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Case Laws
Showing 401 to 420 of 1557 Records
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2025 (1) TMI 1158
Seeking grant of bail - smuggling of currency notes of U.S. Dollars and Gold - violation of provisions of section 77 of the Customs Act, 1962 and Foreign Exchange Management Regulations, 2000 and Foreign Exchange Management Act, 1999 - corroboration of confessional statement - HELD THAT:- The applicant was intercepted by the D.R.I. officials at CCS International Airport, Lucknow and from the other co-accused persons, the gold bullion was recovered, whereas the applicant is connected with the present matter as the D.R.I. is said to be collected the evidence of conversations in between Ratnesh Pandey, one of the co-accused person and the present applicant, but, the fact remains that there is no strong evidence that in consonance with the conversations, any transaction has ever been done or the D.R.I. has failed to place any evidence that those conversations were specifically with respect to the offence, which is said to be committed.
Though, it has been held by the Hon'ble Apex Court in the case of Romesh Chandra Mehta Vs State of West Bengal [1968 (10) TMI 50 - SUPREME COURT], that the custom officers are not the police officers and the statement recorded under section 108 of the Act,1962, is admissible in evidence, though there seems to be no quarrel regarding the same, whereas the further issue is that can the statement of an accused recorded under section 108 of the Act,1962, blindly be accepted without any corroboration of other evidences ? Infact, the admissibility of an evidence is one aspect of the matter and the conviction can lead only on the basis of the confessional statement recorded under section 108 of the Act,1962 is the other aspect of the matter and the answer would be no.
This court is of the opinion that the confessional statement of an accused recorded under section 108 of the Act,1962, cannot blindly be accepted unless it is corroborated by any independent evidence/material as the same would not lead to conviction. The examination of confessional statement of the accused is essentially required so as to find out that the same is not taken under coercion or under extraneous influences. The trial court has also to be conscious enough while examining the correctness and voluntariness of the nature of the statement of the accused.
Further whether the alleged smuggled gold is under the prohibited category of gold or the restricted gold,is also one of the question, which is to be looked into by the trial court at the subsequent stage. It has also been noticed that the applicant has no previous criminal history, he is languishing in jail since 09-08-2024 coupled with the fact that he has undertaken that if he is granted bail, he will not misuse the liberty of the same and would cooperate in the trial proceedings.
Considering the submissions of learned counsel of both sides, nature of accusation and severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment and considering larger mandate of the Article 21 of the Constitution of India and, without expressing any view on the merits of the case, this is a fit case of bail.
Conclusion - The applicant's confessional statement under Section 108, while admissible, requires corroboration by independent evidence to sustain a conviction. The applicant should be granted bail, subject to conditions to prevent tampering with evidence or intimidating witnesses.
Bail application allowed.
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2025 (1) TMI 1157
Classification of imported ‘high conductivity copper bus bars’ - to be classified under Customs Tariff Item (CTI) 7407 21 20 or under CTI 7407 10 30 - denial of the Free Trade Agreement (FTA) benefit under N/N. 46/2011-Customs - HELD THAT:- The B/Es filed by the appellants did not show the ‘copper content’ in the imported article, which was detected by the department at the time of examination of the goods. Insofar as confiscation of improperly imported goods are concerned, Section 111 ibid, in clause (m) has dealt with the situation of furnishing the correct particulars in the entry made in the B/E.
In the present case, since the appellants had incorrectly mentioned the tariff classification and also claimed the FTA benefit provided under notification dated 01.06.2011, which otherwise was not available to the goods under CTI 7407 10 30, the imported goods, are liable for confiscation and accordingly, the appellants are also exposed to the penal consequences provided under the statute i.e., for payment of redemption fine and penalty.
