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Showing 401 to 420 of 1733 Records
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2019 (6) TMI 1335
Attachment of Bank Accounts - It is the case of the Petitioner that in the course of purported investigation communication dated 11th July, 2018 came to be addressed to the aforesaid two banks restraining the said two banks from allowing the Petitioner to undertake Debit operations in their respective accounts - HELD THAT:- The impugned communications came to be issued by the Respondents purporting to allow Debit operation subject to maintenance of minimum balance as aforesaid in the two accounts. It is the case of the Petitioners that in fact this amounts to freezing of bank account at least to the extent of maintenance of minimum balance amount. The Petitioner addressed yet another letter dated 22nd January, 2019 demanding the withdrawal of the impugned communications. However, despite this demand for justice, the Respondents failed to withdraw the impugned communication, the Petitioner have instituted the present Petition.
In the present case we were considering imposition of costs against the Respondents because despite the decision of this Court in virtually identical circumstances, the Respondents persist in ordering Debit freezing without issuing of any show cause notice or completing investigations within the reasonable period. However, on this occasion, we refrain from imposition of any costs by expressing the hope that at least in future the Respondents will abide by the decision of this Court in such matters.
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2019 (6) TMI 1334
Offence alleged under Sections 454(5) and 454(5A) of the Companies Act, 1956 - Framing of charge - maintainability of petition - HELD THAT:- Hon’ble Supreme Court in SUBRAMANIUM SETHURAMAN VERSUS STATE OF MAHARASHTRA & ANR. [2004 (9) TMI 605 - SUPREME COURT] was not directly considering the scope of Section 251 of the Cr.P.C. in the context of a summons case, and this conclusion would explain the observation in paragraph-20 of the judgment that in an appropriate case, the Court would discharge the accused as per Section 239 of the Code.
The petition for discharge is not maintainable also under Section 245(2) of the Cr.P.C., which falls under Chapter XIX thereof and deals with trial of warrant cases - petition dismissed.
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2019 (6) TMI 1333
Admissibility of petition - time limitation - Section 7 of the I.& B. Code - HELD THAT:- Indisputably, neither the National Company Law Tribunal nor the National Company Law Appellate Tribunal, in the present case, has examined the said contention. Indeed, according to the respondent, the plea of claim being barred by limitation is unstatable and, to buttress this argument, the respondent has relied upon the entries in the books of account of the appellant and other related documents. However, that is a matter which ought to be agitated before the National Company Law Appellate Tribunal in the first place.
Accordingly, we relegate the parties before the National Company Law Appellate Tribunal for fresh consideration of the objection raised by the appellant that the claim of the respondent is barred by limitation. The appellant is granted liberty to file additional affidavit in the remanded appeal, giving the factual matrix on the basis of which the ground of limitation is founded, so that the respondent can meet that case appropriately.
The impugned order is set aside and the parties are relegated before the National Company Law Appellate Tribunal by remanding the stated appeal for deciding the issue of limitation as aforementioned - Appeal allowed.
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2019 (6) TMI 1332
Admissibility of petition - “Set Off” under Insolvency Proceedings - Section 10 of IBC application - scope of Moratorium - Application is filed for a direction to the Resolution Professional (RP) to honour the legal and equitable right of 'Airtel entities' to apply set off on account of mutual dealings for an amount of approximately INR 112 Crores during the Corporate Insolvency Resolution Process - HELD THAT:- The basic principles of set-off as per prevalent accounting principles are discussed and noticed that the Hon'ble Courts have almost unanimously taken a view that in mutual dealings among the same parties it is fair and reasonable to allow for netting off or set-off of the mutual debts and credits with each other so as to arrive at a net figure for settlement of accounts. In the light of this background it is now pertinent to examine the provisions of Insolvency Code to determine whether an embargo has been imposed under The Code.
If there is no restriction or prohibition in the statute, then a fair and reasonable approach is always is to be adopted. There is no specific bar or barrier in the Insolvency Code that up to CIRP process only gross amount/claims are to be taken into account and the netting is permissible only in case of start of Liquidation. In the absence of any such restriction this Bench obviously has a liberty to take an independent view which is not at variance with the provisions of The Code, rather remove the ambiguity between a gross claim or net claim, that too at what stage.
