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GST
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2023 (5) TMI 1185
Seeking grant of bail - irregular availment of input Tax Credit / ITC - suppression of actual sales in their monthly GSTR-3B returns - case of applicant is that the applicant is neither owner nor proprietor of firm, whereas his mother Smt. Anusuiya Mishra is the proprietor of the firm - HELD THAT:- It is an admitted fact that the applicant is neither proprietor nor owner of the firm, whereas his mother Smt. Anusuiya Mishra is the proprietor of the firm. No charge-sheet or complaint has been filed by the Department against Smt. Anusuiya Mishra. The investigation of the Department was completed and there is no evidence or material that the applicant had not co-operated with the investigation or tampering the evidence or witnesses. The investigation was completed and charge-sheet/complaint has already been filed and there is no chance of ....... + More
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2023 (5) TMI 1184
Interest on the delayed disbursal of amount of Budgetary Support already sanctioned - Budgetary Support Scheme - HELD THAT:- Circular dated 10.1.2019 stated that the claims under the Scheme are required to be disposed of within two weeks. True it is, that, in terms of Circular dated 10.01.2019, the claims under the Scheme are required to be disposed of within two weeks. It is not the case of the petitioner that the claims for release of payment under the Scheme were not considered or disposed of by the respondents within the stipulated time frame. The amount payable to the petitioner under the Scheme was duly sanctioned in favour of the petitioner. However, the said amount could not be disbursed due to non availability of requisite funds from DIPP. It is also not in dispute that that the benefit envisaged under the Scheme is in the ....... + More
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2023 (5) TMI 1183
Seeking grant of regular bail - evasion of GST - Forming of a network of fake firms and defrauding the state exchequer. - availment of fraudulent Input Tax Credit - HELD THAT:- Since the grant or refusal of bail lies in the discretion of the Court the discretion is to be exercised with regard to the facts and circumstances of each case. However, bail is not to be denied to satisfy the collective sentiments of a community or as a punitive measure. Therefore, broadly speaking (subject to any statutory restrictions contained in Special Acts), in economic offences involving the IPC or Special Acts or cases triable by Magistrates once the investigation is complete, final report/complaint filed and the triple test is satisfied then denial of bail must be the exception rather than the rule. However, this would not prevent the Court from gr....... + More
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2023 (5) TMI 1182
Validity of show cause notice - Insufficient details in the SCN - no date, time and venue for personal hearing was shown in the notice - Section 74 of MPGST Act - HELD THAT:- The show cause notice dated 22.07.2022 (Annexure P/3) issued under Section 74 of the Act, itself shows that before passing final order dated 24.08.2022 (Annexure P/4), the intention of the respondents was to give personal hearing to the petitioner as required under the law, but in the table given below, captioned as Details of personal hearing etc . , no Date, Time and Venue of personal hearing has been shown and in front of columns 3,4 5 of Date, Time and Venue, NA has been mentioned, which is sufficient to infer that no personal hearing was given to the petitioner before passing the impugned order dated 24.08.2022. Availability of alternative remedy ....... + More
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2023 (5) TMI 1181
Classification of services - services provided by the Heli-Operators by way of transport of passengers by air in case of Helicopter Shuttle Services - rate of GST - Applicability of N/N. 11/2017 CGST (Rate) dated 28.06.2017. HELD THAT:- The applicant i.e. M/s Uttarakhand Civil Aviation Development Authority, Dehradun in their application dated 11.03.2023 has declared that M/s Uttarakhand Civil Aviation Development Authority, is a society formed by the State Government of Uttarakhand, for objectives which include developing tourism by way facilitating and controlling air transport in the state and to provide services in respect of air security and conducting rescue operations, which means to say that the applicant floats/ issue tenders to select helicopter shuttle service operators on select routes in the state of Uttarakhand....... + More
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Income Tax
