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Showing 441 to 460 of 1664 Records
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2022 (9) TMI 1225
Seeking provisional release if seized goods - import of used Digital Multifunctional Printers / Devices (MFDs) (second hand goods) - to be classified under CTH 84433100 or not - non-compliance with the provisions of Domestic laws under the Bureau of Indian Standards (BIS) Act, 2016 read with the Electronics and Information Technology Goods (Requirements for Compulsory Registration) Order (CRO), 2012 - failure to obtain DGFT authorization as required for the import of second hand goods - misdeclaration of value of the imported used MFDs in violation of Section 14 of the Customs Act, 1962 - HELD THAT:- The ratio of tdecision of the Hon’ble Apex Court in the case of M/S DELHI PHOTOCOPIERS VERSUS THE COMMISSIONER OF CUSTOMS (GR. 5) CHENNAI II & ORS. [2021 (8) TMI 1244 - SUPREME COURT] has been followed in the case of THE COMMISSIONER OF CUSTOMS, CHENNAI VERSUS M/S. KUTTY IMPEX [2022 (9) TMI 1049 - CESTAT CHENNAI], wherein it was held that the First Appellate Authority was correct in allowing the appeal thereby ordering provisional release of the goods in question, and since there is no change in the facts, the same is required to be followed in the case on hand as well.
The appeal of the Revenue is dismissed.
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2022 (9) TMI 1224
Penalty u/s 112(b)(i) of the Customs Act 1962 - smuggling - Gold Bars - reliability of statements of persons recorded in impugned matter - HELD THAT:- Upon perusal of these statements nowhere it has been found that the Appellant had knowledge about the use of fund in smuggling of gold. It is admitted fact that Appellant has financed the fund against the security of blank cheques and amount financed in June 2014 was also adjusted by the Appellant against the purchase of one plot in Akshar Industrial Estate, Ahmedabad from Shri Rutugna Trivedi. Detail of the said transaction alongwith ledger also submitted by the Appellant to the investigation authority during the investigation.
From the evidence available on record and statement of Appellant it is clear that he was engaged in normal course of his business of lending the fund. The business activity of financing of fund has been turned by the Ld. Commissioner into direct participation in the conspiracy to smuggle gold. For imposition of penalty under Section 112(b) of the Customs Act, 1962 the knowledge on the part of the person has to be established. From the above statement of Appellant it is also clear that he had not confessed in his statement that he had knowledge about use of the funds provided to Shri Rutugna for alleged smuggling of gold activity.
The evidence on record is not sufficient to hold that the appellant was involved in alleged activity of smuggling of gold. It is well settled law that the statements of the co-noticee cannot be adopted as a legal evidence to penalize the accused unless the same are corroborated with material particulars by independent evidence. The statement of co-accused cannot be used against the appellant, particularly when appellant has denied his involvement in respect of the goods in question - The evidence brought out by the department nowhere suggests that the appellant was aware that the goods in question were smuggled into the India. The penalty imposed on Appellant, therefore, cannot be sustained.
Appeal allowed - decided in favor of appellant.
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2022 (9) TMI 1223
Levy of penalty u/s 112(b)(i) of the Customs Act 1962 - petitioner has any role in the smuggling of Gold activity or not - Appellant is the financer of the importer - HELD THAT:- On going through the statements of persons recorded in impugned matter, nowhere it has been found that the Appellant had knowledge about the use of fund in smuggling of gold. Appellant has financed the fund against the mortgage of properties owned by Shri Mehul Bhimani, Shri Jitendra Rokad, Ms.Hina Rutugna Trivedi and Shri Rutugna Trivedi. Details of the property mortgaged to lenders were also furnished by the Appellant to the investigation authority during the investigation.
It is also fact that Airport Intelligence Unit did not find incriminating documents against the Appellant to show prima facie that the Appellant financed money for smuggling of gold into India. Even no evidence whatsoever was found to substantiate the finding of the Respondent that the Appellant financed to Shri Rutugna Trivedi for smuggling of gold.
Admittedly, the appellant is only arrange the finance in their regular course of business, appellant did not deal with alleged gold smuggling activity in question. Facts borne on record revealed that the appellant has maintained all along that it never had the possession of the impugned goods nor was in any way concerned with the carrying, removing, etc., of the consignments in question and hence, it was beyond their comprehension that the goods in question were per se liable for confiscation under Section 111(d) ibid - Undisputed peculiar facts of the case are that the appellant is neither the importer nor the owner who had acquired possession nor in any way concerned with the carrying, removing, etc., of the goods in question, and Revenue has nowhere ascribed knowledge of the appellant as to the confiscation.
