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2019 (8) TMI 1804 - APPELLATE AUTHORITY FOR ADVANCE RULING, HARYANA
Classification of goods - Cooking Cream - covered under chapter heading 1517 and chargeable to 5% IGST under S.No.89 of Schedule-I to Notification No. 1/2017-Integrated Tax or classifiable under Heading 2106? - HELD THAT:- For any given product, the name, character and use are three important ingredients which decide the classification of any given product.
The Appellant contended that impugned goods is similar to margarine insofar as it is a preparation of vegetable oil in the nature of an emulsion of water-in-oil type and it resembles a regular cream which, like butter, is a dairy product. Similar to margarine which imitated butter by using vegetable fat instead of dairy fat, the impugned product imitates cream by using vegetable fat instead of dairy fat. In their defence appellant relied upon the decision in the case of ALUVA SUGAR AGENCY VERSUS STATE OF KERALA [2011 (9) TMI 11 - SUPREME COURT] - in the case of Aluva Sugar Agency, Hon'ble Supreme Court of India has held that "Margarine - Made only from vegetable oils - Used exclusively as raw-material by bakeries and confectionaries makers - Though margarine was not consumed directly and not used for normal cooking as other oils like coconut, sunflower, etc., fact that it was used for preparing bakery items consumed by human beings made it edible - Having around 80% fat, and being in nature of oil, it has to be considered as edible oil.
It may be seen that butter consists milk fat contents of 80% or more but not more than 95% by weight. In the case of Aluva Sugar Agency also the fat contents of Margarine is around 80% and thus the same is used as substitute of butter. However, in the case before us the fat contents is only 26%. Thus the product 'Cooking Cream' cannot be said to be a substitute or imitation of butter. Thus Cooking Cream is not similar to Margarine and hence the case law relied upon by the appellant in Aluva Sugar Agency holds no water.
The appellant further relied upon the decision of Kerala High Court in the case of M/S. PARISONS FOODS PVT. LTD. VERSUS JOINT COMMISSIONER OF COMMERCIAL TAXES DEPARTMENT OF COMMERCIAL TAXES, THIRUVANANTHAPURAM, KERALA [2018 (1) TMI 1195 - KERALA HIGH COURT] where various hydrogenated vegetable oils (vanaspati) and liquid refined vegetable oils were blended together in a blending vessel; and all the fractions of oil were properly melted and additives (like Sesame Oil, Vitamin A and Vitamin D) were added to the mixture. The mixture so formed was kept under agitation for 45 minutes to get a homogenous mass. The vanaspati was passed through Rotators and Crystallizers which churned the product from 45°C to 20°C - however, in the present case it is found that appellant is using Sugar as an ingredient which does not found place in the list of ingredients described in HSN Explanatory Notes of Heading 1517. Thus, the aforesaid case law of Parisons Foods Pvt Ltd is not applicable to the instant case. Moreover, the case of Parisons Foods Pvt Ltd relied upon by the appellant has not attained the finality and pending with the Apex Court.
Thus, the product 'Cooking Delite' is not classifiable under Heading 1517 of Customs Tariff Act.
If the impugned goods do not qualify to be classified under Heading 1517 of Customs Tariff Act, as claimed by the appellant then which is the appropriate Chapter Heading wherein the product in question is classifiable? - HELD THAT:- Chapter 21 essentially covers 'Miscellaneous Edible Products'. Obviously, the term 'Miscellaneous' indicates that this particular chapter would contain all such edible products which are not specifically covered elsewhere under the Tariff. The Chapter Headings further describes various edible preparations such as extracts of Coffee, tea, Yeast, Soups, broths, Sauces etc. under Heading 2101 to 2105. Further as is the convention, Heading 2106 has been given to include all those items which are not elsewhere specified. Furthermore, 2106 further sub-divides and classifies various edible items like Protein Concentrates, Pan Masala, Sharbats, Supari, Custard Powder etc. under Sub-headings 2106 10 00 to 2106 90 80 and to conclude there is a residual entry as 'Others' under 2106 90 99.
