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GST
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2023 (6) TMI 362
Validity of issuance of show cause notice on Form GST DRC-01 in place of Form GST DRC-01A - Levy of penalty u/s 142(1A), 142 (3) (a) and (d) of CGST Act - case of petitioner is that present notice has been issued prematurely, before any regular show cause notice may have been issued in any adjudication proceedings - opportunity of hearing denied - violation of principles of natural justice - HELD THAT:- Clearly, the petitioner does not admit any fact allegations being levelled against him. Therefore, the requirement of preliminary notice has largely been rendered formal. If issuance of such notice would not have served any benefit to the assessee, it would be futile on the part of the writ-Court to enforce on the revenue authorities fulfilment of that condition, in the present case, at this stage. No real prejudice has been caused to t....... + More
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2023 (6) TMI 361
Allotment of quota for Haj pilgrimage 2023 - Default in payment of GST - Authority of Ministry of Minority Affairs reject the application on the ground of non payment of GST - HELD THAT:- So long as the HGOs have a GST registration and have an explanation for the manner in which they have calculated and deposited GST prior to them filing of the application for allotment of quotas, disqualifying them would be unjust. The Ministry of Minority Affairs is not the competent authority to deal with these issues, though an attempt has been made to explain that the eligible HGOs have made full GST deposits. Allotment of quota for Haj pilgrimage 2023 - petition filed by HGOs which were rendered ineligible or whose names were not found in the declared list on the ground that the reasons for declaring the Petitioners ineligible were not commun....... + More
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2023 (6) TMI 360
Recovery of penalty under Section 129(1)(b) of the UPGST Act, 2012 - detention order - doubt as to the genuineness of the consignee - applicability of Circular dated 31.12.2018 issued by Government of India - HELD THAT:- While the revenue seeks to raise disputes based on its ex parte enquiries and other circumstance, upon query made, learned Standing Counsel could not dispute that at present the revenue has not formed any opinion to falsify the genuineness of the tax invoice and the E-way bill claimed by the petitioner. It also does not dispute that those documents were found present on the vehicle in question at the time of its first detention. It is further not in dispute that the present petitioner claims to be the owner of the goods. Accordingly, petitioner may remain liable to pay security in terms of Section 129(1)(a) of the Act........ + More
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2023 (6) TMI 359
Levy of penalty at the rate of 200% - expired E-way bill - applicability of Circular No.10/2019 dated 31.05.2019 - HELD THAT:- Circular dated 24.02.23 has amended paragraph 9 of Circular dated 31.05.2019 and sets out the position prescribed and prevailing as on date in regard to circumstances where nil/reduced penalty of Rs. 500 may be levied for violations committed in transit of consignments. Paragraph number 10 of Circular No.10 of 2019 has been left untouched and would thus still be available in those specific circumstances - However, in this case, there is one distinguishing and supervening factor. The impugned order refers to a supporting document provided by the transporter and placed at page 101 of the compilation accompanying the writ affidavit containing the date 06.03.2023 in the column 'njjp'. However, the same do....... + More
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Income Tax
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2023 (6) TMI 352
Denial of claim of Foreign Tax Credit (FTC) - assessee has not filed the return of income within the time prescribed u/s 139(1) - procedural provision v/s mandatory provision - HELD THAT:- There is a delay of 10 days in filing the return of income - In the case of Sanjiv Gopal Vs. ACIT [ 2022 (10) TMI 1033 - ITAT BANGALORE] was considering a case where both return and Form No.67 was filed belatedly decided the issue in favour of the assessee and held that Rule 128 is only a procedural provision and not a mandatory provision and cannot override the provisions of the Act or the DTAA. Delay in filing the return and Form No.67 (i.e., beyond period under section 139(1) of the Act) is not fatal to the claim of FTC, we hold that CIT(A) is not justified in not granting the benefit of FTC on this count. FTC is available only in respect ....... + More
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2023 (6) TMI 351
Applicability of section 44BB - mandation of existence of PE in India - India-UK DTAA - whether section 44BB will apply in absence of PE? - HELD THAT:- Section 44BB provides that notwithstanding anything contained in sections 28 to 41 and section 43 43A, 10% of the gross receipt of a non-resident engaged in the business of providing services or facilities or supplying plant machinery on hire which is used in prospecting for or extraction of mineral oils shall be deemed to be the profits gains of business. Thus, this section has rightly been contended by ld. Counsel of the assessee that it is a computation provision. Thus, this section provides a presumptive taxation rate for computation of profits but does not override provision of sections 5, 9 or section 90 of the Income-tax Act, 1961. Case law referred by assessee in this r....... + More
