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Showing 461 to 480 of 1740 Records
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2019 (9) TMI 1283
Smuggling - Betel Nuts - Provisional release of seized goods - N/N. 9/96 (NT) – Cus, dated 22.01.96 issued under Section 11 of the Customs Act, 1962 read with Section 3(2) of the Foreign Trade (Development and Regulation) Act, 1992 - HELD THAT:- In the present case, since the Food Laboratory Report has found that the Betel Nut are not fit for human consumption, in the opinion of this Court, no fault may be found with the rejection of the request of the petitioners for grant of release.
Sustainability of seizure - Learned counsel for the Union of India, Department of Customs has submitted that the developments so far may persuade this Court not to interfere with the seizure at this stage when the matter is still under investigation and a complete view may be taken as regards the foreign origin after obtaining a report from the accredited lab - HELD THAT:- This Court is of the considered opinion that in the given facts and circumstances of the case, where the matter is still under investigation and even some accredited labs have come into existence, this Court need not interfere with the seizure of the Betel Nuts at this stage and this issue be kept open for consideration at appropriate stage after the investigation is over and the respondents receive a report as regards the country of origin from an accredited lab within a period of three months by following the established procedures.
Application dismissed.
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2019 (9) TMI 1282
Valuation of imported goods - necessary software had to be embedded in the equipment - cost of post import services - rejection of declared value - Classification with reference to Note 4 to Section XVI of the First Schedule - Rule 10A of the erstwhile Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 - inclusion of cost of services - Rule 9(1) (e) (adding cost of services) of the erstwhile Custom Valuation (Determination of Price of Imported Goods) Rules, 1988 - provisional assessment not finalised - HELD THAT:- It is a matter of record that after considering the purchase order in the instant case, the Tribunal found that apart from supply of equipment, necessary software had to be embedded in the equipment before the supply was effected. The facts also disclose that out of 19 items indicated in the Bill of Entry, only 8 items were physically presented while the rest were already embedded in the main unit. These facts are not only reflective that the individual components were intended to contribute together and attain a clearly defined function as dealt with in Note 4 of Section XVI as stated above, but also indicate that software that was embedded through cards in the main unit, was not any post-importation activity. The value of the software and the concerned services were therefore rightly included and taken as part of the importation.
The facts on record as stated above further disclose that the Department was therefore right in invoking principle under said Note 4 and considering the imported items as part of one apparatus or machine to be classifiable under the heading appropriate to the function. The submission advanced by the Appellant in that behalf therefore has to be rejected.
Even if the governing rule is taken to be Rule 9 of 1988 Rules, there would be no difference in the ultimate analysis.
Appeal dismissed.
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2019 (9) TMI 1281
Seizure and recovery of Contraband - poppy straw - Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - only two samples packets and one bag of poppy straw weighing 2.5 kg were produced and exhibited while the entire contraband material was not produced and exhibited.
Whether the cases relied upon by the High Court state in unequivocal terms that in case of failure to produce the contraband material before the Court, the case of the prosecution is required to be discarded or not?
HELD THAT:- Reliance placed in the case of JITENDRA & ANR. VERSUS STATE OF MP. [2003 (9) TMI 709 - SUPREME COURT] relying on which the benefit of doubt was given and the accused was acquitted.
The evidence of PW15 Surender Singh shows that from and out of 7 bags of poppy husk, samples weighing about 500 grams were taken out of each bag. Out of these 3500 grams thus taken out, two samples of 500 grams were independently sealed while rest 2500 grams were also sealed in a separate pouch. These samples were marked A, B and C respectively. The bags were also independently sealed and taken in custody and Exbt-5 seizure memo which recorded all these facts was also signed by the accused.
Cross-examination of witnesses - HELD THAT:- At no stage even a suggestion was put to the witness that either the signatures of the accused were taken by fraud, coercion or mis-representation or that the signatures were not of the accused or that they did not understand the purport of the seizure memo. It would therefore be difficult to even suggest that the seizure of contraband weighing 223 kgs was not proved by the prosecution - In our view this fact stood conclusively proven.
The conclusion drawn by the High Court was completely unsustainable and the High Court erred in extending the benefit of acquittal to the respondent - the view taken by the High Court is set aside and the order of conviction as recorded by the trial court against the respondent in its judgment and order dated 01.08.2015 is restored - appeal allowed.
