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Showing 1 to 20 of 1379 Records
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2023 (6) TMI 1379 - CALCUTTA HIGH COURT
Validity of Reopening of assessment - notice u/s 148A(b) issued without taking approval from the “specified authority” u/s 151 - HELD THAT:- On plain reading of provisions of Section 151 it appears that for passing any order u/s 148A of the Act an approval from the “specified authority” as described in Section 151 of the Act has to be taken but by no stretch of imagination it can be interpreted in a way that a notice u/s 148A(b) of the Act is also an order and as such it is of the considered view that before issuance of notice u/s 148A(b) of the Act no approval from “specified authority” is required u/s 151 of the Act.
For the reason that the impugned order u/s 148A(d) is neither a final assessment order nor any demand arises out of it and petitioner has ample opportunity to make a case if it has in its favour, in course of proceeding subsequent to the order u/s 148A(d) of the Act for dropping the proceedings, we are not inclined to interfere with the impugned order. This writ petition is disposed of by only granting liberty to the petitioner to raise any point of merit of the re-assessment before the assessing officer in course of the proceeding subsequent to the order under Section 148A(d) of the Act.
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2023 (6) TMI 1378 - ITAT AMRITSAR
Validity of scrutiny assessment on non-issuance of notice u/s 143(2) - HELD THAT:- From departmental assessment folder, it is clear that the department was not able to find any notice u/s 143(2) initiating the assessment proceeding. AR also placed the online record before the bench but there is no trace of the notice U/s 143(2) of the Act. The Without issuance of notice u/s 143(2) is caused the assessment bad in law. We respectfully relied on the order of Hotel Blue Moon [2010 (2) TMI 1 - SUPREME COURT] and Laxman Das Khandelwal [2019 (8) TMI 660 - SUPREME COURT]
We conclude that there was no issuance of the valid statutory notice u/s 143(2) of the Act within the prescribed time. DR has also not brought anything on record contrary to the arguments advanced by the AR for the assessee. Thus, in the absence of the valid statutory notice, the assessment framed u/s 144 of the Act is not sustainable. Decided in favour of assessee.
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2023 (6) TMI 1377 - CALCUTTA HIGH COURT
Penalty u/s 129(3) of the WBGST Act, 2017 - expiry of e-way bill which is lesser than a day - It is the case of the petitioner that such delay was neither willful nor deliberate on the part of the petitioner and the same was occurred due the reason beyond the control of the petitioner - HELD THAT:- Taking into consideration the fact that the period of expiry of e-way bill is lesser than a day and that such delay was not deliberate and willful and the delay has been caused for the reason beyond control of the petitioner, this writ petition is disposed of by setting aside the impugned order dated 8th March, 2023.
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2023 (6) TMI 1376 - ITAT MUMBAI
Validity of assessment order u/s 144C (1) without passing the draft assessment order - HELD THAT:- In the instant case, it an undisputed fact that the AO has passed the final assessment order on 31/12/2019 without passing draft assessment order. Following the decision of Co-ordinate Bench [2018 (3) TMI 2036 - ITAT MUMBAI] and [2023 (2) TMI 1294 - ITAT MUMBAI] on parity of facts and reasons we hold the assessment order dated 31/12/2019 is invalid. Consequently, assessment order is quashed and the appeal of assessee is allowed.
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2023 (6) TMI 1375 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI
Professional misconduct by CA - penalty order u/s 132 (4)(c) of the Companies Act, 2013 - submission is that after filing of the Appeal and deposit of 10% of penalty, further proceedings as contemplated in Rule 12 regarding the intimation cannot take place - HELD THAT:- Rule 12, sub-rule (3), uses expression imposition of penalty or debars the Auditors from practices. Sub-rule (3) requires sending of the order to every company or body corporate in which the Auditor is functioning as Auditor. Sub-rule (3) of Rule 12 is, thus, independent provision. Thus, Rule 12, sub-rule (2) provides that action against Auditor in event the Appeal is filed under Rule 12, sub-rule (1), after depositing the 10% penalty amount, the consequences as contemplated under Rule 12, sub-rule (2) shall not take place. Thus, in case when an Appeal is filed with deposit of 10% of penalty, it is not obligatory to the company or body corporate to appoint a new Auditor as required by sub-section (2) of Rule 12. However, sub-rule (1) and (2) are only confine to cases where only monetary penalty has been imposed. These two sub-rules have no application with regard to cases where penalty of ‘debarment’ has been imposed. Omission of ‘debarment’ in sub-rules (1) and (2) are with the purpose and object.
