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2020 (10) TMI 1306 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI
Liquidation of corporate Debtor - allegation is that sole creditor constitutes the Committee of Creditors and the decision taken to liquidate the Corporate Debtor is vindictive and malafide - HELD THAT:- Keeping the fact that the Corporate Debtor intends to settle with the Creditors, the instant appeal is dismissed with observation that the dismissal this appeal shall not preclude the Corporate Debtor from advancing proposal or floating a scheme/ settlement in terms of aforesaid provision.
The appeal is dismissed.
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2020 (10) TMI 1305 - NATIONAL COMPANY LAW TRIBUNAL, DELHI
Approval of Resolution Plan - Sections 31 (1), 60 (5), of the Insolvency and Bankruptcy Code, 2016, R/w Regulation 39 of the Insolvency and Bankruptcy Board of India (CIRP) Regulations, 2016 - HELD THAT:- All necessary compliances are made - Resolution Applicant has submitted an Affidavit stating that he is not disqualified under the provisions of Section 29A.
The Resolution Plan provides payment of the CIRP Cost, in priority to the payment of other creditors (secured or unsecured), operational creditors, and workmen for employees on approval of the Plan by CoC. The CIRP Cost shall be included in the price offered for the other stakeholders. The payment of CIRP cost shall be made to the Resolution Professional within 30 days from the date of approval of the Resolution Plan by this Authority - The Resolution Plan provides for the payment of ₹ 50 Lakhs to the Operational Creditor - there is no dissenting Financial Creditor. The Resolution Plan provides for reconstitution of the board of the Corporate Debtor for managing its affairs.
The Resolution Plan provides that the implementation of the plan shall be jointly supervised by the Monitoring Committee - The Resolution Plan fulfils all the condition prescribed under Regulation 38(3) - the Resolution Applicant has paid 5% of the Resolution Plan amount through Demand Draft - As per the CoC, not required.
The "Resolution Plan" is hereby approved which shall be binding on the Corporate Debtor and its employees, members, creditors, guarantors, statutory authorities and other stakeholders involved in the Resolution Plan including the Resolution Applicant - While approving the Resolution Plan, as mentioned above, it is clarified that the Resolution Applicant shall pursuant to the Resolution Plan approved under Section 31(1) of the IBC, 2016, obtain all the necessary approval as may be required under any law for the time being in force within a period of one year from the date of approval of the Resolution Plan by this authority or within such period as provided for under such law - the order of moratorium passed by this Adjudicating Authority under Section 14 of the IBC, 2016 shall cease to have effect from the date of passing of this Order.
Application allowed.
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2020 (10) TMI 1304 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Permission for withdrawal of appeal - HELD THAT:- There are no observations in regard to the conduct of Appellant – Resolution Professional which can be said to be casting any stigma on his conduct as Resolution Professional warranting consideration for expunction of such remarks. At this stage, learned counsel for the Appellant offered to withdraw the appeal.
Appeal is dismissed as withdrawn.
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2020 (10) TMI 1303 - NATIONAL COMPANY LAW TRIBUNAL, INDORE BENCH AT AHMEDABAD COURT
Claim of refund from Income Tax Department - HELD THAT:- It is not within the jurisdiction to direct Income Tax Department to give refund. We direct the liquidator to approach proper authority.
Application is not maintainable and stands disposed-off.
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2020 (10) TMI 1302 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - default of payment of amount on the basis of Settlement Agreement - whether the amount, which the petitioner claimed as a defaulted amount comes under the definition of Financial Debt or not? - HELD THAT:- Mere plain reading of the provisions shows that the debt means a liability or obligation in respect of a claim, which is due from any person and includes a financial debt and operational debt and when we shall read the definition of debt and financial debt together then we may say that of course, the debt includes the Financial Debt and Operational Debt but all the debts are not Financial Debt or Operational Debt, only debt defined under Section 5(8) of the IBC, comes under the definition of Financial Debt and debt defined under Section 5(21) of the IBC comes under the definition of Operational Debt.