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2023 (6) TMI 350
TP adjustment - international transaction of receipt of intragroup services with its AEs alleging that it does not satisfy the arm's length principle envisaged under the Act and thereby making an adjustment - HELD HAT:- The taxpayer in its TP analysis characterized itself as a routine manufacturer assuming normal risks associated with such operation. We note that the assessee has furnished enormous evidences which point out that intra group services have in fact been received by the assessee. Moreover, the agreement is a composite one and authorities below have allowed part of the same and treated part of the same not allowable. On similar facts, ITAT has deleted the adjustment for several years and the Revenue s appeal against them has been dismissed by Hon ble High Court. As decided in AY 2009-10 [ 2021 (10) TMI 909 - ITAT ....... + More
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2023 (6) TMI 349
Reopening of assessment u/s 147 - share application money and share premium which has escaped assessment - HELD THAT:- Having gone through the reasons to believe recorded by the Ld. AO, income escaping assessment has been alleged to be in respect of the share application money and share premium whereas in the assessment order, there is no whisper in this respect but a show cause notice was issued seeking explanation for unsecured loans from two parties for which the addition has been made while completing the assessment. In the assessment completed, there is no addition in respect of the income escaping assessment alleged by the Ld. AO. We hold that the impugned assessment order passed u/s. 143(3) r.w.s.147 of the Act is bad in law. When the very foundation of reopening is knocked out, further proceedings undertaken would not survive. Accordingly, the additional ground taken by the assessee is allowed.
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2023 (6) TMI 348
TP adjustment - ALP determination - Selection or change in Most Appropriate Method (MAM) - Other Method v/s CUP Method - Option to resile / disagree with the Transfer Pricing Study Report (TPSR) - Special bench [SB] / Three Member Bench decision by Majority - international transaction of acquiring Bundle of Sport Broadcasting Rights - Is assessee entitled to switch over to a new method, different from the one taken in TPSR, as the most appropriate method? - HELD THAT:- As decided by R.S. SYAL, VP assessee, in principle, can resile from the most appropriate method as was adopted in its transfer pricing study report. As decided by PRASHANT MAHARISHI, AM - It is always possible that during the journey of determining Arm s length price , MAM already considered is not appropriate , one can resile from the most appropriate meth....... + More
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2023 (6) TMI 347
Addition u/s 68 - unsecured loan - addition being made for the reason that the assessee was unable to discharge the onus of proving the genuineness of the transactions in terms of section 68 - CIT-A deleted the addition - HELD THAT:- Assessee furnished address of the said party, as also PAN of the said party. CIT(A) further noted that the AO had found no infirmity in the above details submitted by the assessee i.e. in the information filed by the assessee or the details of the said party filed by the assessee, as also, the details of transaction of unsecured loans taken by the assessee. On the contrary, he noted that the despite all information in the possession of the AO, he chose not to make any further inquiries regarding genuineness of the transaction. He noted that the AO frivolously emphasised the fact of non-reporting of this ....... + More
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2023 (6) TMI 346
Validity of assessment order u/s 143(3) r.w.s. 144C(13) - DRP held that once the final order has been passed u/s 143(3) same cannot be annulled/modified/amended at a subsequent date on the ground that the same order passed inadvertently - HELD THAT:- Surprisingly, while implementing the directions of DRP in terms of section 144C(13) AO has virtually replicated the draft assessment order, which is contrary to the statutory mandate of section 144C(13) , hence, in excess of jurisdiction or wholly without jurisdiction. Once, DRP has held that after passing of the assessment order u/s 143(3) the same cannot be annulled, modified, amended at a subsequent date, the only course left open to the AO was to implement the directions of DRP in letter and spirit and drop the assessment proceedings and nothing else. As per the scheme of the Ac....... + More
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2023 (6) TMI 345
Taxability of fees for technical services - Difference of opinion between the Learned AM and Learned JM of ITAT, C Bench, New Delhi - matter referred third member of ITAT for consideration and disposal u/s. 255(4) - revenue received by the assessee on account of provision of facilities and services of seismic data acquisition, planning and carrying out of pre-survey study, taking marine data and confirming prospects, maintenance/ upgrading/support of software licenses etc - whether as taxable as FTS u/s. 44DA r.w.s. 9 (1)(vii) or is taxable u/s 44B of the Income Tax Act ? - HELD THAT:- As decided by Learned third member revenue received by the assessee company during the year under consideration on account of provision of facilities and services of seismic data acquisition, planning and carrying out of pre-survey study, taking mar....... + More