The learned Counsel for the Respondent has placed reliance on judgment of Hon’ble Supreme Court in MD. ALAUDDIN KHAN VERSUS KARAM THAMARJIT SINGH [2010 (7) TMI 1006 - SUPREME COURT] where Hon’ble Supreme Court while considering the principle of statutory construction has noted the principle that express inclusion of one thing is the exclusion of all others.
The consequence of subrule (4), Rule 12 is that when procedure under Rule 12, sub-rule (2) has been initiated, company or body corporate has to appoint a new Auditor, the clear intendment is that in case of a debarment, the Auditor is not entitled to continue to discharge his functions and a new Auditor as contemplated is to be appointed - Rule 11, sub-rules (6) and (7), which provides that the orders passed under sub-rules (6) and (7) shall not become effective until thirty days have elapsed from the date of issue of the order unless the Division states otherwise in the order along with the reason for the same.
Present are cases where the orders were not to become effective until thirty days have elapsed. There is purpose and reason for providing the thirty days period. Thirty days period is provided for Auditors against whom orders have been passed to wound up their affairs in company or body corporate where they have been functioning.
Filing of the Appeal by the Appellant(s) with deposit of 10% of the penalty shall have no effect on the order of ‘debarment’ passed against the Appellant(s) under Section 132(4)(c) and under head (B). Order of ‘debarment’ shall continue to operate unless an order is passed by the Appellate Tribunal - it is deemed fit and appropriate to give an opportunity to the Appellant(s) to make their submissions on the merit and this Tribunal after hearing the Appellant(s) as well as Respondents shall take appropriate decision on the application filed for the interim relief in each of the Appeal(s).
All these Appeal(s) be listed for admission and consideration of application for interim relief on 3rd July, 2023.
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2023 (6) TMI 1374 - BOMBAY HIGH COURT
Maintainability of petition - availability of alternative remedy of appeal - appealable order or not - Suspension of Petitioner’s license as a Customs Cargo Service Provider - HELD THAT:- Having heard learned counsel for the parties and having perused the record, in our opinion, it would be appropriate for the Petitioner to avail of the remedy of an appeal, so that the rival contentions of the parties on the aspects of facts and law can be adjudicated before the Tribunal - the merits of the rival contentions need not be dwelled upon.
Insofar as the protection granted by this Court as noted above is concerned, the protection needs to be continued till the Petitioner approaches the Tribunal alongwith a stay application and till the orders are passed on the stay application - petition disposed off.
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2023 (6) TMI 1373 - TELANGANA HIGH COURT
Allowability of the claim as bad debt - when the assessee did not satisfy the conditions under Sections 36(1)(vii) r.w.s. 36(2) of the Act with regard to his claim of bad debts - whether the claim for deduction as bad debt was allowable u/s 36(1)(vii)? - HELD THAT:- Tribunal has given good reasons as to why the claim of bad debt is an allowable deduction under Section 36(1)(vii) of the Act. That apart, Tribunal took the view that bad debts can be allowed to the extent of the instalments defaulted by the prized subscriber and written off as bad debt in the books by the assessee, but at the same time clarifying that for future instalments that are likely and yet to be defaulted no claim for bad debt can be allowed. However, to allow such a claim to the extent indicated, Tribunal observed that more facts and figures were required and therefore, relegated the matter back to the file of the assessing officer. We see no error or infirmity in the view taken by the Tribunal on the issue of bad debts covering both the facets.
Disallowance of royalty payment - distinction between capital and revenue expenditure - Tribunal took note of the fact that the only ground for the disallowance was that in the prior assessment years no such payment was made - HELD THAT:- As undisputed fact is that the logo and the words “Shriram Chits” is owned by M/s. Shriram Chits and Investments (Private) Limited. Assessee had used the logo and the above words while carrying on its business.