The case of the Petitioner is based upon the Settlement Agreement and, the Petitioner herself admits this fact that the Petitioner is no longer a unit buyer as the unit stands withdrawn by issuance of the refund cheques, therefore, in the light of that fact, which the Petitioner has mentioned in her application, when we shall consider the definition of Financial Debt as defined under Section 5 (8) of the IBC, 2016 then it can be said that any amount raised from the Allottee under a Real Estate Project shall be deemed to be an amount having the commercial affect of a borrowing. Since the Applicant herself admits this fact that she is no longer Allottee, therefore, the amount, which the Applicant has invested does not come under the definition of Section 5 (8)(f) of the IBC, 2016, and if the amount invested by the Petitioner does not come under the definition of Financial Debt then the Petitioner cannot be treated as a Financial Creditor under Section 5 (7) of IBC, 2016.
Whether the applicant claims herself a Financial Creditor under Section 5(8) on the basis of a Settlement Agreement or not? - HELD THAT:- It is the settled principle of law that the NCLT is not a recovery court rather when a default of financial debt or operational debt occurred, in that case, the financial creditor or the operational creditor may file an application for initiating the CIRP under Section 7 or Section 9 of the IBC respectively and in the light of the facts, the case in hand is considered, it is concluded that the settlement agreement on the basis of which, the present application is filed by the applicant does not comes under the definition of Financial Debt.
The Applicant is not the Financial Creditor under Section 5 (7) of the IBC, 2016 and the amount, which the applicant has invested is not a Financial Debt under Section 5(8) of the IBC, 2016 and so far the default of payment of amount on the basis of Settlement Agreement is concerned, the default also does not come under the definition of Financial Debt.
Application dismissed.
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2020 (10) TMI 1301 - AUTHORITY FOR ADVANCE, UTTARAKHAND
Classification of services - rate of GST - selling of Space for advertisement in print media - Advertising services and provision of advertising space or time - Advertising Services - Purchase or sale of advertising space or time, on commission - Sale of advertising space in print media (except on commission) - Sale of television and radio advertising time - Sale of internet advertising space - Sale of other advertising space or time (except on commission) - Value of supply in case trade discount/additional discount/agency commission is deducted in the invoices or not - designing/fabrication/production shall formed part of Composite supply or not - HELD THAT:- In case the designing/fabrication/production is bundled with the services mentioned, then the same falls under 'composite supply' in as much as services of 'selling of space for advertisement' constitutes the predominant element and therefore becomes the "principal supply" and the designing/fabrication/production shall form the part of that composite supply as ancillary in as much as 'selling of space for advertisement' cannot be effectively accomplished without designing/fabrication/production. Thus such ancillary activities having a direct and proximal nexus with 'selling of space for advertisement'.
Value of supply in case trade discount/additional discount/agency commission is deducted in the invoices raised in the name of the advertising agency by the TV / Radio/ Outdoor Company/ company - HELD THAT:- In view of the legal provisions, the commission shall form the part of taxable value and discount of any kind is excluded from the taxable value subject to the fulfillment of the conditions laid down in the said legal provisions. Hence in-bills discounts and discount established vide agreement before the time of supply subject to the reversal of ITC by the recipient is allowable deduction from the value of the supply.
Taxability on value/volume based discounts in form of credit notes after the date of invoice - HELD THAT:- The registered person who had issued a credit note, can adjust his tax liability by following the procedure, subject to the condition that incidence of tax on such supply, has not been passed on to any other person, Thus, it is observed that when a supplier requires to decrease the taxable value of a supply, he has to issue a credit note to the recipient and accordingly can reduce his tax liability for the concerned period provided that he has neither charged or collected tax on such supply.
Benefit of Notification No, 12/2017-Central Tax (Rate) dated 28.06.2017 (as amended from time to time) in respect of the supply made by the advertising agency - HELD THAT:- Technical Officer (TRU) vide letter F.NO. 254/90/2018-TRU dated 03.05.2018 addressed to Joint Commissioner, CCO, Delhi Zone, New Delhi has clarified that the services provided by the DAVP approved agencies on campaign for creating awareness for prevention of diseases to the Health Department is covered under the said notification in as much as 'Public Health' is a function entrusted to local authority under Article 243W read with the Twelfth Schedule S.No. 6 - the advertising agency providing services to the Central Government, State Government, Union territory or Local Authority or a Government Authority in relation to any function entrusted to a panchayat under article 243G of the Constitution or in relation any function entrusted to a Municipality under article 243 W of the Constitute are exempted from payment of GST subject to the fulfilment of the conditions.