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2023 (5) TMI 1180
Revision u/s 263 - LTCG chargeable in India - tax treaty entitlement, - whether the assessee is a resident for tax purposes? - CIT was of the view that the Ld. AO did not carry out factual inquiry/verification to ascertain that the assessee is a genuine investor or not and he should have called for and verified the details of key personnel who manage the investment decisions of the fund - whether appellant is not entitled to the benefit of India-Mauritius Double Taxation Avoidance Agreement (India- Mauritius DTAA)? - HELD THAT:- AO communicated the reasons for selection of case and sought the explanation of the assessee - there is no Linkling in the assessment order as to what explanation was given by the assessee. The assessment order only mentions that the assessee filed details. What details were filed is not forthcoming from th....... + More
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2023 (5) TMI 1179
Income escaping assessment - Validity of Assessment concluded without issuing a valid statutory notice u/s 143(2) - return filed pursuant to the notice issued under section 148 - HELD THAT:- In the present case, undisputedly no return of income was originally filed by the assessee, and only pursuant to the notice issued under section 148 of the Act the assessee filed its return of income on 31/03/2011. Thus, the first notice dated 20/02/2011 under section 143(2) of the Act was issued when no return of income was available on record and therefore, this notice cannot be said to have been issued to verify whether the assessee has understated the income or has computed excessive loss or under-paid the taxes in any manner. Hence the first notice issued u/s143(2) of the Act in the present case is a mere empty formality, without any legal con....... + More
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2023 (5) TMI 1178
Deemed dividend u/s 2(22)(e) - Director on company holding substantial shareholding in the assessee company as well another company - CIT-A deleted the addition - HELD THAT:- CIT(A) is not correct in deleting the addition in the hands of the assessee, observing that the addition is to be made in the hands of the Director of the Company who is common shareholder of both companiesy when the Hon ble Supreme Court has doubted the decision of the Delhi High Court in the case of Ankitech Pvt. Ltd. [ 2011 (5) TMI 325 - DELHI HIGH COURT ] and referred it to the Larger Bench of the Hon ble Supreme Court to re-look into the entire issue. The issue is not fully settled by Hon ble Supreme Court that too when later judgment of the Hon ble Supreme Court has referred the issue to the Larger Bench. Thus the Ld. CIT(A) is not correct in taking a dec....... + More
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2023 (5) TMI 1177
Deduction u/s 80P - interest income received from the co-operative bank - AO denied the deduction claimed by the assessee u/s 80P by applying the provisions of section 80P(4) since the assessee is providing credit facilities to its members - HELD THAT:- Section 80P(4) is of relevance only in a case where the assessee, who is a co-operative bank, claims a deduction under section 80P - we find no merits in the aforesaid reasoning adopted by the learned CIT(A) in denying deduction under section 80P(2)(d) of the Act to the assessee. In a recent decision in PCIT vs Annasaheb Patil Mathadi Kamgar Sahakari Pathpedi Ltd. [ 2023 (5) TMI 372 - SC ORDER] held that a taxpayer who is merely giving credit to its members cannot be said to be the Co-operative Banks/Banks under the Banking Regulation Act and the banking activities under the Banki....... + More
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2023 (5) TMI 1176
Bogus purchases - estimation of income - Sales Tax Department has proved beyond doubt that the parties declared as hawala traders were involved in providing accommodation entry of purchases and the assessee was one of the beneficiary - as per CIT only profit percentage has to be added and estimated @ 6% of bogus purchases - HELD THAT:- We find the Jurisdictional Hon ble High Court in the case of Pooja Paper Trading Co. [ 2019 (3) TMI 62 - BOMBAY HIGH COURT] and Simit P Sheth [ 2013 (10) TMI 1028 - GUJARAT HIGH COURT] has considered the profit element and the income was estimated. CIT(A) took a reasonable view that the only profit percentage has to be added and estimated @ 6% of bogus purchases. DR could not controvert the findings of the CIT(A) with any new cogent evidence and material to take a different view. CIT(A) dealt on the facts and considered the profit element in the bogus purchases and also the A.O has not disputed the sales - Decided against revenue.