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2019 (9) TMI 1280
Detention of goods alongwith vehicle - In the detention order, the said Officer has stated that the driver as well as the authorised person is not present. - It was submitted that the detention of the goods of the petitioner which were being transported duly in accordance with law and were accompanied by a valid invoice and e-way bill is without authority of law - HELD THAT:- Issue Notice returnable on 30th September, 2019.
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2019 (9) TMI 1279
Issues:
Provisional attachment of bank account under section 83 of the Goods and Services Tax Act, 2017.
Analysis:
The petitioner's advocate highlighted the provisional attachment of the bank account under section 83 of the Goods and Services Tax Act, 2017, along with the notice issued under rules 100(2) and 142(1)(a) of the Goods and Services Tax Rules on 21.6.2019. The advocate argued that despite the petitioner's explanation of the suspicious transaction, the attachment of the bank account continued. The petitioner, an established company, regularly paid its tax dues and was not a fly-by-night operator. The advocate contended that attaching the bank account based on initiated proceedings was unjustified.
Upon considering the submissions, the court issued a notice returnable on 1st October, 2019, based on the arguments presented by the petitioner's advocate. Direct service was permitted on the same day as the court acknowledged the seriousness of the matter. The court's decision to issue a notice indicates a willingness to delve deeper into the circumstances surrounding the provisional attachment of the petitioner's bank account, suggesting a potential review of the justification for such drastic action.
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2019 (9) TMI 1278
Release of seized goods alongwith the truck - section 130 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- The second respondent is directed to forthwith release truck No. GJ-04-X-8728 along with the goods contained therein subject to the final outcome of the present petition.
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2019 (9) TMI 1277
Seizure of vehicle and two phones of petitioner - sub-section (2) of section 67 of the Central Goods and Services Tax Act/ Gujarat Goods and Services Tax Act, 2017 - HELD THAT:- Issue Notice to the newly joined respondent to explain as to under what circumstances and in exercise of which powers he has issued the impugned order dated 25.10.2018, returnable on 10th October, 2019.
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2019 (9) TMI 1276
Seizure of vehicle alongwith the goods - failure to generate E-way bill - section 130 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- The court is of the opinion that the petitioner may respond to the notice issued under section 130 of the CGST Act and submit its response thereto. It appears that the petitioner has already given a reply dated 19.09.2019, Annexure 'F' to the petition. Nonetheless, if the petitioner is desirous to make any further submissions, he may appear before the second respondent on 04.10.2019.
The petition is partly allowed with a direction to the second respondent to forthwith release the truck along with the goods contained therein as the petitioner has already paid the amount of tax and penalty, subject to the final outcome of the proceedings under section 130 of the CGST Act and under other relevant statutory provisions.
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2019 (9) TMI 1275
Maintainability of appeal - Appropriate forum - Applicability of N/N. 108/95-CE dated 28.08.1995 - HELD THAT:- The applicability of N/N.108/95-CE dated 28.8.1995 is subject matter of the appeal. Such notification has a direct bearing on the determination of the rate of duty for the purposes of assessment. Under the circumstances, in the light of the provisions of section 35G read with section 35L of the Central Excise Act, 1944, these appeals are not maintainable before this court.
The appeals are disposed of as not being maintainable.
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2019 (9) TMI 1274
Release of seized imported goods - Mini Booster Pump - rejection of declared value - HELD THAT:- The respondents should assess the duty payable on the goods after examination of the consignment, and since the petitioner has expressed his willingness to deposit the redemption fine and penalties at the time of clearance, without prejudice to its rights and contentions, we see no impediment in the said assessment being undertaken by the respondents for clearance of the goods.
Petition disposed off with a direction to the respondents to make a fresh assessment of the duty payable by the petitioner.
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2019 (9) TMI 1273
Smuggling - Brown Colored Powdery Substance - Section 67 of NDPS Act - acquittal of accused - Testing of samples - HELD THAT:- It is pertinent to mention here that it is the duty of the courts, in the interest of justice, to understand that why the fresh samples were drawn on a date which was not in the knowledge of the petitioner/accused. Thus, raising a doubt on the entire process and bonafide case of the prosecution and that such discrepancy and illegality would ultimately result into the acquittal of the accused and therefore, there is no purpose of charging the accused and exposing them to the further harassment of trial which they have been facing since 03.12.2010.