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2023 (6) TMI 344
Income deemed to accrue or arise in India - taxability or otherwise of the fee received from Indian franchise hotels towards centralized services as fees for technical services (FTS)/fees for included services (FIS) under Article 12(4)(a) of India-USA DTAA - Assessee is a non-resident corporate entities incorporated in USA in the business of operating, managing and franchising hotels and resorts in countries across the globe - HELD THAT:- Revenue Authorities have treated the fees received from provision of centralised services as FTS/FIS under Article 12(4)(a) of India-USA treaty on the reasoning that the services rendered are ancillary and incidental to license to use brand name/trademark, resulting in royalty income. If we examine the relevant facts, it will be demonstrable that the income earned from centralised services far exceeds....... + More
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2023 (6) TMI 343
Revision u/s 263 - addition made u/s 68 of the Act in respect of unsecured loan received which is pending before ld CIT(A) - HELD THAT:- In the assessee`s case under consideration, Ld. PCIT has mainly exercised his jurisdiction u/s 263 for enhancement of the addition, which can be enhanced by ld CIT(A) u/s 251 of the Act. Since the assessee has filed the appeal before ld CIT(A) against the addition u/s 68 and ld CIT(A) by exercising his power u/s 251 of the Act may enhance the assessment. Hence, PCIT by exercising his jurisdiction u/s 263 need not to enhance the assessment especially when the appeal of assessee is pending for adjudication before ld CIT(A). Therefore, respectfully following the above legal precedents, the order of ld PCIT u/s 263 of the Act should be quashed. As from the assessee`s facts, it is abundantly clear that ....... + More
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2023 (6) TMI 342
Interest earned from FDRs during preoperative period - income from other sources or capital receipts - - whether the interest earned by the assessee from the short term fixed deposits with scheduled banks is liable to be credited in pre-operative expenses, treating the same being a capital receipt, thereby, reducing it from project cost? - HELD THAT:- The assessee company claims that during financial year it was in the process of setting up of a fertilizer manufacturing unit at Kanpur by revamping and renovating a sick industrial unit taken over under a Rehabilitation Scheme. For revamping and renovating of sick industrial unit, it arranged funds in the form of share holder s and debt funds. These FDRs were kept as margin money for the project implementation, hence for business expediency. Thus, the interest being inextricably linke....... + More
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2023 (6) TMI 341
Allowable Business/revenue expenses - directors education expenses - whether are wholly and exclusively incurred for the purpose of business? - assessee is a company and is engaged in the business as importer and exporter of bearings and components - HELD THAT:- The assessee is not involved in any manufacturing activity. There is no material available on record that the assessee has any presence outside India. Director was claimed to be already a graduate in management at the time of his appointment as Director of the assessee company. Therefore, when the assessee s business is merely in the nature of a trader with no presence outside India and its Director was already a graduate in management, no sufficient basis has been brought on record to show how the financial support provided by the assessee to its Director to pursue MSc in....... + More
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2023 (6) TMI 340
Correct head of income - maintenance income received by the assessee - treated as income from house property or income from business or profession - HELD THAT:- The maintenance charges are no way connected to the rental income. Rather, they are for certain additional facilities provided to the tenants, which are unconnected to leasing out the tenanted premises. These facilities, even, could have been provided by a third party. Therefore, in our view, the maintenance charges has no connection with the rental income, hence, cannot be considered to be a part of rental income to treat it as income from house property. The decisions relied upon by assessee support this view. As per assessee that this is the only year, in which, the AO has assessed the maintenance income under the head income from house property . We hold that the mai....... + More
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2023 (6) TMI 339
Unexplained investment in property - Addition u/s 69 - HELD THAT:- As u/s 69 of the Act, all that is required, is to explain the source of investment and the source of investment in the impugned property is the Euros received from Ms. Diana Perrone. No substance in the observations of the revenue authorities that the assessee has failed to explain the source of investment. AO is, accordingly, directed to delete the impugned addition - This ground is, accordingly allowed. Disallowance of 20% business expenses - CIT(A) enhancing addition to 100% receipts as unexplained income - HELD THAT:- Whenever the question of taxability of income from new source of income is concerned, which had not been considered by the Assessing Officer, jurisdiction to deal with the same in appropriate cases may be dealt with u/s 147/148 of the Act and ....... + More