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2023 (5) TMI 1175
Unexplained cash credit - unexplained income - contention of assessee that cash deposit was out of cash withdrawal - As per revenue only source of income shown by the assessee is agriculture income , which may have been used for house hold purpose - HELD THAT:- Assessee except contending that the assessee has sufficient cash balance for making deposit in bank, has not explained the real source of cash and cheque deposits. We find that the assessing officer in his summary has clearly demonstrated the cheque deposits and immediate withdrawal or on deposits of money in cash immediately transferred by way of cheque, the assessee has failed to give any satisfactory reply against the finding of the assessing officer. As in full agreement with the observation of the assessing officer that the assessee has only shown source of income from a....... + More
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2023 (5) TMI 1174
Addition u/s 69A - cash deposit unexplained - HELD THAT:- We find force in the contention of assessee that although originally after receipt of cash of Rs. 40 lakh, Rs. 20 lakh each were deposited to the joint bank account of assessee and his wife Shri Dinesh their son but at the time of returning the cash Shri Dinesh was away from home therefore this amount was completed from withdrawals from the joint bank account of assessee and his wife. As assessee has successfully demonstrated with supporting evidence source of cash deposit to his bank account during FY 2010-11 relevant year under consideration and therefore no addition was required to be made in the hands of assessee and therefore we allow the grounds of assessee on merits and direct to delete the entire addition.
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2023 (5) TMI 1173
Addition u/s 41(1) - Cessation of liability for sundry creditors - assessee failed to prove the credit balance of these two parties - AO found discrepancies from the information received from creditors which were received against the notices issued u/s 133(6) vis- -vis assessee s books of accounts - HELD THAT:- Admittedly, this is not a case of doubtful expenditure. It is a case where on calling of information by ld. AO from the two creditors, there appears to be a difference in the balance confirmed by the creditors vis- -vis reported by the assessee in its audited financial statements. Assessee has duly acknowledged its debt and has not done anything to write off its liability as cessation thereof - Assessment of the assessee has been completed u/s 143(3) by the same incumbent AO for AY 2012-13 wherein these balances of the two cr....... + More
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2023 (5) TMI 1172
Weighted deduction on R D expenditure claimed u/s 35(2AB) - Claim denied for want of requisite approval received from DSIR - HELD THAT:- In the present case, no doubt, expenditure had been incurred on R D, however, the requisite approval u/s 35(2AB) was obtained from the prescribed authorities, as evident from the assessment order. No doubt, the assessee company had filed an application for seeking the extension of such approval. Such extension was denied by the prescribed authorities on account of fact that the assessee company had not adhered to the prescribed conditions. This denial of extension was communicated to the AO by the prescribed authorities. If the appellant is aggrieved by the denial of extension of approval u/s 35(2AB), the only course of action available to the appellant is to invoke writ jurisdiction of the Hon ble Hi....... + More
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2023 (5) TMI 1171
Revision u/s 263 by CIT - Debatable issue - admissibility of LTCL on securities - whether long term capital loss on securities (STT paid) can be adjusted against the non-STT paid long term capital gain resulting from securities or other assets? - whether the carrying forward of such loss is admissible? - HELD THAT:- We find merit AR argument that AO has taken one of the tow possible view while framing the assessment u/s 143(3) accepting the claim of the assessee in which the long term capital loss (STT paid) has been allowed to be set off and carried forward for future set off. The issue is debatable one and therefore jurisdiction u/s 263 of the Act is not available to PCIT in the case of debatable issue. As in the case of Kishorebhai Bhikhabai Virani [ 2015 (2) TMI 807 - GUJARAT HIGH COURT has been referred to by the Co-ordinate....... + More