Supply made by the Radio/TV/outdoor/Internet/Telecom/any other advertiser to the advertising agency - HELD THAT:- The supply is also exempt from GST in terms of Notification No. 12/2017-Central Tax(Rate) dated 28-06-2017(as amended from time to time) - such exemption is also extended to Radio/TV/outdoor/Internet/Telecom/any other advertise, if such specified services has been provided in terms of S.No. 3A under Chapter-99 issued vide notification No. 2/2018 Central Tax (Rate) dated 25.01.2018.
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2020 (10) TMI 1300 - AUTHORITY FOR ADVANCE, UTTARAKHAND
Classification of services - services provided by LLP under PPP contract to UK Government Nodal Agency - applicability of serial no. 3, 73 & 74 of Notification No. 12/2017 dated 28.06.2017 (as amended) on LLP - HELD THAT:- The society had permitted the applicant to operate and maintain the healthcare facilities in the districts and to provide the healthcare services to the people of Uttarakhand. On perusal of Schedule-B of the contract, the applicant has to provide minimum healthcare services ( clinical & curative services, Diagnostic & other para clinical services, Ancillary services including ambulance services, laundry services, security services etc), commission, operate & maintain website for healthcare facilities, infrastructure, personnel & equipments requirement to meet the goal of the Govt i.e. to resolve & enhance health infrastructure facilities to the remote population in the state of Uttarakhand.
Whether other ancillary services viz laundry services, security services, commission, operate & maintain of website for healthcare facilities etc & infrastructure provided along with minimum healthcare services are taxable or otherwise? - HELD THAT:- In the instant case other said ancillary services rendered along with infrastructure during the course of 'healthcare service' is covered under composite service in as much as the 'healthcare services' constitutes the predominant element and therefore becomes the "principal supply" and other ancillary services & infrastructure shall form the part Of that composite supply as ancillary in as much as 'healthcare services' cannot be effectively accomplished without rendering other ancillary services & infrastructures - the services provided in relation to 'healthcare services' are exempted from the liability to GST in as much as all such ancillary activities having a proximal nexus with 'healthcare services' and thus, shall covered under 'healthcare services'.
All the healthcare services by a clinical establishment or authorized medical practitioner or para medics by way of diagnosis or treatment or care for illness, injury, deformity, abnormality or pregnancy and services by way of transportation of the patient to and from a clinical establishment are exempt from GST. However, hair transplant or cosmetic or plastic surgery does not get exemption and is taxed. Thus, all treatments excluding cosmetic treatments have been covered by this definition - the applicant is engaged in providing 'healthcare services' to the people of Uttarakhand and the same is classified under service code 9993. It is also found that the said services are exempted from payment of GST as provided vide entry no, 74 of Notification No. 12/2017-Central Tax (Rate) dated (as amended from time to time).
Whether serial no. 3, 73 & 74 of Notification No. 12/2017 dated 28.06.2017 (as amended) are applicable on LLP? - HELD THAT:- The intra-state supply of services mentioned therein, are exempted from payment of GST subject to the relevant conditions as mentioned against the corresponding services. Thus, the said notification deals with exemption to the category of service rendered and not to the category of person engaged in supply of services. Accordingly it is observed that the supply of services, irrespective of person involved therein, mentioned in the said notification, are in exempted category.
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2020 (10) TMI 1299 - SC ORDER
Filing of Form GST TRAN-1 - time limit for filing of the form - Petitioner has challenged the Rule 117 of the Central Goods and Services Tax Rules, 2017 as ultra-vires Sections 140(1), 140(2), 140(3) and 140(5) of the Central Goods and Services Act, 2017 to the extent that it prescribes a time limit for filing of TRAN-1 Form - HELD THAT:- Issue notice.
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2020 (10) TMI 1298 - MADRAS HIGH COURT
Principles of natural justice - no effective opportunity has been granted to the petitioner - HELD THAT:- The impugned order of assessment is thus bad in law insofar as no effective opportunity has been granted to the petitioner and the same is thus set aside.