Penalty under Section 112(b) can be imposed when a person acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111. It is submitted that it is not the case of the Revenue that the Noticee was indulged in any of the activities as mentioned under Section 112(b) of the Customs Act. As the Appellant did not acquire possession of or in any way concern with import of gold, penalty under Section 112(b) ought not to have been imposed.
It is found that the appellant cannot come within the ambit of Section 112(b) because appellants had never acquired possession or in any way concerned in any of the activities mentioned in the Section or any measure dealing with any goods which the appellants knew or had reason to believe are liable to confiscation. In the absence of the department having not proved the knowledge of the appellant in the activities relating to the smuggled gold, there were no grounds for imposition of penalty on him. It is now well established that mens rea is an important ingredient for imposing a penalty on the persons enumerated in Section 112(b) of the Customs Act. The evidence brought out by the department nowhere suggests that the appellants were aware that the goods in question were smuggled into the India. The penalty imposed on Appellant, therefore, cannot be sustained.
The appellant is not liable imposition of penalty under Section 112(b) of the Customs Act, 1962 - the penalty is set aside - appeal allowed - decided in favor of appellant.
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2022 (9) TMI 1222
Maintainability of appeal - non-compliance with the requirement of pre-deposit - section 129E of the Customs Act - HELD THAT:- It would be seen from a bare perusal of section 129E of the Customs Act that after 6.8.2014 neither the Tribunal nor the Commissioner (Appeals) have the power to waive the requirement of pre-deposit, unlike the situation which existed prior to the amendment made in section 129E on 06.08.2014 when the Tribunal, if it was of the opinion that the deposit of duty and interest demanded or penalty levied would cause undue hardship, could dispense the said deposit on such conditions as it deemed fit to impose so as to safeguard the interest of the Revenue.
The Supreme Court in NARAYAN CHANDRA GHOSH VERSUS UCO BANK [2011 (3) TMI 1478 - SUPREME COURT], examined the provisions contained in section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 relating to pre deposit in order to avail the remedy of appeal. The provisions are similar to the provisions of section 129E of the Customs Act. The Supreme Court emphasised that when a Statue confers a right to appeal, conditions can be imposed for exercising of such a right and unless the condition precedent for filing appeal is fulfilled, the appeal cannot be entertained.
A Division Bench of Delhi High Court in M/S. VISH WIND INFRASTRUCTURE LLP, M/S. J.N. INVESTMENT & TRADING CO. PVT. LTD. VERSUS ADDITIONAL DIRECTOR GENERAL (ADJUDICATION) , NEW DELHI [2019 (8) TMI 1809 - DELHI HIGH COURT] examined the provisions of section 35F of the Central Excise Act, 1944 which are pari materia to section 129E of the Customs Act and held that every appeal filed before the Tribunal after the amendment made in section 35F of the Excise Act and section 129E of the Customs Act on 06.08.2014 would be maintainable only if the mandatory pre-deposit was made.
The appellant has not made the pre-deposit. In view of the aforesaid decisions of the Supreme Court and the Delhi High Court, it is not possible to permit the appellant to maintain the appeal without making the required pre-deposit.
Appeal dismissed.
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2022 (9) TMI 1221
Seeking directions for review of the observations & conclusions as contained in the Judgement and Order [2022 (3) TMI 998 - TRIPURA HIGH COURT]- whether Review Petitioner was not a party to the original PIL proceedings? - HELD THAT:- The Case at hand is an example of the interplay between the explanation to Section 18 and other provisions of the Code on the peculiar facts of the case, in our considered view, the NCLT correctly found that the decreed property was an asset of the Review Petitioner held in trust by the corporate debtor. In fact, it was even being maintained by the Review Petitioner in terms of orders of the Bombay High Court. The said property was merely in possession of the Provisional Liquidator of SRUIL, held in constructive trust for the Review Petitioner.