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2023 (5) TMI 1170
Exemption u/s 11 - denial of claim while processing return u/s 143(1) on the reason that assessee has not filed the audit report in form No.10B along with return of income - HELD THAT:- The assessee stated before us that the medical emergency of the trustee is a reason for delay in filing the audit report in form no.10B along with return of income. Admittedly, the assessee filed the return of income on 10.1.2018, wherein assessee enclosed the income and expenditure account and balance sheet and statement of income which are dated 1.1.2018. When the assessee was in a position to get audited its books of accounts and filed the audited income and expenditure account and balance sheet along with statement of income, how it was not able to file the audit report in form no.10B is not explained. Assessee has taken the support of petition f....... + More
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2023 (5) TMI 1169
Disallowance u/s 14A - assessee made suo-moto disallowance u/r 8D(2)(iii) after taking into account only those investments which actually yielded exempt income in calculating amount of average investment - as per CIT-A only those investments on which exempt income has been earned in the year under consideration can only be considered for computation of disallowance under Rule 8D as relying on ACB India Ltd case [ 2015 (4) TMI 224 - DELHI HIGH COURT] - HELD THAT:- No error or infirmity in the order of the Ld.CIT(A) and find no justification to interfere with the order of the Ld.CIT(A) . Accordingly, the Ground No. 1 of the Department is dismissed. Disallowance as prior period expenses - AO made the disallowance by relying upon the order passed in the preceding years in the Assessee s own case - CIT(A) had deleted the addition of t....... + More
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Customs
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2023 (5) TMI 1167
Maintainability of revenue s appeal - time limitation - Refund of 4% additional duty of customs paid - review order as required under Sub Section (2) of Section 129D of Customs Act, 1962 has been passed by the Reviewing Authority beyond the period of three months as envisaged under Sub Section (3) of Section 129D of Customs Act, 1962 - HELD THAT:- Similar appeals had come up for hearing before the Tribunal wherein the Commissioner (Appeals) had dismissed appeals filed by Department on the ground of being time barred. In those cases also it was urged by the Department that the seal impressed on the Order-in-Original by the Reviewing Cell would establish that the order was received by the Reviewing Authority on a much later date. The Tribunal after considering the submissions made by the learned AR and perusing the records observed that ....... + More
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2023 (5) TMI 1168
Seeking direction to the Respondent No. 1-Directorate of Revenue Intelligence (DRI) and its officers to permit the presence of his Advocate during the interrogation and recording of statements at visible but not audible distance - seeking permission to record his voluntary statement in his own handwriting - HELD THAT:- The Calcutta High Court in the case of ENFORCEMENT DIRECTORATE VERSUS PARTHA CHATTERJEE [ 2022 (7) TMI 1412 - CALCUTTA HIGH COURT] , followed the decision of the Delhi High Court in the case of DIRECTORATE OF ENFORCEMENT VERSUS SATYENDAR KUMAR JAIN [ 2022 (6) TMI 382 - DELHI HIGH COURT] and held that the allegation against the E.D. that the Advocate of the accused was not allowed to be present at the time of raid is found to be false and the order permitting the presence of lawyer was set aside. The decisions of the ....... + More
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2023 (5) TMI 1166