Let the impugned order of assessment dated 24.01.2020 be treated as a show cause notice in response to which, the petitioner will file a preliminary reply within a period of four weeks from today without awaiting any further notice in this regard. If a reply is received from the petitioner within four (4) weeks, proceedings for assessment shall be taken up, the petitioner heard and an order of assessment be passed denovo in accordance with law.
Petition disposed off.
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2020 (10) TMI 1297 - NATIONAL COMPANY LAW TRIBUNAL, PRINCIPAL BENCH, NEW DELHI
Seeking for issuance of directions for liquidation to Corporate Debtor - Section 33(1) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- In accordance with Regulation 27 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulation, 2016 (“CIRP Regulations”), the erstwhile IRP had appointed two registered valuers, i.e., Mr. Lakhan Lal Gupta and Mr. Vijay Vinod Bhatia, to determine the liquidation value of the Corporate Debtor in accordance with Regulation 35 of CIRP Regulations - in the same meeting the RP had submitted the estimated liquidation value of the assets of the CD based on the valuation reports obtained from the valuers, is approximately ₹ 18,40,85,597/- as per the report of the valuers.
The application is allowed by ordering liquidation of the corporate debtor, namely M/s.Marga Industries.
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2020 (10) TMI 1296 - COMMISSIONER (APPEALS) CENTRAL GOODS AND SERVICE TAX, JAIPUR
Cancellation of registration of petitioner - non filing of statuary returns for three consecutive tax periods - continuous period of six months under clause (b) or clause (c) of sub-section (2) of section 29 of the CGST Act, 2017 - non-speaking order - whether or not the appeal filed against the order of cancellation to be decided are proper? - HELD THAT:- In the instant cases the appeal has been filed by delay from the normal period prescribed under Section 107(1) of the CGST Act, 2017. Though the delay in filing the appeal is condonable only for a further period of one month provided that the appellant was prevented by sufficient cause from presenting the appeal is shown and the delay of more than one month is not condonable under the provisions of sub section (4) of Section 107 of the Central Goods and Service Tax Act, 2017.
The appellant had not responded to the Notice to return defaulter issued u/s 46 for not filing return in form GSTR-3A dated 02.01.2020 and show cause notice dated 04.02.2020 issued for cancellation of registration nor filed pending returns by the proper officer - where a registered person fails to furnish the returns u/s 39 or 45 of the Act, even after the service of Notice u/s 46, the proper officer is required to pass an order assessing the tax liability of the said person to the best of his judgment taking into account all the relevant material which is available or which he has gathered, within a period of five years from the date of filing annual return for the financial year to which the tax not paid relates.
The contention made in the grounds of appeal of the appellant is tenable and the order dated 21.07.2020 determining the liability of the appellant is not legally correct and proper. The appellant has filed returns upto date of cancellation of registration hence, I find that the appellant has substantially complied with the above said provisions of the CGST Act/Rules, 2017 in the instant case. At this stage the appellate authority is in no position to decide the issue on merit on the basis of available records presented by the appellant. The proper officer/adjudicating authority is required to examine the issue afresh on the available records in the matter and ascertain the tax liability of the appellant.
The proper officer is directed to consider the revocation application of the appellant after due verification of payment particulars of tax, late fee, interest, penalty & status of returns and recover Govt. dues, if any arise from the appellant in terms of provisions of the CGST Act, 2017 and rules made thereunder - the registration of appellant may be considered for revocation by the proper officer - appeal allowed.
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2020 (10) TMI 1295 - SUPREME COURT
Licit acquisition and possession of the exotic animals/birds - Issuance of direction to enable the officers of the Directorate of Revenue Intelligence and the officers of Wildlife Crime Control Bureau, to inquire from the 'declarants' under the newly introduced "Voluntary Disclosure Scheme" - HELD THAT:- The SLP is dismissed.
