TMI Tax Updates - e-Newsletter
April 3, 2024
Case Laws in this Newsletter:
GST
Income Tax
Customs
Insolvency & Bankruptcy
PMLA
Service Tax
Central Excise
Indian Laws
Highlights / Catch Notes
-
GST:
Violation of the principles of natural justice - The petitioners asserted that since an adverse decision was made against them without a personal hearing, it was in contravention of Section 75(4) of the CGST/MGST Act. - The petitioners, a private company, challenged the order on the grounds that they were not afforded a personal hearing despite requesting one and that the discrepancies alleged against them were unsubstantiated. - Since the petitioners had requested a personal hearing in their reply, the failure of Respondent No. 3 to provide one was deemed a violation of the law. - Matter restored back.
-
GST:
Recovery notices and bank attachment orders - No opportunity of being heard - discrepancies between the GSTR 3B return and the GSTR 2B return - The High Court observed that the petitioner was not given a proper opportunity to be heard before the issuance of the assessment order. Despite the petitioner's submission of a reply, no opportunity for a personal hearing was provided. - Considering that approximately 50% of the tax liability was recovered by debiting the petitioner's bank account, the court deemed it necessary to provide the petitioner with an opportunity to be heard. - Matter restored back.
-
GST:
Validity of Assessment order - demand of GST - The petitioner asserts that an error was committed by entering the same invoice number in multiple e-way bills - The High Court noted that the petitioner had indeed submitted a reply on 28.08.2023, explaining the error and attaching relevant bill copies. However, the impugned order did not provide reasons for rejecting the petitioner's reply and documents, which led to the conclusion that there was a lack of proper consideration. - The High Court quashed the impugned order dated and remanded the matter to the assessing officer for reconsideration.
-
Income Tax:
LTCG - Deduction claimed u/s 54 - ITAT allowed claim - The High Court notes that the issue revolves around long-term capital gains arising from an Apartment Buyers Agreement entered into before the property sale. - The ITAT's conclusion, aligning with previous case law, states that possession of the property was completed within three years from the sale, entitling the assessees to relief. Referring to precedent, the High Court reaffirms that the construction commenced within the mandated time frame, and the assessees fulfill the conditions under section 54 of the Act. The High Court dismisses the appeal of the Revenue, finding no substantial question of law raised and upholds the ITAT's decision.
-
Income Tax:
Maintainability of the writ petition in HC - Validity of reassessment order passed - The petitioner raised concerns about procedural irregularities, including the lack of sufficient time for response and the initiation of multiple proceedings for the same period and issue. The High court considered the maintainability of the writ petition, emphasizing the importance of adhering to statutory remedies and precedents regarding writ jurisdiction. Ultimately, the court dismissed the petition, highlighting the availability of alternative remedies under the Income Tax Act, 1961, and refrained from making observations on the merits of the case.
-
Income Tax:
Disallowance of prior period expenditure - Mercantile system - Matching principles of accounting - The assessee had claimed deduction for such expenses, citing a consistent practice and a previous favorable decision by the ITAT Nagpur. Despite the Revenue's contestation based on accounting principles, the Tribunal upheld the CIT(A)'s decision in favor of the assessee, emphasizing consistency with past rulings. As a result, the Tribunal dismissed the Revenue's appeal, affirming the allowance of prior period expenses for the relevant assessment year.
-
Income Tax:
Rectification u/s 154 application rejected as being time barred - The Appellate Tribunal agreed with the assessee's contention that the rectification application was not time-barred. It held that the clock for the four-year limitation period starts only when the assessee is in receipt of the order to be rectified. Since there was no evidence that the intimation under Section 143(1) was served on the assessee, the limitation period did not begin, and the application was well within the stipulated time.
-
Income Tax:
Revision u/s 263 by CIT - inadequate v/s no enquiry - unsecured loan, difference in stock and late payment of PF & ESI - The Tribunal reviewed each of the contested issues and found that the AO had adequately considered them during the assessment. It observed that the appellant had provided relevant details and explanations, which were duly examined by the AO. As a result, the Tribunal determined that there was no basis for considering the assessment order as erroneous under Section 263.
-
Customs:
Recovery under demand notices based on alert issued 5 years ago - Bonds for Warehoused goods has already expired - The High Court determined that the demand notice issued under Section 72(1) of the Customs Act in 2013 became unenforceable when no concrete measures were undertaken within a reasonable period to execute the notice. The Court highlighted the lapse in action for nearly ten years, rendering the subsequent enforcement attempts invalid. - The Court found the Alert Notice issued in 2018 to be unjustified and illegal, as it sought to enforce an expired and redundant demand. This action was deemed contrary to the provisions of the Customs Act and the principles of limitation.
-
Customs:
Seeking defreezing of petitioner’s bank account - export under Duty Drawback Scheme under Section 75 of Customs Act, 1962 - The petitioner claimed duty drawback under the Duty Drawback Scheme for goods exported through Tuticorin Sea Customs. However, due to the petitioner's inability to submit a bank realization statement at the time of consideration, their claim was rejected. The High Court, after considering the submissions, directed the remittance of the matter for reconsideration. The impugned orders were set aside, and the respondents were instructed to reevaluate the claim, considering the bank realization statement submitted by the petitioner.
-
Customs:
Valuation of the export goods on which duty has to be paid - The Appellate Tribunal upholds the appellant's contention regarding the determination of the transaction value. It asserts that customs authorities cannot alter the transaction value agreed upon by the buyer and seller. The transaction value, as per the contract terms, remains binding, and customs authorities cannot disregard it based on conflicting test reports. The Tribunal concludes that the re-determination of the transaction value based on the CRCL test report is incorrect and cannot be sustained. - The Tribunal rules in favor of the appellant regarding the inclusion of the additional amount paid by the overseas buyer as commission. It emphasizes that commissions paid cannot be added to the transaction value for export goods.
-
Customs:
Classification of imported goods - AJI-NO-MOTO - The main contention was whether Ajitide I+G should be classified as a miscellaneous chemical product or as a food flavouring material. The Tribunal examined the product's usage, characteristics, and industry perception, concluding that it functions both as a flavour enhancer and imparts the umami taste, fitting more accurately under the category of food flavouring materials under CTH 2106 9060. - Since the Tribunal found the product to be correctly classified under food flavouring materials, it ruled that the appellant was not eligible for the claimed exemption.
-
Customs:
Imposition of penalties u/s 112(a) of the Customs Act 1962 on Customs broker - import of used Multifunction Digital Photocopiers and Printers - it is alleged that the appellant had connived with the importers - The Tribunal in its earlier order upheld confiscation of the goods but allowed redemption on payment of redemption fine and penalty on the enhanced value. - The Tribunal reviewed the evidence and found no proof of the appellant's involvement in the importation violations. As there was no penalty under Customs House Agents Licensing Regulations, the penalty under Section 112(a) was not sustainable.
-
Customs:
Proceedings against importer when the sole proprietor of M/s Ganpati Enterprises had expired - mis -declaration and short payment of duty - imposition of penalty on appellant - The Tribunal ruled that proceedings cannot continue under the Customs Act following the death of the sole proprietor. Citing legal precedent, the Tribunal emphasized that there are no provisions to continue proceedings against the legal heir of a deceased proprietor. - Regarding the imposition of penalties, the Tribunal found no evidence linking one of the appellants to the import of the consignment. Therefore, no penalty was imposed on this appellant.
-
Customs:
Smuggling - foreign origin Gold - burden to prove - The tribunal clarified that the burden of proof under Section 123 of the Customs Act, 1962, solely rested on the person claiming ownership of the seized goods, in this case, the appellant who claimed to have purchased the gold legally. It was deemed that the appellants had discharged their burden by providing substantial documentary evidence supporting their claim of lawful acquisition from Snehal Gems Pvt Ltd. - The tribunal found that the Department failed to disprove the appellants' claim of legal purchase or to conclusively prove that the goods were procured through illegal means.
-
Customs:
Classification of imported goods - different categories of "IP Phones" such as (i) IP Audio Phones (ii) IP Audio Conference Phones (iii) Wireless IP Phones (iv) IP Video Phones - Applying the General Rules for the Interpretation of the Customs Tariff, the Tribunal preferred the specific classification claimed by the appellants over the more general classification used by the customs department, in line with legal precedents that favor more specific descriptions when classifying goods. - The tribunal observed that the principal function of the IP Phones is telephony, as they are used for the transmission of speech or audio signals, which aligns them more closely with the classification attracting 'NIL' BCD.
-
Customs:
Payment of IGST on the imported raw materials/inputs taken into the private bonded warehouse of the appellants importer - Schedule-III entry at 8(a) to Section 7 of CGST Act, 2017 - The Tribunal held that GST is not leviable on imported raw materials consumed in the manufacture of final products under a customs bonded warehouse arrangement until such goods are cleared for home consumption.
-
Customs:
Warehousing of imported Goods without payment of duty - The Tribunal concluded that the appellant complied with all legal provisions for the importation and warehousing of goods under the Customs Act, 1962. The Tribunal found no basis for the demand for customs duty on raw materials used in manufacturing, which were imported and stored in a licensed private bonded warehouse. - The Tribunal affirmed that the jurisdiction for raising demand for short levy lies with the proper officer having jurisdiction over the warehouse and not with the Custom House of the port of import, aligning with previous Tribunal decisions and legal provisions.