The order on charge dated 04.08.2017 is hereby set aside and the petitioners are discharged from the offences - petition is accordingly allowed with costs of ₹ 50,000/- to be paid by the Respondent in favour of ‘Delhi High Court Legal Services Authority’ within 2 weeks from today, failing which, the Registrar General of this court shall ensure the recovery of the cost amount as per law.
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2019 (9) TMI 1272
Exemption claimed u/s 10(25)(iii) - approved superannuation fund - Approval and withdrawal of approval - the assessee is registered u/s 10(23AAA) as well as under Section 12A - HELD THAT:- Requirement of renewal of such approval granted by the concerned authority to the said Trust Fund, which is entitled to exemption under Section 10(25)(iii) of the Act. Therefore, this contention of the learned counsel for the Revenue is absolutely misplaced. There is no dispute that the assessee held this approval for the assessment period in question, viz., assessment years 2001-02 and 2003-04.
The Tribunal has found that the assessee had already obtained approval under Section 10 (23AAA) of the year 1996 and registration under Section 12(A) of the Act subsequently and therefore the entire income would be exempted under Section 10(25)(iii) of the Act. The learned Tribunal, in our opinion, was justified in upholding the exemption in favour of the assessee irrespective of the fact that the provision of the law, under which exemption was quoted, was not correctly mentioned by the assessee.
No justification for referring to the provisions under Section 10(23AAA) of the Act in this case. The provisions of Section 10(25)(iii) of the Act, under which the assessee claimed exemption in question, is clearly applicable to the approved superannuation fund and the assessee's Trust fund was duly approved by the competent authority in the present case. - Decided in favour of assessee.
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2019 (9) TMI 1271
Capital gain u/s 45(4) in partnership firm on retirement of a partner - dissolution/reconstitution of partnership firm - valuation of the assets and liabilities of the firm and allottment of assets among the retiring and continuing partners took place - reconstitution of a Partnership Firm, the asset transferred to the outgoing partner or amount paid to him attracts capital gains tax liability in the hands of the assessee/Partnership Firm or not in terms of Section 45(4) - HELD THAT:- As M/S. NATIONAL COMPANY VERSUS THE ASSISTANT COMMISSIONER OF INCOME TAX BUSINESS CIRCLE – I [I/C] CHENNAI [2019 (5) TMI 354 - MADRAS HIGH COURT] there was only a reconstitution of the partnership firm by retirement of two partners and admission of another partner. The partnership firm continued. It must also be further noted that the assets of the firm originally belonged to the father of the retiring / continuing partners and there was only a division of the assets on retirement in accordance with their entitlement on the shares in the partnership.
As pointed out earlier, the National Company was originally a sole proprietorship concern started by N.Munuswamy Mudaliar. It was in the business of construction and assets had been acquired even at that particular point of time. The two daughters and two sons-in-laws of N.Munuswamy Mudaliar were subsequently admitted as partners and on division of the assets, it can also be arguably pointed out that one daughter and one son-in-law were allotted a share which they were otherwise legally entitled to out of the holdings N.Munuswamy Mudaliar.
We hold that the provisions of Section 45(4) would not be attracted on the retirement of the two partners and consequential allotment of their share in the assets in the Assessee Firm. We therefore answer the substantial question of law in favour of the Assessee and against the Revenue.
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2019 (9) TMI 1270
Rejection of books of accounts u/s 145 - Tribunal held that in the absence of any defect being pointed out in the records, the invocation of Section 145(3) was not proper - HELD THAT:- Tribunal found in the impugned order that the invocation of section 145(3) of the Act is unjustified as no defect was noted in the books of accounts to disregard the same. CIT(A) in his order while rejecting the Books of Account does not specify the defect in the record. The basis of the rejection appears to be best judgment of assessment done by him. The rejection of books should precede the best judgment assessment. On facts, the Revenue has not been able to show any defect in the Respondent’s records which would warrant rejection of books and making a Best Judgment Assessment. Thus, on facts the view taken by the Tribunal is possible view
Suppression of Sales - ITAT deleted the addition - HELD THAT:- Revenue has not made any reference even remotely that the Respondent had received amounts in excess of that shown in the agreements in respect of twelve flats which is not being accepted. The entire case of the Revenue is merely on suspicion. It is not the case of the Revenue that the Respondent made secret profits out of sale of the twelve flats. - Decided in favour of assessee.