Honda Siel Cars India Limited [2017 (6) TMI 524 - SUPREME COURT], Supreme Court once again examined the distinction between capital and revenue expenditure. Referring to its earlier decision in CIT v. Ciba of India Limited [1967 (12) TMI 3 - SUPREME COURT] Supreme Court held that royalty paid for use of technical information or knowhow would be in the nature of revenue expenditure as no enduring benefit is acquired thereby. As per Shriram Transport Finance Company Limited. [2022 (6) TMI 1428 - MADRAS HIGH COURT] royalty payment made by the assessee for use of logo or trademark for a particular period for improvement/ expansion of business would qualify as revenue expenditure
This issue is no longer res integra. In the case of Wavin (India) Limited [1981 (6) TMI 5 - MADRAS HIGH COURT] as examined such a claim in the context of amount paid to a foreign collaborator as contribution towards research and development expenditure. Madras High Court held that such expenditure could not be regarded as capital expenditure. It being a business expenditure, assessee was entitled to claim deduction. This decision of the Madras High Court was upheld by the Supreme Court in Waven (India) Limited [1997 (9) TMI 6 - SC ORDER] wherein Supreme Court agreed with the reasoning given by the Madras High Court while upholding the expenditure to be of revenue nature. The expenditures were incurred to obtain benefit of development and research made by the foreign company; such an expenditure could not be said to be for acquisition of any asset at all. Therefore, we have no hesitation in answering this issue in favour of the assessee.
Accrual of income - Commission on removed chits - according to the Tribunal, from out of the amount that is payable to the defaulting subscriber, subscription to his replacement by another person, the assessee is entitled to deduct 5% as commission. This commission amount has got nothing to do with the regular commission income of the assessee - HELD THAT:- Stand of the assessee that the commission income accrues when the accounts have been finally settled with the defaulting non-subscriber is the correct position. We are in agreement with the view expressed by the Tribunal on this issue. Thus, this issue is also answered in favour of the assessee.
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2023 (6) TMI 1372 - CESTAT KOLKATA
Classification of service - transportation service or Cargo Handling Service? - transportation of materials, loading and unloading there for while shifting of the various materials within the said Steel Works and other incidental work related thereto - HELD THAT:- The Appellant has undertaken the work of shifting of various materials within the Tata Steel Works factory. A perusal of the contract revealed that it was a composite contract in which Transportation was the primary service. Loading, unloading and stacking of the cargo was incidental to the main work. Accordingly, service tax was payable on Transportation service on the total value received. However, the Appellant has paid service tax under the category of Cargo Handling Service, towards the receipts made for loading, unloading and stacking work. Just because they have paid service tax under Cargo Handling Service for the unloading, loading and stacking services, it does not mean that the Appellant were liable to pay service tax under cargo Handling Service on the total value.
The Appellant is not liable to pay service tax under the category of Cargo Handling Service'. Hence, the demand confirmed in the impugned order is not sustainable. Since demand of service tax is not sustainable, the demand of interest and imposition of penalty is also not sustainable.
The impugned order set aside - appeal allowed.
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2023 (6) TMI 1371 - CESTAT KOLKATA
Condonation of delay in filing appeal - adjudication order dated 24.08.2016 was received by the appellant on 07.09.2016 and the appeals against the said orders have been field on 22.12.2016 i.e. after 105(one hundred and five) days of the receipt of the adjudication order - HELD THAT:- As per the provisions of section 85(3)(A) of the Finance Act, 1994, w.e.f. 28.05.2012 any person aggrieved by the adjudication order can file an appeal before the Ld.Commissioner(Appeals) within two months of the receipt of the adjudication order and the said time can be extended by another one month if sufficient cause for non-filing the appeal has been explained. Therefore, as per the said provisions, the appeal is required to be filed within 3(three) months form the receipt of the adjudication order.
In this case, the appeals have been filed by the appellant beyond the time limit prescribed in terms of section 85(3)(A) of the Finance Act, 1994, therefore Ld.Commissioner(Appeals) has rightly dismissed the appeals as time barred.
There are no infirmity in the impugned orders. The same are upheld - appeal dismissed.