The Orders passed by the Co – ordinate Bench of this Tribunal, as relied upon by the learned Advocate for the appellants in SATRON VERSUS COMMISSIONER OF CUSTOMS (IMPORTS) [2018 (11) TMI 1700 - CESTAT MUMBAI] and SAHIL INTERNATIONAL VERSUS COMMISSIONER OF CUSTOMS (IMPORT) NHAVA SHEVA [2019 (5) TMI 1730 - CESTAT MUMBAI], are distinguishable from the facts of the present case, inasmuch as change in classification of goods by the department and acceptance of the said changed classification by the importer was not the subject matter of dispute before the Co-ordinate Benches. Further, in the case in hand, the appellants have not specifically pleaded that they were not liable to pay the differential duty attributable to the change in classification of goods, which is evident from the fact that the said amount was paid by them suo motto before adjudication of the matter and the amount was also duly appropriated in the adjudication proceedings.
Considering the fact that the appellants had filed the B/Es by describing the imported goods as per the invoice and other certificate(s) obtained from the originating country, the quantum of redemption fine and penalty imposed on the appellants can be reduced in the interest of justice. Therefore, imposition of redemption fine of Rs.2,00,000/- under Section 125 ibid and penalty of Rs.50,000/- under Section 112(a) ibid in the original order dated 26.08.2013, and upheld in the impugned order dated 16.06.2014, is modified and the quantum is reduced to the extent of Rs.50,000/- and Rs.10,000/- respectively.
Conclusion - Since the composition of the imported article is relevant for consideration of the appropriate tariff classification, the change in classification of the goods made by the department is proper and justified. The reclassification and denial of FTA benefits were upheld. Confiscation and penalties were justified but reduced in quantum to reflect the appellants' circumstances.
Appeal allowed in part.
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2025 (1) TMI 1156
Maintainability of appeal - appeals dismissed due to non-compliance with the statutory requirement of pre-deposit under Section 129E of the Customs Act - classification of imported facsimile machines of Panasonic Brand into India for onward sale to regional distributors - HELD THAT:- It is noted that another distributor in the case of UNIFAX SYSTEMS VERSUS VERSUS COMMISSIONER OF CUSTOMS (IMPORT AND GENERAL) [2014 (4) TMI 909 - DELHI HIGH COURT] importing the same machine had challenged the order of the Tribunal requiring the distributor to make pre-deposit of 50% of the total demand which order was modified by the High Court on 16.04.2014 by requiring the distributor to make deposit of 20% of the amount of duty as a pre-condition for filing the appeal.
In view of the aforesaid order of the Delhi High Court passed in connection with an identical machine imported by a distributor, it is considered appropriate to dispose of the modification applications that were filed by the appellant and Jagjeet Singh with a direction that if the appellant makes a deposit of 20% of the total duty amount confirmed and Jagjeet Singh makes a deposit of 20% of the penalty amount confirmed within a period of six weeks from today, the Commissioner (Appeals) shall restore both the appeals and decide them on merits. While determining the amount of pre-deposit to be made by the appellant and Jagjeet Singh, the amount of pre-deposit made before the Tribunal shall be taken into consideration for calculating the amount of 20%.
Conclusion - If the appellant deposits 20% of the total duty amount and Jagjeet Singh deposits 20% of the penalty amount within six weeks, the Commissioner (Appeals) must restore and decide the appeals on their merits.
Appeal disposed off.
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2025 (1) TMI 1155
Validity of Circular mandating payout of securities directly to clients’ demat account by clearing corporations and directed the stock exchanges and clearing corporations to implement the same - Petitioners have challenged the impugned circulars wherein Petitioner is required to obtain and hold a Depository Participant license (“DP Licence”) in order to continue with its business and Each of the Petitioners’ clients will be required to hold demat accounts in their respective names and the Petitioner is required to provide details of the same to Respondent Nos. 2 to 4.
HELD THAT:- Petitioner has not interpreted the impugned circulars correctly. Since the Petitioner is a Trading Member (and not a depository participant), the Petitioner does not need a DP license. The impugned circulars do not mandate the holding of a DP licence by a broker engaged solely in broking activity and not engaged in the activity of a DP. Hence, no grievance survives as far as this issue is concerned.