Revocation of Customs Broker License - Forfeiture of Security deposit - levy of penalty - imputation and articles of charge, for breach of regulation 10, 11(a), 11(b), 11(d), 11(e), 11(m) and 11(n) of Customs Broker Licensing Regulations, 2013, in connection with the handling of 66 packages of readymade garments for export to Sudan and Nigeria - time-lines prescribed in Customs Brokers Licensing Regulations, 2013 had not been complied with or not - HELD THAT:- It would appear that the licensing authority has assumed that the order of the Hon ble High Court of Bombay in THE PRINCIPAL COMMISSIONER OF CUSTOMS (GENERAL) MUMBAI VERSUS UNISON CLEARING PVT. LTD., AND OTHERS [ 2018 (4) TMI 1053 - BOMBAY HIGH COURT ] had, in fact, shifted the commencement of time-lines and, thereby, precluded challenge to non-adherence thereof. This is ....... + More
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Corporate Laws
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2023 (5) TMI 1163
Oppression and mismanagement - Consent Terms provided for acquisition of the entire shareholding - strict compliance with non-compete obligations. It is contended that Consent Terms are in the nature of compromise decree and NCLT has jurisdiction to execute the Consent Terms under section 424 of the Companies Act, 2013, but before execution and passing of the Impugned Order, it should have looked into alleged breach of the non-compete obligations under the Consent Terms, should have adjudicated upon. HELD THAT:- As provided in clause 4, a sum of Rs.2,23,00,000 is to be paid on the final execution of the Consent Terms immediacy and the balance Rs. five crores was to be paid in five equal instalments of Rs. one crore each on various dates between 30.4.2019 and 31.8.2019 respectively. It is also clear that the payment of Rs.7.23 c....... + More
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2023 (5) TMI 1165
Recovery of dues - direction to Recovery Officer, DRT, Bangalore to comply with the directions of the Hon'ble Division Bench - direction to R-3 to associate with the Official Liquidator to bring the properties for sale and then to take his portion of outstanding dues on the sale proceeds as per law or otherwise - seeking permission to Official Liquidator to engage the services of ITCOT for valuing the assets of the company in liquidation - conduct of sale through public auction by giving vide publicity in the newspapers - meeting out the expenses in connection with sale. HELD THAT:- It is relevant to mention herein that when the applicant Tungbhadra Sugar Works Limited, being a third party, was not impleaded as a party respondent in the proceedings before the Supreme Court, the applicant, giving reasons for the delay and also pr....... + More
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2023 (5) TMI 1164
Requirement of maintenance of books of accounts - respondent can call upon the petitioner to provide the books of accounts for the period beyond the period of eight years or not (for financial years 2010-11 and 2011-12) - Section 128(5) of the Companies Act - HELD THAT:- The learned SPP for the CBI has now taken a plea per proviso to sub- Section 5 Section 128 of the Companies Act they have the power to ask the petitioner to provide the books of account prior to the period mentioned in sub-section. However, a bare perusal of the proviso would show it requires a direction by the Central Government to the company to keep the books of account for a longer period as it may deem fit. Admittedly, no such direction was ever passed per proviso to Section 128(5) of the Companies Act. The petition stands allowed in terms of prayer a of the pe....... + More
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Securities / SEBI
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2023 (5) TMI 1162
Condonation of delay - inordinate delay in approaching the Tribunal - As decided by SAT there is an inordinate delay in approaching the Tribunal with no adequate reason to condone the delay at this belated stage - HELD THAT:- We find no error in the order of the Securities Appellant Tribunal, Mumbai. Appeal is accordingly dismissed. Pending application, if any, stands disposed of.