The NCLT has recorded in its order dated 08.10.2021 that the IRP does not have any funds to run the CIRP. This is also borne out by the orders passed by the Bombay High Court, that acknowledge that neither the Provisional Liquidator, nor the IRP was in a position to maintain the property and carry out repairs on the fallen boundary wall due to lack of funds. Further, the IRP has categorically averred before the NCLT, that the creditors of SRUIL had refused to infuse any funds to carry out the CIRP. In this context, the Rs.75,30,00,000/- that is to be received by SRUIL in terms of the orders passed by the Bombay High Court and upheld by the Hon’ble Supreme Court, are crucial to ensure that the CIRP of the corporate debtor in the present matter happens in a meaningful manner. Further, once we have observed that the property itself is not an asset of SRUIL, maximisation of assets of the corporate debtor can be achieved, only by the IRP moving to secure the Rs. 75,30,00,000/-, which surely is a receivable of SRUIL.
Looking into the facts pertaining to the case of the Review Petitioner, the Impugned Order did not appreciate the need to balance the considerations of Section 18 of the Code viz-a-viz the moratorium under Section 14 of the Code. The Impugned Order is therefore modified to the extent that it shall not effect the rights of the Review Petitioner to the subject property that has been upheld upto the Supreme Court and also stands crystallised by various orders passed by the Hon’ble Bombay High Court which are still in operation. As held by the NCLT, the conveyance however, shall be subject to the payment of the balance consideration by the Review Petitioner.
The Review Petition is allowed.
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2022 (9) TMI 1220
Acceptance of claim of the Resolution Professional for payment of fee - Section 61 of Insolvency and Bankruptcy Code, 2016 - main contention of the Respondents before the Adjudicating Authority was that he was having only 25.54% of voting right being creditor and cannot be compelled to pay half of the share of remuneration and expenses and that he is not liable to pay the legal expenses which was not approved by the CoC and agreed to pay the fee payable to Resolution Professional and other expenses approved by CoC.
HELD THAT:- A conjoint reading of Regulation 25A, 26 and 27 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and Regulation 31 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, the expenses incurred under the different heads covered by Regulation 31 of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 shall be paid by the creditors - In the instant case, the cost incurred by erstwhile RP and remuneration payable to him was approved by CoC in the CoC meetings, the total amount payable is Rs. 16,09,402/-, thus, the legal heirs of deceased RP are entitled to claim the remuneration payable to erstwhile RP and cost incurred by him, approved in CoC meetings.
One of the major contentions of the Appellant herein is that the Appellant is having only 25.54% voting share and liable to pay its share of costs. As per provisions of the Act, the Respondent before the Adjudicating Authority Appellant herein, the creditors have to bear the cost of resolution process and remuneration payable to the Resolution Professional in proportionate to voting share, but the Adjudicating Authority directed the creditors to pay 50% of the cost payable to erstwhile RP. Therefore, the direction to the extent of payment of remuneration equally by the creditors is contrary to the provisions of ‘IBC’ and relevant Regulations.
The direction to pay equally with other creditor is erroneous, since, the Respondent before the Adjudicating Authority is having 25.54% voting share and therefore liable to pay the expenses in proportionate to the voting share of Appellant herein and before the Adjudicating Authority. Accordingly, the order of the Adjudicating Authority is modified to this extent - the Appeal is allowed in part modifying the order directing the Appellant to pay remuneration and cost of resolution process approved in CoC meeting i.e. Rs. 16,09,407/- proportionate to its voting share.
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2022 (9) TMI 1219
Seeking admission of the claim - whether from the internal correspondence it can be concluded that loan disbursed to the Corporate Debtor by the Appellant stood discharged? - HELD THAT:- The internal correspondence between the Corporate Debtor and the RDPL who’s Promoters are same, does not lend support to their case that the loan payable by Corporate Debtor to the Appellant against disbursal of Rs.32.50 Crore stood discharged. The Adjudicating Authority, thus, erroneously relied on the said correspondence which is wholly irrelevant for proving any discharge of the loan amount.
There are no material to indicate that the loan which was disbursed by the DHFL to the Corporate Debtor was discharged at any point of time. The Adjudicating Authority committed error in refusing to admit the claim of the Appellant. Resolution Professional also did not correctly and properly look into the materials placed before it by the Appellant as well as the Ex-Director of the Corporate Debtor and erred in not verifying the claim of the Appellant.
The order passed by the Adjudicating Authority is unsustainable and deserved to be set aside - appeal allowed - decided in favor of appellant.
