideration is more than Rs. 500 Crores and approval of Shareholders in other cases, i.e. Public Ltd Company/Private Ltd. The company, approval of shareholders may be made compulsory irrespective of the plan amount.
Since certain modifications to the Resolution Plan, it further requires the acceptance by the Resolution Applicant. Therefore Resolution Professional is directed for seeking acceptance from the Resolution Applicant regarding proposed modifications - The acceptance report of the Resolution Applicant is to be filed by 12.07.2019. If acceptance of the proposed modification in the resolution plan is not submitted, then we shall proceed with the liquidation.
List on 12.07.2019 for filing additional affidavit of Resoution applicant regarding accepetence of the modifications in the Resolution Plan.
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2019 (7) TMI 1985 - CESTAT AHMEDABAD
CENVAT Credit - input services - designing and script writing of brochure and product catalogue and hotel / mandap keeper services - HELD THAT:- The issue relates to the admissibility of cenvat credit in respect of designing and script writing of brochure & product catalogue and mandap keeper, the very same services have been considered by this Tribunal in the appellant’s own case GMM PFAUDLER LIMITED VERSUS CCE & C. ANAND (S) [2017 (10) TMI 1638 - CESTAT AHMEDABAD], where it was held that both the lower authorities have not considered the provisions of definition of “Input Services” as per Rule 2 (l) of CCR, 2004 in its correct perspective. Similar issue of availment of Cenvat on the Design Services and Accommodation Services was considered by Tribunal Bench in the case of M/s. Dr. Reddy’s Laboratories Ltd. Vs. CE & ST Hyderabad - IV [2016 (11) TMI 858 - CESTAT HYDERABAD] and held in the favour of the assesses.
From the above decision of this Tribunal, it can be seen that the very same services have been considered and cenvat credit was allowed.
Appeal allowed.
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2019 (7) TMI 1984 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI
Implementation of Resolution Plan - revival of Corporate Debtor - incentives granted to the Corporate Debtor under the Package Schemes of Incentives, 2007 - HELD THAT:- It is noted that major value of the Corporate Debtor lies in the licenses and incentives granted to it by various Government Authorities under incentive schemes or otherwise. The purpose of the Insolvency and Bankruptcy Code, 2016 is a revival of the Corporate Debtor and maximisation of value of assets of the Corporate Debtor. If the reliefs sought in the successful resolution plan are not granted, then the plan would be rendered unviable that would ultimately result in the liquidation of the Corporate Debtor.
The information provided by the Resolution Applicant satisfies about its capability to implement the Resolution Plan and the information sought in paragraph 76 and 78 of our order dated 03.07.2019 is held as duly provided by the Resolution Applicant vide its Additional Affidavit - the Successful Resolution Applicant directed to file its acceptance report accepting the modification in the Resolution Plan made by this Tribunal by 12.07.2019.
The Resolution Plan submitted by the Resolution Professional of the Corporate Debtor for approval of this Tribunal under section 31 of the Insolvency and Bankruptcy Code, 2016 is approved.
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2019 (7) TMI 1983 - SC ORDER
Disallowance u/s 14A - as per Revenue he could disallow the expenditure even there is no income i.e., dividend by taking recourse to Rule 8D - as decided by HC there is no dispute that no income i.e., dividend, which did not form part of total income of the Assessee was earned in the relevant assessment year and the addition made by by relying upon Section 14 A was completely contrary to the provisions of the said Section.
HELD THAT:- There is delay of 324 days in filing the Review Petition for which no satisfactory explanation has been given. Even otherwise, we do not find any merit in the Review Petition. The Review Petition is dismissed on the ground of delay as well as merits.
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2019 (7) TMI 1982 - MADHYA PRADESH HIGH COURT
Dishonour of Cheque - insufficient funds - discharge of legally enforceable debt or not - rebuttal of presumption u/s 139 of NI Act - HELD THAT:- In the present case, signature on the cheque is not denied by the applicant, due to which presumption shall be raised that cheque was issued in discharge of any debt or liability, however, complainant claims that he advanced loan amount of Rs.2.20 Lacs to the applicant. According to the complainant, he is working a recovery agent in State Bank of India. In his cross-examination, he accepted that he got Rs. 5,000/- per month as salary and now he is getting Rs.8,000/- per month. He also admitted that he is not income-tax payee. Therefore, it is clear that at the time of transaction, the complainant was not having financial capacity to lending amount of Rs.2.20 Lacs to the applicant, hence, the complainant has failed to prove that he was having financial capacity to lend Rs. 2.20 lacs as loan amount to the applicant and the applicant/accused successfully rebutted the presumption under Section 139 of the Negotiable Instruments Act, 1881 and has raised probable defence.