In the instant case, the impugned item is mixture of vegetable oil and other food stuffs. After the manufacturing process, as detailed in the appeal, it is observed that individual identity of all the mixtures is lost and what, emerges is totally a different item, a new product having different name, character and use. Thus, cooking cream cannot be said to be merely a mixture of vegetable oil with other ingredient, but a totally new product having different name character and use - it does not merit classification under chapter heading 1517, rather merits classification under chapter heading 21069099, as "preparations not elsewhere specified or included" as it does not remain fraction of palm oil.
The impugned item merits classification under chapter heading 2106 of the schedule to the Customs Tariff Act, 1975 and chargeable to GST accordingly. It is also found that the Advance Ruling Authority has gone through the matter in detailed way and passed a well reasoned speaking order and hence, there is no reason to interfere with the order.
Appeal dismissed.
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2019 (8) TMI 1803 - BOMBAY HIGH COURT
Nature of expenses - acquisition of computer software - revenue or capital expenditure - HELD THAT:- It is an admitted position between the parties that this issue was urged by Revenue in Principal Commissioner of Income Tax-2 vs. M/s.Tata AIG General Insurance Co.Ltd [2019 (8) TMI 1800 - BOMBAY HIGH COURT] . This Court by an order in respect of the same Respondent-assessee, did not entertain the above identical questions. Therefore for the reasons above this question does not give rise to any substantial question of law. Thus not entertained.
TDS u/s 194D - payment of reinsurance commission - Revenue in its own case appeals had not raised any grievance with regard to the order of the Tribunal to the extent it holds that no tax is deductable u/s194D of the Act in respect of payment of reinsurance commission - HELD THAT:- Revenue has accepted the impugned order of the Tribunal so far as the above issue is concerned. Therefore, this question does not give rise to any substantial question of law, particularly, in the absence of any change in facts and law being pointed out to us or any other feature which would warrant that this appeal to be prosecuted by the Revenue. No substantial questions of law
Appeal admitted on substantial questions of law framed as Question Nos.(ii), (iii), (iv), (v).
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2019 (8) TMI 1802 - APPELLATE AUTHORITY FOR ADVANCE RULING, HARYANA
Taxability - lien or mortgage charges and stock transfer fees received by the applicant from the service receiver - taxable under Section 9 of Central Goods and Services Tax Act, 2017 and Section 9 of Haryana Goods and Services Tax Act, 2017 or exempt under Section 11 of Central Goods and Services Tax Act, 2017 and Section 11 of Haryana Goods and Services Tax Act, 2017 with respect to both agricultural and non-agricultural produce stored and, warehoused in the warehouses of the applicant - HELD THAT:- Sub-section 4 (1) of the Warehousing (Development and Regulation) Act, 2007 provides that any person desirous of commencing or carrying on the business of maintaining a warehouse issuing negotiable warehouse receipts may make an application to the Authority for registration in respect of one or more warehouses owned or occupied by him. Further, section 2 (m) of the said act provides that “negotiable warehouse receipt” means a warehouse receipt under which the goods represented therein are deliverable to the depositor or order, the endorsement of which has the effect of transfer of goods represented thereby and the endorsee for which takes a good title. As per second proviso to section 3 of the said Act, no such registration shall be required for warehouses which do not propose to issue negotiable warehouse receipt.
Therefore, even if a warehouse operator is not issuing any negotiable warehouse receipts and is not registered under the Warehousing (Development and Regulation) Act, 2007, the other services provided by him (i.e. other than lien or mortgage charges and stock transfer fees) shall qualify as warehousing services. Therefore, for any service to qualify as warehousing services it is not imperative that negotiable warehousing receipts must have been issued for them. Therefore, scope of storage or warehousing services cannot be expanded to unlimited extent. Only the services similar to the services mentioned in the entry can be construed as included therein.
Thus, it is clear that the lien or mortgage charges and stock transfer fees received by the applicant from the service receiver are taxable under Section 9 of Central Goods and Services Tax Act, 2017 and Section 9 of Haryana Goods and Services Tax Act, 2017 and do not fall in exemption category as provided in entry no, 54 of the Notification dated 30th June, 2017 of the Haryana Government Excise and Taxation Department - the Advance Ruling does not suffer from any infirmity or illegality and the same is upheld.