-
Indian Laws:
Dishonour of cheque - Respondent (accused) denied issuing the cheques and claimed they were taken from his office by the complainant. - The Trial Court found the ledger produced by the complainant to be inadmissible as it lacked a certificate u/s 65B of the Evidence Act. - The Trial Court held that since the signatures on the cheques were admitted by the respondent, the presumption u/s 138 would arise. - The Trial Court found that the accused had raised a probable defense by asserting that he used to sell goods to the complainant and the cheques were not issued for any legally recoverable debt or liability. - The High Court emphasized the limited scope of interference in appeals against acquittals, stating that unless the view taken by the Trial Court is impossible or perverse, interference is not warranted.
-
IBC:
Approval of Resolution Plan - The Tribunal found the resolution plan’s treatment of operational creditors contrary to Section 30(2)(b) of the IBC, as operational creditors were offered payments through equity rather than cash, which is not aligned with the precedence established by the Supreme Court. - The Tribunal modified the order of the NCLT to ensure that the resolution plan complies with the provisions of Section 30(2)(b)(ii) of the IBC. It directed that the resolution applicant distribute the plan amount to the operational creditors on a pro-rata basis as per the said section, prioritizing cash payments over other forms.
-
PMLA:
Seeking grant of bail - money laundering - proceeds of crime - misappropriation of credit facilities extended by the banks for personal gain - creation of shell companies - The court notes the serious nature of the allegations and the necessity for thorough investigation, considering the substantial amount involved. Despite the defense's contentions, the court finds sufficient grounds to reject the bail plea, emphasizing the need for deeper inquiry. - The court considers the allegations regarding the transfer of funds overseas and the petitioner's involvement in such transactions. Despite the defense's denials, the court finds merit in the prosecution's concerns, warranting a thorough examination before considering bail.
-
PMLA:
The High Court addressed the petitioner's plea to quash the ECIR proceedings against him, which were based on an FIR that had been quashed earlier. After examining the arguments presented by both parties, the court found that since the proceedings in the predicate offense had been quashed, the ECIR proceedings against the petitioner could not be sustained.
-
Service Tax:
Levy of service tax - bowling alley income - scope of ‘amusement facility’ - The case involved a dispute regarding the taxability of income from a bowling alley operated by the appellant. The Department contended that since the appellant provided additional services within the premises, the bowling alley income was not exempt from service tax. However, the Tribunal determined that the bowling alley qualified as an 'amusement facility' under the relevant provisions of the Finance Act. Charges for accessing the facility were deemed exempt from service tax, regardless of the additional services provided within the premises.
-
Service Tax:
Providing Services to SEZ unit - Benefit of exemption - The appellant couldn't submit Form A1 due to unavailability to SEZ units but submitted Form A2. The revenue argued against granting exemption due to non-submission of mandatory forms. However, the Tribunal ruled in favor of the appellant, stating that since Form A2 was available, denial of exemption was unwarranted. The appellant's eligibility for exemption was confirmed based on Form A2 issued by the jurisdictional officer. Consequently, the impugned order was set aside, and the appeal was allowed.
-
Central Excise:
CENVAT Credit - place of removal for the GTA Services provided under a F.O.R sale contract - The High Court determined that in an F.O.R sale, where ownership remains with the seller until delivery at the buyer's premises, the place of removal should be considered the buyer's premises. This interpretation was supported by relevant Supreme Court decisions and a circular issued by the CBIC. The Tribunal's decision to consider the factory gate as the place of removal was deemed unjustified. - The High Court concluded that the appellant is indeed eligible for CENVAT credit on outward transportation beyond the place of removal.
-
Central Excise:
Cenvat credit for service tax paid on 'management fee' and 'common sharing of Head office services' - invoices from the service provider were not in the prescribed format - The Appellate Tribunal concluded that there was a reasonable nexus between the services provided and the appellant's activities, justifying the admissibility of the cenvat credit. Despite minor procedural defects in the invoices, the Tribunal upheld the admissibility of the credit, emphasizing that the invoices contained the necessary particulars. Furthermore, the Tribunal found no suppression of facts by the appellant, rendering the invocation of the extended period of limitation by the Department untenable.
-
Central Excise:
Process amounting to manufacture - The appellant's contention was that the activities—testing, labeling, and packing—performed on imported modems did not amount to manufacture, as the modems were already in a marketable state upon import. They argued that these processes were essential quality checks and did not alter the modem's identity, thus not constituting manufacture. - The Tribunal held that testing, labeling, and packing of modems, coupled with the inclusion of additional accessories, amounted to making the product marketable to the consumer, thereby falling within the definition of manufacture.
Articles
Notifications
Circulars / Instructions / Orders
News
Case Laws:
-
GST
-
2024 (4) TMI 59
Violation of the principles of natural justice - No opportunity of personal hearing granted to the Petitioner - contrary to the provisions of Section 75(4) of the Central Goods and Service Tax Act, 2017 ( CGST Act ) - HELD THAT:- In the present case, by its reply dated 4th July 2023, Petitioner No. 1 specifically sought an opportunity of personal hearing. In these circumstances, Respondent No. 3 was bound to give a personal hearing to the Petitioner before passing the said Order dated 18th August 2023. Further, by the said Order dated 18th August 2023, a decision adverse to Petitioner No. 1 has been taken. Therefore, in these circumstances also, Respondent No. 3 was bound to given a personal hearing to Petitioner No. 1. However, no such personal hearing has been given by Respondent No. 3 to Petitioner No. 1 before passing the said Order dated 18th August 2023. Since the said Order dated 18th August 2023 has been passed without giving any personal hearing to the Petitioner, the same is in violation of the principles of natural justice and exfacie contrary to the provisions of Section 75(4) of the CGST / MGST Act. Thus, we dispose of this Writ Petition by the following Orders: - The impugned Order dated 18th August 2023 passed by Respondent No. 3 is hereby quashed and set aside.
-
2024 (4) TMI 58
Violation of principles of natural justice - no opportunity of personal hearing granted to the Petitioner - discrepancies noted in the returns - Seeks to quash the Order - contrary to the provisions of Section 75(4) of the Central Goods and Service Tax Act, 2017 ( CGST Act ) - HELD THAT:- In the present case, by its reply dated 10th July 2023, Petitioner No. 1 specifically sought an opportunity of personal hearing. In these circumstances, Respondent No. 3 was bound to give a personal hearing to the Petitioner before passing the said Order dated 22nd August 2023. However, no such personal hearing has been given by Respondent No. 3 to Petitioner No. 1 before passing the said Order dated 22nd August 2023. Since the said Order dated 22nd August 2023 has been passed without giving any personal hearing to the Petitioner, the same is in violation of the principles of natural justice and ex-facie contrary to the provisions of Section 75(4) of the CGST / MGST Act. Thus, we dispose of this Writ Petition by the following Orders: - The impugned Order dated 22nd August 2023 passed by Respondent No. 3 is hereby quashed and set aside.
-
2024 (4) TMI 57
Recovery notices and bank attachment orders - Validity of assessment order - No opportunity of being heard - discrepancies between the GSTR 3B return and the GSTR 2B return - HELD THAT:- On perusal of the impugned assessment order, it is evident that the tax liability and interest and penalty was levied in respect thereof. By taking into account the fact that about 50% of the tax liability was recovered by making an appropriation from the petitioner's bank account, it is just and necessary to provide the petitioner an opportunity of being heard. Solely for that reason, the impugned order calls for interference. Impugned order is set aside and the matter is remanded for reconsideration. The petitioner is permitted to submit a reply to the show cause notice within a period of 15 days from the date of receipt of a copy of this order by annexing all relevant documents. Upon receipt thereof, the respondent is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh order within a period of two months from the date of receipt of the petitioner's reply. In view of the assessment order being quashed, the bank attachment stands raised. The writ petition is disposed of on the above terms.
-
2024 (4) TMI 56
Validity of Assessment order - demand of GST - petitioner asserts that an error was committed by entering the same invoice number in multiple e-way bills - No reasons for rejecting petitioner's reply - HELD THAT:- From the petitioner's reply dated 28.08.2023, it appears that the petitioner conceded that an inadvertent error was made by including the same invoice number under multiple e-way bills. The petitioner also attached the relevant bill copies with such reply. The findings recorded in the impugned order discloses that the reply of the petitioner was noticed, but the reasons for rejecting such reply and, in particular, the documents annexed thereto, do not find place in the impugned order. For such reason, the impugned order calls for interference. Therefore, the impugned order dated 30.09.2023 is quashed and the matter is remanded to the assessing officer for re-consideration. Upon receipt thereof, the assessing officer is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh assessment order within two months from the date of receipt of the petitioner's reply. W.P is disposed of on the above terms - Consequently, W.M.P is closed.
-
Income Tax
-
2024 (4) TMI 55
LTCG - Deduction claimed u/s 54 - ITAT allowed claim - HELD THAT:- We note that the issue of Long Term Capital Gain itself arises out of the Apartment Buyers Agreement ['Agreement ] for the property which was entered into by the assessees on 18 February 2016 and thus prior to the date of sale. ITAT has come to conclude that the aforesaid Agreement was in respect of an under construction flat and since the sale as well as the possession of the property in question had been completed within a period of three years from the date of sale of a residential house, the assessees would be entitled to be accorded relief. We note that the view as taken by the ITAT is also in consonance with the judgment rendered by this Court in Sh. Akshay Sobti [ 2020 (1) TMI 407 - DELHI HIGH COURT ] no substantial question of law arises.