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2023 (6) TMI 1370 - ITAT MUMBAI
Penalty levied u/s 271(1)(c) - Estimation of income on bogus purchases - CIT(A) reduced the rate of profit to 6% - HELD THAT:- Since the facts of the issue under consideration are identical with the facts of the appeal pertaining to AY 2013-14 [2022 (6) TMI 1359 - ITAT MUMBAI] decided by the co-ordinate bench, following the said decision, we hold that the penalty levied u/s 271(1)(c) is liable to be cancelled in the instant cases since the additions have been made on estimated basis. Accordingly, we set-aside the orders passed by the CIT(A) in all the three years under consideration and direct the AO to delete the penalty levied u/s 271(1)(c). Decided in favour of assessee.
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2023 (6) TMI 1369 - ITAT KOLKATA
Validity of reopening of assessment - prerequisite for reopening assessment - Non disposal of objections given by appellant against reassessment - HELD THAT:- AO has not properly disposed of/ dealt with objections raised by the assessee. We note that the objection as to non-existence of substantive material remained undisposed of. So on this count, the reopening of assessment and the assessment order framed by the AO cannot be sustained.
Secondly, we also note that there are several infirmities in the process of obtaining approval from the ld. Joint Commissioner of Income Tax which was obtained dated 16.02.2017 whereas as per the copy of the said sanction placed the approval was dated 03.02.2017 which shows total non-application mind at the end of ld. AO.
Considering these infirmities and non-disposal of objections by the AO, we are of the considered view that assessment proceedings as well as reassessment order have been framed in mechanical manner and without application of mind and therefore reopening of assessment cannot be allowed in a casual manner - we are inclined to quash the reopening of assessment as well as the order framed u/s 143(3) r.w.s. 147 - Decided in favour of assessee.
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2023 (6) TMI 1368 - ITAT MUMBAI
Validity of the order passed u/s. 92CA(3) - period of limitation - HELD THAT:- As per provision of Sec. 92CA(3A) the TPO is required to pass an order u/s 92CA(3) of the Act at any time before 60 days prior to the date on which the period of limitation referred to in Sec. 153 for making the assessment order on assessment or reassessment or re-computation or fresh assessment as the case may be expires.
After taking into consideration the material placed on record it is undisputed fact that transfer pricing officer has passed order u/s 92CA(3) on 01.11.2019 whereas the limitation for passing the said order u/s 92CA(3) expires on 31.10.2019 Therefore, taking into consideration the provision of the Act and decision of Hon’ble Madras High Court in the cases Pfizer Healthcare Ltd. [2021 (2) TMI 1152 - MADRAS HIGH COURT] and Saint Gobain India P. Ltd. [2022 (4) TMI 808 - MADRAS HIGH COURT] the order u/s 92CA(3) of the Act is time barred by 1 day.
Thus as the order of the TPO was barred by limitation, therefore, there was no eligible assessee in the case of the assessee in terms of provisions of subsection (15) to Sec. 144C of the Act. Appeal of the assessee is allowed.
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2023 (6) TMI 1367 - ITAT DELHI
TP Adjustment - evidence of intra-group services furnished by the assessee - direct nexus between the revenue earned/ cost incurred by the Assessee and the majority intra-group services received obtained or not? - HELD THAT:- We note that the assessee has furnished enormous evidences which point out that intra group services have in fact been received by the assessee. Moreover, the agreement is a composite one and authorities below have allowed part of the same and treated part of the same not allowable. On similar facts, ITAT has deleted the adjustment for several years and the Revenue’s appeal against them has been dismissed by Hon’ble High Court.
We find that the above order applies on all fours to the present appeals. Here also from the composite agreement, some have been accepted at arm’s length price and some have been treated as not acceptable at arm’s length price. Huge details of intra-group services have been furnished by the assessee. Respectfully following the precedent from the ITAT and Hon’ble High Court, we uphold the contention of the assessee and delete the TP adjustment.
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2023 (6) TMI 1366 - ITAT MUMBAI
Deduction u/s 80P(2)(d) - interest income derived by a co-operative society from its deposits with the co-operative banks - HELD THAT:- Tribunal in the case of M/s Amore Commercial Premises Co-op Society Ltd [2023 (1) TMI 826 - ITAT MUMBAI] has dealt on the taxability of interest earned on the deposits were the cooperative society receives/earns interest on deposits with the co-operative bank is eligible for claim of deduction u/s 80P(2)(d) of the Act.