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2019 (8) TMI 1801 - BOMBAY HIGH COURT
TDS u/s 194H - payment of insurance premium to co-insurer - Disallowance u/s 40(a)(ia) - whether Tribunal was correct in confirming that the co-insurance commission is allowabel under the provisions of sec-40(a)(ia) and does not require to deduct TDS on such payments? - Revenue contended that the Tribunal has without recording its separate reasons, confirmed the decision of the CIT (Appeals) - HELD THAT:- With respect to this suggestion, we are in agreement. We wish the Tribunal had given, howsoever brief, its reasons for rejecting the Revenue’s ground of appeal. However, this would not persuade us to admit this question. This is because the facts on record are rather clear. The respondent – assessee is an insurance company. The assessee and the other insurance company had jointly insured a certain risk. The assessee had received the entire premium, part of which was paid to the co-insurer in the proportion of its risk insured. This is clearly, therefore, not a case for payment of commission. This is what the Commissioner in his legal order has held. In that view of the matter, these additional questions are also not considered.
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2019 (8) TMI 1800 - BOMBAY HIGH COURT
Nature of expenditure - expenditure incurred by the assessee in purchase of hard discs and other peripherals and for acquiring computer software - Revenue or capital expenditure - HELD THAT:- Revenue argued that the same was in the nature of capital expenditure. CIT(A) and the Tribunal, however, examined the nature of expenditure and held that the same was revenue expenditure. We do not find any error. Similar issue was examined by this Court in M/S. ASIAN PAINTS LTD. [2018 (12) TMI 700 - BOMBAY HIGH COURT].
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2019 (8) TMI 1799 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt payable in fact or not - validity of records which were submitted by the Respondent before the Adjudicating Authority - HELD THAT:- The observations made by the Adjudicating Authority is on the basis of record but it does not mean that the Adjudicating Authority has given any finality with regard to genuineness of the document which was placed before it.
The Appellant is directed to move before the Appropriate Forum for relief, in which case, the Appropriate Forum will decide the issue on merit uninfluenced by the Impugned Order passed by the Adjudicating Authority or by this Appellate Tribunal - appeal disposed off.
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2019 (8) TMI 1798 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI
Liquidation order - Section 33(1)(a) and 34 of the Insolvency & Bankruptcy Code, 2016 - HELD THAT:- The Resolution Applicant having no right to file a Resolution Plan as held by Hon’ble Supreme Court in Arcelormittal India Private Limited vs. Satish Kumar Gupta and Ors. [2018 (10) TMI 312 - SUPREME COURT], the Resolution Applicant cannot file any application for exclusion of any period for the purpose of counting total period of 270 days for which it was open to the Committee of Creditors / Resolution Professional to file application for exclusion of time, for good ground and if the Resolution Plan is viable and feasible, Resolution Plan needs consideration, in absence of such application by the Committee of Creditors / Resolution Professional, no relief can be granted in an application preferred by the Appellant.
Impugned Order need not be interfered - appeal disposed off.
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2019 (8) TMI 1797 - ITAT MUMBAI
Income accrued or deemed to accrue in India - Treating the payment towards training programme as FTS - India- Netherland tax treaty - HELD THAT:- As the assessee was not the owner of any brand or trademark for which any royalty would have been received by it under Article 12(4) of the India-Netherland tax treaty, hence the services provided to the Indian Hotels were in the ordinary course of its business, and could not be brought within the sweep of “ancillary and subsidiary” services as provided in Article 12(5)(a) of the India- Netherland tax treaty. We thus, are of a strong conviction that the CIT(A) loosing sight of the fact that as the assessee was not in receipt of any royalty as per Article 12(4) of the India-Netherland tax treaty, hence had failed to appreciate that the training services rendered by it could not have been held to be “ancillary and subsidiary” services under Article 12(5)(a). We thus, are of the view that the consideration received by the assessee for providing training services to the Indian Hotels could not be held as FTS under Article 12(5)(a) of the India- Netherland tax treaty. We are of the considered view that in terms of our aforesaid observations, as neither the training services rendered by the assessee to the Indian Hotels could be held to be technical services, nor the same could have been characterised as “ancillary and subsidiary” services as per Article 12(5)(a), hence the consideration received by the assessee for rendering the training services could not be held as FTS in its hands.