This Bench is of the view that the applicant is legally entitled under the insolvency code to set off the amount of ₹ 112 Crores while making a payment of the amount retained out of the total consideration settled as per Spectrum Trading Agreement - application allowed.
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2019 (6) TMI 1331
Initiation of Corporate Insolvency Resolution Process - Corporate Debtor - Section 7 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- Section 20 of the ‘I&B Code’ deals with ‘Management of operations of corporate debtor as going concern’. As per sub-section (2) therein, the ‘Interim Resolution Professional’ has the authority to raise interim finance provided that no security interest shall be created over any encumbered property of the ‘Corporate Debtor’ without the prior consent of the creditors whose debt is secured over such encumbered property. However, no prior consent of the creditor shall be required where the value of such property is not less than the amount equivalent to twice the amount of the debt.
During the ‘Moratorium’ period, the ‘assignee’ also cannot deduct any amount from the assets of the ‘Corporate Debtor’. The Explanation below Section 18 does not include the assets generated from the rent paid by the ‘lessee (tenants)’. As the premises belongs to the ‘Corporate Debtor’, the ‘lessee’ pays rent in favour of the ‘Corporate Debtor’, though as per the agreement, the right of ‘LICHFL’ is only that of an ‘assignee’ which cannot recover or deduct any amount during the period of ‘Moratorium’.
Application dismissed.
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2019 (6) TMI 1330
Validity of lookout circular issued by the second respondent - return of appellant passport - challenge to the LOC is primarily on the ground that the appellant has been cooperating with the on going investigation done by the respondents and there is absolutely no cause for issuance of LOC - correctness of the order passed by the learned Writ Court rejecting the challenge to the LOC issued against the appellant - HELD THAT:- The Writ Court, in our considered view, rightly noted that Section 41A of the Code of Criminal Procedure gives inherent power to the Investigating Authority to take necessary steps to see that the accused in the case do not leave the jurisdiction and cooperate with the investigation. The Writ Court pointed out that the recourse to LOC is taken by the Investigating Agency in cognizable offences under IPC or other penal laws, where the accused deliberately evaded arrest or did not appear before the authority and there is a likelihood of the accused moving out of the country to evade arrest on trial.
The Investigation which is being done by the second respondent revolves around an organisation, which has been declared as unlawful organisation by the proceedings of the Government of India and persons suspected to be associated with the organisation are being investigated with regard to the alleged commission of offences under PMLA and other statute.
We find the denial to be vague and not specific. In any event, we cannot comment upon the allegations or counter allegations at this juncture, as the case is under investigation. The learned Writ Court after considering the entire facts, held that the LOC was issued with statutory sanction and the respondents had jurisdiction to issue the same. We concur with the view taken by the learned Writ Court.
The appellant has not made out any ground to quash the LOC - appeal dismissed.
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2019 (6) TMI 1329
Scope of University - production of details with respect to the affiliation - coverage of University under Chapter V of the Finance Act 1994 - HELD THAT:- The respondents have also not through Ext.P9, finally concluded on the service tax liability of the petitioner University and interested in investigating or enquiring into the nature of activities of petitioner university by referring to the accounts, statements, other evidence the university intends to produce and thereafter the issue is determined.
At the cost of repetition this Court refers to the stand of respondents that the chargeability of service tax is not finally decided by respondents and the petitioner avails the opportunity now afforded through Exts.P13 and P14 or this Court directs the Deputy Director, Kozhikode to enquire into the matter and proceed thereafter.The statement of the counsel for both sides is to the same effect and hence the writ petition is disposed of by this judgment.
The petitioner University is directed to appear on 17.7.2019 before the Deputy Director, Directorate General of GST Intelligence, Kozhikode Regional Unit, Mahe House, Panicker Road, Nadakkavu P.O, Kozhikode-673011, Kerala with the records/statements it is advised to produce and participate in the enquiry - petition disposed off.