-
2024 (4) TMI 54
Maintainability of the writ petition in HC - subject Matter of challenge before the writ Court - Validity of reassessment order passed - petitioner has also challenged the very basis for issuing notices under sections 148 and 148-A of Income Tax Act, 1961 - case set-up by the petitioner is that there can be no second proceeding for the same period and on the same issue which was the basis for the previous proceeding in which a final order passed and the said order is a subject matter of challenge in Appeal HELD THAT:- The powers exercised by the writ Court under Article 226 of the Constitution of India are plenary in nature. It is now well-settled that a technical objection or technicality of any nature shall not be an obstruction in exercise of such powers by the writ Court, except the self-imposed restriction by the writ Court. However, this is also too well-settled that it shall be a sound exercise of judicial discretion if the writ Court keeps in mind the statutory remedy to the aggrieved person and declines to entertain the petition. This restriction is followed by the writ Courts with more rigors in the matters relating to fiscal matters. Furthermore, in a catena of judgments, the Hon ble Supreme Court has indicated that without a pre-deposit as provided under the statute for preferring an appeal or for seeking an order of stay, the writ petition shall not be entertained. Recently, in the context of Micro, Small and Medium Enterprises Development Act, 2006, the Hon ble Supreme Court has held that without pre-deposit of 75% of the awarded amount as provided under section 19 of Micro, Small and Medium Enterprises Development Act, 2006 the writ petition was not maintainable [refer M/s India Glycols Limited Vs. Micro and Small Enterprises Facilitation Respondents Council, Medchal Malkajgiri [ 2023 (11) TMI 1240 - SUPREME COURT] Under the Income Tax Act, there is a similar provision for deposit in cases where the assessee seeks an order of stay. Secondly, this is also no longer in the realm of doubt that a notice issued by a statutory authority cannot be made the subject matter of challenge before the writ Court. The assessing officer who issued the notice u/s 148 and 148-A of Income Tax Act, 1961 is the authority vested with the power to issue a notice under these provisions. However, the plea put forth by the petitioner is that the notice under section 148-A has been issued in breach of natural justice inasmuch as no opportunity of hearing was provided to the assessee. On this issue, all that we intend to indicate is that the requirements of natural justice are not inflexible and its applicability shall be determined on the basis of the facts in each case. Thus present writ petition has been dismissed on the ground that the petitioner has efficacious remedy under the Income Tax Act, 1961.
-
2024 (4) TMI 53
Allowability of Employee s Contribution - Adjustment u/s 143 - late deposit of employee welfare fund by misunderstanding actual legal position - assessee had filed a rectification application before the AO i.e. ACIT(CPC) which was rejected as disallowance made by AO on the ground that employee s contribution towards ESI/PF was not made within due date and admitted in the Audit Report, cannot be said to be a mistake apparent from the record HELD THAT:- The Hon ble Supreme Court in the case of Checkmate Services Pvt. Ltd [ 2022 (10) TMI 617 - SUPREME COURT] as held that the non-obstante clause has to be understood in the context of the entire provision of Section 43B which is to ensure timely payment before the returns are filed, of certain liabilities which are to be borne by the assessee in the form of tax, interest payment and other statutory liability. In the case of these liabilities, what constitutes the due date is defined by the statute. Once Hon ble Supreme Court has laid down a law as per Article 141 of the Constitution of India, it is law of the land. Therefore, the law declared by the Hon ble Supreme Court is applicable from the inception of the relevant provision. As decided in N. Kuppanna Gounder[ 1974 (8) TMI 96 - MADRAS HIGH COURT] that when a law is declared it has effect not only from the date of the decision but also from the inception of the statutory provision. Thus, the law declared by Hon ble Supreme Court on the issue of allowability of Employee s Contribution is applicable from the date of the inception of the relevant section 36(1). Appeal of the assessee is dismissed.
-
2024 (4) TMI 52
Disallowance of prior period expenditure - Mercantile system - Matching principles of accounting - AO found that assessee was following mercantile system of accounting and had debited prior period expenses in its Books of Accounts and held that expenses accrued during the year under consideration were allowable, that as per the matching principles of accounting prior period expenses could not be allowed while computing the income for the AY 2008-09 - HELD THAT:- As decided in assessee's own case [ 2013 (3) TMI 876 - ITAT NAGPUR] wherein as held Prior period expenses are not a new phenomenon in the filed of accounting or taxation laws. Courts are of the view that if the expenditure incurred in particular year are crystalised in a subsequent year because of certain reasons, same cannot be dis-allowed only on the ground that assessee is following Mercantile system of Accounting. If assessee is following a particular system of accounting and it is not distorting income, treatment of prior period expenses loses its importance. In the case under consideration, assessee was following the same system for the last so many years and the AO was allowing the prior period expenses for the relevant years. AO/FAA has not challenged the claim made by the assessee that it was following this practice consistently. They have also not held that because of prior period expenses, the taxable income of the assessee remained un-taxed. The issue can be seen from another angle expenditure incurred by the assessee is not in doubt. It is not the case of the Revenue Authorities that expenditure was never incurred. The allowability of such expenditure in a particular year has to be decided in pragmatic manner. Deferred revenue expenditure - The Co-ordinate Bench in assessee s own case for A.Y. 2008-09 [ 2013 (3) TMI 876 - ITAT NAGPUR] has discussed the decision of the Hon'ble Bombay High Court in the case of Taparia Tools Ltd. [ 2003 (1) TMI 83 - BOMBAY HIGH COURT] - After considering the said decision, the ITAT Nagpur Benchin own case of assessee has allowed the appeal of the assessee. Therefore, there is no merit in Ground No.2 of the Revenue, accordingly, Ground No.2 is dismissed.
-
2024 (4) TMI 51
Rectification u/s 154 application rejected as being time barred - claim of deduction of his entire income u/s 80P was denied in entirety - clock for the four year limitation seeking rectification - HELD THAT:- Department admitted, that it has no details of service of intimation to the assessee u/s 143(1) of the Act for all the impugned assessment years before us. The clock for the four year limitation seeking rectification starts ticking the moment the assessee is in receipt of the order. Without his being aware of any such order passed, there is no question of the time barring period ticking into motion, for the simple reason that the assessee is in a position to act upon it and seek rectification only when he is aware of such order passed. In the present case, Department has nothing to prove that the intimation was at any time was served on the assessee. Therefore, there arises no question of calculating the period of limitation of four years from the date of passing of intimation u/s 143(1) of the Act, i.e. from the year 2010 for holding the assesses application seeking rectification as barred by limitation. Also noted that the assessee had duly responded to the demand notices which were issued to it in consequence to the intimation made u/s 143(1) of the Act challenging it constantly and well within the period of four years of the intimation made on the assessee. It was only finally, when the AO did not do the needful with respect to the demand raised, that it ultimately moved an application in the year 2022 again seeking rectification in the intimation made u/s 143(1). Therefore, for all purposes, the assessee was all along, from the beginning since it became aware of some intimation having been made u/s 143(1), seeking rectification in the same, and therefore the rejection of its application as being time barred is not in conformity with law. The order of the ld. CIT(A) holding so, therefore, is set aside. We hold that the assessee s application seeking rectification of the intimation was well within the stipulated time and, therefore, needed to be entertained. On merits, assessee has demonstrated before us that its claim of deduction u/s 80P(2) was denied for the reason that the assessee had claimed the same on interest income earned from nationalized banks which was not allowable in terms of Section 80P(2)(d) of the Act. On facts of the case, assessee has demonstrated before us that its entire profits did not comprise only of interest earned from nationalized banks and it included even profits earned from its activity of providing credit facilities to members. That on facts, therefore, the intimation made u/s 143(1) of the Act contained mistake apparent from record which needed rectification. AO had given the assessee no opportunity of hearing at all, and even the ld. CIT(A) had failed to consider this fact which was evident from the record. Even otherwise, he has contended that even on law he was entitled to claim deduction u/s 80P(2)(a)(i) of the Act on the interest earned on deposits made in banks since these deposits were made in the course of carrying out the normal activity of the assessee co-operative society of providing credit facility to its members and the interest incomes earned, therefore, constitute income earned from the said activity entitled to deduction u/s 80P(2). Thus as noted, authorities have failed to adjudicate the issue in the light of the correct facts of the case and the judicial propositions cited by assessee before us, we consider it fit to restore the issue back to the AO to consider the application of the assessee filed u/s 154 afresh and decide the same giving due opportunity of hearing to the assessee considering all the facts relating to the issue as also the law on the same. Appeals of the assessee are allowed for statistical purposes.
-
2024 (4) TMI 50
Revision u/s 263 by CIT - inadequate v/s no enquiry - unsecured loan, difference in stock and late payment of PF ESI - HELD THAT:- CIT has not applied his mind to arrive at a consideration which is erroneous in so far as prejudicial to the interest of revenue for passing the impugned order u/s. 263 of the Act. We observe that in the course of proceeding u/s. 263 of the Act, assessee had furnished the relevant details and explained the issues raised through the show cause notice, supporting its contentions by corroborative documentary evidence. It is well settled law that for invoking the provisions of section 263 of the Act, both the conditions that the order must be erroneous and prejudicial to the interest of revenue needs to be satisfied. In cases where there is inadequate enquiry but not lack of enquiry, again the CIT must give and record a finding that the order/enquiry made is erroneous. This can happen if an enquiry and verification is conducted by the CIT and he is able to establish and show the error or mistake made by the AO, making the order unsustainable in law. In some cases, possibly though rarely, the CIT can also show and establish that the facts on record or inferences drawn from facts on record per se justified and mandated further enquiry or investigation but the AO had erroneously not undertaken the same. However, the said finding must be clear, unambiguous and not debatable. The matter cannot be remitted for a fresh decision to the AO to conduct further enquiries without a finding that the order is erroneous, the condition or requirement which must be satisfied for exercise of jurisdiction u/s 263 of the Act. In such matters, to remand the matter/issue to the AO would imply and mean that the CIT has not examined and decided whether or not the order is erroneous but has directed the AO to decide the aspect/question. In the present case before us, we note that Ld. Pr. CIT has raised three issues in the show cause notice and thereafter concluded on the same to set aside the assessment with the direction to do it afresh. We find that the issues in the present case considered by the Ld. CIT for exercising revisionary proceedings u/s. 263 of the Act are purely on facts which are verifiable from the records of the assessee. Moreover, the same have been examined by the Ld. AO in the course of assessment proceedings for which all the relevant details and explanations were placed on record which also forms part of the paper book before us. We do find force in the submissions made by the Ld. Counsel. CIT, DR could not bring any material on record to controvert the factual position as submitted before us. Accordingly, on the issue raised by the Ld. PCIT in the revisionary proceedings, no action u/s 263 is justifiable which in our considered view cannot be sustained under the facts and circumstances of the present case - Decided in favour of assessee.