As decided in own case [2018 (6) TMI 605 - ITAT MUMBAI] we are of the view that the payments received programme cannot be treated as FTS as clearly held by the Tribunal, hence, the Ground No.1 2 & 7 of the appeal are allowed in favour of assessee.
Treating the payment for providing access to computer system as ‘Royalty’ in term of the Act and India-Netherlands tax treaty - AO concluded that for providing the right to use the system developed by assessee or its affiliates specifically for the Indian Hotels and also providing technical services for the maintenance and use of such system, which is ancillary and subsidiary to the application or enjoyment of the right to use the computer reservation system, which is covered under the provisions of Article 12(4) read with 12(5) (a) of India –Netherlands Tax Treaty - HELD THAT:- While using computer software, which is copyrighted article and there is no transfer of copyright or use of copyright itself particularly when there is no transfer of a patent, invention, model, design, secret formula or process or trade mark or similar property or imparting of any information concerning thereof.
As decided in ow case for AY 2009-10 [2018 (6) TMI 605 - ITAT MUMBAI] as the access to CRS, Property Management System and Other Systems provided to the Indian Hotels by the assessee were common facilities provided to the members of the Marriott chain of hotels across the world by the assessee, and were not tailor made services to suit their specific requirements, thus the said facility could not be construed as ‘technical services’ -as providing of access to CRS, Property Management Services and Other services could neither be held to be technical services, nor the same in terms of our aforesaid observations could have been characterised as “ancillary and subsidiary” services under Article 12(5)(a), hence the consideration received by the assessee for rendering the said services/facility could not be held as FTS in its hands. We thus, set aside the order of the CIT(A) holding that the consideration received by the assessee for providing of access to CRS, Property Management Services and Other Systems was chargeable as FTS in the hands of the assessee. - Decided in favour of assessee.
Addition of surcharge on education, secondary & higher education cess - assessee submits that India- Netherlands tax treaty prescribes a cap of 10% on rate of tax, which would prevail over provision of domestic income tax and thus, rate of tax cannot be enhanced to include surcharge or education cess or secondary and higher education cess - HELD THAT:- This ground of appeal is also covered by the decision of Tribunal in assessee’s own case for Assessment Year 2009-10 [2018 (6) TMI 605 - ITAT MUMBAI] the of rate of tax provided in the tax treaty cannot be enhanced by including surcharge and education cess separately, is covered by an order of a coordinate bench of the Tribunal in the case of Capgemini SA [2016 (7) TMI 712 - ITAT MUMBAI] We thus, in terms of our aforesaid observations direct the A.O not to enhance the rate of tax provided in the tax treaty by including surcharge and education cess separately - Decided in favour of assessee.
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2019 (8) TMI 1796 - ITAT MUMBAI
Allowance of the claim of the assessee by CIT(A) in connection with the income from shareholder’s account - HELD THAT:- Since this issue has been adjudicated in favour of the assessee in which the income arising in shareholder’s accounts under the head life insurance business has been treated as income from business. The facts are not distinguishable at this stage. No law contrary to the law relied by the Ld. Representative of the assessee has been produced before us. Taking into account all the facts and circumstances, we are of the view that the CIT(A) has decided the matter of controversy judiciously.
Addition of negative reserves - HELD THAT:- As noticed that the CIT(A) has decided the matter of controversy on the basis of decision of Hon’ble Supreme Court in case of Life Insurance Corporation of India [1963 (12) TMI 5 - SUPREME COURT] The facts are not distinguishable at this stage. The treatment of incremental negative reserve is quite same as held in the previous year [2016 (12) TMI 1741 - ITAT MUMBAI] There is no reason to deviate from the finding of the CIT(A). No law contrary to the law relied by the Ld. Representative of the assessee has been produced before us. Taking into account all the facts and circumstances, we are of the view that the CIT(A) has decided the matter of controversy judiciously and correctly which is not liable to be interfere with at this appellate stage.