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2020 (10) TMI 1294 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI BENCH-V
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - Time Limitation - HELD THAT:- The first invoice was raised by the petitioner on 19.12.2013 and the due date of payment was 18.04.2014 and the last invoice was raised by the petitioner on 23.01.2014 and the due date of payment was 23.05.2014 and on the basis of invoices, the date of default is the date of payment, it means since the amount was not paid on 23.05.2014, therefore, on that day the default had occurred - In view of the Article 137 of the Limitation Act, the petitioner was required to file an application within 3 years from the date, when the right to apply accrues and since due date of payment was of 23.05.2014, therefore, the petitioner was required to file the application within three years from the date of first default that is from 23.05.2014 but the present application has been filed on behalf of the petitioner on 30.06.2020, therefore, it is much after the period of three years.
The documents are of the dated 18.01.2016, 07.07.2016 and 02.02.2017 and last one upon which the petitioner has placed reliance is of dated 15.12.2017 after going through these documents we noticed that, the document dated 15.12.2017 is a credit notice memo issued by the petitioner and not by the respondent, therefore, this credit note cannot be treated as an acknowledgement of debt. So far the document dated 07.07.2016 is concerned of course, in this document, there is a signature of the director of the respondent company, which is addressed to the Deutsche Bank AG regarding the payment of the pending invoices and the two invoices are referred which are of dated 26/12/2013 and if we accept that this letter will be treated as acknowledgement of debt under Section 18 of the Limitation Act then the limitation shall run from the date of acknowledgement i.e. from 07.07.2016.
Even if letter is also treated as acknowledgement of debt then the limitation shall run from the date i.e. 02.02.2017 whereas the present application is filed on 30.06.2020, which is much after the period of 3 years as required under Article 137 of the Limitation Act, so, on this ground also, the present application in our considered view is barred by limitation - Application dismissed.
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2020 (10) TMI 1293 - SUPREME COURT
Exemption to factories from observing some of the obligations which employers have to fulfil towards the workmen employed by them - validity of the state's notifications dated 17 April 2020 and 20 July 2020 - whether the notifications fall within the ambit of the power conferred by Section 5 of the Factories Act?
HELD THAT:- The validity of the notifications depends on whether the COVID-19 pandemic and the nationwide lockdown qualify as a 'public emergency' as defined in Section 5. The statute provides both the language and the dictionary to interpret it - Section 5 of the Factories Act provides that in a public emergency, the State Government can exempt any factory or class or description of factories from all or any of the provisions of the Act, except Section 67.
Principle of proportionality - HELD THAT:- The explanation to Section 5 was introduced by the Factories (Amendment) Act of 1976 - Amending Act 94 of 1976 - with effect from 26 October 1976. Interestingly, it was an amendment which was brought in during the internal emergency declared in June 1975 purportedly on account of "internal disturbances". The effect of the explanation is to circumscribe the ambit of what constitutes a public emergency. The explanation constricts the expression in two ways: first, by confining it to specific causes; and second, by requiring that a consequence must have emanated from those causes before the power can be exercised. Under Section 5 a situation can qualify as a 'public emergency', only if the following elements are satisfied: (i) there must exist a "grave emergency"; (ii) the security of India or of any part of its territory must be "threatened" by such an emergency; and (iii) the cause of the threat must be war, external aggression or internal disturbance. The existence of the situation must be demonstrated as an objective fact. The co-relationship between the cause and effect must exist. Implicitly therefore, the statutory provision incorporates the principle of proportionality.
Precedent on 'public emergency' and 'security of the state' - HELD THAT:- The powers Under Article 352 have been invoked thrice by the President to declare an emergency. An emergency was declared for the first time in 1962 due to the Chinese aggression on Indian territory. The emergency was revoked in 1968. In 1971, when hostilities broke out with Pakistan, an emergency was proclaimed by the President on the ground that the security of India was threatened by external aggression. While this proclamation was in force, another proclamation was issued by the President on 25 June 1975 declaring that a "grave emergency exists whereby the security of India is threatened by 'internal disturbance'." Both these proclamations were revoked in March 1977 - The Parliamentary amendments to Article 352 are the product of experience: experiences gained from the excesses of the emergency, experiences about the violation of human rights and above all, experiential learning that the amalgam of uncontrolled power and unbridled discretion provide fertile conditions for the destruction of liberty. The sobering lessons learnt from our not-too-distant history should warn us against endowing a statute with similar terms of a content which is susceptible of grave misuse.