This Court is of the considered view that the courts' below have committed error in holding that the applicant has issued the cheque in question for discharge of any legal debt or liability - the impugned judgments passed by the Courts below are hereby set aside - revision petition allowed.
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2019 (7) TMI 1981 - ITAT MUMBAI
Assessment u/s 153C - Unexplained deposit u/s. 68 - HELD THAT:- While dealing with the addition the Assessing Officer has mentioned that addition u/s. 68 was done on examination of balance-sheet. Similar is the position of addition of commission income. There is no whisper in the assessment order that any incriminating material was seized in respect of addition which has been done.
It is clear that search was conducted and assessment year involved A.Y. 2010-11 was not abated assessment. Hence on the touchstone in the case of Continental Warehousing Corporation [2015 (5) TMI 656 - BOMBAY HIGH COURT] no addition was permissible dehorse incriminating material found. Since no incriminating material has been mentioned with respect to addition made, we set aside the orders of the authorities below and delete the addition. Decided in favour of assessee.
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2019 (7) TMI 1980 - RAJASTHAN HIGH COURT
Reopening of assessment u/s 147 - assessment made on protective basis - Substantial question of law - HELD THAT:- Undoubtedly, the court has to consider as to whether a substantial question of law arises in the context of reasoning of the ITAT in holding the deletion of protective assessment. What is apparent is that the AO in this case proceeded, without furnishing any reasoning and added amounts to assessee’s account imposing tax on it purely on protective basis after the substantive additions in respect of each amount which were made at third parties’ end.
CIT(A) in our opinion, was correct in his analysis noticing that as against documentary evidence available, only some additions could be sustained even in respect of such third parties. Consequently, in the absence of any reason to involve the present assessee, which had sold the lands to the third party and against whom there was no allegation of withholding material or suppression of facts, nor was anything incriminating recorded, no protective assessment could have been made. No substantial question of law arises.
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2019 (7) TMI 1979 - DELHI HIGH COURT
Seeking release of Bank Guarantee - petitioner’s claims that the release of the bank guarantees is being withheld contrary to the terms of the contract between the parties, in order to pressurise the petitioner in respect of certain disputes in relation to other contracts, which are pending adjudication before the Arbitral Tribunal.
HELD THAT:- Let a counter affidavit be filed within a period of two weeks. Rejoinder, if any, be filed within a period of two weeks, thereafter - List on 04.11.2019.
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2019 (7) TMI 1978 - ITAT BANGALORE
TDS u/s 195 - payments made to non-resident professionals - Payments being FTS/FIS - HELD THAT:- As the payment in question were for FTS/FIS and this is not disputed by the assessee. This is also a finding given by CIT(A) in this para that assessee has not disputed that these services make available the technical knowledge to assessee in India.
Now as per the additional evidence filed before us, it is seen that these invoices are in respect of rendering of services to the assessee in respect of certain legal cases filed against the assessee in USA. If that is so then how it can be said that by rendering these services, the concerned parties had made available technical knowledge to assessee in India.
As per the invoices of M/s. Angeli Law Group LLC, the invoice is for professional charges for the month of March to October 2012, April 2013 and May 2013 in addition to that, there is commission payment. Thus additional evidence should be admitted and hence, we are admitting the same and restore the entire matter back in both years to the file of ld. CIT(A) for fresh decision. Appeals filed by the assessee are allowed for statistical purposes.