Allowance of claim of dividend income u/s 10(34) - Addition raised on account of exemption of the claim u/s 10(23AAB) on account of income from pension scheme - HELD THAT:- We noticed that the CIT(A) has decided the issues on the basis of decision of Bombay High Court in case of Life Insurance Corporation of India [1977 (11) TMI 25 - BOMBAY HIGH COURT] The facts are not distinguishable at this stage. No law contrary to the law relied by the Ld. Representative of the assessee has been produced before us. Taking into account all the facts and circumstances, we are of the view that the CIT(A) has decided the matter of controversy judiciously and correctly which is not liable to be interfere with at this appellate stage.
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2019 (8) TMI 1795 - CESTAT AHMEDABAD
Rectification of mistake - error apparent of the face of record or not - main ground for rectification of mistake application taken by the applicant is that this Tribunal has not considered that the Commissioner in his order has given a categorical finding on sending of inputs to the job worker and manufactured goods were received back - HELD THAT:- Non consideration of this categorical finding amounts to apparent error. On this categorical finding, which was not disturbed by this Tribunal and the fact that the material was sent, by applicant and manufactured goods of the said input from job worker received by them is not under dispute. Despite this findings Ld. Commissioner has decided the whole case on all together new ground i.e. process of manufacture. It is found that when the Commissioner has decided the entire case on a new ground there is a clear error on the part of the Commissioner. On this, the Ld. Commissioner needs to issue a fresh order without going into the said new issue. When the Commissioner decided the case on the basis of new issue and not considered his own finding regarding sending of inputs and receipt of manufactured goods, the impugned order suffers from infirmity.
There are no apparent error in the order - matter is rightly remanded for passing a fresh order - ROM application rejected.
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2019 (8) TMI 1794 - ITAT DELHI
Exemption u/s 11 - AO treated the assessee’s contract with Fortis Hospital for running hospital as commercial activity - objects of the assessee seems to be charitable in nature but the activities carried out by the assessee, which resulted in income, are commercial in nature - HELD THAT:- It is an admitted fact that for the Asstt. year 2007-08, the AO has allowed such an exemption. In these circumstances, we are of the considered opinion that the learned CIT(A) rightly followed the rule of consistency and allowed the claim of the assessee. We find no reason to interfere with the same. We accordingly uphold it. Appeal of the revenue being devoid of merit, is liable to be dismissed. The appeal of the revenue is accordingly dismissed.
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2019 (8) TMI 1793 - SUPREME COURT
Maintainability of second appeal - whether the High Court was justified in dismissing the State's second appeals on the ground that these appeals did not involve any substantial question of law? - HELD THAT:- The case is remanded to the High Court for deciding the second appeals afresh on merits in accordance with law - the need to remand the case to the High Court has arisen because it is found that the second appeals did involve several substantial questions of law for being answered on merits in accordance with law. The High Court was, therefore, not right in so holding.
The High Court dismissed the second appeals essentially on the ground that since the two Courts have decreed the suit, no substantial question of law arises in the appeals - It is not the principle of law that where the High Court finds that there is a concurrent finding of two Courts (whether of dismissal or decreeing of the suit), such finding becomes unassailable in the second appeal.
As a matter of fact, the suit could not have been tried properly without deciding these questions in the light of the pleadings, evidence and the applicable laws - the High Court, therefore, should have admitted the second appeal by framing appropriate substantial question(s) of law arising in the case and answered them on their respective merits rather than to dismiss the appeals without considering any of the questions raised.
The case is remanded to the High Court for deciding the second appeals afresh on merits after framing appropriate substantial questions of law(s) arising in the case - appeal allowed by way of remand.