Holding demat accounts in their respective names - Respondent No. 1 has, by an email addressed to the stock exchanges, clarified that clients dealing exclusively in index derivatives and providing their margins through cash only are not required to hold demat accounts in the equity derivative segment. The concerned broker is, however, required to ensure that a client dealing in index derivatives does not deal in any other product which requires physical delivery and that he pays his margin only in the form of cash.
Petitioner agrees that in view of the above, none of the grievances raised in the Petition survive and that the Petition may be disposed of in the above terms. The same is accordingly so noted and ordered. It is however made clear that in respect of trades apart from the ones pertaining to the index derivative product of the equity derivative segment as clarified above, the Impugned Circulars shall apply.
Petition stands disposed of in the above terms.
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2025 (1) TMI 1154
Cancellation of the lease deed by NOIDA - claim of right within meaning of Section 116 of Transfer of Property Act, 1882 as a tenant holding over - exclusion of Plot No. SC-01/ D1, Sector 79 Noida from Resolution Plan submitted in the CIRP of the Corporate Debtor - it was held by NCLAT that 'application filed by the RP under Section 30(6) for approval of the Resolution Plan is rejected.'
HELD THAT:- Issue notice, returnable on 24th March, 2025.
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2025 (1) TMI 1153
Maintainability of Civil suit - bar under Order 7 Rule 11 of CPC - Ownership and possession rights of the Appellant over the disputed land during CIRP proceedings - bar u/s 238 of I & B Code - it was held by NCLAT that 'Having scrutinised the reasons which has been assigned by the Learned Adjudicating Authority in relation to the status of the property and the effect of the pendency of the Civil Suit filed by the Appellant, the rejection of the two applications of the Appellant by the Learned Adjudicating Authority by the Impugned order does not call for any interference in the exercise of the Appellate Jurisdiction under Section 61 of I & B Code.'
HELD THAT:- There are no good ground and reason to interfere with the impugned judgment; hence, the appeals are dismissed.
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2025 (1) TMI 1152
Approval of Resolution Plan - It is submitted that the amount which has been earmarked to the Appellant is not in accordance with IBC and violates Section 30(2) - claim of the Appellant was treated as operational debt - waterfall mechanism - HELD THAT:- The provisions of Section 11E of the Central Excise Act, 1944 and Section 82 of the Central Goods and Services Tax Act, 2017 clearly carves on exception with regard to provisions of Insolvency and Bankruptcy Code, 2016. In Central Excise Act, 1944, provision of Section 529A of the Companies Act, 1956 was referred.
The above provisions came for consideration before this Tribunal in THE ASSISTANT COMMISSIONER OF CENTRAL TAX VERSUS MR. SREENIVASA RAO RAVINUTHALA, M/S RENGANAYAKI AGENCIES [2023 (8) TMI 193 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI] where it was held that 'From the usage of the words 'save as provided in in Section 11E is in the nature of an exception intended to exclude the class of cases, mentioned in Companies Act, 1956, 'The Recovery of Debts due to Banks and Financial Institutions Act, 1996'. 'SARFAESI Act, 2002' and 'I&B Code, 2016'. The 'Secured Interest' as defined under the Code excludes charges created by Operation of law. Section 11E of the Central Excise Act, 1944 is distinct from the provisions of 'Gujrat VAT Act, 2003' and therefore the decision in the matter of 'Sate Tax Officer v. Rainbow', (Supra) cannot be made applicable to the facts of this case.'
Conclusion - There are no error treating the claim of the Appellant as operational debt and operational creditor is entitled for payment as per Section 30(2)(b) and present is not a case where it is contended that the amount which is offered to the Appellant is less than the liquidation value to which the Appellant would have been entitled in event of liquidation under Section 53(1) according to waterfall mechanism. There are no error in the order of the Adjudicating Authority approving the Resolution Plan.
Appeal dismissed.
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2025 (1) TMI 1151
Recovery of service tax along with applicable Cesses, interest and various penalties - classification of services - Management, Maintenance or Repair Service or not - activity of re-treading of used Tyres - applicability of Extended period of Limitation.