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2019 (6) TMI 1328
Levy of service tax - activity / privilege to sell eatables and collect empty liquor bottles - agency commission - Grant of Privilege to Run the Bar - payments made by Bar Contractors - devolution of sovereign rights of the State through the appellant - HELD THAT:- Rule 9A of the Retail Vending Rules deals with grant of privilege to run the bar. It states that the privilege of running bar may be granted to private parties by tender, that the Board of the appellant may decide the upset price and other terms and conditions from time to time with the prior approval of the Commissioner of Prohibition and Excise, that the appellant, as agency, shall collect the tender amount from the successful tenderers and remit the same to the Government on or before 25th of the following month and that the appellant may retain 1% of the amount so collected as agency commission - though the said Rule states that it has a privilege of running bars, the appellant has not authorized private parties to vend liquor in the shops, which are annexed to the retail vending shops. It is no doubt true that the Retail Vending Rules empower the appellant to vend liquor not only in the shops established by them, but also in the bars. But, the factual scenario in the State of Tamil Nadu is that in the retail vending shops, vending alone is permissible and in the bars attached to the retail vending shops, a facility is provided for consumption of liquor thereby the liquor purchased in the retail vending shops is taken by the customer to be consumed inside the premises and this is with a view to prevent the customer to consume liquor in the open area causing nuisance to the general public.
The use of the expression 'running bars' in Rule 9A of the Retail Vending Rules, in our considered view, is a misnomer. This is so because the Retail Vending Rules also permit the licences to be used by certain categories of establishments where they are permitted to vend liquor and allow the persons to consume the liquor within the same premises. Some examples are certain categories of hotels, resorts, etc. Therefore, the grant of privilege in the instant case, which we are presently dealing, is for the purpose of selling eatables and collecting empty bottles and cartons in the bars, which are adjacent or annexed to the retail vending shops.
Whether such a right or privilege to sell eatables and collect empty bottles can be treated as a statutory right or a devolution of a statutory right? - HELD THAT:- The answer to the question should be in the negative - The statutory right conferred on the appellant under the provisions of the Tamil Nadu Prohibition Act, 1937 read with the Retail Vending Rules is on account of a policy decision taken by the Government whereby the State of Tamil Nadu enacted the Tamil Nadu Prohibition Act, 1937 and framed various Rules. Therefore, there is no vested right granted to any private individual to trade in alcohol in the State of Tamil Nadu and already, the privilege has been vested with the appellant, which is a State Owned Corporation - to state that the right to sell eatables and collect empty bottles is a statutory right is an absurd proposition, which cannot be accepted.
Tribunal was right in concluding that the activities assigned and performed for the period in dispute can never be treated as a sovereign function or a statutory right or an activity performed by a Public Authority under the authority of law. The Tribunal also took note of the circulars issued by the Central Board of Excise and Customs dated 23.8.2007 and 18.12.2006, which clarified that if a Sovereign/Public Authority provides a service, which is not in the nature of a statutory activity and if the same is undertaken for a consideration, which is not a statutory fee, then, in such cases, service tax would be leviable as long as the activity undertaken falls within the scope of taxable service as defined. Even when a Governmental Authority performs a service, which is not in the nature of a statutory activity, the same has to be held leviable to service tax.
Whether this benefit, which was granted by the Tribunal, should be extended in favour of the appellant for the period covering July 2012 to March 2013? -HELD THAT:- To term that Rule 9A is clarificatory in nature is an argument, which is stated to be rejected and we do not agree with the submission made by the learned counsel for the appellant that the benefit granted by the Tribunal for the period from April 2013 to till date by making the appellant/assessee liable to pay service tax on 1% of the revenue retained by them as agency commission can be extended for the period from July 2012 to March 2013 - the third substantial question of law is answered against the assessee.
Appeal dismissed - decided against appellant.
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2019 (6) TMI 1327
CENVAT Credit - common input services used for trading activities - non-maintenance of separate records - period 2008-09 to 2010-11 - whether the trading activities can be categorized as "exempted service" for the purpose of a decision regarding availment of Cenvat credit on the input services specified in sub-rule (5) of Rule 6 ibid? - No suppression of facts - extended period of limitation - HELD THAT:- The phrase “exempted services” has been defined in Rule 2(e) ibid to mean “taxable services which are exempt from the whole of the service tax leviable thereon, and includes services on which no service tax is leviable under Section 66 of the Finance Act”. The said definition was effective up to 31.03.2011. The Central Government vide Notification No. 3/2011-C.E. (N.T.) dated 01.03.2011 has made the Cenvat Credit (Amendment) Rules, 2011, effective from 01.04.2011. The effect of amendment, relevant for the present case, is that an explanation clause was appended to such definition, clarifying that for the removal of doubts, "exempted services" includes trading.