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Insolvency & Bankruptcy
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2023 (5) TMI 1159
Disqualification of resolution applicant - wilful defaulter of bank - Rejection of Resolution Plan submitted by the Applicant - Appellant submits that on the day when Resolution Plan submitted by the Appellant came for consideration before the CoC, there was no declaration by Union Bank of India as willful defaulter - disqualification under Section 29A of I B Code - whether the Appellant was disqualified at the time when the Resolution Plan submitted by the Appellant came for consideration? - HELD THAT:- Appellant was not willful defaulter at the time he submitted the Resolution Plan and at the time his plan came for consideration, we cannot lose sight of the fact that by another order dated 20th January, 2022 in IN THE MATTER OF FANENDRA H. MUNOT LTD., WOOD PRESERVERS PRIVATE LIMITED VERSUS LB INDUSTRIES PRIVATE LIMITED [ 2022 (1) TMI....... + More
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2023 (5) TMI 1161
Grant of anticipatory bail - recovery under Section 66 of IBC against the persons who, prima facie, appear to be primarily responsible for the fraudulent affairs of the corporate debtors - HELD THAT:- In the name of seeking a clarification, the endeavor of the applicant herein is to indirectly get over with the judgment and order dated 18.01.2023 in WP(C) (PIL) 04 of 2023 passed by Tripura High Court in [ 2023 (1) TMI 921 - TRIPURA HIGH COURT] . Such an endeavor, in the guise of a clarification, cannot be permitted. The Tripura High Court has rightly relied upon the observations made by this Court in a binding precedent, in Usha Ananthasubramanian Vs. Union of India [ 2020 (2) TMI 1081 - SUPREME COURT] , which pertains to a matter under Section 339(1) of the Companies Act, 2013 which is pari materia with Section 66 of IBC. The H....... + More
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2023 (5) TMI 1160
Operational Debt or not - advance payment paid by the Operational Creditor and not refunded by the Corporate Debtor - falls within the scope of Operational Creditor or not - NCLT held that the alleged debt is not an Operational Debt as defined u/s 5(21) of IBC, 2016 - HELD THAT:- The National Company Law Appellate Tribunal [NCLAT] has reversed the above decision while relying upon the decision of this Court in Consolidated Construction Consortium Limited vs Hitro Energy Solutions Private Limited [ 2022 (2) TMI 254 - SUPREME COURT] , where it has been held that Section 5(21) has to be interpreted in a broad and purposive manner in order to include all those who provide or receive operational services from the Corporate Debtor which ultimately leads to an operational debt. The NCLT in its original order had not considered the other de....... + More
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PMLA
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2023 (5) TMI 1158
Presence of Advocate during Enquiry/interrogation as a matter of right - petitioner submits that as of now the investigation has been completed and the prosecution complaint has also been filed - HELD THAT:- In view of the fact that the investigation has already completed and the respondent has chosen not to come forward to contest the same. There is no impediment in confirming the order in DIRECTORATE OF ENFORCEMENT VERSUS SATYENDAR KUMAR JAIN [ 2022 (6) TMI 382 - DELHI HIGH COURT] granting permission that during the time of enquiry/interrogation from the accused, one Advocate of the accused shall be allowed to remain present at a safe distance where from where he can see the accused but not hear him . The petition is allowed in terms of order in DIRECTORATE OF ENFORCEMENT VERSUS SATYENDAR KUMAR JAIN [ 2022 (6) TMI 382 - DELHI HIGH COURT] .
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2023 (5) TMI 1157
Seeking enlargement on bail - Money Laundering - scheduled offences - discrepancies including diversion of APSSDC funds through various shell companies - requirement under Section 45 (1) of the PMLA for grant of bail, fulfilled or not - HELD THAT:- In an identical case in SANJAY RAGHUNATH AGARWAL VERSUS THE DIRECTORATE OF ENFORCEMENT [ 2023 (4) TMI 874 - SUPREME COURT] , lodging of the prosecution complaint is sequel to the registration of the FIR in the predicate offence way back in the year 2021. In the present case on hand also, no charge sheet has been filed in the predicate offence for the last more than 15 months. The petitioner herein is also a Chartered Accountant by profession and has been in jail from 04.03.2023. It is the first offence insofar as the petitioner is concerned. There are no other complaints registered as agains....... + More
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2023 (5) TMI 1156