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2023 (6) TMI 338
TP Adjustment - adjustment made by the TPO towards technical know-how fees despite accepting the entity level margins - HELD THAT:- On facts of the present case, it would be impractical and also inappropriate to evaluate payment of technical know-how fee on an individual or on a stand-alone basis (dehors the segment to which a benefit from such services accrues). For the year under consideration, the net profit margin of the assessee is 12.34% which is higher than the net profit margin of the comparable companies arrived at 9.23%. It is undisputed that the TPO had accepted the benchmarking analysis of the assessee for all transactions except for the payment of technical know-how fee to AE. This in our view would mean that the TPO has accepted the entity level margins earned by the assessee but proceeded to make TP adjustment on payment....... + More
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2023 (6) TMI 337
TP adjustment of specified domestic transaction of sale of power by eligible unit to the manufacturing unit - HELD THAT:- As in the instant facts, it is a well settled principle that where an assessee, being a captive power plant provided electricity to its associated enterprises and claimed deduction u/s. 80-IA, then for the purpose of deduction, market value of power, supplied by the assessee to its associated enterprises should be computed considering rate of power charged by State Electricity Board for supply of electricity to industrial consumers. In the case of Shree Rayalaseema Hi Strength Hypo Ltd. [ 2023 (1) TMI 1115 - ITAT HYDERABAD] held that where assessee, a captive thermal power plant, provided electricity to its AEs and claimed deduction under section 80-IA in respect of profits arising out of such activity, for purp....... + More
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2023 (6) TMI 336
Disallowance u/s 14A - CIT(A) made the enhancement of disallowance u/s 14A - HELD THAT:- When the appeal is filed before the Tribunal by the assessee himself against the orders of the lower authorities, it is expected that the assessee may put forth some documentary evidences in support of his contentions to decide the appeal as it is the duty of the assessee to lead evidence in support of its claim and for the adjudicating authority to decide upon the sustainability of the claim on the basis of the evidence led by the parties before it. Assessee did not appear before the Tribunal despite numerous adjournments allowed and notices issued through RPAD. No material has been placed by assessee to controvert the findings of lower authorities nor has pointed to any fallacy in the findings of lower authorities - no reason to interfere with the order of CIT(A) and thus we dismiss the grounds of the assessee.
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2023 (6) TMI 335
Valuation of shares at a premium u/s 56(2)(viib) - FMV determined under DCF method of the unquoted shares - Whether AO is correct in rejecting the DCF method and the FMV determined under DCF method by comparing the actual performance figures with the projections used under the DCF method? - HELD THAT:- CIT(A) concluded correctly that in the instant case there is no merit in rejecting the DCF method on the ground of mismatch between the projections adopted in DCF method and those achieved during the first two years post-valuation date. Whether the AO can change the method of valuation of unquoted shares under Rule 11UA of I.T. Rules 1962? - Rule 11UA(2) prescribes two methods - Book Value method and DCF method. However, the said rule also provides that the method to be adopted is left to the choice of the assessee. The option to....... + More
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2023 (6) TMI 334
Nature of receipts due to settlement in the court - Right of Preemptive/right of first priority of purchase of the premises - capital gain - transfer u/s 2(47) - assessee has claimed it as non-taxable and has credited directly to the capital accounts of the partners of the firm in their respective profit sharing ratio - whether falls under the definition of Capital Asset u/s 2(14)? - AO considered the date of lease deed 19.04.2004 to be the date of acquisition of capital asset, as there was no cost of acquisition of the right of pre-emption the cost of acquisition of the capital asset was taken as Nil. HELD THAT:- As right of assessee to have the offer for purchase cannot be considered to be a Capital asset for the purpose of Section 2(14) - This right arising out of covenant in the lease deed has no semblance of a property ....... + More
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2023 (6) TMI 358
Addition u/s 14A r.w.r. 8D - According to the Tribunal, no exempt income has been earned by assessee during the period under consideration, and therefore, disallowance u/s 14A was not warranted - HELD THAT:- There is no dispute, that this issue is covered by a judgment of Cheminvest Limited [ 2015 (9) TMI 238 - DELHI HIGH COURT] and judgment passed in Commissioner of Income-tax, Central 1, Chennai v. Chettinad Logistics (P.) Ltd [ 2017 (4) TMI 298 - MADRAS HIGH COURT] . One of us i.e., Rajiv Shakdher, J., was part of the bench in Commissioner of Income-tax, Central 1, Chennai v. Chettinad Logistics (P.) Ltd [ 2017 (4) TMI 298 - MADRAS HIGH COURT] . Revenue does not dispute the fact, that the special leave petition preferred against the said judgment was dismissed by the Supreme Court [ 2018 (7) TMI 567 - SC ORDER] No substantial question of law arises for our consideration.