Interpreting 'public emergency' in Section 5 of the Factories Act, 1962 - HELD THAT:- The economic hardships caused by COVID-19 certainly pose unprecedented challenges to governance. However, such challenges are to be resolved by the State Governments within the domain of their functioning under the law, in coordination with the Central Government. Unless the threshold of an economic hardship is so extreme that it leads to disruption of public order and threatens the security of India or of a part of its territory, recourse cannot be taken to such emergency powers which are to be used sparingly under the law. Recourse can be taken to them only when the conditions requisite for a valid exercise of statutory power exist Under Section 5. That is absent in the present case.
Scheme and Objects of the Factories Act, 1962 - HELD THAT:- While enacting the Factories Act, Parliament was cognizant of the occasional surge of the demand for, or requirement of, the manufacture of certain goods which would demand accelerated production. The law - makers were aware of the exigencies of the war effort of the colonial regime in World War II, with its attendant shortages, bottlenecks and, in India, famine as well. Section 64(2) of the Factories Act envisages exemption from certain provisions relating to working hours in Chapter VI, for instances such as urgent repairs, supplying articles of prime necessity or technical work, which necessarily must be carried on continuously. Section 65(2) enables classes of factories to be exempt from similar provisions in order to enable them to cope with an exceptional pressure of work. However, these exemptions are circumscribed by Section 64(4) and 65(3) respectively, at limits that are significantly less onerous than those prescribed by the notifications in question.
The impugned notifications do not serve any purpose, apart from reducing the overhead costs of all factories in the State, without regard to the nature of their manufactured products. It would be fathomable, and within the realm of reasonable possibility during a pandemic, if the factories producing medical equipment such as life-saving drugs, personal protective equipment or sanitisers, would be exempted by way of Section 65(2), while justly compensating the workers for supplying their valuable labour in a time of urgent need. However, a blanket notification of exemption to all factories, irrespective of the manufactured product, while denying overtime to the workers, is indicative of the intention to capitalize on the pandemic to force an already worn-down class of society, into the chains of servitude.
Social and Economic Value of 'Overtime' - HELD THAT:- The need for protecting labour welfare on one hand and combating a public health crisis occasioned by the pandemic on the other may require careful balances. But these balances must accord with the Rule of law. A statutory provision which conditions the grant of an exemption on stipulated conditions must be scrupulously observed. It cannot be interpreted to provide a free reign for the State to eliminate provisions promoting dignity and equity in the workplace in the face of novel challenges to the state administration, unless they bear an immediate nexus to ensuring the security of the State against the gravest of threats - The provisions embodied in Chapter VI of the Factories Act reflect hard-won victories of masses of workers to ensure working conditions that uphold their dignity.
Constitutional vision of social and economic democracy - HELD THAT:- The Constitution allows for economic experiments. Judicial review is justifiably held off in matters of policy, particularly economic policy. But the Directive Principles of State Policy cannot be reduced to oblivion by a sleight of interpretation. To a worker who has faced the brunt of the pandemic and is currently laboring in a workplace without the luxury of physical distancing, economic dignity based on the rights available under the statute is the least that this Court can ensure them - The 'right to life' guaranteed to every person Under Article 21, which includes a worker, would be devoid of an equal opportunity at social and economic freedom, in the absence of just and humane conditions of work. A workers' right to life cannot be deemed contingent on the mercy of their employer or the State. The notifications, in denying humane working conditions and overtime wages provided by law, are an affront to the workers' right to life and right against forced labour that are secured by Articles 21 and 23 of the Constitution.
This Court is cognizant that the Respondent aimed to ameliorate the financial exigencies that were caused due to the pandemic and the subsequent lockdown. However, financial losses cannot be offset on the weary shoulders of the laboring worker, who provides the backbone of the economy. Section 5 of the Factories Act could not have been invoked to issue a blanket notification that exempted all factories from complying with humane working conditions and adequate compensation for overtime, as a response to a pandemic that did not result in an 'internal disturbance' of a nature that posed a 'grave emergency' whereby the security of India is threatened. In any event, no factory/classes of factories could have been exempted from compliance with provisions of the Factories Act, unless an 'internal disturbance' causes a grave emergency that threatens the security of the state, so as to constitute a 'public emergency' within the meaning of Section 5 of the Factories Act.