The law is well settled that an amendment can be considered to be declaratory and clarificatory, only if, the statute itself expressly and unequivocally states so; on the contrary, if there is no such clear statement in the statute itself, the amendment shall not be considered to be merely declaratory or clarificatory and cannot operate with retrospective effect - the legislature had never intended to give effect to the notification dated 01.03.2011 with retrospective effect inasmuch as, in such an eventuality, the amending notification/Rules, 2011 would have made effective either from the date of publication of the said notification in the official gazette or from the date of enactment of the Cenvat Rules in 2004.
Whether, such amendment in the statutory provisions is to be construed as retrospective in effect or prospective, in order to be given effect to? - HELD THAT:- The law is amply clear that if a substantive law is introduced, the date of effect of the instrument through which the decision of legislation was conveyed should be considered as the relevant date, when the same was issued or published in the official gazette for the knowledge of the general public - thus the amendment to Rule 2(e) by Notification No. 3/2011-C.E.(N.T.) dated 01.03.2011 will have the prospective effect and cannot be applied retrospectively.
Extended period of limitation - the department had issued the show cause notice on 23.10.2013, seeking for recovery of the irregularly availed Cenvat credit by the appellant during the period 2008-09 to 2010-11 - HELD THAT:- In the proviso clause appended to Section 73(1) ibid, it has been mandated that where any service tax has not been levied or paid or has been short levied or short paid by reason of fraud; or collusion; or wilful misstatement; or suppression of facts; or contravention of the provisions of Chapter V or the rules made there under with intent to evade payment of service tax, instead of the period of one year, the show cause notice shall be issued within the period of five years - Admittedly, in this case, the show cause proceedings were initiated against the appellant beyond the normal period of limitation of one year. Thus, under such circumstances, it has to be ascertained whether the ingredients contained in the proviso clause are satisfied, justifying invocation of the extended period of limitation.
It cannot be said that the appellant had suppressed the facts regarding availment of irregular credit, with the intent to defraud the Government revenue. Further, the issue with regard to interpretation of the amending definition of “exempted service” under the Cenvat statute, whether to be applicable prospectively or retrospectively, was highly debatable and there were divergent views in the judicial forum - In this case, on perusal of both the show cause notice and the impugned order, we do not find any justifiable reason being assigned by the department for invocation of the extended period of limitation.
The appeal is allowed on the ground of limitation only.
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2019 (6) TMI 1326
CENVAT credit - inputs/capital goods/input services which had been consumed in the construction of malls - whether the appellants are eligible to avail the Cenvat credit on the services supplied to them by their job workers/contractors for which raw materials have been supplied by them? - period prior to the amendment of the provisions of input services under the Credit Rules i.e. prior to 2011 and also subsequent to that period - HELD THAT:- The issue is no longer res integra in view of the decision of Hon’ble Andhra Pradesh High Court in the case of COMMR. OF C. EX., VISAKHAPATNAM-II VERSUS SAI SAHMITA STORAGES (P) LTD. [2011 (2) TMI 400 - ANDHRA PRADESH HIGH COURT] which was subsequently followed in various other cases. In all these cases, the issue was similar and identical and it was held by various Tribunals/High Court that in such a situation, the appellant would be entitled for the benefit of Cenvat credit prior to amendment.
The learned AR has placed reliance that the services were not directly provided by the appellant, but was through their contractors. It is argued that these contractors were employed by the appellant, who were provided raw materials to them. Also these contractors have paid the service tax and recovered that from the appellant. Hence, we find that the appellants have rightly taken the Cenvat credit as per Credit Rules - It is of no relevance as to whether the construction has been done through the contractors or not as long as service tax is paid, the appellant is entitled for Cenvat credit and subsequent utilisation thereof for payment of service tax.
Appeal allowed - decided in favor of appellant.