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2023 (6) TMI 357
Transfer of case u/s 127 - transferring the Income Tax File of the petitioner from Kolkata to Lucknow - As argued transfer is done without providing any material to the petitioner on the basis of which such decision of transferring the file of the petitioner has been taken and without giving any opportunity of personal hearing in spite of his representation - HELD THAT:- Neither the materials as asked for by the petitioner nor opportunity of personal hearing was provided to the petitioner though in this case a show-cause-notice was issued to the petitioner to file objection to the impugned action of transfer of the petitioner s file but it is the case of the petitioner that he is not able to file any effective objection in view of non-providing of any materials for taking such action of transfer against the petitioner. Considering....... + More
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2023 (6) TMI 356
Reopening of assessment - notice u/s 148A(b) to wrong Email ID - violation of principles of natural justice - notices are sent to (i) email ids that are no longer in use (ii) email ids of staff/accountants/chartered accountants who have created the profile of the assessee/file the income tax return and who are no longer in the employ/service of the assessee - HELD THAT:- The causality is principles of natural justice as proper opportunity is often denied simply because notices are sent to (i) email ids that are no longer in use (ii) email ids of staff/accountants/chartered accountants who have created the profile of the assessee/file the income tax return and who are no longer in the employ/service of the assessee. It is high time that assessees as well as the officials of the department devote attention to this aspect of the matter........ + More
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2023 (6) TMI 333
CIT-A Jurisdictional Issue - CIT(A), Ghaziabad or Noida - HELD THAT:- This Tribunal [ 2021 (3) TMI 22 - ITAT DELHI] has extensively discussed the impugned issues and has restored the appeals to the respective jurisdictional CIT(A), Ghaziabad. Hon ble Supreme Court in case of Fatma Bibi Ahmed Patel Anrs [ 2008 (5) TMI 691 - SUPREME COURT] held that jurisdictional issue goes to the root of the matter and the entire proceedings having been initiated illegally and without jurisdiction, and thus are nullities. Thus as following the decisions of Fatima Bibi [ 2008 (5) TMI 691 - SUPREME COURT] , United Commercial Bank [ 1951 (4) TMI 25 - SUPREME COURT] and Kanwar Singh Saini [ 2011 (9) TMI 960 - SUPREME COURT] without entering into the merits of the captioned appeals, we are of the considered view that the impugned orders suffer f....... + More
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2023 (6) TMI 355
Revenue recognition - assessee used the percentage completion method for recognising revenue - Inclusion of operation and maintenance expenditure be added to the costs of contract - whether the operation and maintenance expenditure should be added to the costs of contract, while recognising revenue? - HELD THAT:- Assessee has adopted the percentage completion method, as per Accounting Standard 7, framed by the Institute of Chartered Accountants of India (ICAI). As is evident from a perusal of the impugned order, the rationale for not including operation and maintenance expenditure given by the Tribunal was, that these expenses were incurred after the construction activity is completed. We find no difficulty in accepting this rationale. Having regard to the aforesaid, we are of the view that no substantial question of law arises for our consideration.
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2023 (6) TMI 354
Assessment u/s 153A - necessity of recording satisfaction by AO of the searched person - HELD THAT:-No satisfaction was recorded by the AO of the searched persons and therefore, the order of the Tribunal in Smt. G. Lakshmi Aruna [ 2016 (10) TMI 1378 - ITAT BANGALORE ] and the judgments of M/s. Gopi Apartment [ 2014 (5) TMI 158 - ALLAHABAD HIGH COURT ] and in the case of Calcutta Knitwears [ 2014 (4) TMI 33 - SUPREME COURT ] and Manish Maheshwari [ 2007 (2) TMI 148 - SUPREME COURT ] are applicable to the given facts and circumstances of the case. These judgments were followed by the Income Tax Appellate Tribunal to hold that the notice issued by the AO u/s 153-C of the IT Act deserves to be quashed and accordingly had proceeded to quash the assessment orders framed by the AO u/s 153-C read with Section 143(3) of the Income Tax Act. Accordingly, the additional ground was allowed in all the seven years.