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2022 (9) TMI 1218
Oppression and Mismanagement - requisite shareholding to maintain the Petition, present or not - waiver of the shareholding requirements mentioned in Section 244 (1) (a) of the Companies Act, 2013 - Section 241 and 242 of the Companies Act, 2013 - seeking withdrawal of second waiver application - HELD THAT:- Admittedly, before passing of the impugned order, an opportunity of Hearing was given to the Appellants. In this connection, a cursory perusal of the ingredients of Rule 111 (1) of the NCLT Rules, 2016, Filing of objections by Respondent, Form and Consequences, unerringly points out that the Respondent, if so directed, shall file Objections or Counter within the time allowed by the Tribunal. In effect, the Tribunal has an inherent power while exercising its discretion not to direct the Respondent to file a Counter / Reply / Response in regard to the First Waiver Application, as opined by this Tribunal.
In the case on hand, under Section 241 of the Companies Act, 2013, there are no pending Proceedings before the Tribunal. Therefore, this Tribunal, safely, securely and in a cocksure fashion holds that the Appellant(s) cannot seek the aid / invocation of Rule 82 of the NCLT Rules, 2016.
There is no negation of the principles of natural justice, in as much as the impugned order was to allow a filing of Fresh Petition, as per the ingredients of Section 244 of the Companies Act, 2013, pertaining to the affairs of the Appellant’ (in Comp. App (AT) (CH) No. 54 of 2021) / ₹ 1st Respondent(Ambadi Investments Limited). It cannot be brushed aside that at the time of passing the impugned order, the First Waiver Application Viz. CP/29/CHE/2021 was pending and the Petition (filed under Section 241 of the Companies Act, 2013) was not to be numbered, till the time the Tribunal, permitted the CP/29/CHE/2021 (the First Waiver Application, under Section 244 of the Companies Act, 2013) - It cannot be gainsaid that the Prospective Company Petition of the Respondent Nos. 1 and 2 filed with the First Waiver Application (CP/29/CHE/2021) in the eye of Law, cannot be construed to be a Petition filed under Section 241 of the Companies Act, 2013 / or under the NCLT Rules, 2016, because of the Rule 29 of the NCLT Rules, 2016, which categorically enjoins that on admission of Appeal or Petition or Caveat Application, the same shall be numbered and registered in the appropriate Register maintained in this behalf and its number shall be entered therein.
There is no gain saying of the pivotal fact that Law does not coerce / force any Litigant to pursue the Litigation. In fact, in a Civil Suit / Civil Proceeding, a Plaintiff/ Petitioner is a Dominus Litis.
This Tribunal considering the divergent contentions advanced on either side, keeping in mind the facts and circumstances of the present case and also on going through the impugned order dated 29.09.2021 in MA(Comp. Act)/79/CHE/2021 in CP/29/CHE/2021, comes to a consequent conclusion that the views arrived at by the National Company Law Tribunal, Division Bench-I, Chennai, in permitting the Withdrawal of CP/29/CHE/2021 (First Waiver Application) on its file, dismissing the same as Withdrawn and taking the CP/95/CHE/2021 (Second Waiver Application) on its file, to take up the objections, if any, in relation to the Second Waiver Application at an appropriate stage, etc. are free from any legal flaws.
Appeal dismissed.
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2022 (9) TMI 1217
Approval of Resolution Plan - section 31 of IBC - HELD THAT:- Reliance placed in the BANK OF MAHARASHTRA AND ORS. VERSUS VIDEOCON INDUSTRIES LTD. AND ORS. [2021 (7) TMI 1292 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI], wherein the Hon’ble NCLAT had observed that Statutory compliances does not fall under the commercial wisdom of the CoC. Hence, the statutory compliances as mandated by proviso to Section 31(4), have to be ensured before the Resolution Plan is approved by CoC.
In the present case, it is clear that before approval of the Resolution Plan, all the compliances have to be met by the Resolution Applicants. At this stage the Resolution Plans are under consideration of the Committee of Creditors and no decision has been arrived at with respect to the approval of the Resolution Plans submitted by the Respondent Nos. 3, 4 and 5 respectively.
It is found that the Applicant is not affected merely by the submission of the Resolution Plans by the Respondent Nos. 3, 4 and 5 respectively.
Petition dismissed - List the main Company Petition on 31.10.2022.
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2022 (9) TMI 1216
Money Laundering - seeking grant of regular bail - sick and suffering from serious co-morbidities - commission of scheduled offences - generation, acquisition, layering and siphoning off the proceeds of crime - Section 45(1) of the PMLA - HELD THAT:- The proviso to Section 45(1) of the PMLA carves out an exception from the rigours of Section 45 for persons who are sick or infirm. Once a person falls within the proviso of Section 45(1), he need not satisfy the twin conditions under section 45(1).