Notification No. GHR/2020/56/FAC/142020/346/M3 dated 17 April 2020 and Notification No. GHR/2020/92/FAC/142020/346/M3 dated 20 July 2020 issued by the Labour and Employment Department of the Respondent State, are quashed - petition allowed.
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2020 (10) TMI 1292 - AUTHORITY FOR ADVANCE RULING, UTTAR PRADESH
Classification of goods - rate of tax - Topical Antiseptic Solution/Topical Antiseptic Hand Sanitiser - classifiable under HSN code 3004 90 87 (medicament) or 3808 94 00 (disinfectant)? - HELD THAT:- Heading “3808” under the Customs Tariff Act, 1975 also covers the goods of the same description as provided under entry no. 87 except with the condition that such goods shall be put up in forms or packings for retail sale or as preparations or articles. Further Rule 1 of rules for the interpretation provides that the classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes - although the term “disinfectants” appears to be limited to agents which are generally applied on inanimate objects, it also includes “sanitizers” expressly. Therefore the ambit of the terms used in the heading 3808 extends to even those goods such as sanitizers which are applied on the human hands and not just on an inanimate objects.
The Hon'ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE, HYDERABAD VERSUS M/S SARVOTHAM CARE LTD. [2015 (8) TMI 250 - SUPREME COURT] has held that suggestion that shampoo should be used once a week and on other days, normal shampoos may be used, showed it was to be used like medicine, unlike other normal Shampoos. It was more so as it was not used for cleaning hair. Hence, shampoo was classifiable as medicine under sub-heading 3003.10 of Central Excise Tariff and not under sub-heading 3305.99 ibid as ‘preparation for use on hair'.
Even sanitizers are manufactured based on formulations Ethanol 70% (v/v) or Isopropyl alcohol 75% (v/v), Chlorhexidine Gluconate Solutuion Ip 2.5% v/v and Sanitizers can aid in the prevention of the human ailment in the form of COVID-19 disease; it does not qualify as medicaments because for the goods in question to be treated as “medicament”, it should cure or prevent a specific ailment. Goods which are meant for general hygiene or well-being of a person which may incidentally lead to the prevention of a host of illnesses or ailments cannot be considered as a medicament. It is for this reason that goods like soaps, ordinary shampoos, etc. are not treated as medicaments. The World Customs Organization has also classified the Hand Sanitizer under HSN 3808.94.
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2020 (10) TMI 1291 - MADRAS HIGH COURT
Seeking grant of anticipatory bail - civil proceedings given in a criminal colour or not - collection/recovery agent for commercial transaction between the parties - Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- A mere breach of a promise, agreement or contract does not, ipso facto, constitute a criminal breach of trust, without there being a clear case of entrustment. Further, the transaction had taken place in the year 2008 and the complaint was lodged in the year 2015. For constituting an offence of cheating, the complainant is required to show that the petitioner had fraudulent or dishonest intention at the time of making promise or representation. In this case, no such promise or representation was made by the petitioner. The transaction between the petitioner and the 2nd respondent is a contract, mere failure of agreement and contract would not lead to offence of cheating and misappropriation. The 2nd respondent to recover the amount and its dues, instituted civil proceedings, seeking recovery of loan amount, which is still pending for adjudication. It is observed in this case that it is difficult to establish conspiracy by direct evidence or to infer in the absence of any such averments.
This Court finds that the dispute between the parties constitute only a civil wrong and not a criminal wrong. The Hon'ble Apex Court in the case of Inder Mohan Goswami Versus State of Uttaranchal [2007 (10) TMI 550 - SUPREME COURT], elaborately dealt on this aspect, questioned dual the proceedings and observed that the criminal prosecution are not to be used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused when dispute between the parties constitute only a civil wrong and not a criminal wrong and also observed that allowing the proceedings to continue would be an abuse of process of Court or that the ends of justice require that the proceedings ought to be quashed.
It is clear that a civil dispute has been given in a criminal colour. At the most, it can only be said that the inability of the petitioner to return the loan amount cannot give rise to criminal prosecution. The respondent by himself and his family members, instituted a civil proceedings for seeking recovery of loan amount - Petition allowed - decided in favor of appellant.