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2019 (9) TMI 1269
Penalty u/s 271D and 271E - violation of Sections 269SS and 269T - repeated mistake - penalty for earlier years was dropped - HELD THAT:- Imposition of penalty depends upon the facts and circumstances of each case and if the Assessee can put forth a reasonable cause for accepting the deposits in cash then, such circumstances can be considered by the Assessing Authority to waive or reduce the penalty in question. In similar circumstances and for the same Assessee, the Assessing Authority himself entirely waived off the penalty for the preceding Assessment Year 1999-2000 Tribunal, in our opinion, fell in error in upholding the imposition of penalty by just observing that the Assessee ought not have repeated such a mistake and ought to have done the transaction only through Bank which method, in fact, as the learned counsel for the Assessee submitted, was adopted on 31.8.2001 on which date, the Bank Account was opened by the Assessee and therefore, it is only for this Assessment Year 2000-2001 which stands out and in respect of which the present Appeals are concerned.
The law laid down in the decision of Vasan Healthcare (P) Ltd. v. Additional Commissioner of Income-tax, Chennai Range-2, Chennai [2019 (2) TMI 1000 - MADRAS HIGH COURT] is not applicable to the present case as the facts of the judgment in that case are distinguishable as there was no such fact of dropping penalty proceedings in the preceding year in that case.
We are, therefore, inclined to take a lenient view in favour of the Assessee in the facts and circumstances of the case and are inclined to allow the present Appeals in favour of the Assessee on the ground that the for the preceding Assessment Year viz., 1999-2000, on the same set of facts and circumstances, the Assessing Authority himself dropped the penalty proceedings in question. - Decided in favour of assessee.
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2019 (9) TMI 1268
Grant of regular bail - fraudulent availment and utilization of Input Tax Credit (ITC) - Section 68 of CGST Act, 2017 - HELD THAT:- This Court is of the considered view that though the petitioner is in custody since 4.7.2018, but taking into account the fact that the petitioner is involved in a case involving fraud of ₹ 19.50 Crores and the alleged offence is an ecnomic offence which requires to be dealt with seriously and mere long custody would not be a ground for releasing him on bail.
Similar matter was also before Hon’ble Apex Court inY.S. JAGAN MOHAN REDDY VERSUS CENTRAL BUREAU OF INVESTIGATION [2013 (5) TMI 896 - SUPREME COURT], wherein it was observed that bail should not be granted in such like cases of economic offences merely on the ground that the accused was in the jail for a period of one year.
Petition dismissed.
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2019 (9) TMI 1267
Refund of excess duty paid - provisional assessment sought for many years, but not done - CBEC No. 619/10/2002 dated 19.02.2002 - Extended period of limitation - HELD THAT:- It can be seen that the Circular though provides for finalization of values at a later date, essentially suggests provisional assessment in such cases. The appellants contend that they have approached the jurisdictional authorities for provisional assessment on a regular basis over the years. However, their request was not exceeded to by the authorities. Whatever be the Department’s reason for not accepting provisional assessment, the ratio of the Circular would not be applicable to the appellants.
Extended period of limitation - HELD THAT:- As the assessments were not provisional, the Department was not barred from issuing a demand for normal period. Consequentially, the Circular is not applicable to the instant case and the demand is sustainable for the normal period.
Adjustment of duty excess paid and short paid - HELD THAT:- We find that as there is no such provision in law, we cannot extend any such relief.
The Department as a case on merits and the appellants are liable to pay duty for the normal period - the case remanded to the Original Authority to compute the demand for normal period which shall be paid by the appellants - appeal allowed partly by way of remand.
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2019 (9) TMI 1266
Refund of SAD - N/N. 102/2007-Cus. dt. 14.09.2007 read with Notification No.93/2008 dt. 01.08.2008 - rejection of refund on the ground that the appellants have filed all these refund claims after the period of one year - Difference of opinion among various High Courts - HELD THAT:- The provisions for refund of Customs duty available under the Customs Act is under Section 27.