Whether the applicant falls within the category of sick or infirm so as to grant him the benefit of the proviso to section 45(1) PMLA? - HELD THAT:- In view of the medical report, it leaves no room for doubt that the applicant is both, sick and infirm. He is functioning on 30% capacity of one kidney and the other kidney is dead. He requires constant monitoring otherwise his fluctuations can cause death. He has undergone multiple surgeries for removal of his large intestine, gall bladder, peptic ulcer, colostomy and even a hernia operation. He has a pacemaker installed due to his heart condition and is also suffering from Spondylitis and Vertigo. During his period in jail, the applicant contracted Syphilis on 27.10.2021 and Covid-19 on 17.01.2022. Out of the other ailments, only spondylitis and vertigo may be of lesser degree but all other medical conditions are serious and life threatening.
Whether the applicant suffers from a condition which cannot be addressed from the jail? - HELD THAT:- Prisons provide medical facilities but the services are not comparable to or equivalent to the level of treatment and care one can avail from private hospitals. The facilities in the jail are of a general nature and character which is inadequate to monitor proper health of the applicant who is suffering from multiple serious ailments. The jail is not equipped to provide special and intensive treatment and care that the applicant is in need of.
Though the medical report dated 24 May 2022 from Atal Bihari Vajpayee Institute of Medical Sciences states that the applicant is in a stable condition and no new ailments have been detected, the fact remains that the applicant is functioning on a single kidney which is only 30% functional and he has undergone major surgeries with respect to vital organs. Furthermore, during incarceration, the applicant contracted two more diseases viz., syphilis on 27.10.2021 and Covid-19 on 17.01.2022 - The fact that the applicant is suffering from these ailments from the year 2001 is also not of much help to the respondents’ as it is a given fact that ailments aggravate with age. In 2001, which is 21 years ago, the applicant would have been younger, healthier and in a better position to meet the requirements of his frail health. With age, the response, the resistance, the resilience and the capacity of the body to fight ailments and recuperate efficaciously, decreases. It is already discussed that ailments which, coupled with old age brings the applicant within the purview of “Infirm Person”. The level of care, attention, minute to minute monitoring, emergent response which the applicant can get from a hospital cannot be provided at the jail.
The Applicant continues to suffers from serious co-morbidities, including but not limited to a serious heart condition and a nonfunctional kidney, with the other working in a compromised position. Considering that the applicant is aged, sick and infirm, who is suffering from various complicated diseases, the application needs to be allowed - the bail application is allowed subject to conditions imposed.
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2022 (9) TMI 1215
Money Laundering - seeking grant of bail - allegations of money laundering pertain to the year 2011-2013; at that time, the petitioner's age would be around 15-17 years - petitioner had connection with the business's day-to-day affairs or not - HELD THAT:- Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail, subject to the following terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.
In the event of arrest, the petitioner shall be released on bail in the case mentioned above, subject to furnishing a personal bond of Rs. One lac only (INR 1,00,000/-), and furnishing one surety for Rs. Five lacs, to the satisfaction of the Trial Court - In the alternative, the petitioner may furnish a personal bond of Rs. One lac only, and hand over to the the attesting officer, a fixed deposit(s) for Rs. One lac only, made in favour of the Trial Court. Such Fixed deposits may be made from any of the banks where the stake of the State is more than 50%, or any of the well-established and stable private banks, with the clause of automatic renewal of principal, and the interest reverting to the linked account. Such a fixed deposit need not necessarily be made from the applicant's account.
Petition disposed off.
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2022 (9) TMI 1214
Money laundering - Seeking grant of bail - petitioner’s age at the time of commission of the present offence - case is that the accused Vikram Seth operated a few bogus entities in his name and also in the name of the family members - HELD THAT:- Given the petitioner’s age at the time of the offence and that he was a student at Jalandhar, coupled with the nature of allegations against him, there would be no justification to send the accused to pre-trial custody at the stage of framing of the charges.
In GURBAKSH SINGH SIBBIA VERSUS STATE OF PUNJAB [1980 (4) TMI 295 - SUPREME COURT] a Constitutional Bench of Supreme Court held that the bail decision must enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail.
The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative and stringent conditions - Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail, subject to the following terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.