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2023 (6) TMI 353
Prosecution proceedings u/s 276CC and 277 - variation in the tax payments - assessee claimed in the return of income that total self assessment tax was paid more than payments as per challan details available in the OLTAS database - HELD THAT:- Before noticing that there was a mistake in submission of appropriate tax returns, the petitioners have immediately filed revised returns on 01.02.2018 i.e., prior to issuing of show cause notice or even prior to lodging of complaint. Thus, there are bonafides on the part of petitioners in submitting revised tax returns after noticing that there is a bonafide omission/mistake. It is not the case, wherein a deliberate attempt is made by the petitioners to evade tax. The conduct of the petitioners in filing revised returns immediately after noticing error on their part indicate that it was a ....... + More
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2023 (6) TMI 332
Penalty u/s 271D - contravention of provisions of Section 269SS - Cash transaction between the Company and its Director - a. cash utilized for purchase of stamps - b. cash deposited in the bank account of the compnay by the Director - challenging the categorization of transaction as loan or deposit when there is no element of any interest - HELD THAT:- No reasonable cause or urgency is shown by the assessee for having accepted cash on different occasions from the Director. It could not be shown as to why the transactions could not be undertaken in compliance with the prescribed modes u/s 269SS. Further, the Private Limited company and Director are altogether different person under the provisions of Section 2(31), and there could not be two view on this. CIT-DR has rightly relied upon judicial precedents to support his contentions,....... + More
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Customs
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2023 (6) TMI 325
Classification of imported goods - Low Aromatic While Spirit/Hydro Carbon Solvent and other Petroleum Class A,B and C grades - classifiable under sub-heading 27101920 or under the sub heading 27101990? - violation of provisions of Import Policy - Revenue has reclassified the goods mainly on the basis of the Test Report received from CRCL, Kolkata - whether the Test report findings indicate that the impugned goods meets the specifications required for categorizing it as solvent 125/240, as per IS 1745:2018? HELD THAT:- The Respondent stated that when the Test Reports differs from the standards prescribed, the goods cannot be held to satisfy the requirements under IS 1745 standards meant for CTH 2710. Hence the impugned goods cannot be categorized as Light Oils and Preparations as per the CRCL Test report - there are merit in the ....... + More
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2023 (6) TMI 324
Seeking change in Classification - Shower head of steel - to be classified under CTH 84248990 or CTH 73242900 - Shower head/Hand shower of plastic - to be classified under CTH 84248900 or under CTH 39249010? - Shower panel - to be classified under CTH 84818010 or under CTH 94060099 - Shower head of Chrome plated brass - to be classified under CTH 84248900 or under CTH74182010 - Sensor Faucet - to be classified under CTH 84818010 or under CTH 74182010 - discharge of burden to prove. HELD THAT:- It is seen that the ground of appeal contains no argument whatsoever to counter the arguments given by the Commissioner (Appeals) except to assert that the case law cited does not apply. The onus of giving evidence of change of classification is on revenue. Revenue has failed to discharge the onus. The arguments given in the impugned order hav....... + More
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2023 (6) TMI 328
Confiscation - Detention and seizure of betel nuts - goods of foreign origin and unfit for human consumption - Discharge of burden of prove - standard of proof as envisaged under Section 123 of the Customs Act, 1962 is the best beyond reasonable doubt - seized goods were found to be unfit for human consumption as per test report of Export Inspection Agency, Kolkata, under Food and Standard (Food Products Standards and Food Additive) Regulations, 2022. HELD THAT:- Section 123 of the Act, 1962 provides that where any goods included under Sub-section 2 of Section 123 are seized under the provision of the Act, 1962, on the basis of reasonable belief that the same are smuggled goods, then the burden of proving that they are not smuggled goods, shall lie upon the person from whose possession such goods have been seized and in a case, when....... + More
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2023 (6) TMI 323