Accordingly, we direct the AO to allow the claim of deduction u/sec 80P(2)(d) on the interest income/dividend received /earned from the co-operative banks. Appeal filed by the assessee are allowed.
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2023 (6) TMI 1365 - DELHI HIGH COURT
Dishonour of Cheque - error in not appreciating that the Investigating Officer in his cancellation report has made wrong statements - whether inherent powers provided under Section 482 of the Cr.P.C., can be exercised to defeat the statutory bar of Section 397(3) of the Cr.P.C.? - HELD THAT:- It is pertinent to note that FIR, bearing No. 613/2007, registered at P.S. New Friends Colony was with respect to commission of offence under Section 406/420 of the IPC. It was observed by the learned Additional Sessions Judge in the impugned order dated 21.04.2011, that the petitioner herein did not dispute his own letter of surrender of vehicle and also that a specific finding by way of evidence collected by the Investigating Officer has come on record that the bus was surrendered to respondent no. 2 and 3 by the petitioner himself. It is further observed that the grounds taken by the petitioner in the present petition are the same that had been taken in the protest petition as well as the revision petition filed by him before the concerned Courts. The learned Additional Chief Metropolitan Magistrate and subsequently the learned Additional Sessions Judge in the revision petition, have examined the said grounds and thereafter passed detailed orders.
It is pertinent to note that the petitioner herein had transferred the insurance of the vehicle himself to some other vehicle and remained silent about the issue for four years and had not paid instalments after November, 2002. One of the ground taken by the petitioner herein, is that he had made a payment of Rs. 1,19,426/-, after the surrender of the bus. It has been rightly observed by the learned ASJ, that even if it is presumed that the abovementioned payment was made, the same will not make out a case under Sections 420/406 of the IPC, in view of the fact that petitioner himself had surrendered the bus.
This Court does not find any illegality or infirmity in the impugned order passed by the learned Additional Chief Metropolitan Magistrate vide order dated 25.03.2010, in FIR No. 613/2007, registered at P.S. New Friends Colony and subsequently order dated 21.04.2011, passed by the learned Additional Session Judge, in C.R. No. 24/2010. The learned ASJ, based on the material on record, has rightly dismissed the revision petition filed on behalf the petitioner herein.
Petition dismissed.
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2023 (6) TMI 1364 - GAUHATI HIGH COURT
Maintainability of second revision - framing of charge - whether the criminal petition under Section 482 CrPC under the guise of second revision is maintainable? - HELD THAT:- When revision against the order of Magistrate dismissing the complaint had been dismissed by the learned Sessions Judge, application to the High Court under Section 482 CrPC against the order of dismissal would not lie as it would amount to circumventing this provision which prohibits second revision.
The inherent powers cannot be invoked in a manner that the effect would be just entertaining a second revision, which has been expressly barred except in extraordinary cases. The bar as contained in Sub-Section (3) of Section 397 CrPC cannot be circumvented by resorting to Section 482 CrPC. A second revision under the grab of a quash petition under Section 482 CrPC is not maintainable.
This Court is of the view that there is no compelling circumstance or exceptional circumstance or it could not even be stated to be a rarest of rare case, warranting invocation of Section 482 Cr.P.C. by this Court, and it is a clear case that under the guise of second revision, the petitioner has approached this Court under Section 482 Cr.P.C.
Petition deserves to be dismissed as not maintainable - This Writ Petition (Criminal) stands dismissed.
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2023 (6) TMI 1363 - ITAT DELHI
Deduction u/s 80HHC - CIT(A) holding that income classified as other income, though held as “Business Income” was not to be considered for the purpose of working out deduction u/s 80HHC - HELD THAT:- If the receipt of the nature Staff quarter rent, Misc Receipts, gains in exchange, liabilities written back are chargeable as profits and gains of business and chargeable to tax u/s 28 of the Act, and if any quantum of these receipts is allowable as an expense in accordance with Sections 30 to 44D and is not to be included in the profits of the business of the assessee as computed under the head "Profits and Gains of Business or Profession", ninety per cent of such quantum of the receipt of rent or interest will not be deducted under clause (1) of Explanation (baa) to Section 80HHC.