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2019 (8) TMI 1792 - NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The operational creditor is not entitled to raise any invoices for the period beyond os.oa.2o1s as the corporate debtor had already issued termination notice in advance i.e. on 22.02.20ts in accordance with the terms and conditions stipulated in the work order dated 17.03.2017. Further, during the course of argument, it has been brought to the notice of this bench that Invoice No. 133 dated 05.02.2018 annexed with the objections of the respondent said to be issued by the operational creditor, marked as Annexure R-3, placed at page No. 26 shows total amount after tax as ₹ 6,37,654.00, whereas, invoice of even number (i.e. invoice No. 133) placed at page No. 16 as Exhibit “D" of application reflects total amount after tax as ₹ 5,90,000.00. Further, description of the invoice No. 133 dated 05.02.2018 annexed by the applicant and the invoice No. 133 sent to Corporate Debtor are not the same.
On perusal of the records it is found that operational creditor has wilfully or knowingly concealed the fact that the corporate debtor had already notified operational creditor about the termination of work way back on 22.02.2018, whereas, the demand notice was issued on 02.07.2018.
It is found that the documents attached to the application are misleading. Mere allegation of non-payment of alleged disputed debt is no proof of insolvency. Since the very objective of the Code is re- organisation and insolvency resolution of corporate persons, no objective will be served by subjecting a solvent company to insolvency resolution process. Further, recovery is an individual effort by a creditor to recover its dues through a process that has debtor and creditor on opposite sides. When creditors recover their dues - one after another or simultaneously from the available assets of the firm, nothing may be left in due course. Thus, while recovery bleeds the corporate debtor to death, resolution endeavours to keep the corporate debtor alive - Further, IB Code provides that while admitting an application for initiation of corporate insolvency resolution process, in addition to fulfilling other requirements, it must be supported by documentary proof of undisputed debt.
The Adjudicating Authority is of the considered view that the instant petition is not maintainable - Petition dismissed.
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2019 (8) TMI 1791 - CESTAT MUMBAI
Smuggling - cmounts already deposited by them during the course of investigation - misdeclaration of value of goods - contravention of provisions of IPR (Imported Goods) Enforcement Rules, 2007 - demand of differential duty on the imported goods - recovery under section 28(4) of the Customs Act, 1962 along with appropriate interest under Section 28AA ibid - absolute confiscation - levy of penalty under Section 112 or 114A of the Customs Act, 1962 - appropriation of amounts already deposited by them during the course of investigation - HELD THAT:- The importers had misdeclared the value, but we also find that the value determined by the revenue also determined in arbitrary and on the basis of various assumptions and presumptions. Hence the quantum of undervaluation determined by the revenue can always be debated. Further it is fact that appellants have before the Commissioner asked for cross examination of various persons associated with market enquiry.
In the present case, where the value has been determined on the basis of the market inquiry Commissioner should have normally allowed cross examination and supplied all the documents, which formed the basis of valuation to the appellants. In normal course for determination of the value, after allowing cross examination and supplying all, the documents to the appellant importers. However in view of specific concession made by the appellants counsel during the course of hearing that with the passage of time (nearly two years from date of importation), the goods have become junk and they do not intend to clear the same for DTA market, the issue in respect of the re-determination of the assessable value under Section 14 has become a mere technical and administrative formality and dispute. Suffice to say that appellant importer had misdeclared the goods in terms of value, quantity and description. For the misdeclaration of the goods in terms of value, quantity and description, it is held that goods are liable for confiscation under Section 111 (m) and (o) of the Customs Act, 1962.