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2019 (6) TMI 1325
Refund of accumulated CENVAT Credit - input services - event related services - legal consultancy services - rejection of refund on the ground of nexus - HELD THAT:- Going by the definition of input service available in Rule 2(l) of CENVAT Credit Rules, 2004, legal services are included in the said definition and hence denial of legal service expenses made by the appellant to defend the company or its managements is improper - going by the Order-in-Appeal, tax paid on event management service was held as inadmissible credit despite the fact that the learned Commissioner (Appeals) noted the contention of the appellant in his order that such services were received for organising investment conference at Trident Hotel and appellant had duly explained the reason for holding of such conference that comes within the purview of the decided case laws referred in respect of admissibility of such credits - both those credits are admissible credits for which refund was to be granted as appellant had rightly justified the nexus, which according to the policy/circular was also not required to be established in case of export of services - Refund allowed.
Refund claim - rejection also on the ground that Billing address is different in invoice and ST-2 return - HELD THAT:- Learned Counsel for the appellant submitted that billing address, as found in the invoice was covered in the ST-2 return of the appellant during the relevant time and without looking at valid ST-2 form for the disputed period, the said credit was denied though subsequent to such bill of 2014, Chartered Accountant had taken a new premises in 2015 with new registration. He enclosed ST-2 form in Annexure-G to justify that no variation exists between the invoices of the return filed. Even without accepting the said annexure as admissible piece of additional evidence as objected by the respondent-department, it can be said that the ground is too technical to deny refund since name of the service provider remain unchanged, for which the said credit and consequential refund is held to be admissible - refund allwoed.
Refund claim - rejection of refund also on the ground of non description of services - HELD THAT:- Learned Counsel for the appellant submitted that such services were availed from Aptech Ltd. to provide training on computers to identified employees of the appellant to enhance their management and negotiation skills. But, no evidence is forthcoming that such stand was taken before the lower authorities for which appellant is required to justify the stand before the Commissioner (Appeals) - matter requires reconsideration.
Refund claim - Rejection also on the ground of non-submission of invoices - HELD THAT:- Appellant had submitted that challan is a valid document under Rule 9 of CENVAT Credit Rules, 2004 to avail CENVAT credit and in cases where service tax was paid under reverse charge mechanism, the same should have been allowed on the strength of valid challans produced by the appellant. However, he conceded that in respect of other services, invoices could not be produced at the time of hearing, for which he produced sample invoices before this Tribunal during the hearing to arrive a right decision - Without verification of those invoices which would amount to mini trail, and without acceptance of those invoices as additional piece of evidence, since those are not in conformity to Rule 23 of the CESTAT Procedure Rules, it is considered proper to remand the matter to the Commissioner (Appeals) for re-examination of the entitlement of the appellant only in respect of denial of refunds on those CENVAT credit against which valid invoices were not produced before him - matter on remand.
The appeals are allowed in-part by way of limited remand to the Commissioner (Appeals) - part appeal allowed in favor of assessee.
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2019 (6) TMI 1324
Valuation - clearing and forwarding Agency’s services - inclusion of certain reimbursement expenses such as freight, stationary, printing charges, telephone charges, asset hire, courier, insurance and other taxes while providing C & F agency service - deduction of amounts as ‘reimbursement expenses’ from computation of gross amount charged under Section 67 of Finance Act - SCN dated 22/23/10/2007 - HELD THAT:- The issue is regarding non-includeability of ‘reimbursement expenses’ for computation of service tax under Section 67 of the Finance Act. This issue is squarely covered in favour of the appellant by the Supreme Court Judgment in case of UNION OF INDIA AND ANR. VERSUS M/S. INTERCONTINENTAL CONSULTANTS AND TECHNOCRATS PVT. LTD. [2018 (3) TMI 357 - SUPREME COURT] where it was held that only with effect from May 14, 2015, by virtue of provisions of Section 67 itself, such reimbursable expenditure or cost would also form part of valuation of taxable services for charging service tax
Appeal allowed - decided in favor of appellant.