In the event of arrest, the petitioner shall be released on bail in the case mentioned above, subject to furnishing a personal bond of Rs. One lac only, and furnishing one surety for Rs. Five lacs, to the satisfaction of the Trial Court - In the alternative, the petitioner may furnish a personal bond of Rs. One lac only, and hand over to the the attesting officer, a fixed deposit(s) for Rs. One lac only, made in favour of the Trial Court.
Petition allowed.
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2022 (9) TMI 1213
CENVAT Credit - agreement entered into by the noticee with their consignment stockist - sales promotion agreement or a commission agent agreement for sale of goods? - eligible input service or not - Explanation inserted by notification No. 02/2016-CE(NT) dated 03.02. 2016 into the definition of input service under Rule 2(l) of the CENVAT Credit Rules, 2004 is retrospective in nature or otherwise? - allegation against the respondent is that the commission paid to various parties was only for the purpose of procuring orders for the respondents and nothing more - Extended period of limitation - suppression of facts or not.
HELD THAT:- The basis for issuance of the show cause notice was the decision in the case of COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD – II VERSUS M/S CADILA HEALTH CARE LTD. [2013 (1) TMI 304 - GUJARAT HIGH COURT]. The said assessee was engaged in the manufacture of medicaments and had availed CENVAT Credit on service tax paid on the technical and analysis service, commission paid to the foreign agents, courier service etc. The revenue took a stand that CENVAT Credit of service tax paid on the above services is not admissible. Challenging the findings of the adjudicating authority, appeal was filed before the tribunal. Ultimately the matter travelled to the High Court. The High Court held that in the absence of any material on record, there is nothing to indicate that commission agent were involved in the activities of sales promotion and that the claim of the assessee was accordingly rejected. Thus, the Court took note of the factual position in the case that there was nothing to indicate that the commission agents were involved in the sales promotion activities, contrary to the case on hand where agreements were produced before the authority to show what is the nature of services rendered by those commission stockists.
Firstly, the decisions of one other High Court in all cases will not bind another High Court and such decisions were held to be of persuasive value. In any event on facts in Cadila Health Care Limited, the Court found no material on record to indicate that commission agents were involved in the activities of sales promotion - Further it is seen that the commission paid by the respondent to the commission stockist is included in the assessable value of the goods on which excise duty has been paid by the respondent on the final products namely carbon black. In fact, this has been noted by the adjudicating authority.
Extended period of limitation - suppression of facts or not - HELD THAT:- The respondent had also resisted the show cause notice by contending that extended period of limitation could not have been invoked. On plain reading of the show cause notice, it is clear that except for the use of the word “suppression of material facts”, that there is nothing on record to indicate as to on what basis the adjudicating authority invoked the extended period of limitation. More so, when the assessee had disclosed all the materials in their returns and the assessee was also subjected to audit earlier and there was no objection raised by the audit department. Therefore, on the said ground also the assessee is entitled to succeed.
The appeal filed by the revenue is dismissed and the substantial questions of law are answered against the revenue.
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2022 (9) TMI 1212
Rejection of de-sealing of the machine and DG sets - non-filing of fresh declaration in compliance with Trade Notice 04/2020-2021 dated 18.01.2021 - HELD THAT:- The contents of the Panchnamas filed as Annexure-P/1 to P/4 along with the writ petition clearly reveal that these panchanamas were pasted at the front gate of the factory premises. The security guard was also present at the time of the search therefore, it cannot be believed that the petitioner did not know about these searches. Even otherwise, after a lapse of two years challenging the panchanamas is of no consequence when show cause notice has been issued to the petitioner. The petitioner may raise all the available grounds in reply to the show cause notice before the adjudicating authority.
Shri Malhotra learned Counsel for the petitioner has failed to point out any prejudice caused to the petitioner for the aforesaid searches on various dates which have culminated into the issuance of show cause notice. Panchanamas are part of the search and investigation in the factory of the petitioner. The petitioner will have a complete opportunity to dispute the contents of the panchanamas in the adjudicating proceedings.
Petition dismissed.
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2022 (9) TMI 1211
Reversal of CENVAT Credit - breakage of glass beverage bottles - recovery of excise duty in respect of these breakages treating them as finished goods beverages, along with interest and penalty - HELD THAT:- The present case is not in respect of the loss of goods during storage or transportation but is case of the demand of the duty in respect of the breakages of glass bottles during storage and handling. Further the issue is with regards to applicability of the Circulars of 1971 and 1975 to determine whether the breakages was within the prescribed limit. Since the issue in our view is not covered by the above provision of the section 35 B of the Central Excise Act, 1944 the objection raised by the authorized representative cannot be sustained.