Classification of services - HELD THAT:- The appellant is using consumables which were purchased from sales tax registered dealers, which was claimed to have suffered sales tax. This fact has not been found to be false. There is a claim of the appellant on record for extending the benefit of Abatement in terms of N/N. 12/2003 – ST dated 20.06.2003, since the value of materials used and sold by the appellant were exempted from service tax - This is a case where works contract was involved and hence, the Tyre re-treading is a works contract and the goods used in execution of such contract is clearly liable only to sales tax.
Extended period of Limitation - period of dispute is from 2005-06 to 2008-09 for which the SCN was issued on 16.09.2010 by invoking the extended period of limitation - HELD THAT:- The Adjudicating Authority has dropped the demand for the year 2008-09 and hence, the scope of appeal is for the periods 2005-06 to 2007-08, in which event, invoking extended period of limitation stands unjustified. This is because, the AA has only negated the claim of abatement for want of proof/evidence, while accepting the same insofar as 2008-09 is concerned. It could have been different had the sales-tax return was considered requiring the production of supporting documents like the assessment thereon, etc. but in any case, the same cannot amount to suppression or fraud, to invoke the larger period of limitation. There is also no whisper about the acceptance or otherwise, of the sales-tax return by the State authority.
Conclusion - i) This is a case where works contract was involved and hence, the Tyre re-treading is a works contract and the goods used in execution of such contract is clearly liable only to sales tax, not service tax under MMR services. ii) The Revenue failed to justify the extended period of limitation, as there was no evidence of suppression or fraud by the appellant.
Appeal allowed on limitation.
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2025 (1) TMI 1150
Classification of services - Supply of Tangible Goods services - supply of trailers owned - appellant had not paid service tax due to the reason that their clients had paid the service tax in respect of their further supply/ activity - discharge of burden to prove.
Whether M/s Sudhir Road Lines are liable to pay Service Tax under ‘Supply of Tangible Goods’ Service for supplying their trailers to others for being used for Transportation of Goods and when Service Tax stands already paid by the transfree? - HELD THAT:- The effective control and possession with respect to trailers given by the appellant was not with the appellant. The appellant was getting paid a fixed price per trailer from the respective client. Resultantly, the impunged activity was that of giving trailers on ‘Hire’ instead of it being wrongly classified as ‘Supply of Tangible Goods’.
The service tax demand was proposed and has been confirmed based on the allegation that the trucks/trailers were not supplied to GTA. From the above discussion, it is clear that for activity of transfer of vehicles, the nature of transferee is not relevant neither for the activity to fall under ‘Supply of Tangible Goods Service’ not for the activity to be called as ‘Hire’. The relevant criteria for the distinction is whether the right to use is transferred with possession and effective control. In case it is so transferred, the activity will that be of hire else only it shall fall under service of ‘Supply of Tangible Goods’ - the moment the right to use goods is transferred, the activity gets covered under the concept of ‘deemed sale’ and gets out of the scope of service tax net.
In BUILDERS ASSOCIATION OF INDIA AND OTHERS VERSUS UNION OF INDIA AND OTHERS (AND CONNECTED WRIT PETITIONS AND APPEALS) [1989 (3) TMI 356 - SUPREME COURT], the validity of the Constitution (Forty-sixth Amendment) Act was upheld. But the Apex Court ruled that the States’ power to levy tax on the goods involved in a works contract is subject to the restrictions in Article 286.
As per the definition of Goods Transport Agency in Finance Act, 1994, the issuance of consignment note is mandatory criteria for holding any act of transportation to be an act of GTA. Resultantly, the findings arrived at by the adjudicating authorities below are erroneous on the face of the facts itself. The initial burden to prove the allegations was of the department which has not been discharged.
The issue of exemption under Entry No. 22(b) of the Notification No. 25/2012 has wrongly been raised that entry as well as the sub-clause of Section 66D (Negative List of the Finance Act) exempts the transportation of goods by road except it is done by a courier agency or a goods transport agency. The appellant admittedly is not a goods transport agency. His clients have been the GTAs who admittedly have discharged the service tax liability. Resultantly and in view of the above discussion about Article 366 (29A), the activity rendered by the appellant is held to be of transfer by way of hire/rent of his trucks to the others. Since same is out of scope of the service tax net, hence, the finding arrived at by the authorities below are incorrect.