Since the goods have been intercepted and seized prior to the clearance of the goods, the proceedings against the said goods could have been initiated only under Section 124 of the Customs Act, 1962 and the goods confiscated under Section 125 (1) ibid. In case the goods not confiscated absolutely, the officer adjudging the case is required to give the option to redeem the goods against the redemption fine which needs to be determined by him - four Bill of Entries filed in the name of Appellant 2, Commissioner has imposed redemption fine of ₹ 17,00,000/-. However Commissioner has in the entire order not pointed out any reason for determining the redemption fine. Even if the extent of undervaluation is taken into account the total difference in the value as declared and the value as determined by the revenue in these proceedings is ₹ 39,00,762/-. Taking into account the value redetermined, the redemption fine imposed is much on higher side and we reduce the same to ₹ 3,50,000/- - six Bill of Entries filed in the name of Appellant 3, Commissioner has imposed redemption fine of ₹ 35,00,000/-. However Commissioner has in the entire order not pointed out any reason for determining the redemption fine. Even if the extent of undervaluation is taken into account the total difference in the value as declared and the value as determined by the revenue in these proceedings is ₹ 1,08,62,170/-. Taking into account the value redetermined the redemption fine imposed is much on higher side and we reduce the same to ₹ 7,00,000/-.
The demand of duty made by invoking the provisions of Section 28, prior to redemption of the goods is totally premature - the proceedings for demand of duty under section 28(4) cannot be sustained prior to redemption of goods.
Penalties imposed under Section 114A, Section 114AA and Section 117 of the Customs Act, 1962 on appellant 1, appellant 2, appellant 3, appellant 4, appellant 5 & appellant 6 are set aside - Penalties imposed under Section 112 on appellant 1, appellant 2, appellant 3, appellant 4 and appellant 5 are upheld but are reduced. Upon death of proprietor of M/s Amit Enterprise (Appellant 3) the penalty proceedings against him abate - appeal disposed off.
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2019 (8) TMI 1790 - ITAT MUMBAI
Assessment u/s 153A - proof of incriminating material found during the course of search - Unexplained share application money under section 68 and disallowance of expenses relatable to exempt income under section 14A read with Rule 8D - HELD THAT:- As according to CIT(A), the original assessment has not abated and there is no incriminating material found during the course of search. Hence, the assessment on this addition was correctly deleted in view of the decision of Continental Warehousing Corporation (Nhava Sheva) Ltd [2015 (5) TMI 656 - BOMBAY HIGH COURT] - Decided in favour of assessee.
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2019 (8) TMI 1789 - BOMBAY HIGH COURT
Assessment u/s.153C - Proof of incriminating material found during the course of search - Tribunal holding that in the cases where total income has already been assessed, the assessment u/s. 153C of the Income Tax Act, 1961 would be made only on the basis of incriminating material found during the course of search - HELD THAT:- The impugned order of the Tribunal allowed the Respondent-Assessee’s appeal on the above issue by following the decision of this Court in Allcargo Global Logistics Ltd., [2015 (5) TMI 656 - BOMBAY HIGH COURT]
In view of the fact that the impugned order of the Tribunal has followed the binding decision of this Court, no substantial question of law arises from the impugned order. Thus, not entertained.
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2019 (8) TMI 1788 - SUPREME COURT
Dishonor of Cheque - insufficient funds - discharge of legally enforced debt or not - acquittal of the accused - HELD THAT:- In the present case, the appellant, accused was acquitted by the Trial Court inter alia on the ground that the respondent had not established that there was a legally enforceable debt. Since the appellant was convicted only in the High Court, the appellant had substantial ground to raise in the criminal appeal filed before this Court. Because of the reversal of the acquittal by the High Court and the conviction recorded only by the High Court, the appellant had opportunity of negotiating for settlement in this Court after filing the appeal. In such facts and circumstances of the case, this is not a case where cost is to be imposed.
In view of the settlement arrived at between the parties, the conviction of the appellant under Section 138, N.I. Act in Criminal Appeal Nos. 588 and 589 of 2018 is set aside and the appellant is acquitted of the charges under Section 138 of the N.I. Act.
Appeal allowed.
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2019 (8) TMI 1787 - NATIONAL COMPANY LAW TRIBUNAL BENGALURU
Maintainability of application - recovery of dues - initiation of CIRP or only dues to be recovered - assignment of debt - wilful defaulter - Tribunal, victim of forum shopping or not - HELD THAT:- It is a settled position of law that the provisions of Code cannot be invoked for recovery of outstanding amount but it can be invoked to initiate CIRP for justified reasons as per the Code. The Hon'ble Supreme Court in the case of Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited [2017 (9) TMI 1270 - SUPREME COURT], has inter alia, held that IBC, 2016 is not intended to be substitute to a recovery forum.