The Hon’ble High Court of Delhi in the case of SONY INDIA PVT. LTD. VERSUS THE COMMISSIONER OF CUSTOMS [2014 (4) TMI 870 - DELHI HIGH COURT] has taken a liberal view on interpreting the exemption notification and held that since the purpose of availing the SAD is to provide level playing field between the imported goods and the domestic goods, when the imported goods are resold on payment of VAT to the State Government, the exemption notification provides for refund of SAD. It may or may not be always possible for the importer to resell the goods and file the refund claim within time depending on his market conditions. Taking a liberal view, the Hon’ble High Court held that refund is available without the limitation of one year indicated in the exemption Notification 102/97 after amendment.
On the other hand, the Hon’ble Bombay High Court in the case of M/S. CMS INFO SYSTEMS LIMITED VERSUS THE UNION OF INDIA & OTHERS [2017 (1) TMI 786 - BOMBAY HIGH COURT] has constructed the exemption notification strictly and held that all conditions including the time limit within which the refund claim has to be filed must be fulfilled. We also find that there is no order of the jurisdictional High Court of Madras.
Judicial discipline requires us to follow the judgment of the Apex Court and interpret the exemption notification strictly as it has been drafted including the time limit within which refund applications have to be filed. We find that the judgment of the Hon’ble High Court of Bombay in the case of CMS INFO System (supra)M/S. CMS INFO SYSTEMS LIMITED VERSUS THE UNION OF INDIA & OTHERS [2017 (1) TMI 786 - BOMBAY HIGH COURT] is consistent and appropriate, syncs well with the ratio of COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI VERSUS M/S. DILIP KUMAR AND COMPANY & ORS. [2018 (7) TMI 1826 - SUPREME COURT], which is required to be followed.
The refund applications of the importer beyond the time limit have been correctly rejected by the lower authorities - Appeal dismissed.
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2019 (9) TMI 1265
Maintainability of petition - Initiation of CIRP - aggrieved person - Corporate Debtor defaulted in payment of financial debt - Section 7 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The ‘Loan Agreement’ dated 24th September, 2015 which was reached between ‘Odisha Slurry Pipeline Infrastructure Limited’- (‘Corporate Debtor’) and ‘IDBI Bank Limited’ also show that a sum of ₹ 400 Crores was borrowed by the ‘Corporate Debtor’ from ‘Financial Creditor’. The terms of repayment have been shown therein. Admittedly, the ‘Corporate Debtor’ has failed to pay the debt - This apart, curiously, the Promoters/ Directors of the ‘Odisha Slurry Pipeline Infrastructure Limited’- (‘Corporate Debtor’) who are aggrieved parties have not preferred any appeal under Section 61 of the ‘I&B Code’. One of the ‘Financial Creditors’, namely- ‘SREI Multiple Asset Investment Trust’ has challenged the order of admission under Section 7 who cannot be held to be an aggrieved person.
No case has been made out by the Appellant - appeal dismissed.
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2019 (9) TMI 1264
Addition on stock difference or understatement of sundry debtors - assessee has over stated the values by inflating the unit rates to increase the value of closing stock to the bank, but the quantity remained the same - HELD THAT:- Value of the stock declared in the books of accounts is as per the purchase bills and correctly reported. There was no difference in physical stocks declared to the bank and accounted in the books of accounts. The value of closing stock declared in the books of accounts was duly supported by the purchase bills. We also observe that the sundry debtors were also correctly reported and grouped in the books of accounts and no other evidence was brought on record by the department to controvert the above findings. The department did not make out a case of unaccounted stock or the suppression of trade debtors.
The facts of the assessee’s case are similar to the decision of M/S. SRI TARAKA JEWELLERS, NEW PARKASHAM BAZAR, NALGONDA [2013 (7) TMI 1091 - ANDHRA PRADESH HIGH COURT] and the decision of this Tribunal in the case of Thatavarthi Ramesh Babu [2017 (12) TMI 577 - ITAT VISAKHAPATNAM] . Therefore, respectfully following the view taken by Hon’ble High Court and the ITAT, we hold that there is no reason for making the addition on stock difference or understatement of sundry debtors, hence, we set aside the order of the Ld.CIT(A) and delete the addition made by the AO. - Decided in favour of assessee.
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