-
Customs
-
2024 (4) TMI 49
Recovery under demand notices based on alert issued 5 years ago - Bonds for Warehoused goods has already expired - For almost ten (10) years from the date of issuance of the said notice, no concrete measures were adopted by the respondents - HELD THAT:- Having noted the statutory scheme in regard to the recovery of the amounts in respect of goods warehoused and as relevant in the present context, we may observe that it is not in dispute that there were four bills of entries of the year 2005 and 2010 in respect of which goods were partially cleared and some / balance goods part of the said bills of entry had remained to be cleared and were warehoused. The case of the petitioner is that for certain reasons the goods could not be cleared and removed from the warehouse. In such circumstances, the petitioner has contended that although the demand notice dated 8 March 2013 was issued to the petitioner, the same was not acted upon for a substantial period of time, and what was sought to be done by the respondents was to insert a alert after about five years that is on 23 March 2018, which was certainly not a step to execute the demand notice issued under Section 72(1). Having not executed the demand notice dated 8 August 2013 after almost 10 years, a fresh notice under Section 72(2) of the Customs Act, being the impugned notice, came to be issued on 11 December 2023. From a bare perusal of the notice, it is clearly seen that after issuance of the demand notice dated 8 August 2013, which were four demand notices, in respect of four bills of entries, only in respect of one bill of entry, the impugned notice under Section 72(2) has been issued without any action being taken to recover any duty as subject matter of the earlier demand notices. There is no explanation whatsoever coming forth, in regard to the inaction on the part of the Customs officers in enforcing the earlier notice during the period 2013 to 2023, for any recovery that is under the demand notice dated 8 August 2013 - Once such a position was taken by the petitioner and made clear to the department, it was clearly open to the respondents to proceed in accordance with law and deal with the goods, although, such course of action was immediately and always available with the customs officers immediately after the demand notices dated 8 August 2013 was issued to the petitioner under Section 72(1) of the Customs Act, on which the officers did nothing. It is thus difficult to accept that in such situation the law would permit the respondents to issue a fresh notice, when the earlier demand notice dated 8 August 2013 itself was not acted upon and/or had stood lapsed, as no action was taken for a period of 10 years. Such a course of action would also not to be permissible from the reading of the provisions of Section 72(2) and more particularly from a cumulative reading of Sections 59, 61 and 72 of the Customs Act. Thus, once the recovery under the demand notices dated 8 August 2013 issued under Section 72(1)(b) itself, was rendered redundant, a recovery under the impugned notice dated 11 December 2023 would not have been foisted upon the petitioner. Consequently, any attempt on the part of the respondents to recover such amounts by the impugned Alert notice dated 23 August 2018, and which was reiterated in the impugned communication dated 24 January 2018 would also be required to be held to be illegal and invalid. Petition allowed.
-
2024 (4) TMI 48
Seeking defreezing of petitioner s bank account - export under Duty Drawback Scheme under Section 75 of Customs Act, 1962 - HELD THAT:- The petitioner is entitled to duty drawback to the tune of Rs. 4,97,202/- in respect of the aforesaid shipping bills corresponding to the exported goods to the value of Rs. 66,11,867/-. However, at the time of consideration, the petitioner was not in a position to submit a statement of bank realization. The claim of the petitioner was also rejected on the ground that he had not produced the bank realization certificate. Now, the petitioner is before this Court. In the type set, the petitioner has enclosed the bank realization statement. This Court is of the considered opinion that the matter needs to be remitted back for reconsideration. The petitioner is directed to submit the bank realization statement to the respondents and the respondents shall consider the same and pass orders, without insisting on limitation. Hence, the impugned orders are set aside. The respondents shall also grant personal hearing to the petitioner. The writ petition is allowed.
-
2024 (4) TMI 47
Valuation of the export goods on which duty has to be paid - case of the Department is that the contract price entered into by the appellant and its overseas buyer should be determined as per the test report of the Chemical Examiner of CRCL - inclusion of additional consideration for sale or not. Can the transaction value between the buyer and seller be modified by the Customs based on the test report of the chemical examiner of CRCL when the price should be finalised as per the test report of CIQ as per the agreement between the buyer and seller? - HELD THAT:- In this case, the transaction value as per the agreement has an adjustment clause which provided that the value shall be re-determined as per the test report of CIQ. The Customs officers cannot change this transaction value or the stipulation of the test report of CIQ being the determinant of the transaction value. The report of Chemical examiner, CRCL is irrelevant to the transaction value. It will be a different matter if the testing has to be done for some Customs purpose, say, to determine the nature of the goods or if the availability of the exemption notification depended on the Fe content of the export goods, etc. Then, the customs officers can rely on the CRCL s test report. Thus, the impugned order re-determining the transaction value based on the CRCL test report is not correct and cannot be sustained. The decision of this tribunal in KIMMI STEELS PVT. LTD. VERSUS COMMISSIONER [ 2019 (11) TMI 741 - SC ORDER] upheld by the Supreme Court has been relied on by the Revenue. That case was completely different although the goods were iron ore fines in that case as well. During the relevant period in that case, export duty was chargeable on weight with a partial exemption notification if the Fe content was below a certain threshold. There were conflicting test reports regarding the Fe content and in the absence of clarity regarding the entitlement to the exemption notification, it was denied. This question is answered in favour of the exporter and against the Revenue. Can the US$ 10 per MT be added as additional consideration for sale in the case? - HELD THAT:- As is evident from the proviso to sub-section (1) of Section 14 and the Export Valuation Rules, unlike in case of import valuation, Commissions paid cannot be added for the purpose of determining the value in case of exports even if it was paid by the exporter - The case of the Revenue, however, is that the amount paid by the buyer to M/s. Reliance, Hong Kong, the agent, is an additional consideration for sale as this amount which was to be paid by the exporter was, instead paid by the importer and thereby the transaction value was reduced. Therefore, according to the Revenue, price was not the sole consideration for sale in this case. If, indeed, the price was not the sole consideration for sale, the transaction value can be rejected under Rule 8 of the Export Valuation Rules and then, it must be redetermined sequentially through Rules 4 to 6. Rule 4 provides for determining the value based on the transaction value of goods of like kind and quality exported at or about the same time. Rule 5 provides for valuation based on a computed value, including cost of production, manufacture or processing of export goods, charges, if any, for the design or brand and an amount towards profit. Rule 6 is a residual Rule to be applied if Rules 4 and 5 do not apply. None of these Rules provide for addition of an amount as additional consideration for sale - this amount of US$ 10 per MT cannot be added as additional consideration for sale to the export price. If there was additional consideration for sale, the proper course would have been to the officer to reject the transaction value and re-determine the value under Rule 4 or Rule 5 or Rule 6 sequentially. Both the questions are answered in favour of the appellants and against the Revenue - appeal allowed.
-
2024 (4) TMI 46
Classification of imported goods - AJI-NO-MOTO - rightly classifiable under CTH 2106 9060 or under CTH 3824 9900? - denial of benefit of N/N. 46/2011 dated 1.6.2011 - demand of differential duty alongwith interest and penalty - extended period of limitation - HELD THAT:- It should however be understood that a decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. In the case of INDO NISSIN FOODS LTD. VERSUS COMMISSIONER OF CUSTOMS, CHENNAI [ 2001 (5) TMI 378 - CEGAT, CHENNAI] , the item imported was flavour enhancers/ potentiators. The issue was whether the goods required a license to be cleared. The Appellant had in the Bill of Entry declared the item to be food additives and paid customs duty under Chapter 3823.00. Therefore, there was no challenge to the classification made in the Bill of Entry. Hence the matter is distinguished. Sine the correct classification of the goods is under CTH 2106 9060 the goods are not eligible for exemption under Sl. No. 499(I) of Notification No. 46/2011 and the impugned order is upheld in this regard. Invocation of the extended period - imposition of penalty - HELD THAT:- It is seen that the impugned goods were imported by filing 68 bills of entry, from 1-12-2017 to 29-10-2022 by declaring them as Ajitide I+G . It is the Revenues case that by making an incomplete declaration of the goods (suppression of facts) and mis-classifying them has lead to evasion of duty and hence the extended period of time as per section 28(4) of the Customs Act 1962 is rightly invokable and the goods are liable for confiscation under Section 111(m) (o) ibid and the importer is also liable for a penalty. The Hon'ble Supreme Court in NORTHERN PLASTIC LTD. VERSUS COLLECTOR OF CUSTOMS CENTRAL EXCISE [ 1998 (7) TMI 91 - SUPREME COURT] has held that merely claiming the benefit of exemption or a particular classification under the bill of entry does not amount to mis-declaration or suppression of facts. Something more is required. Although the judgment was pronounced before the 'Self-Assessment' system has been introduced in respect of Customs clearance of imported goods under Section 17 of Customs Act,1962, with effect from 8-4-2O11, we find that earlier consignments bearing the same description, same classification were cleared by the department, vide 68 Bills of Entry, from 1-12-2017 to 29-10-2022. In the circumstances it cannot prima facie be said that there was an intention on the part of the appellant to mis-declare the goods. Nor has Revenue brought in some additional facts to prove its case of suppression . The goods are basically a mixture of chemicals used in the food industry and an arguable case has been made out by the Appellant, which is not a mere excuse to escape payment of duty. Hence the demand will only survive for the normal period and no penalty or fine is imposable. The impugned order is upheld including the denial of the claim for exemption from duty but with the modification that the demand is limited to the normal period along with applicable interest. The fine and penalty imposed are set aside - Appeal disposed off.