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2019 (6) TMI 1323
Refund of service tax - unjust enrichment -
HELD THAT:- Since the Commissioner (Appeals)’s order is unsustainable in law despite his endorsement in order that appeal was filed on 30-1-2017, the same is admittedly a misstatement made by another quasi-judicial appellate authority as in the appeal memo endorsement of the Commissioner bears 17-1-2017 as date of filing and it was sent to the appellant on 12-1-2018 i.e., almost after one year. Furthermore show cause notice to the Appellant issued on 7-2-2017 making duty demand holding adjudication order of refund as erroneous which is silent about such filing of appeal in an hypothecated date mentioned by the Commissioner (Appeals) cannot be taken as the date of filing of appeal before him.
Commissioner (Appeal)’s order, which is assailed in this appeal, is passed without authority of law - Refund allowed - appeal allowed - decided in favor of appellant.
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2019 (6) TMI 1322
Jurisdiction - prayer for impleadment of Principal Commissioner/Commissioner, Central Goods and Service Tax, Mumbai as a respondent by taking resort to the provisions Rule 12(1) and Rule 17 of the Customs, Excise, Service Tax Appellate Tribunal (Procedure Rules), 1982 - HELD THAT:- The Additional Director General has been invested with the power of the Commissioner to be exercised throughout the territory of India. It is for this reason that the Corrigendum dated 20 July 2016 to the show cause notice was issued investing the powers of the adjudicating authority to the Additional Director General and it is the Additional Director General who has passed the impugned order. It cannot, therefore be urged that the Additional Director General has wrongly been impleaded as a respondent in the appeals.
One practical difficulty has, however, been expressed by the learned Representative of the Department namely, that the Additional Director General may not have enough resources or manpower to contest the appeals - This in our opinion is not a good ground for impleading either one or all the 27 jurisdictional Commissioners who prior to the issue of the notification were vested with the power to adjudicate.
There is, therefore, no necessity of impleading the Principal Commissioner, CGST, Mumbai as a respondent in the appeal.
Application dismissed.
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2019 (6) TMI 1321
Classification of services - Courier Service or GTA Services - argument is that courier service is the door-to-door transportation of time sensitive documents but in the instant case the appellants were receiving certain machinery/components for repair or delivery and return of such machinery/components after the repair at the respective centre as per the direction of their client - period November 1996 to September 1998 - HELD THAT:- The appellant has carried goods/parts/components for the service receiver - the service has been rightly classified under the courier agency service - Appeal dismissed - decided against appellant.
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2019 (6) TMI 1320
Refund of service tax paid which the appellant is not liable to pay - rejection on the ground of time limitation - period April 2006 to February 2008 - SCN issued on 12.01.2010 - whether the time limit prescribed under Section 11B of the Central Excise Act, 1944 is applicable in a case where tax is not payable by the appellant or not? - HELD THAT:- The said issue has been examined by the Hon’ble High Court of Delhi in the case of NATIONAL INSTITUTE OF PUBLIC FINANCE AND POLICY VERSUS COMMISSIONER OF SERVICE TAX [2018 (8) TMI 1524 - DELHI HIGH COURT] - the appellant were not liable to pay service tax, therefore, the time limit prescribed under Section 11B of the Central Excise Act, 1944 for filing the refund claim is not applicable to the facts of this case.
Refund allowed - appeal allowed - decided in favor of appellant.
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2019 (6) TMI 1319
Scope of service tax - work undertaken by the respondent was in respect of growing of grass for preparing the Rugby field for Commonwealth Games-2010 - activity of Horticulture - Horticulture, a branch of agriculture - HELD THAT:- The revenue did not raise any new ground in the grounds of appeal and all the issues raised by revenue in the ground of appeal are repetition of show cause notice which has already been adjudicated upon by learned Commissioner (Appeals) and held the same to be not tenable - there is no ground raised by revenue to challenge the finding of learned Commissioner (Appeals).
Appeal dismissed - decided against Revenue.
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2019 (6) TMI 1318
Import of services - reverse charge - Reversal of cenvat credit - manufacturing and trading activity - Principles of natural justice - principles of estoppel - Non speaking order passed by the tribunal - time limitation - HELD THAT:- It is clear that the manner in which the impugned order of the Tribunal has dealt with the appellant's appeal leaves much to be desired. The Tribunal is an authority under the Act to decide the disputes between the State and the assessee. Therefore, it is expected to deal with the contentions raised before it by the parties and give reasons in coming to the conclusion whether the contention raised by the parties before it are to be accepted or not. It is not expected of the Tribunal to ignore the submissions of the parties as raised in the written statement which are taken on record as evident from the order and proceed to decide the issue as if no submissions and / or case law in support of the appellant's case was made before it.