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2019 (7) TMI 1977 - CESTAT AHMEDABAD
Classification of goods - Mixed Fuel Oil manufactured by the appellant - classifiable under 2710 1119 as claimed by the department or under 2710 1990 as claimed by the appellant? - HELD THAT:- The issue that whether the Mixed fuel oil manufactured by the appellant M/s Gail India Ltd. is classifiable under 2710 1119 or 2710 1990 has been settled by this Tribunal in the appellant’s own case GAIL (INDIA) LTD. VERSUS C.C.E, & S.T. - VADODARA-II [2019 (5) TMI 574 - CESTAT AHMEDABAD] where reliance was placed in in the case of M/S GAIL (INDIA) LTD. VERSUS C.C.E & S.T. VADODARA-II (VICE-VERSA) [2019 (1) TMI 174 - CESTAT AHMEDABAD] where it was held that Revenue has not produced the necessary evidence to classify the product as motor spirit falling under heading 2710.99 (prior to 31.03.2005) and under tariff Heading 2710 19 90 (after 31.03.2005).
The impugned order is set aside, appeal is allowed.
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2019 (7) TMI 1976 - ITAT MUMBAI
Disallowance of depreciation on the cost of know-how and intangibles acquired from ORG of their division of Adex Business purchased along with all assets and liabilities the compendious heading of Goodwill - HELD THAT:- As gone through the order of the Tribunal and noticed that this issue was not adjudicated. Assessee stated that he is only interested in recalling of the ground.
We are of the view that the issue raised by assessee has not been adjudicated. Hence, the same requires adjudication. Hence, qua ground No. 3 only, the appeal of assessee is recalled.
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2019 (7) TMI 1975 - SC ORDER
Exemption to SEZ unit - authorised operations in a SEZ - Validity of conditions imposed - Board of approval refused to issue of Forms A1 and A2 on the ground that these forms cannot be issued with retrospective effect - it was held by High Court that the fifth respondent does not dispute the fact that the petitioners have fulfilled the terms and conditions stipulated in rule 22 of the SEZ Rules, 2006 and that if those Rules are considered on a stand alone basis, the petitioners would be entitled to the exemptions.
HELD THAT:- There are no reason to interfere with the impugned judgment and order of the High Court.
SLP dismissed.
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2019 (7) TMI 1974 - PUNJAB AND HARYANA HIGH COURT
Jurisdiction - power of DRAT to pass an order of complete waiver - whether it is mandatory either to ask for deposit 50% of the debts due or it may be reduced to 25% after recording reasons? - whether the appeal having been filed before the commencement of the amendment and the order has been passed after the amendment has come then in such circumstances whether the appellate authority was obliged to look into the amended provision of law?
HELD THAT:- Whenever amendment has come in Section 21 during the pendency of the application which was decided after the amendment then the amended provision of the Act would apply because unamended provision would go in oblivion and would not be applicable. In view thereof, there was hardly any power vested with the DRAT to have passed an order ignoring the amended provisions for the purpose of giving a complete waiver to the petitioner in the first petition which has been challenged by the petitioner in the second petition.
Once it is held that the DRAT had no jurisdiction at all to have waived the amount of pre-deposit of 50% or at the most even 25%, therefore, the order dated 26.12.2016 to entertain the appeal, filed by the petitioner in the first petition is bad in law. Even otherwise, the DRAT had no jurisdiction to observe that since the auction purchaser has already deposited the aforesaid entire auction money, therefore, in that circumstances, the guarantor was not liable to pay the pre-deposit amount. This finding is patently erroneous and illegal and therefore, the second petition is allowed, order dated 26.12.2016 is hereby set aside and the first petition is hereby dismissed as having been rendered infructuous as the order dated 13.04.2017 has become meaningless.
Petition dismissed.
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2019 (7) TMI 1973 - ITAT MUMBAI
Deduction u/s 36(1)(viia) for provision of standard assets as per the circular of RBI - whether this provision being as per law may be allowed? - HELD THAT:- As decided in case of Nawanshahr Central Co-op. Bank Ltd. [2018 (1) TMI 1683 - ITAT AMRITSAR] though section 36(1) (vii) states that deduction for provision is allowable in respect of provision for bad and doubtful debts, the computation of such deduction is made with reference to total income of the specified Banks based upon quantum of average advances. The deduction of the provisions is neither limited to the quantum of bad debts in the books nor is computed with reference to the quantum of standard assets. The deduction in this clause refers to allowable provisions of anticipated default on the loans and advances made in respect of total assets including standard assets and the claim of the assessee does not fall into the proviso to section 36(1) (viia) as the proviso deals with further deduction for provisions on bad and doubtful debts. The claim of the assessee is covered in the main provisions of section 36(1)(viia) .