The reliance placed by the Commissioner (Appeal) on the Circular dated 09.07.2010 to decide the issue against the appellant for the period prior to issuance of the said circulars is contrary to the fact that during the period of dispute there were two circulars of 1971 and 1975 which have been followed by the appellant. It is not even stated in the impugned order that these two circulars were not applicable to the appellant. It is also noted that the MODVAT credit scheme was introduced in the year 1986 and CENVAT credit scheme is refined form of the said scheme. These circulars continued to hold field throughout till 09.07.2010. Observations made by the Commissioner (Appeal) in para 8 of the impugned order cannot be sustained for this simple reason.
It is noted that substantial compliance with the circular of 2010 has been made by the appellant by reversing the CENVAT Credit on the inputs used in respect of the finished goods contained in the breakages. Thus, taking the note of the reversal made, the impugned order cannot be sustained.
Appeal allowed - decided in favor of appellant.
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2022 (9) TMI 1210
Clandestine removal - MS Ingots - shortage of 623.275 M.T. of Ingots - statements were made voluntary or it was made under threat - reliability of panchnamas - pen drive is admissible evidence or not - mandatory procedure prescribed under section 36B, followed or not - HELD THAT:- When the statutory procedure was not followed, the pen drive is not admissible in evidence.
Reliability of panchnamas - Stand taken is that Panch witnesses were not residents of the area and, therefore, the Panchnama itself was not proper - HELD THAT:- On a specific enquiry from the bench as to whether this issue was raised before the Original Authority in the reply to the show cause notice or during personal hearing, learned Counsel for the appellant showed us the reply dated 15.05.2018 to the show cause notice filed by the appellants before the Commissioner. The reply shows that the question of the address of the Panch witnesses was not raised before the Original Authority. Further, the Panch witnesses could have recorded their permanent addresses in the Panchnama and unless it was alleged that they were not residents of the area, and an opportunity was given to the department, the appellant cannot be permitted to raise this issue at this stage.
Demand of Rs. 18,72,41,951/- made on the basis of the documents which were resumed as well as some demands raised on the basis of evidence in the Pen drive - HELD THAT:- Since the amount covered in the Pen drive was larger, they have been reckoned to subsume the demands raised on the basis of other documents which were resumed. Since it is found that as the mandatory requirement under Section 36B of the Central Excise Act was not followed in this case, the Pen drive cannot be taken as evidence, the Original Authority should be given an opportunity to examine the demands in respect of the other documents resumed de-hors the data derived from the Pen drive and determine, whether any duty liability can be sustained.
The Adjudicating Authority should consider the documents, which were resumed and examine whether the said proposed demand can be confirmed on their basis - matter remanded to the Adjudicating Authority to decide the matter afresh ignoring the evidence in the Pen drive.
Appeal allowed by way of remand.
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2022 (9) TMI 1209
Additional levy of tax on supply of cement to the contractor by the Assessee - Sale of Cement - point of sale - HELD THAT:- It is an admitted fact that Tata Steel Ltd. purchased cement after paying tax, which was leviable at first point of tax and supplied the same to its contractor for executing works in its behalf and has, admittedly, deducted the amount towards supply of cement from the bills of the Contractor - Thus, in view of the ratio of the Judgments laid down by the Hon’ble Apex Court in the cases of NM GOEL AND COMPANY VERSUS SALES TAX OFFICER, RAJNANDGAON [1988 (10) TMI 106 - SUPREME COURT], and RASHTRIYA ISPAT NIGAM LTD. VERSUS STATE OF ANDHRA PRADESH [1998 (2) TMI 480 - SUPREME COURT], there is no dispute on the proposition that transaction of supply of cement by the Assessee to its contractor and recovery of the amount from bills of the contractor would amount to second sale of cement by the Assessee to its contractor. In fact, Respondent-Tata Steel Ltd. has not joined issues on said proposition of law and has accepted said proposition of law.
In the entire writ application, no dispute is raised that cement is leviable at first point of sale and tax has already been paid on such cement - on examination of provisions of Section 11 of the Bihar Finance Act, 1981 and the relevant Notification dated 26th December, 1977. Section 11 of the Bihar Finance Act, 1981 enables the State Government to prescribe point or points in the series of sales at which the sales tax shall be levied. Admittedly, in exercise of the said power, sales tax was levied on cement only on the first point of sale, and, any subsequent sale of cement was not leviable to tax.