The impugned order of the Tribunal is a nonspeaking order in as much as it does not consider the contentions of the appellant as supported by case law. It is of cardinal importance that the Tribunal passes orders with reasons - Appeal restored to the Tribunal for fresh disposal in accordance with law - appeal disposed off.
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2019 (6) TMI 1317
Clandestine removal - shortage of finished goods and excess in the stock of raw material - sale of flats as such - the contentions of appellant have not been considered properly - principles of natural justice - HELD THAT:- Since the appellant company is willing to pay the Central Excise duty demandable from them, their contentions about violation of principles of natural justice etc. are not being considered - One of the main contention of the appellant company is that the suppliers of goods had collected Central Excise duty from it while supplying the goods without invoices, and some of the suppliers had already deposited the said duty with the Department and considerable amount of duty has been confirmed against other suppliers.
The appellant company has submitted that since the duty has been deposited by / demanded from its suppliers, their duty liability should be reduced by the said amount as they had already paid duty amount to its suppliers - It is observed that though the appellant company has taken this stand since the beginning, even during the course of investigation, the Revenue has not controverted these facts. The documents resumed by the Revenue and relied upon in show cause notice, also supports this fact - Thus where the amount of duty has been deposited by the suppliers, the duty liability of the appellant company is ordered to be reduced by the said amount.
Sale of M.S. Flats as such - HELD THAT:- The records resumed by the officers and relied upon in show cause notice and the impugned order clearly show purchase of M.S. Flats by the appellant company. This is evident from the profit & loss account of the appellant company scanned in the show cause notice itself. Once the Revenue has placed reliance on resumed documents and data retrieved from laptop, it cannot claim that M.S. Flats were not purchased and sold as such. The documents have to be believed in toto and not in part only. Further, the Revenue has not brought any material to show that the purchased M.S. flat were used in or in relation to manufacture of any other product - thus duty of excise is not demandable from the appellant company, on the quantity of M.S. flats purchased and sold as such - Similarly, the duty of excise cannot be demanded on the quantity of Miss Rolls sold as such by the appellant company.
Penalty - HELD THAT:- Penalty on the appellant company is imposable under Section 11AC of the Central Excise Act, as the finished goods have been removed without payment of duty. However, we agree with the learned Advocate that separate penalties are not imposable on Directors and former Director once the penalty under Section 11AC has been imposed on the company - Further, penalty is not imposable on Ankit Keriwal, as he was a mere employee bound to follow the directions of the company management. Moreover, there is no material to show that Ankit Keriwal has gained anything personally. We, therefore, set aside the penalties imposed on all directors/ former Director and Manager (Ankit Keriwal).
The learned Commissioner is directed to compute the duty amount payable by the appellant company as modified in this order, and communicate the same to the appellant company - appeal allowed by way of remand.
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2019 (6) TMI 1316
Clandestine removal - binding wire and H.B. wire - the whole case of Revenue is based on hand written pencil ledger, seized in the premises of M/s Deepak Industries, Raipur, one of the suppliers of raw material to the appellant - HELD THAT:- This Tribunal in the case of M/S DEEPAK INDUSTRIES VERSUS CC&ST, RAIPUR [2019 (1) TMI 315 - CESTAT NEW DELHI], have held that the said hand written pencil ledger were not legible and the details were prepared on computer and relying upon the same, computerised chart was prepared and relied upon for raising the demand against the said M/s Deepak Industries. The demand on this appellant is also based on the same computerised extract prepared from the illegible hand written pencil ledger (RUD-4), in the show cause notice of M/s Deepak Industries. Further, the statement given by Mr. Ravinder Singh, Prop. of M/s Deepak Industries has also been found to be not admissible under Section 9D of the Act.
Thus, the demand raised against this appellant also stand vitiated in view of the finding in the appeal of M/s Deepak Industries.
Appeal allowed - decided in favor of appellant.
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9911796707