Conclusion - i) The effective control and possession of the trailers were with the transferees, not the appellant. ii) The activity rendered by the appellant is held to be of transfer by way of hire/rent of his trucks to the others. iii) The registration of the appellant under the head Supply of Tangible Goods for use service was insufficient to prove the taxable nature of the activity. iv) The department failed to discharge its burden of proof regarding the retention of control by the appellant. v) The impunged activity was that of giving trailers on ‘Hire’ instead of it being wrongly classified as ‘Supply of Tangible Goods’.
Appeal allowed.
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2025 (1) TMI 1149
Rate of interest on the refund amount collected during investigation - whether the appellant is entitled to interest on the refund amount @6% per annum as granted by the Commissioner (Appeals) or @12% per annum as claimed by the appellant? - HELD THAT:- In view of the various decisions of the High Courts and various Benches of the Tribunal wherein it has been consistently held that interest on refund of deposit made during the investigation is required to be computed @12% per annum. The jurisdictional High Court of this Tribunal has already held that rate of interest applicable in such cases is 12% per annum as held in the cases of COMMISSIONER OF CENTRAL EXCISE, PANCHKULA VERSUS RIBA TEXTILES LTD. [2022 (5) TMI 1531 - PUNJAB AND HARYANA HIGH COURT] and M/S. SUNRISE IMMIGRATION CONSULTANTS PVT. LTD. VERSUS UNION OF INDIA AND ORS. [2023 (6) TMI 411 - PUNJAB AND HARYANA HIGH COURT].
In view of the decisions of the Hon’ble High Courts in the cases cited wherein the Hon’ble High Court has granted the interest @ 12% per annum, following the ratio of the decisions of the High Court and hold that the appellant is entitled to the rate of interest @ 12 % per annum on the amount deposited during investigation.
Conclusion - The appellant is entitled to an interest rate of 12% per annum on the refund amount deposited during the investigation. This conclusion was based on the consistent application of this rate in similar cases by various High Courts and the Tribunal itself.
The Original Authority is directed to compute the Interest @ 12% instead of @ 6 % as directed by the Commissioner appeal - Appeal allowed.
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2025 (1) TMI 1148
Benefit of exemption under N/N. 67/1995-CE dated 16.03.1995 - process amounting to manufacture or not - activity of preparation of ‘season’ - product has a shelf life and is marketable - appellant is engaged in the manufacture of finished leather - discharge of obligation in terms of Rule 6 of the CCR, 2001 by appellant or not - Whether the intermediary product ‘season’ manufactured and captively used by the appellant is eligible for the benefit of exemption under N/N. 67/1995?
HELD THAT:- The appellant is engaged in the manufacture and clearance of the goods both dutiable and exempted. From the contents of the notification it is also found that the intermediary product ‘season’ prepared in the factory of the appellant is covered under Column (1) of the Table and is used in or in relation to the manufacture of both types of final products covered under Column (2) of the Table of the notification. It is also an undisputed position that the appellant had not availed the Cenvat Credit of duty or tax paid on any inputs or input services or capital goods which were used in the manufacture of both exempted and dutiable goods. The fact that the appellant has not availed the Cenvat Credit shows that they had discharged the obligation as prescribed under Rule 6 of the Rules.
In arriving at the conclusion, that the appellant had discharged the obligation in terms of Rule 6 as no Cenvat Credit was availed, we are supported by the decisions as referred to by the learned Counsel for the appellant. In the case of AMBUJA CEMENT LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH [2015 (11) TMI 1413 - SUPREME COURT], the Apex Court considered the issue relating to the interpretation of the exemption notification no. 67/1995 with reference to the dutiability of the intermediary product ‘clinker’ obtained at the intermediary stage in the production of ‘cement’, which is exempted from the excise duty under the exemption notification no. 50/2003 dated 10.06.2003. The Apex Court, inter-alia observed 'The final products may be made out of the same product or out of different products. Clause (vi) does not contemplates that the manufacturer should manufacture only ‘one final product’ or that if he manufacturers only one product that product itself should be both dutiable and exempted. The basis adopted by the CESTAT that the same final product should be partly dutiable and partly exempt, is neither a requirement of clause (vi) nor a requirement of Rule 6.'