It is declared that although transaction of supply of cement by Assesse-Tata Steel Ltd. to its contractor and recovering the amount from bills of the contractor would amount to second sale of cement, the same would still not be subjected to levy of tax on the second sale, as, admittedly, cement was levied to tax only at the first point of sale and, admittedly, tax on such cement has duly been discharged by the assesse-Tata Steel Ltd.
There are no merit in the writ application and the same is dismissed.
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2022 (9) TMI 1208
Dishonor of Cheque - insufficiency of funds - fading of the ink of the signatures - whether the cheque were not signed at the time of filling up of the contents of the pro-notes and cheques? - HELD THAT:- It is pertinent to note that as per the directions of the learned Single Judge in A. INAYATHULLAH VERSUS A. RAMESH [2015 (1) TMI 1482 - MADRAS HIGH COURT], the Assistant Director appeared before the Court and informed that there is no scientific method available anywhere in this State, that there is one institution known as Nutron Activation Analysis, BABC, Mumbai, where there is facility to find out the approximate range of the time, during which, the writings would have been made and he submitted that even such opinion cannot be exact. He further submitted that the said Nutron Activation Analysis is confined only to atomic research, the documents relating to prosecutions and other litigations cannot be sent to that institution.
This Court in KANAGARA VERSUS RAMAMOORTHY [2021 (10) TMI 1365 - MADRAS HIGH COURT] has observed that it is very much clear that there is no mechanism or scientific method to find out the age of the writing or ink. But the learned Additional District Judge, without considering the non-availability of any such mechanism, by simply observing that the defendant has to be given an opportunity to prove his defence and no prejudice would be caused to the plaintiff, allowed the petition. Hence, this Court has no hesitation to hold that the impugned order is not good in law and the same is liable to be set aside.
The impugned order, dismissing the petition filed by the accused cannot be found fault with and consequently, this Court concludes that the above Criminal Revision Petition is devoid of merits and the same is liable to the dismissed - this Criminal Revision Petition is dismissed.
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2022 (9) TMI 1207
Legality and validity of the notification dated 11.06.2020 issued by the Ministry of Environment, Forest and Climate Change - advisory for dealing with import of exotic live species of animals and birds in India and declaration of stock - HELD THAT:- The judgment of the Allahabad High Court in DINESH CHANDRA VERSUS U.O.I. THRU. ADDL. PRIN. CHIEF. CONSERVATOR OF FOREST & OTHERS [2020 (7) TMI 750 - ALLAHABAD HIGH COURT] is a complete answer to the present PIL filed by the petitioner. Any interpretation to the contrary as suggested by the petitioner would defeat the very object of the Advisory. Once a declaration within the window of six months as provided under the Advisory is made, the exotic live species, including its progeny, the declarant or transferee(s) are fully exempt from explaining the source of exotic live species. The exotic live species which is declared or its progeny, are not liable to confiscation or seizure by any Central Agency or State Agency. Consequently, the declarant or the transferee(s) of such declarant will be immune from prosecution under any civil, fiscal and criminal statute by any Central or State Agency. Any other interpretation would lead to absurdity.
However, any declaration made after the expiry of the window under the Advisory shall carry no such exemption and the declarer shall have to comply with all requisite documentation under the extant laws and regulations.
Writ petition is dismissed.
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2022 (9) TMI 1206
Seeking grant of Anticipatory Bail - Online interrogation by the proper officer - section 70 of GST Act - HELD THAT:- The impugned order passed by the High Court deserves to be partly modified in the following terms:
(i) Respondent Nos.1-7 (except respondent No.2, who is stated to be 92 years’ old) will join the enquiries-cuminvestigation in-person as and when required;
(ii) If respondent No.2 is also required to join enquiry, it is directed that keeping in view his age, he shall be permitted to do so through online mode as already directed by the High Court;
(iii) Respondent Nos.1-7 undertake not to seek refund of Rs.28 crores from the appellants pending enquiry under Section 70(1) of the GST Act, and the refund of the said amount will depend upon the final outcome of the abovestated enquiry;
(iv) For the balance amount of Rs.6 crores, respondent Nos.1-7 shall execute an indemnity bond within two weeks.
Appeal disposed off.
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