Confiscation - Reduction in quantum of redemption fine and penalty - import of old and used worn clothing, completely fumigated - restricted item or not - to be classified under Tariff Item No.63090000 of the First Schedule of the Act or not - HELD THAT:- This issue came up before this Tribunal in the case of VENUS TRADERS, RAINBOW INTERNATIONAL, AL-YASEEN ENTERPRISES, GLOBE INTERNATIONAL, KRISHNA EXPORT CORPORATION, PRECISION IMPEX, BMC SPINNERS PVT. LTD., SHIVAM TRADERS, LEELA WOOLEN MILLS, M.U. TEXTILES VERSUS COMMISSIONER OF CUSTOMS (IMPORTS) MUMBAI [ 2018 (11) TMI 625 - CESTAT MUMBAI] , wherein this Tribunal has observed that The failure of the original authority to comply with the direction in remand to disclose the margin of profit that prompted the fine and penalty, the matter would normally have to be remitted back by another....... + More
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2023 (6) TMI 322
Revocation of Customs Broker License - export of cut and polished diamonds - alleged misuse of several persons to secure importer exporter code (IEC) numbers - adherence to time-lines and denial of opportunity to cross-examine persons whose testimony was relied upon - regulation 17 of Customs House Broker Licensing Regulations, 2018. HELD THAT:- The Hon ble Supreme Court, in PR. COMMISSIONER OF CUSTOMS VERSUS SHASTA FREIGHT SERVICE PVT. LTD. [ 2022 (10) TMI 473 - SC ORDER] , had dismissed special leave petition (SLP) against order of the Hon ble High Court of Telengana only owing to stated disinclination of appellant to pursue the dispute and that the Hon ble High Court of Telangana had held that the Enquiry Officer could not have violated the mandate of law. It would have been a different matter if the Enquiry Officer had chosen n....... + More
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2023 (6) TMI 321
Re-negotiation of price of Ship Breaking - number of items either replaced or not found as per the understanding arrived with the seller - prices in general had come down during the period of delay - prices had come down by 10 to 15% in international market - HELD THAT:- The re-negotiation of price was done. Matter remanded back to the Commissioner (Appeals) to look into various aspects. Specially, the evidence of international market prices having come down during the relevant period. The date of entry will be relevant but also whether the re negotiated transaction value was correct and final in terms of re-negotiated contract, it is also to be seen whether same was in consonance with the terms of original agreement, which allowed them to examine the ship in Indian waters. The matter remanded back.
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2023 (6) TMI 320
Confiscation - Reduction in quantum of redemption fine and penalty - import of old and used worn clothing, completely fumigated - restricted item or not - to be classified under Tariff Item No.63090000 of the First Schedule of the Act or not - HELD THAT:- This issue came up before this Tribunal in the case of VENUS TRADERS, RAINBOW INTERNATIONAL, AL-YASEEN ENTERPRISES, GLOBE INTERNATIONAL, KRISHNA EXPORT CORPORATION, PRECISION IMPEX, BMC SPINNERS PVT. LTD., SHIVAM TRADERS, LEELA WOOLEN MILLS, M.U. TEXTILES VERSUS COMMISSIONER OF CUSTOMS (IMPORTS) MUMBAI [ 2018 (11) TMI 625 - CESTAT MUMBAI] , wherein this Tribunal has observed that The failure of the original authority to comply with the direction in remand to disclose the margin of profit that prompted the fine and penalty, the matter would normally have to be remitted back by another....... + More
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2023 (6) TMI 319
Classification of imported goods - Mitsubishi brand Air Conditioner-Outdoor units and Air Conditioner-Indoor units of more than two ton capacity - to be classified under CTH 84159000 as parts of Air-conditioners or not - applicability of FTA Notification No.46/2011 Sl.No.1103 (I) - power of DRI to issue SCN - HELD THAT:- The show cause notice is issued by D.R.I. The appellant has filed an affidavit stating that the issue whether the SCN issued by D.R.I is proper and valid is not contested by the appellant before this Tribunal and do not intend to contest the said issue in any other forum in regard to this appeal. The very same goods were imported by the appellant and the Tribunal in M/S. AV GLOBAL CORPORATION PVT. LTD., M/S. MITSUBISHI ELECTRIC ASIA PTE LIMITED, M/S. MITSUBISHI ELECTRIC INDIA PVT. LTD., SHRI MANORANJAN NAYAK, SHRI R....... + More
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2023 (6) TMI 318
Refund of SAD - delay in passing the review order by the reviewing authority - It is submitted that the date of communication of the Order-in-Original ought to have been taken by the Commissioner (Appeals) for computing the period of limitation of three months whereas, the Commissioner (Appeals) computed the limitation from the date of passing the Order-in-Original. HELD THAT:- The learned AR has submitted that the Commissioner (Appeals) has erroneously dismissed the appeal as time barred. Similar matter had come up before the Tribunal wherein the Commissioner (Appeals) had taken the date of passing the Order-in-Original for computing the period of limitation. In the present case, in para 5 6 of the impugned order the Commissioner (Appeals) has discussed in detail that even after repeated requests the Department had not provided t....... + More
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2023 (6) TMI 327