-
2024 (4) TMI 45
Imposition of penalties u/s 112(a) of the Customs Act 1962 on Customs broker - import of used Multifunction Digital Photocopiers and Printers - it is alleged that the appellant had connived with the importers - evidence to prove the allegations - HELD THAT:- The Tribunal in SRIVENKATESWARA REPRO GRAPHICS, BEST MEGA INTERNATIONAL, SUPREME ENTERPRISES, BEDY ASSOCIATES, DATA ENTERPRISES, SKYLARK OFFICE MACHINES, LAKSHMI NARAYANAN RAO, SURESH KUMAR KHETTARPAL, MOKSHA BUSINESS MACHINES, MR RAJESH N KUMAR KHATTERPAL, UNISTAR ENTERPRISES VERSUS COMMISSIONER OF CUSTOMS COCHIN-CUS, COMMISSIONER OF CENTRAL TAX CENTRAL EXCISE, COCHIN [ 2019 (5) TMI 397 - CESTAT BANGALORE] held that the secondhand Multifunction Digital Photocopiers and Printers (MFDs) were restricted goods and hence, liable for confiscation under Section 111(d) of the Customs Act 1962, and allowed the goods to be redeemed on payment of redemption fine and penalty on the enhanced value. In addition, penalty under Section 112(a) on the firm was also upheld. There is nothing on record as evidence to prove the involvement of the appellant directly or indirectly that he had connived with the importer. It also intimated that no action was initiated against the appellant under the Customs Broker Regulations till date and therefore, the appellants claim that in good faith he had filed the documents as per the importers directions cannot be ignored. As there is nothing on record to prove that the appellant had connived/abetted with the importers in filing the documents for importing the restricted products without the mandatory documents, the penalty cannot be sustained. The impugned orders for the said offence have already penalized the importers in terms of redemption fine and penalty. As held by the Tribunal in the case of G. NARAYAN CO. VERSUS COMMISSIONER OF CUSTOMS MANGALORE [ 2021 (3) TMI 560 - CESTAT BANGALORE] , since the appellant has not been penalized under the Customs House Agents Licensing Regulations, for any irregularity, the question of imposing penalty under Section 112a of the Customs Act, 1962 does not arise. The penalties imposed on the appellant are set aside - appeals are allowed.
-
2024 (4) TMI 44
Validity of proceedings against importer when the sole proprietor of the firm had expired - mis -declaration and short payment of duty - imposition of penalty on appellant - HELD THAT:- It is found that no proceedings can continue under the Customs Act in case when the sole proprietor, Shri Prahlad Agarwal of M/s Ganpati Enterprises, on 04.03.2010 expired and the Death Certificate was also placed before the adjudicating authority. As the sole proprietor has passed away, then the proceedings against the importer, M/s Ganpati Enterprises, abates and there is no provisions under the Customs Act, 1962 to continue the proceedings against the the legal heir, Shri Ritesh Agarwal in the impugned proceedings as held by the Hon ble Apex Court in the case of SHABINA ABRAHAM AND OTHERS VERSUS COLLECTOR OF CENTRAL EXCISE CUSTOMS [ 2015 (7) TMI 1036 - SUPREME COURT] , wherein the Hon ble Apex Court has held Section 6 of the Central Excises Act, which prescribes a procedure for registration of certain persons who are engaged in the process of production or manufacture of any specified goods mentioned in the schedule to the said Act does not throw any light on the question at hand as it says nothing about how a dead person s assessment is to continue after his death in respect of excise duty that may have escaped assessment. Thus, no proceedings can continue against the importer, M/s Ganpati Enterprises and Shri Ritesh Agarwal, who is the legal heir of the proprietor of M/s Ganpati Enterprises. Imposition of penalty on Shri Jagdish Prasad Khaitan - HELD THAT:- There is no role involved in the import of the impugned consignment by M/s Ganpati Enterprises as he was involved only at the time of delivery of the goods released provisionally, therefore, no nexus has been proved by the Revenue against Shri Jagdish Prasad Khaitan. Accordingly, no penalty is imposable on Shri Jagdish Prasad Khaitan. The impugned order is set aside and the appeal filed by M/s Ganpati Enterprises abates and the appeals filed by Shri Ritesh Agarwal and Shri Jagdish Prasad Khaitan, are allowed.
-
2024 (4) TMI 43
Smuggling - foreign origin Gold - burden to prove purchase has been discharged by the Appellant under section 123 of Customs Act - seized goods are liable to confiscation or not - difference of opinion - HELD THAT:- The Show Cause Notice has proceeded on an erroneous notion that the burden of proof is required to be jointly discharged by Appellant No. 1 to 4 along with Appellant No. 5. In fact the only person who would be required to discharge the burden of proof would be Appellant No. 5. Framing of charges on Appellant No. 1 to 4 on this count is erroneous. The ownership claimant Rinku Verma [Appellant No. 5] has produced 4 Invoices towards purchase from Snehal Gems Pvt Ltd. The transaction details by way of ledger and bank have been produced by him. Taking this lead, the Revenue has caused investigation at the end of Snehal Gems, who have confirmed the transactions in respect of 4 Invoices and also produced their purchase invoices and many other records which are part of the relied upon documents in the Show Cause Notice. No proper conclusion has been arrived at by Revenue to disprove the claims of Rinku Verma and Snehal Gems Pvt Ltd. The issues raised in the reply to Show Cause Notice have not been properly addressed. The Revenue had an original lead about the procurement of the gold in question by way of cash transaction between Shashi Kant Patil and Rinku Verma. Even as it was important for the Revenue to prove the gold in question was not procured from Snehal, in view of clear lead, the Revenue was also required to prove that the gold in question was procured way of cash transactions from Shashi Kant Patil. This lead has been completely abandoned without any proper reason. This is a serious lapse on the part of the Revenue - In this case, since there were contrary claims, the onus was on the Revenue was on two folds. Firstly, to disprove the claim of Rinku Verma that the gold was procured through proper Invoices, secondly to prove that the gold was in fact procured on cash basis from Shashi Kant Patil. As per my detailed observations, on both these counts, the Revenue has failed. The onus under Section 123 stands discharged by Appellant No. 5 [claimant of ownership] since Revenue has not come out with any specific adverse evidence against these Invoices and transactions. Also Appellants 1 to 4 were in no way required to discharge this burden in terms of Section 123. The Hon ble Member Judicial is agreed upon that burden of proof stands discharged under Section 123 and hold that seized goods are not liable for confiscation - The reference is answered and the difference of opinion stands resolved.
-
2024 (4) TMI 42
Classification of imported goods - different categories of IP Phones such as (i) IP Audio Phones (ii) IP Audio Conference Phones (iii) Wireless IP Phones (iv) IP Video Phones - IP Audio phones and IP Audio Conference phones under CTI 8517 1810 or not - Wireless IP Phones to be classified under CTI 8517 1210 or not - HELD THAT:- The dispute with regard to classification of IP Phones under consideration has a clear functionality of telephony inasmuch as it is used for communication of speech or audio signals to other person. Its added features that enable the IP phone to communicate through internet, Ethernet cable or WiFi connection in the form of data does not change the essential nature of communication device. As seen from the data-sheet as above, the IP phones consist of transmission and reception hardware such as telephone handset, speaker, dialing push buttons, transmission and reception of audio signals either by converting it as data packets or otherwise, power module etc. From the above discussion, the IP phones is classifiable under 8517 18 10, as the principal function of these equipment remain as telephony . It is obvious that since IP Phones are complete products by themselves, the classification is feasible either under the first single dash or the second single dash entries and classification under third single dash entry is ruled out, as these are not parts . From perusal of the detailed coverage of the goods under the scope of the above entries in the second single dash entry, it would become clear that IP Phones does not match the specific description of any of the apparatus mentioned in the --' entry of the second group at (II) above, namely Base stations and various ---' entries, such as PLCC equipment, voice frequency telegraphy, Modems, High bit rate digital subscriber line system, Digital loop carrier system, Synchronous digital hierarchy system and Multiplexers which are also explained in detail under paragraphs(A) to (G) of HS Explanatory Notes. Even if, one would like to attempt to bring IP phones under second group of - items, treating it as an apparatus which allows for connection to a wired or wireless communication network or the transmission or reception of speech or other sounds, images or other data within such a network, then the only entry that could be feasible is others . The products under consideration i.e., (i) IP Audio Phones (ii) IP Audio Conference Phones of various models of CISCO brand would appropriately be classifiable under Customs Tariff Item (CTH) 8517 18 10 and not under CTH 8517 69 90, as claimed by Revenue. Further, it is also concluded that the appropriate classification for (iii) Wireless IP Phones of CISCO brand would be under CTH 8517 12 90 and not under CTH 8517 69 90, as claimed by Revenue. The impugned order passed by the learned Commissioner (Appeals) cannot be sustained on merits. Accordingly, the impugned order is set aside - Appeal allowed.