In the case of M/S. FUNSKOOL (INDIA) LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, GOA [2016 (12) TMI 1267 - CESTAT MUMBAI] the adjudicating authority had denied the exemption under notification no. 67/1995 in respect of packing boxes used captively for manufacture of exempted goods on the ground that the appellant have not discharged the obligation as provided under Rule 6 of the CCR, 2001. In this context, the Tribunal noticed that the appellant therein had not availed the Cenvat Credit in respect of any of the inputs used either in the final product or in the intermediate product, i.e. packing boxes and therefore, concluded that the obligation in terms of Rule 6(1) stood discharged and they were entitled to the benefit of the exemption N/N. 67/195.
Similar observations have been made in SPRAY KING AGRO EQUIPMENT PVT LTD AND HITESH P DUDHAGRA VERSUS C.C.E. & S.T. -RAJKOT [2022 (5) TMI 564 - CESTAT AHMEDABAD] that exemption under notification is available to the intermediary goods even if the final product is exempted, provided the assessee discharges the obligation prescribed under Rule 6 of the CCR, 2001. In the context, it was observed that the appellant during the impugned period was not registered with the Central Excise Department, hence, has not availed the Cenvat Credit in respect of any of the inputs used either in the final product or in the intermediate product i.e. Brass and therefore, the condition of sub-rule (1) of Rule 6 stands complied with.
Conclusion - Since the appellant herein had not availed the Cenvat Credit, they had discharged the obligation under Rule 6(1) and were therefore, entitled to the benefit of the exemption notification no. 67/1995.
Appeal allowed.
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2025 (1) TMI 1147
Challenge to impugned assessment order as well as the rectification order - rejection of rectification application on the ground that there was no apparent mistake on the record and the grounds in the Rectification Application were actually the grounds of Appeal and not grounds for Rectification - HELD THAT:- In the facts of the present case, it is not in dispute that for the assessment year 2015-16, a show cause notice was issued to the Petitioner on 12th March 2020 fixing a hearing of the case on 23rd March 2020. It is also not in dispute that by 23rd March 2020, due to the Covid-19 pandemic, the entire country was under lock-down. Once this is the case, it was impossible for the Petitioner to attend the hearing that was fixed on 23rd March 2020. Despite this, Respondent No.3 has proceeded ahead and passed the impugned assessment order. Looking at the peculiar facts of the present case we have no hesitation in holding that the assessment order has been passed in complete breach of the principles of natural justice.
There are considerable force in the arguments canvassed on behalf of the Petitioner that the impugned assessment order be set aside and the matter be remanded back to the 3rd Respondent for re-adjudicating the show cause notice dated 12th March 2020 after the Petitioner is given an opportunity to file a reply to the show cause notice as well as a personal hearing in the matter.
Conclusion - The assessment order has been passed in complete breach of the principles of natural justice. Matter remanded back to Respondent No.3 for re-adjudication.
Petition disposed off by way of remand.
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2025 (1) TMI 1146
Dismissal of appeals on the grounds of delay without considering the merits of the case - HELD THAT:- Although multiple submissions were raised from both sides touching upon the merits of the case, it is not deemed necessary to refer to them as the present appeals can be allowed on a short ground, which is, that the order impugned before the High Court was of refusal to condone the delay in preferring the appeals before the Appellate Tribunal, Mumbai. Once the High Court opined that in normal circumstances the delay ought to have been condoned, it ought not to have commented upon the merits of the orders dated 23.07.2019 and 16.10.2019, particularly, when the Appellate Tribunal, Mumbai had not dealt with the correctness of those orders. In such circumstances, the High Court should have set aside the order rejecting the delay condonation application, condoned the delay and restored the appeals on the file of the Appellate Tribunal, Mumbai for consideration on merits.