Money Laundering/Conspiracy - proceeds of crime - scheduled offences - forgery, manipulation of Government records, preparing back dated orders so that compensation may be granted at a much higher rate showing land as 'Non-Agricultural' - causing loss to Government Treasury - joint trial - HELD THAT:- In the case of STATE OF JHARKHAND THROUGH SP, CBI VERSUS LALU PRASAD @ LALU PRASAD YADAV, SAJAL CHAKRABORTY AND DR. JAGANNATH MISHRA [ 2017 (5) TMI 490 - SUPREME COURT ], the Hon ble Supreme Court discussed the aspect of joint trial. In such huge cases, there may be a conspiracy, conspiracy separate and interlinked. The Hon ble Supreme Court held that When several offences are alleged to have been committed by several accused persons this Court has laid down that normal rule is of separate trials. It is clear from the imp....... + More
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2023 (5) TMI 1155
Maintainability of petition - availability of alternative remedy of appeal - Validity of the provisional attachment order - Money Laundering - petitioner joined as a Clerk with the customs clearing agency - indulging in wrong practice of passing orders favourable to the importers of unaccompanied baggage on getting illegal gratification - petitioner has been afforded with the opportunity to defend his case or not - violation of principles of natural justice - HELD THAT:- Section 8 of the PMLA denotes adjudication and the procedure to be followed for adjudication under the Act. The learned counsel for the petitioner reiterated that if the property is claimed by a person other than the person to whom notice had been issued, such person shall also be given an opportunity of being heard to prove that the property is not involved in money l....... + More
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Service Tax
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2023 (5) TMI 1154
Levy of Service tax - selling passenger cars and also provide free services to their customers during warranty period - cost of materials/spares reimbursed by M/s. TATA Motors - cost of spares and accessories reimbursed for free services provided during the warranty period has to be included in the taxable value or not. HELD THAT:- The department has relied upon Rule 5 (1) service tax (determination of value 2006) which reads wherein expenditure or costs are incurred by the service provider in the course of providing taxable service, all such expenditure or costs shall be treated as consideration for the taxable services provided or to be provided and shall be included in the value for the purpose of charging service tax on the said notification . This Rule was under consideration before the Hon ble Supreme Court in the case of UNI....... + More
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2023 (5) TMI 1153
CENVAT Credit - rendering both taxable and exempted services and having not maintained separate accounts - providing the interconnection service, was also collecting interconnect usage charges (IUC), the tax on which was being remitted by the appellant only from 01.06.2007 - non-payment of service tax on interconnection service - period from April 2005 to May 2007 - extended period of limitation. Suppression of fact or not - providing interconnection service and receiving charges for the same - suppressed the fact of not maintaining separate accounts, as required under the statute. Whether the Revenue is justified in holding that the appellant had utilized the CENVAT Credit in excess of the 20% limit prescribed under Rule 6(3)(c) of the CENVAT Credit Rules, 2004 and whether the consequential demand for recovery of the alleged ....... + More
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2023 (5) TMI 1152
Condonation of delay in filing appeal - sufficient explanation for delay provided or not - appeal dismissed only for the reason that it was filed beyond the statutory time period contemplated under section 85 of the Finance Act, 1994 - HELD THAT:- A perusal of sub-section (1) of Section 85 shows that any person aggrieved by any decision or order passed by the Adjudicating Authority, may file an appeal to the Commissioner of Central Excise (Appeals). Sub-section (3A) of section 85 provided that the appeal shall be presented within two months from the date of receipt of the order of such Adjudicating Authority but the proviso provides that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented wi....... + More
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2023 (5) TMI 1151
CENVAT Credit - common input services used in providing taxable services and exempted services - non-maintenance of separate record for the Cenvat credit availed as per Rule 6(2) of the Cenvat Credit Rules, 2004 - non-payment of amount as provided under Rule 6(3) ibid - whether the adjudicating authority was correct in holding that once the credit availed on common inputs /service is reversed, the appellants are not required to reverse the amount as contemplated under Rule6(3A)(ii) of the said Rules? HELD THAT:- Adjudicating authority has recorded a finding that there are plethora of decisions of various appellate forums wherein it was consistently held that when the entire Cenvat credit stands reversed, it is as good as not availing the credit. The learned Commissioner has relied upon the decision of High Court in the COMMISSIONER ....... + More