In Vellore District Central Co-operative Bank Ltd. [2016 (2) TMI 158 - ITAT CHENNAI] held by the Tribunal that doubtful debts may be under different nomenclature and this will not disentitle the assessee for claiming deduction under the provisions of section 36(1)(viia) - thus delete the disallowance made by the AO. Decided in favour of assessee.
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2019 (7) TMI 1972 - ITAT HYDERABAD
Disallowance of proportionate interest on borrowed funds @ 12% - assessee has not been able to establish that the funds were transferred to its sister company for the purpose of business - as per AO assessee is taking two different stands i.e. initially it was stated that the advance was given for the purpose of construction of a hospital and subsequently, it was stated that the advance was given with an intention to acquire shares in demerged company - HELD THAT:- On perusal of MoU between the assessee and USAIPL, we find that there is a clause that the assessee shall acquire the shares of the demerged company.
Assessee stated that the assessee could not acquire the equity shares initially because at that point of time the demerger of the said company has not yet taken place and on demerger, assessee had acquired the shares of the company, for which, he filed copies of the documents showing shareholding of the Kamineni Health Services Pvt. Ltd.
We find that the documents filed before us by the assessee, as additional evidence, go to the root of the matter and in the interest of justice, we admit the same and remit the issue to the file of the AO for de-novo consideration. Needless to say that the assessee shall be given fair opportunity of hearing in the matter. Appeal of the assessee is treated as allowed for statistical purposes.
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2019 (7) TMI 1971 - ITAT MUMBAI
Income deemed to accrue or arise in India - Treating salary and other related costs reimbursed to the appellant as Fees for Technical Services - taxing the amount received as reimbursement of the salary and other related costs as 'fees for technical services' in terms of section 9(1)(vii) of the Income-tax Act, 1961 as well as under Article 12 of India-Canada DTAA") - HELD THAT:- We find substance in the submissions made by Ld. Sr. Counsel since the perusal of documents on record reveal that the assessee has entered into employee secondment agreement with the Indian entity. Pursuant to Clause (6) of the agreement, the assessee was to be reimbursed with direct wages and benefit costs. The role and responsibilities of Mr. Anindya Ghosh, has been remunerated in the submissions dated 29/03/2016. The perusal of Form 16 & 12BA, as placed on record, would reveal that the Indian Entity has deducted due taxes against the aforesaid payments.
The matter would go back to Ld. AO for re-appreciation of correct facts and re-adjudication of the matter in the light of submissions made by Ld. Sr. Counsel. Needless to add hat adequate opportunity of being heard shall be granted to the assessee to substantiate its stand. Appeal stands allowed for statistical purposes.
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2019 (7) TMI 1970 - CESTAT AHMEDABAD
Valuation of imported goods - Aluminum foil scrap - enhancement of value - rejection of transaction value of relying on guidelines and LME prices - HELD THAT:- It is seen that the value declared by the appellant is to the range of 30% to the value of the contemporaneous import. It is seen that sub-rule 2 of rule 4 clearly prescribes the exception when the sale involves any abnormal discount or revision from ordinary competitive price. In the instant case it is seen that the sale involves almost 70% discount from the ordinary competitive price of contemporaneous imports. In view of above, there was a jurisdiction in rejection of the declared invoice value.
It is however found that the original assessment in the case of bill of entry no. 105345 dated 15.05.2006 was done at USD 1500 PMT but after issuance of SCN the same was revised upwards to USD 1780 PMT. Both these orders were passed by the Deputy Commissioner of Customs, it is not found permissible.
The value in bill of entry No. 105345 dated 15.05.2006 is fixed at 1500 USD PMT as was done in the original assessment - Revenue has produced contemporaneous import data. Revenue has chosen to rely on value of the contemporaneous import and thus fixing of the assessable value at 1780 PMT in respect of bill of entry no. 105750 and 105752. Revision of value in these cases is upheld.
Appeal allowed in part.
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