The scope of the appeal before the High Court was limited to examining the correctness of the order of the Appellate Tribunal, Mumbai declining condonation of delay. Only when the delay is condoned, the merits of the order could be examined by the Appellate Court.
Conclusion - The delay should be condoned when sufficient cause is shown, and that merits should not be commented upon unless the delay is condoned. The order dated 01.12.2022 passed by the Appellate Tribunal, Mumbai, refusing to condone the delay in filing the appeals by the appellants herein against the orders dated 23.07.2019 and 16.10.2019, is set aside.
Appeal allowed.
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2025 (1) TMI 1145
Challenge to order of declination to grant any interim order but directing affidavits to be exchanged - whether the appellate authority viz., the Senior Joint Commissioner of Revenue, Bally Circle was justified in dismissing the assessees’ appeal by an order confirming the order of penalty imposed on the appellants under Section 129 (1) of the G.S.T. Act, 2017? - HELD THAT:- It is not clear as to how the adjudicating authority and the appellate authority had invoked Section 129 of the Act since, the facts of the present case shows there appears to have been no intention to evade the payment of tax. The only reason for imposing the penalty is that in the e-way bill generated by the appellants in favour of M/s. CRM Ispat Private Limited dated 8th July, 2023 for outward supply, the despatch was shown to be made from Durgapur, West Bengal, Pin – 713212. The authorities are of the opinion that the full details of the company, which despatched the goods, which were sent to the appellants/customer was not disclosed. However, on a comparison of the e-way bill raised on 6th July, 2023 alongwith the tax invoice raised by the appellants show that the goods moved in the same vehicle bearing registration No. W.B. 41D 1508.
In any event, the e-way bill is generated based on an application made in the portal and in Part – A of the e-way bill, one of the details is to be furnished is place of despatch in which the appellants had mentioned as West Bengal, 713212 and this detail, which was disclosed while making the application was accepted and the e-way bill stood generated. Therefore, merely because the appellants did not disclose the name of the company and the full particulars of his supplier, cannot be stated to be a ground that the appellants had intention to evade the payment of tax.
In the peculiar facts and circumstances of the case, the power under Section 129 (1) (a) of the Act could not have been invoked.
Conclusion - The mere omission of certain details in an e-way bill, when justified by common trade practices, does not automatically imply an intention to evade tax. The penalty imposed under Section 129(1) was unjustified.
The order passed by the appellate authority as well as the original authority are set aside and the appellants are entitled to apply for refund of the penalty, which was remitted by them without prejudice to their rights and contentions and if such application is filed, the same shall be dealt with in accordance with law - Appeal allowed.
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2025 (1) TMI 1144
Challenge to SCN issued under Section 74 (1) of the CGST Act, 2017 and W.B.G.S.T. Act, 2017 read with Rule 142(1)(a) of the Rules for the financial year 2023-24 - HELD THAT:- It is not in dispute that the appellants have submitted a detailed explanation and also enclosed certain documents in support of their contention and relied upon various decisions. Thus, when the authority has thought fit to exercise its powers under Section 74 (5), he is enjoined upon a duty to consider the reply before it takes a decision to issue a show-cause notice under Section 74 (1) of the Act.
However, in the instant case, it is found that the show-cause notice dated 8th August, 2024 is a replica of the intimation given earlier and all that the assessing officer has said is that the reply furnished by the appellants in response to the intimation is not found to be satisfactory and hence, not acceptable. The remaining portion of the show-cause notice has been copied from the earlier intimation and the show-cause notice does not deal with any of the contentions, which were raised by the appellants in their reply to the intimation dated 18th July, 2024.
The authority should consider the reply dated 18th July, 2024 to the intimation issued earlier, deal with those issues and then proceed to issue a show-cause notice.
Conclusion - The authority should consider the reply dated 18th July, 2024 to the intimation issued earlier, deal with those issues and then proceed to issue a show-cause notice. The writ petition was deemed maintainable.