In another judgment rendered in Transmission Corporation of A.P. Ltd. Vs. Equipment Conductors and Cables Ltd., [2018 (10) TMI 1337 - SUPREME COURT] Supreme Court of India, it is, inter alia held that existence of undisputed debt is sine qua non of initiating CIRP.
Given the disputes between the parties, there are no 'any justified reasons' to initiate Corporate Insolvency Resolution Process (CIRP) in respect of the Corporate Debtor. Further, it is reiterated that this Tribunal is not intended to be substitute to a recovery forum and that the Petitioner ought to act on the recovery certificate issued by the Debt Recovery Tribunal. Furthermore, we do not intend this Tribunal to be a victim forum shopping.
The Petition filed under Section 7 of I&B Code, 2016 ought to be rejected - petition dismissed.
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2019 (8) TMI 1786 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- On perusing the documents produced on record, it is understood that the Corporate Debtor has defaulted in repayment of debt. The Financial Creditor has made out its case with ample evidences for his claim. The Corporate Debtor has chosen not to challenge this petition by not filing an affidavit in reply. It seems like there is no defence left with the Corporate Debtor with regard to this petition. Therefore, owing to the inability of the Corporate Debtor to pay its dues, this is a fit case to be moved u/s 7 of the I&B Code.
It is concluded that the Financial Creditor has established that the loan was duly sanctioned and duly disbursed to the Corporate Debtor but there has been default in payment of Debt on the part of the Corporate Debtor - the nature of Debt is a “Financial Debt” as defined under section 5 (8) of the Code. It has also been established that there is a “Default” as defined under section 3 (12) of the Code on the part of the Debtor.
It is found that the Petitioner has not received the outstanding Debt from the Respondent and that the formalities as prescribed under the Code have been completed by the Petitioner - this Petition deserves ‘Admission’.
Petition admitted - moratorium declared.
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2019 (8) TMI 1785 - NATIONAL COMPANY LAW TRIBUNAL, KOLKATA
Seeking approval of Resolution Plan - One member of CoC, Canara Bank, tendered dissenting vote for approval of the plan on the ground that distribution of resolution funds is discriminatory as against them - whether the decision of CoC can be questioned by Adjudicating Authority (NCLT)? - HELD THAT:- In case of K. SASHIDHAR VERSUS INDIAN OVERSEAS BANK & OTHERS [2019 (2) TMI 1043 - SUPREME COURT] the Hon’‘ble Apex Court hold that, “the legislature has not endowed on the Adjudicating Authority (NCLT) with the jurisdiction or authority to analyse or evaluate commercial decision of CoC which lies to enquire into the justness of the rejection of resolution plan by descending financial creditors.”
This Authority cannot sit in appeal against the financial decisions that are taken by CoC, In our considered opinion, it is within commercial wisdom of the CoC as to what Financial Creditors will get what share of the resolution funds.
The objection of Canara Bank is rejected and it is proceeded to check whether the resolution plan submitted for our approval complies the approval under Section 30(2) of Insolvency and Bankrutpcy Code, 2016.
It is seen that there is no Operational Creditor, employees or the workmen and hence no provision made towards their payment - Para 6 of mandatory contents of the plan provides mechanism regarding management in control of affairs of the Corporate Debtor. It is also provided therein the mechanism for effective supervision and implementation of the plan. Provision is also made to pay resolution costs. The resolution fund appears to be equally distributed among all the Financial Creditors giving them equal share i.e. 23.43%. RP has certified the plan and compliance Certificate is produced as Annexure-F. The affidavit of resolution applicant is also produced stating that they are not disqualified under Section 25A of Insolvency and Bankruptcy Code, 2016 - Perusal of plan shows that it does not contravene any provision of law time being in force and it complies all requirement of Insolvency and Bankruptcy Board of India.
The Resolution plan is approved - application allowed.
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