-
2024 (4) TMI 41
Warehousing of imported Goods without payment of duty - Compliance with the requirements of legal provisions or not - making an entry of the imported goods under Section 46 of the Customs Act, 1962 - clearance of goods for deposit, manufacturing in private bonded warehouse in terms of legal provisions under various Sections of Chapter IX ibid - eligibility for availing the benefit of Notification No. 50/2017-Customs dated 30.06.2017 on the impugned goods at the time of ex-bond clearance of final products manufactured in the private bonded warehouse - clearance of final products i.e., Boats, without paying the Customs duty on the raw materials used for making such boats - clearance of final products, without paying customs duty on the inputs, raw materials etc. HELD THAT:- In order to determine the appropriate duties of customs payable on any imported goods, an importer is required to file a Bill of Entry (B/E) giving all required particulars of such imported goods for assessment to duty and depending upon whether such imported goods are required for clearance towards warehousing or home consumption, such of the legal provisions governing warehousing or customs clearance for home consumption would apply on such goods - as provided in Annexure-A B to the SCN dated 14.01.2022, the imported raw materials have been brought into the country by the appellants by filing various Bills of Entry for warehousing and the same were assessed to duty by the Customs officers at the port of import i.e., Air Cargo Complex, Sahar and seaport of Nhava Sheva. Thus, the appellants had complied with the requirements of Section 46 ibid by filing an entry on importation of the goods into the country, and there is no case for any non-compliance in this regard. It is also found that the finished goods manufactured out of such raw materials/ inputs imported as explained above, have also been removed from the private bonded warehouse by the appellants on payment of applicable import duties on the date of presentation of Bill of Entry in terms of Section 15(1)(b) ibid, by claiming exemption from basic customs duty under entry S. No. 558 of Notification No. 50/2017-Customs dated 30.06.2017 and upon payment of effective rate of IGST at 5% as per S. No. 250 at Schedule-I of Notification No. 1/2017-Integrated Tax (Rate) dated 28.06.2017. These clearances of final product i.e., Boats classifiable under CTI 8906 9000 from the appellants private bonded warehouse have been duly assessed and after payment of duty as determined by the Customs authorities of New Custom House, Mumbai, these goods have been allowed for home consumption clearance. It is also not the case of the Revenue, that there was any short payment of duty that is being demanded in respect of final products cleared from the appellants private bonded warehouse. The appellants importer have duly complied with the requirements of legal provisions for making an entry of the imported goods under Section 46 of the Customs Act, 1962, and for clearance of goods under warehousing provisions contained under Chapter IX of the Customs Act, 1962. The only situation under which the GST is payable in respect of warehoused goods, is provided under 8A of the Customs Tariff Act, 1975 to state that where the goods deposited in a warehouse under the provisions of the Customs Act, 1962 (52 of 1962) are sold to any person before clearance for home consumption . Thus, in respect of the imported raw materials which have been used in the manufacture of final products under a private bonded warehouse, as there is no clearance for home consumption by person by sale, we find that there is no situation arising for the levy of GST under the provisions of Section 8A ibid. Payment of IGST on the imported raw materials/inputs taken into the private bonded warehouse of the appellants importer - HELD THAT:- In terms of Schedule-III entry at 8(a) to Section 7 of CGST Act, 2017 it has been specifically provided that the same shall not be treated as supply of goods. Thus, no IGST would be leviable on such imported raw materials consumed in the manufacture of the final products. It is found that it is only in respect of the final products manufactured from the private bonded warehouse, at the time of its clearance, the appellants are required to pay the applicable duties, under Section 68 ibid. In other words, appellants importer as a unit licensed under Sections 58 and 65 ibid was permitted to import capital goods, raw materials etc. and warehoused them without payment of duty. Manufacture and other operations in a bonded warehouse is only a duty deferment scheme and the applicable duties is payable at time of clearance of final products - The capital goods can be cleared for home consumption as per Section 68 read with Section 61 of the Customs Act on payment of applicable duty without interest. The capital goods can also be exported after use, without payment of duty as per Section 69 of the Customs Act. In the present case, the adjudged demands is not in relation to the demand of import duty in respect of final products cleared from the warehouse. The imported raw materials/inputs used in the manufacture of final products under a Customs bonded warehouse in terms of Section 58 and 65 of the Customs Act, 1962 are not liable for payment of import duties at the time of clearance of such final products manufactured in the said customs bonded warehouse - the impugned order dated 10.01.2023 passed by the learned Commissioner of Customs (Import), Air Cargo Complex (ACC), Sahar, Mumbai by confirming the adjudged demands is not sustainable and thus, the same is set aside. The appeals are allowed in favour of the appellants.
-
Insolvency & Bankruptcy
-
2024 (4) TMI 40
Modification in the Resolution Plan - HELD THAT:- The National Company Law Appellate Tribunal (NCLAT), has clarified that the clauses in the resolution plan permitting alteration of the layout and building plan including height, location and common area in future are permissive, albeit any change will require approval of the competent authority, that is, Real Estate Regulatory Authority (RERA), Maharashtra. Therefore, the resolution applicant cannot alter the layout and modify the plan on its own without approval. In view of the aforesaid clarifications given by the resolution applicant Ashdan Properties Private Limited, by which they are bound, no further order or direction is required to be passed - appeal disposed off.
-
2024 (4) TMI 39
Approval of Resolution Plan - whether the Resolution Plan submitted, which was approved by the Adjudicating Authority, is in compliance of provisions of Section 30, subsection (2) of IBC - HELD THAT:- The extent of judicial review of Resolution Plan approved by the CoC in its commercial wisdom are very limited. The Hon ble Supreme Court in COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LIMITED THROUGH AUTHORISED SIGNATORY VERSUS SATISH KUMAR GUPTA OTHERS [ 2019 (11) TMI 731 - SUPREME COURT] as well as in K. SASHIDHAR VERSUS INDIAN OVERSEAS BANK OTHERS [ 2019 (2) TMI 1043 - SUPREME COURT] has laid down that commercial wisdom of the CoC has to be given paramount importance and limited jurisdiction provided to interfere in the approval of the Plan by the Adjudicating Authority or the Appellate Tribunal, i.e., only when the Plan is not in compliance with statutory provisions of Section 30, sub-section (2). The law is thus well settled that commercial wisdom of the CoC approving the Plan cannot be interfered and it can be interfered only when there is statutory non-compliance, i.e., non-compliance of Section 30, subsection (2). Thus, we need to answer the question as to whether there is statutory non-compliance in the present case - the Hon ble Supreme Court in JAYPEE KENSINGTON BOULEVARD APARTMENTS WELFARE ASSOCIATION ORS. VERSUS NBCC (INDIA) LTD. ORS. [ 2021 (3) TMI 1143 - SUPREME COURT] , held that Operational Creditors are to be paid in priority over the Financial Creditors only by cash and not by issuing of equity. The distribution of the amount to the Operational Creditor (other than Government Departments) is clearly contrary to provisions of Section 30 (2)(b)(ii). The Adjudicating Authority has failed to advert to Section 30, sub-section (2) (b) (ii) and failed to notice that amount proposed to the Operational Creditor is clearly contrary to Section 30(2)(b)(ii) - order of Adjudicating Authority approving the Resolution Plan cannot be sustained. The order passed by Adjudicating Authority dated 09.11.2023 requires to be modified. No other part of the Resolution Plan being under challenge, ends of justice will be served in modifying the order of the Adjudicating Authority only with respect to distribution to the Operational Creditor. It was obligatory for the Resolution Plan to comply with the provisions of Section 30(2)(b)(ii) in the facts of the present case. Hence, the order is modified to make it in compliance of the provisions of Section 30, sub-section (2) (b)(ii). The order of Adjudicating Authority dated 09.11.2023 is modified to the extent of approving the distribution to the Operational Creditors, including the Appellant. Rest of the order is affirmed - appeal disposed off.
-
PMLA
-
2024 (4) TMI 38
Seeking grant of bail - money laundering - proceeds of crime - misappropriation of credit facilities extended by the banks for personal gain - creation of shell companies - main allegation of the respondent is that the petitioner, in his capacity as Managing Director of Surana Power Ltd., had presented a project for construction of 25 MW electric plant at Raichur in Karnataka and in this regard had sought loan from a consortium of Banks. It is seen from the records that more than 1,300 crores had been sanctioned - HELD THAT:- It is the specific case of the respondent that towards the said project the said contracts were granted to other companies which were under the direct control of the petitioner. This allegation is denied by the petitioner. But that allegation is a matter of evidence. But it has to be noted that the allegation that those companies were under the direct control of the petitioner is a very serious allegations, since any contract issued has to be done only by a transparent policy being issued. Shell companies - HELD THAT:- A detailed list has been given in the counter affidavit about the various shell companies which are alleged to have been incorporated by this petitioner - It is also seen that though it is contended that two forensic audits had been conducted and no irregularity had been found, third audit was conducted over the affairs of the companies and the report is not to the advantage of the petitioner. All these aspects require deep investigation. In the instant case, the allegation against the petitioner with respect to diversion and misappropriation of funds is that SPL had borrowed funds of Rs. 1,4945.76 crores and had not even started the 2 X 210 MW power plant at Raichur in Karanataka. The account was also declared as NPA. It is also seen that for construction, SPL had awarded sub-contracts to entities which were, according to the respondent, controlled by the petitioner. Further very specifically shell companies were incorporated and there was only paper transaction reflecting the turn over. The amounts diverted back to the companies showing them as contribution of the petitioner. All these are series allegations. It is thus seen that the petitioner will have to satisfy two conditions for grant of bail namely, that there are reasonable grounds that the petitioner would be held not guilty and that there must also be a trust that the petitioner would not indulged in similar activities in future. Unfortunately, the petitioner had not satisfied either of the two conditions. Petition dismissed.