The matter is remanded back to the assessing authority to consider the reply dated 18th July, 2024 and if it still finds it to be not satisfactory, it will be well-open to the authority to proceed in accordance with law - Appeal allowed by way of remand.
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2025 (1) TMI 1143
Correctness of issuance of SCN without taking into consideration the reply filed by the Petitioner to the pre-consultation notice issued to the Petitioner under Rule 142 (1A) of the Central Goods and Services Rules, 2017 - HELD THAT:- It is not required to stay the hearings that have been fixed on the show cause notice. It is directed that though the hearings can proceed, the concerned Authority shall not pass any adjudication order on the said show cause notice until further orders.
Stand over to 11th February 2025.
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2025 (1) TMI 1142
Levy of GST on a Deed of Assignment under which the land and the building constructed thereon is transferred by a Lessee to a 3rd party - HELD THAT:- Without going into the merits of the matter it would be in the fitness of things if the impugned order is set aside and the matter is remanded back to Respondent No.3 for a fresh adjudication on the show cause notice. This is because the impugned order also clearly records that no submissions have been made by the Petitioner against the show cause notice and which is factually incorrect. There was a reply to the show cause notice filed by the Petitioner dated 22nd July 2024 and which was received by the Assistant Commissioner of State Tax on the very same day. Despite this, the impugned order records that no submissions were made in reply to the show cause notice.
The impugned order dated 19th August 2024 is hereby quashed and set aside. The 3rd Respondent is now directed to once again adjudicate the show cause notice. The Petitioner is at liberty to file their detailed reply to the show cause notice within a period of 2 weeks from today. Once the aforesaid reply is filed, Respondent No.3 shall give a personal hearing to the Petitioner and only thereafter pass any order on the show cause notice.
Petition disposed off.
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2025 (1) TMI 1141
Legality of SCN issued - petitioner contends that the show-cause notice, being devoid of due consideration, is liable to be set aside - HELD THAT:- The SCN issued on 19th November, 2024 is correctly issued by the respondent no. 1 in relation to the alleged short payment of tax on commission income where the authority has considered all the relevant answer while coming to a conclusion that a commission received by the petitioner from M/s. Jembo Cable of Rs. 16,56,267/- cannot be treated as exempted service and thus issued the show-cause notice. This Court emphasizes that the show-cause notice serves as a preliminary step in the adjudication process, allowing the petitioner to present further submissions and evidence before the adjudicating authority thereby adhering to the principles of natural justice. The petitioner is, therefore, requested to appear before the adjudicating authority who shall consider all the submissions of the petitioner before passing the adjudicating order.
Conclusion - This Court concludes that the issuance of the show-cause notice was lawful, as the notice forms an integral part of the tax adjudication process. Moreover, the matter requires adjudication regarding whether the claimed exemption is applicable to the petitioner.
Application disposed off.
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2025 (1) TMI 1140
Challenge to impugned demand/SCN on the premise that jurisdictional fact necessary for invoking Section 122 (1A) of the Central Goods and Services Tax Act, 2017, does not exist - HELD THAT:- To a pointed question as to if there is any provision which mandates that obtaining a statement was a condition precedent for issuance of show cause notice, the learned counsel for the petitioner was unable to point out any provision.
It is open to the petitioner to file their objections to the notice within a period of 4 weeks from the date of receipt of a copy of this order. If any such objections/ reply is filed by the petitioner needless to say the respondents shall consider the same in accordance with law after affording the petitioner a reasonable opportunity of hearing and proceed with assessment/ adjudication process keeping in view that this Court has not expressed any view of merits.
The writ petition stands disposed of.
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2025 (1) TMI 1139
Short payment of RCM - ITC availed in excess - ITC found reversible - HELD THAT:- Challenge of Rule 36(4) of CGST Rules 2017 has no direct bearing with “Short Payment of RCM” “ITC availed in excess” and “ITC found reversible” the facts of this case and as the adjudication order dated 28th August, 2024 has a remedy by way of an appeal under Section 107 of the GST Act to deal with all the questions of facts as narrated by the learned counsel appearing for petitioner, the writ petition are dismissed.
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