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2020 (10) TMI 1290 - SC ORDER
Initiation of CIRP - Extension of period of limitation by acknowledgement of debt - Corporate Debtor failed to make repayment of its dues - it was held by NCLAT, where the appeal was rejected - HELD THAT:- There are no merit in the civil appeal. The civil appeal stands dismissed.
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2020 (10) TMI 1289 - PUNJAB AND HARYANA HIGH COURT
Cheating - fraudulent representation of providing 2 BHK flat and dishonestly induced to pay the amount of ₹ 9,04,429/- - petitioners neither gave the flat nor returned the money - petitioners were declared proclaimed persons under Section 82 of the Cr.P.C. - petitioners were absconding or not - HELD THAT:- The learned Chief Judicial Magistrate, Karnal did not record her satisfaction that in view of the material on record there was reasonable ground to believe that the petitioners had absconded or were concealing themselves so that warrant of arrest issued against them could not be executed. Consequently, the condition essential for issuance of proclamation against the petitioners was not satisfied.
In the present case vide order dated 02.08.2019 proclamation was ordered to be published against the petitioners under Section 82 of the Cr.P.C. requiring the petitioners to appear before the Court on 04.09.2019. The proclamation was published by SI Dharampal on 04.09.2019 and the petitioners did not get statutory minimum period of thirty days for their appearance before the Court on 04.09.2019 - Vide order dated 04.09.2019 learned Chief Judicial Magistrate, Karnal adjourned the case to 05.10.2019 for awaiting the appearance of the petitioners on the ground that statutory period of thirty days had not elapsed. Learned Chief Judicial Magistrate, Karnal could not extend the time by simply adjourning the case for awaiting appearance of the petitioners and was mandatorily required to issue the proclamation again for publication thereof in accordance with the provisions of Section 82(2) of the Cr.P.C.
It follows that the petitioners were wrongly declared proclaimed persons vide impugned order dated 05.10.2019 in breach of the prescribed procedure and impugned order dated 05.10.2019 suffers from material illegality and is liable to the set aside - Petition allowed.
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2020 (10) TMI 1288 - KERALA HIGH COURT
Concessional rate of tax - inter-state sales - sale of goods effected to the Lakshadweep Islands through a dealer authorized by the Lakshadweep Administration - deduction permissible on damaged goods - there is no allegation of unaccounted sale or stock difference - Section 6(1) of the KVAT Act and Rule 12C of the KVAT Rules - HELD THAT:- What is produced along with it is an Application to Export made by the dealer to the Port Officer at Calicut. The Application to Export is not a document similar to a shipping bill. It does not evidence the movement of goods from the Port at Calicut to Lakshadweep. It is at best a desire expressed by the purchasing dealer, the fulfillment of which is the essence of the concession granted. Further, it has to be noticed that though there is a recital in Form No.42 that the purchasing dealer is recognized by the Administrator, UT of Lakshadweep, there is nothing produced to evidence the same - there can be no concessional rate claimed by the revision petitioner on the facts of these years since there is no document produced which could prove the movement of goods to the Islands, as would a shipping bill - issue regarding concessional rate of tax, is answered against the assessee and in favour of the revenue.
Allowance claimed on the damaged goods - HELD THAT:- Despite the stock details having been tabulated in the Annexures produced, as the learned Government Pleader alertly points out, the claim was not substantiated with records, ledgers or books of accounts before the fact finding authorities - the fact finding authorities, including the Tribunal has recorded that nothing is produced to substantiate the claim. Even then, 50% of what was claimed was allowed presumably on realisation of the basis of such damage occasioned for reason of lumping of cement due to exposure to natural elements - the issue is not answered, for it being not a question of law.
Petition disposed off.
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2020 (10) TMI 1287 - NATIONAL COMPANY LAW TRIBUNAL NEW DELHI
Seeking control over subsidiary (Solitaire Infomedia Private Limited) assets - Seeking control on the ground they are connected to the corporate debtor company - application is filed by the RP of the Corporate Debtor - HELD THAT:- Being no provision permitting this Bench to grant such relief, the application is dismissed.
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