Ninety per cent of not the gross of these receipts but only the net, which has been included in the profits of business of the assessee as computed under the head "Profits and Gains of Business or Profession", is to be deducted under clause (1) of Explanation (baa) to Section 80HHC for determining the profits of the business. But no such exercise was taken up by the Ld. AO
Therefore the wholesome effect of above is that Ld AO and so did the learned CIT(A) erred in law and in facts of the case in holding that income classified as other income, though held as “Business Income” was not to be considered for the purpose of working out deduction u/s 80 HHC. Ground decided in favour of the assessee. AO shall recompute the deduction u/s 80HHC, by considering these receipts without deducting 90% of these, while computing adjusted profits.
Applicability of Section 80AB for not allowing deduction u/s 80HHC - Computation of deduction on the basis of ‘net income’- Directions to recompute the deduction u/s 80HHC, while giving effect to the judgment of Hon’ble Supreme court in Commissioner of Income Tax-1 versus Reliance Energy Ltd. [2021 (4) TMI 1237 - SUPREME COURT]
Treatment to dividend income received - Direction for allowing the credit of taxes paid in Singapore on the dividend income as per the provisions of DTAA in accordance with law.
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2023 (6) TMI 1362 - CALCUTTA HIGH COURT
Addition u/s 68 on share capital and premium - absence of identity of the creditors, genuineness and creditworthiness of the entire transaction - ITAT deleted the addition - only reason for making the addition in the hands of the assessee the director of the assessee company did not respond to the summons issued by the assessing officer u/s 131 - HELD THAT:- Non appearance of the director cannot be made a ground for addition in the hands of the assessee under Section 68 of the Act when other evidence relating to the raising of share capital qua the share subscriber were available on record as furnished by the assessee and also cross verified by the assessing officer pursuant to the enquiry conducted in response to the notices issued under Section 133(6) of the Act. Tribunal also referred to the decision of this Court in the case of Crystal Networks Pvt. Ltd. Vs. CIT [2010 (7) TMI 841 - KOLKATA HIGH COURT]
Thus we find that there is no question of law much less substantial question of law arising for consideration in this appeal.
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2023 (6) TMI 1361 - CESTAT BANGALORE
Classification of goods - Polypropylene (PP) Flexible Intermediate Bulk Containers (FIBC) bags - to be classifiable under Chapter 6305 or 3923 as ‘Other made-up Textiles Articles’ - applicability of Board’s Circular No.42/2011 and Minutes of the Meeting of DGFT held on 25-7-2013 - HELD THAT:- DGFT and Board’s Circular have clarified that FIBC is classifiable under Chapter Heading 6305; and since there is no test reports relied upon by the Department to claim that it is not of manmade textile material, the classification cannot be concluded under Chapter 39 as ‘Articles for Conveyance or packing of goods made by other plastics’. Both the Board Circular and DGFT have clarified that FIBC is classifiable under 6305 based on the HSN Explanatory Notes to Chapter 39.
Further it is found in the case of CCE vs. Karur KCP Packaging P. Ltd. [2015 (8) TMI 1233 - CESTAT CHENNAI], the Tribunal by relying on the Hon’ble High Court’s decision rendered in the case of Karur KCP Packings Ltd. vs. CC [2015 (9) TMI 976 - MADRAS HIGH COURT], Board Circular and DGFT clarification, held that FIBC is rightly classifiable under 6305 32 00 and not under 3923 29 90.
In view of the above clarifications by the Board and DGFT and relying on the decisions in the case of Karur KCP Packaging P. Ltd. it is held that the goods are rightly classifiable under Chapter Heading 6305 32 00.
Accordingly, the appeal is allowed.
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2023 (6) TMI 1360 - CALCUTTA HIGH COURT
Maintainability of appellate order - protection from any coercive action of recovery if 10% of the disputed tax is paid - HELD THAT:- In view of the legal position and availability of alternative remedy, no relief to be granted to the petitioner in this writ petition except granting liberty to the petitioner to file statutory appeal before the appellate authority concerned within 15 days from date, subject to compliance of all other formalities and if petitioner files the statutory appeal within the time stipulated, the appellate authority concerned will not raise the issue of limitation and shall decide such appeal to be filed on merit.
Petition disposed off.
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