-
2024 (4) TMI 37
Validity of ECIR proceedings- money laundering - Predicate offence - criminal conspiracy in the commission of offence relating to allotment of housing plots under Government Discretionary Quota - HELD THAT:- The impugned ECIR proceedings has been recorded against the petitioner showing him as a suspected person, based on the complaint which culminated into C.C.No.14 of 2019, which was quashed by the above referred order. Though a detailed counter has been filed, the averments may not have relevance in view of the admitted fact that the proceedings in the predicate offence has been quashed and in view of the settled position of law. This Court has, in similar cases, expressed its view that the proceedings under the PMLA 2002 cannot proceed further, once the FIR/Final Report relating to the predicate offence is quashed. The law is well settled by the larger Bench of the Hon'ble Supreme Court in the case of VIJAY MADANLAL CHOUDHARY ORS. VERSUS UNION OF INDIA ORS. [ 2022 (7) TMI 1316 - SUPREME COURT] wherein it was held that If the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money-laundering against him or any one claiming such property being the property linked to stated scheduled offence through him. This Court is of the view that in view of the quashing of the proceedings against the petitioner in the predicate offence, the impugned proceedings cannot be sustained. Hence, the Criminal Original Petition stands allowed.
-
Service Tax
-
2024 (4) TMI 60
Classification of services - cargo handling services or not - providing services of loading, supervisions, weighment and inspection and inter-carting services for the raw materials and finished goods within the factory premises of M/s Essar Steel Ltd. (M/s ESL) - it was held by CESTAT that In the present case too, the service provided for the authorized operation by the appellant to the SEZ based service recipient, demand of service tax is not sustainable - HELD THAT:- The view taken by the Customs, Excise and Service Tax Appellate Tribunal is agreed upon - No case for interference has been made out. The appeal is accordingly dismissed.
-
2024 (4) TMI 36
Classification of service - classification of activities of wireline logging and perforation - period from December 2003 to November 2004 under the category of technical testing and analysis (TTA services) - HELD THAT:- The activities undertaken by the appellant do not involve testing or analysis. It is the data procured by the appellant that is communicated to ONGC which, thereafter, independently analyses the same for determining the course of action. The function required to be performed by the appellant is strictly limited to the scope of measuring different parameters related to the oil rigs, and additionally, perforation, which has no relation to testing and analysis services. The services like wireline logging, perforation and other wireline related services involving mechanical jobs like cutting, puncture, plug/packer setting, cable splicing, etc., which were undertaken by the appellant at the time of drilling an oil well are integrally connected with the mining of oil or gas and have a direct nexus with the drilling of a well. Thus, these activities would be covered by the taxable category of mining service w.e.f. 01.06.2007. Reliance has been placed on the decision of the Bombay High Court in INDIAN NATIONAL SHIPOWNERS' ASSOCIATION VERSUS UNION OF INDIA [ 2009 (3) TMI 29 - BOMBAY HIGH COURT] , wherein it was held that though the phrase in relation to is of wide import but the context in which the same is used has to be kept in mind and that the services rendered by a person must have a direct or a proximate relation to the subject matter of the taxing entry. The Bombay High Court also held that the context in which the words in relation to are used has to be borne in mind to examine the extent of the scope of an entry which may be of wide amplitude. The issue that needs to be decided is whether the activity carried out by the appellant would fall under TTA services prior to 01.06.2007. According to the appellant, the said activity will be covered under the scope of mining related services under section 65 (105)(zzzy) of the Act w.e.f. 01.06.2007. The contention is that on introduction of such a service from 01.06.2007, there was no amendment in the definition of TTA services and, therefore, the activity covered under a new category of mining related services cannot be classified under the existing category of TTA services prior to 01.06.2007. Thus, it has to be held that as the activity undertaken by the appellant w.e.f. 01.06.2007 pertains to mining services made taxable under section 65(105)(zzzy) of the Finance Act, service tax under TTA services cannot be charged from the appellant prior to 01.06.2007. Thus, the activities undertaken by the appellant cannot be classified under technical testing and analysis service (TTA services) as defined under section 65(106) of the Finance Act and deserve classification under mining services made taxable under section 65(105)(zzzy) of the Finance Act w.e.f. 01.06.2007 - impugned order set aside. Appeal allowed.
-
2024 (4) TMI 35
Levy of service tax - bowling alley income - to be included in the Negative List under section 66D(j) of the Finance Act or not - scope of amusement facility - Extended period of limitation - HELD THAT:- Keeping in mind the definition of amusement facility under section 65B(9) of the Finance Act, what is included in the Negative List in the context of the present case is access to amusement facilities where fun or recreation is provided by means of bowling alley in amusement parks, amusement arcades, water parks, theme parks or such other places, but does not include a place within such facility where other services are provided. The Centre provides recreational facilities to customers by way of offering bowling alley, video and other fun games, restaurant facility, sale of socks and supply of shoes. According to the appellant, the aforesaid facilities are independent of each other and are chargeable separately, depending on the services being availed by the customers. The appellant further claims that there is a clear demarcation between such recreational facilities, and that separate entry/admission fee is not collected for entry into the Centre. The order has disallowed the appellant from being covered under the scope of section 66D(j) of the Finance Act as it provides services other than bowling alley activity also at the Centre. The definition of amusement facility does not disqualify a facility from being covered under its scope only because services other than fun or recreation are provided in any part or place of such facility. The definition only excludes such other places from the scope of amusement facility, which means that charges recovered for access to the excluded premises would continue to be taxable. Amusement facility has been defined to mean a facility where recreation or fun is provided by means of bowling alleys. However, a place within such facility where services other than bowling alley are provided would not be covered under the definition of amusement facility - The appellant earmarked space for fun or recreation such as bowling alley or video games. In such an area, no other services are provided. Further, charges to such areas are also separate. Thus, provision of access to such a facility (bowling alley) would be covered under the Negative List. The access to an amusement facility would also mean the permission to use such facility against payment of an amount - it has to be held that the income received by the appellant from bowling alley would be covered under section 66D(j) of the Finance Act and, therefore, would not be leviable to service tax. Extended period of limitation - HELD THAT:- It would, therefore, not be necessary to examine the other contentions raised by the learned counsel for the appellant, including the contention that the extended period of limitation could not have been invoked in the facts and circumstances of the case. The impugned order dated 31.01.2019 passed by the Commissioner, therefore, deserves to be set aside and is set aside - appeal allowed.
-
2024 (4) TMI 34
CENVAT Credit - marine insurance - credit on premium paid for insurance for software engineers is denied as it is not a statutory requirement - Extended period of Limitation - HELD THAT:- This is a case where Revenue took a stand that the definition of input service with effect from 01.04.2011 excluded health insurance, life insurance etc. when used primarily for personal use or consumption of any employee as pleaded in this case, hence tax paid for such insurance premiums were not eligible for credit as input service . Being a mixed question of fact and law, it was felt by the Commissioner (Appeals) with an intent to do justice between the parties that a verification of facts may be required before deciding the legal point, instead of summarily accepting or rejecting them. Hence the remand of the matter by the Commissioner (Appeals) for examining the facts and deciding the same based on the CENVAT Credit Rules, 2004 cannot be faulted. The Appellant is agreed upon that the general insurance business which stood specified in Rule 2(1)(BA) of CENVAT Credit Rules 2004 is applicable not for capital goods only. The definition of input service as per Rule 2(l) ibid, covers not only the services used directly or indirectly in or in relation to the manufacture of the final product but also includes activities related to business - The CENVAT Credit Rules, 2004 was introduced by superseding the CENVAT Credit Rules, 2002 and Service Tax Credit Rules, 2002, with the object to extend credit of service tax and excise duty across goods and services. Hence the change in the definition of input service with effect from 01.04.2011 to excluded health insurance, life insurance etc. when used primarily for personal use or consumption of any employee, cannot be read to restrict tax paid on insurance for capital goods only, without the Rules specifically saying so. Extended period of limitation - HELD THAT:- The dispute involves interpretation of the statutory provisions of the CENVAT Credit Rules, 2004 involving the definition of input service and does not involve mis-declaration, with intention to evade payment of duty. This is also clear from the fact that the matter is being remanded by the Commissioner ((Appeals) for verification of facts in consonance with the law. Hence the extended period could not have been evoked nor penalty could have been imposed. While allowing the remand, the invocation of the extended period and the imposition of penalty in the impugned order is set aside - Appeal disposed off by way of remand.
-
2024 (4) TMI 33
Providing Services to SEZ unit - Benefit of exemption of Service Tax under N/N. 12/2013 dated 01.07.2013 based on Form A2 issued by the jurisdictional officer - non-submission of the mandatory forms - period of dispute is April 2016 to March 2017 - HELD THAT:- As seen from the Notification, the declaration in Form A1 is submitted by the SEZ unit and based on this declaration, the Form A2 is issued which in turn is given to the non-SEZ service providers to avail the benefit of Service Tax exemption. From the records placed, it is seen that Form A2 is issued by the jurisdictional officer to M/s. Cisco Systems (I) Pvt. Ltd. The appellant is eligible for the benefit of exemption of Service Tax based on this Form A2 issued by the jurisdictional officer. Therefore, the impugned order denying the benefit of exemption for non-production of Form A1 by the appellant is irrelevant. Since Form A2 is issued based on Form A1, Form A2 being available, the benefit of the exemption cannot be denied. The impugned order is set aside and appeal is allowed.