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2023 (5) TMI 1150
Modification in the quantum of penalty - Exemption from service tax in respect of value of goods and materials sold by the service provider while providing the service - benefit of N/N. 12/2003-ST dated 20.06.2003 - Maximum penalty of Rs.2,74,400/- in terms of Section 77 (1) (a) of the Finance Act, 1994 - failure to take registration - invocation of extended period of limitation. Whether the appellant has been rightly denied the benefit of Notification No. 12/2003-ST dated 20.06.2003, which provide for exemption from service tax in respect of value of goods and materials sold by the service provider while providing the service? - HELD THAT:- The lower adjudicating authority has held that the appellant has not produced any evidence regarding consumables or spare parts used while providing the AMC service to its customers and the se....... + More
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Central Excise
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2023 (5) TMI 1149
Exemption benefit - excisability of waste generated during the preparation of final product namely Rice Bran Oil Product - denial of exemption Notification No. 89/95-CE dated 18.05.1995 - HELD THAT:- It is found that for a different period, Appellant s appeal was allowed by this Tribunal in extending benefit of exemption under Notification No. 89/95-CE and holding that the same would apply to the waste namely Gums Recovered Oil etc. The same issue is also settled in the case of M/s. Ricela Health Foods Ltd [ 2018 (2) TMI 1395 - CESTAT NEW DELHI ] by the Larger Bench of this Tribunal - Further the issue has attended finality by rejection of appeal in the case of COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH-I VERSUS MARICO LTD. [ 2022 (10) TMI 1174 - SC ORDER] by the Hon ble Supreme Court in confirming the order passed by this Tribun....... + More
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2023 (5) TMI 1148
Short payment of Central Excise duty - allegation of undervaluation of liquid hair dye - SCN alleged that the appellants incorrectly claimed higher abatement of excise duty of 105% (duty payable for goods classifiable under Tariff Item 14F) instead abatement of excise duty 8% or 10% (duty payable for goods classifiable under Tariff Item 68) which has been actually paid by them - recovery of differential duty alleged to be short levied along with Interest and penalty - HELD THAT:- The order determining the classification was challenged by the Appellant before the Hon ble Bombay High Court [ 2002 (9) TMI 128 - HIGH COURT OF JUDICATURE AT BOMBAY ], where the issued was determined in favour of revenue. This order was challenged by the appellant before the Hon ble Supreme Court [ 2008 (7) TMI 12 - SUPREME COURT ], and Hon ble Supreme Court ....... + More
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CST, VAT & Sales Tax
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2023 (5) TMI 1147
Review of Order after gap of 13 years - delay can be condoned or not - right for cross-examination to the third party in reassessment proceedings - Seeking Refund alongwith Interest - HELD THAT:- In the facts of the present case, initial assessment order was passed wayback on 09.01.2001 (Annexure P-1). Thereafter, reassessment order was passed on 12.06.2002 (Annexure P-2) and a demand for Rs. 18,20,000/- was raised. Thereafter, appeal filed by the assessee before the Joint Excise and Taxation Commissioner (A), Hisar was dismissed vide order dated 19.12.2002 (Annexure P-3). However, the demand was reduced to Rs. 17,06,322/-. The said order was challenged by the petitioner whereby the Tribunal disposed of the appeal on 03.10.2012 (Annexure P-4) by observing that the assessee had a right for cross-examination to the third party in reasses....... + More
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2023 (5) TMI 1146
Cancellation of Exemption/Entitlement Certificate for discontinuance of business by the unit during the currency of Exemption Period - activities did not totally stopped in Delhi as there were still many suppliers - Rule 28A of HGST Rules, 1975 - HELD THAT:- It is not in dispute that the appellant was granted benefit of exemption from sales to the tune of Rs. 68,24,200/-for nine years, but, he availed the benefit of only Rs. 6,22,830/-, as the industry unit was closed down and he could not run the unit for next five years, as per the policy. Whether the circumstances were beyond the control of the appellant-Company? HELD THAT:- After going through order dated 09.11.2017, it appears that the authorities had accepted this fact that identical units in the area closed down due to the fact that the consumers of their product started....... + More