-
Central Excise
-
2024 (4) TMI 32
CENVAT Credit - place of removal for the GTA Services provided under a F.O.R sale contract is the manufacturer's premises and not the place where the goods are sold or not - rejection of appeal filed by the Appellant solely on the basis of the judgment of Apex Court in the case of CCE v. Ultra Tech Cements Ltd. [ 2018 (2) TMI 117 - SUPREME COURT] - levy of interest under Section 11AB of CEA - HELD THAT:- It is not in dispute that for a manufacturer/consignor, the eligibility to avail credit of the service tax paid on the transportation during removal of excisable goods would depend upon the place of removal as per the definition contained of the said term in the Central Excise Act, 1944. Such place of removal is the place where the sales take place - It is also not in dispute that in an F.O.R sale which the appellant was doing in the instant case, freight charges form part of assessable value, the ownership of goods remains with seller till delivery at customer s doorstep, seller bears risk of loss or damage to the goods during transit to the destination, and property in the goods is not transferred till delivery. So outward transportation qualifies as input service and is eligible for CENVAT Credit - The sale being of gases manufactured by the appellant, due to the peculiar nature, sale happens at the buyer s premises and admittedly such sale is on F.O.R basis. In Ranadey Micronutrients etc. vs. Collector of Central Excise [ 1996 (9) TMI 124 - SUPREME COURT] , the Supreme Court held that in view of Section 37B of the Central Excise Salt Act, 1944, instructions issued by the Board in order to ensure uniform practice of assessment of excisable goods throughout the country get statutory status and significance, and they are binding on officers of the Central Excise Department. The Tribunal was not justified in holding that place of removal for the GTA Services provided under FOR sale contract is the manufacturer s premises and not the place where the goods are sold; that the Tribunal was not justified in holding that the GTA services in the present case are being received beyond the place of removal and therefore not covered within the definition of Input Service under Rule 2(1) of CANVET Credit Rules, 2004. The impugned orders are set aside - appeal allowed.
-
2024 (4) TMI 31
CENVAT Credit - input services - management fee - common sharing of Head office services - documents on which credit is availed by the appellant are in order or not - Invoices from the service provider were not in the prescribed format - show-cause notices dated 07.02.2011 and 26.03.2014 are hit by limitation or not - HELD THAT:- FMGL has paid service tax on Management fee and common sharing of Head office services considering the same as Business Auxiliary Service was not disputed by the jurisdictional Service Tax authorities of the service provider; hence denying cenvat credit to the appellant as receiver of service, cannot be sustained as held in Hon ble Madras High Court in the case of M/S. MODULAR AUTO LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, CHENNAI [ 2018 (8) TMI 1691 - MADRAS HIGH COURT] . The department has contended that the appellants have availed cenvat credit on documents, which are not cenvatable documents as they are not in the prescribed form/format under Rule 9(1) of CCR, 2004 - as per proviso to Rule 9(2) of CCR, 2004, when the documents have the particulars/details as mentioned therein and the jurisdictional Deputy Commissioner/ Assistant Commissioner is satisfied that the goods covered by the document have been received and accounted for in the books of the account of the receiver, he may allow the Cenvat credit - the appellant has being availing cenvat credit and filing periodical returns indicating such availment. Extended period of limitation - HELD THAT:- The appellant has been filing the ER-1 returns, hence there is no suppression of facts by the appellant, therefore invocation of extended period is not tenable and imposition of penalties under section 11AC of Central Excise Act, 1994 read with Rule 15 of CCR, 2004 are not sustainable. The impugned orders confirming the demand of cenvat credit along with the interest and imposition of penalties are not sustainable and need to be set aside - the appeals filed by the appellant are allowed.
-
2024 (4) TMI 30
Process amounting to manufacture - manufacture and clearance of excisable goods such as modems, converters, ethernet switch, ISDN terminals, multiplexes etc. in their own brand name falling under Chapter heading 851762 of the Central Excise Tariff Act, 1985 - duty paid after availing cenvat credit of the CVD paid on imported modems from the manufacturing unit at 29B/1 is permissible or not - CENVAT Credit on inputs used in manufacturing of finished goods under CENVAT Credit Rules, 2004 - violation of Rule 8(3A) of the Central Excise Rules, 2002 - levy of penalty. Whether the activities carried out by the appellant on the imported Modem at their Registered trading premises at 29B/3 resulted into manufacture as per Section 2(f)(iii) of Central Excise Act, 1944? - HELD THAT:- A plain reading of the extended meaning of manufacture , it is clear that for the goods specified in Third Schedule, the activities of packing or repacking of such goods in a unit container or labelling or relabelling of containers including the declaration or alteration of the retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer have been considered as amounting to manufacture even if the said activities do not fall under main part of Section 2(f). Modems are specified at Sl.No.81A of the Third Schedule to the Central Excise Act, 1944. A careful analysis of the activities undertaken by the appellant from the dealers premises, it reveals that the imported modems were not simply cleared as such but it has been opened, tested (for whatsoever reason); the purpose is not only visual inspection as a formality, but tested by qualified engineers which necessarily includes, if damaged or any manufacturing deficiency, to repair/remove the same, to put in saleable condition; the tested modems then repacked in the boxes and placed in bigger cartons along with other modems, accessories which would make the modems marketable, procured and supplied along with the modems after affixing the logo and labelling the modems with appellant s name and address. These activities definitely relevant and necessary for marketing the product to the end consumer. In similar circumstances for the product, switch gears , this Tribunal in the case of HPL Electronic Power Ltd. [ 2018 (2) TMI 223 - SC ORDER] held that the activities of packing and repacking, labelling and relabelling of switch gear amounts to manufacture within the definition of Section 2(f)(iii) of the Central Excise Act, 1944 - the activities carried by the appellant in the premises at 29B/3 on imported modems would result into manufacture within the meaning of Section 2(f)(iii) of Central Excise Act, 1944. Consequently, the appellant are required to discharge duty on the imported modems for the aforesaid activities in their trading premises, which amounts to manufacture. Whether the duty paid after availing cenvat credit of the CVD paid on imported modems from the manufacturing unit at 29B/1 is permissible? - HELD THAT:- When the Department examined the processes/activities carried out by the appellant opined that the activities would result into deemed manufacture ; hence duty is payable, therefore in all fairness, the dealer s Registration for the said premises belonging to the appellant ceases and the trading premises became manufacturing premises as there is no other items other than modems which was traded from the said premises - there are no irregularity in availing the cenvat credit even though the input-modems had already sold/cleared by the appellant. Further, when there is no dispute that the imported modems earlier received and cleared from trading premises; the credit subsequently availed only for the purpose of discharging duty leviable on the modems , when the activities found to be manufacture under Section 2(f)(iii) of Central Excise Act, 1944. However, the excess credit that remained in balance after debiting the credit equal to the duty payable on the imported modems, and utilised for the clearance of their own manufactured modems at the manufacturing premises, is definitely inadmissible, as the said excess credit attributable to imported modems had already been passed on by the Appellant to their customers while selling the imported modems, by issuing dealer s invoice. Now, availing the same credit again and utilising it for clearance of indigenous modems and other goods manufactured in the manufacturing premises, would result in availing and utilising cenvat credit twice on the same amount of CVD and other duties relating to imported modems, that is, once mentioning in the dealer s invoice and second time in the manufacturer s invoice while clearing the manufactured goods from the manufacturing premises. The said excess credit has been subsequently paid by the appellant by debiting their PLA account with interest and the ld. Commissioner has rightly appropriated the same in the order. Whether the Appellant contravened Rule 8(3A) of the Central Excise Rules, 2002 in discharging the duty by utilising the credit from their manufacturing unit situated at 29B/1? - HELD THAT:- As contended by the Ld. Advocate for the Appellant since Rule 8(3A) of the Central Excise Rules, 2002 has been held to be ultra vires of the rule making power by the Hon ble Gujrat High Court in the case of INDSUR GLOBAL LTD. VERSUS UNION OF INDIA 2 [ 2014 (12) TMI 585 - GUJARAT HIGH COURT] , therefore, the findings of the learned Commissioner on this count also cannot be sustained. Levy of penalty - HELD THAT:- The issue involved in the present case is interpretation of law, and consequent actions of debiting the duty from cenvat credit account maintained in the manufacturing premises was after due intimation to the Department, therefore imposition of penalty on the appellants is unwarranted and accordingly set aside. Appeal disposed off.
-
Indian Laws
-
2024 (4) TMI 29
Dishonour of cheque - Legally recoverable debt or liability - respondent/accused was acquitted of the offence under Section 138 of the NI Act - want of supporting certificate under section 65B of the Evidence Act - inadmissible evidence - HELD THAT:- There is evidence in the form of ledger book Ex. AW-1/1 which shows the supply of material by the respondents/accused to the complainant. That apart there is also an admission of the complainant in his cross-examination that the accused used to sell goods to the complainant. On the other hand, the complainant failed to produce and prove the bill and invoices raised against the accused. He also failed to prove the statement of account despite admitting that he maintains the account statement and the bills regarding supply of material to the accused were entered in the account statement. The view taken of the evidence by the learned Trial Court is a plausible view and no perversity has been pointed out in the same. It is trite law that the scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the view of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all. There are no infirmity in the impugned judgment and no interference is warranted - appeal dismissed.
|