Criminal conspiracy in order to get ineligible Duty Entitlement Pass Book - showing realization of Foreign Exchange against export of coloured water and mis-declared the customs as high quality printing ink for refilling catridges - offences punishable under Sections 120B r/w 420, 467, 468, 471 IPC and Sections 132 and 135 of the Customs Act, 1962 and under Sections 468, 467 r/w 471 and 420 IPC and Sections 132 and 135 of CS Act. HELD THAT:- The sum and substance of the case of the prosecution is that the accused fabricated the BRC's in the name of M/s.Prime Stones and Monuments, M/s.Sri Mahalakshmi Iron and Steel and M/s.Seven Star Global Logistics as if the same were issued by the Bank of Saurashtra, George Town, Chennai and Dhanalakshmi Bank, George Town, Chennai and also involved in affixing the fabricated rubber stamp of th....... + More
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2023 (6) TMI 317
Classification of imported goods - Waxsol series of products such as Waxsol-A, Waxsol 9-11A, Waxsol-911B and Waksol-B etc - to be classified under CTH 27101990 of Customs Act, 1925 or under Customs Tariff Heading No. 34052000? - competence of proper officer for D.R.I. Officers to issue show cause notice for entire bunch - period involved of imports is from June, 2014 to April 2019. HELD THAT:- The appellants initially claimed goods under Tariff Heading 2710 as classification of the product in their Bills of Entry, but after being confronted with various evidence during investigation by DRI made alternate submissions for the product to be appropriately classified under Tariff Heading 2712, on the ground that the product cannot be classified under Tariff Heading 3405. We find that TH 3405, pertains to various end products and excludes....... + More
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2023 (6) TMI 326
Seeking provisional release of goods - import of used rubber tyre cut in two pieces - restriction in the import of used tyres except those which have a cut in the bead wire or not - petitioner was not afforded personal hearing, since the notice was not served upon him - violation of principles of natural justice - HELD THAT:- As pointed out by the learned Senior Standing Counsel for the respondents, the petitioner, who now claims that he has all the documents and seeks one more indulgence to submit the documents to the respondents, has not complied with the earlier order in its letter and spirit. This Court had clearly and categorically directed the petitioner to submit all documents which they rely upon and it was for this reason, the impugned order was quashed and the matter was remitted back. The first respondent was directed to pas....... + More
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2023 (6) TMI 316
Levy of penalty u/s 112(a) and u/s 114AA of the Customs Act, 1962 - allegation of abetment in undervaluation - evasion of Customs Duty by several syndicates of crane importers - procuring invoices of notional value of Rs.28/- to Rs.40/- per kg. of the weight as against the actual transaction value of the cranes which was higher - suppression of freight charges paid to the shipping lines - HELD THAT:- From the impugned order there are no discussion on the role played by the appellant in facilitating the charges of suppression of value. The entire discussion is based in respect of one co-noticee i.e. Shri Madan Lalwani. The only finding recorded in the impugned order is in para 35 onwards. Nothing recorded with regard to evidence leading to finding of such discussion - The fact that the show cause notice as contended by the appellant cou....... + More
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Securities / SEBI
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2023 (6) TMI 331
Fraudulent activities under SEBI - issue of 80,800 false share certificates, forging signatures of genuine investors on the transfer documents and verifying fake share certificate and forging signatures and approving fraudulent transfer etc . - as per SAT[Mumbai] WTM passed ex-parte ad-interim order correctly in terms of Section 11 in the interest of the investors - HELD THAT:- No good ground and reason to interfere with the impugned judgment and hence, the present appeals are dismissed. Pending application(s), if any, shall stand disposed of.
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Insolvency & Bankruptcy
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2023 (6) TMI 329
Initiation of CIRP - Proof of debts - raising an Invoice, is a precondition, in all cases, for admission of a Section 9 Petition under the I B Code, 2016 or not - strict proof of debt and default present or not - According to the Appellant / Petitioner / Operational Creditor, the Respondent / Corporate Debtor, is required to pay an advance Sum of Rs,2,28,62,374.63, but the Respondent / Corporate Debtor, is denying / disputing its Liability, to pay an Advance Sum. HELD THAT:- The Proceedings under the I B Code, 2016, are summary in character and a trial is not conducted, like that of Civil matter, before the Competent Civil Court. It cannot be forgotten that an Application under Section 9 of the Code, requires a strict proof of Debt and Default. An existence of a Pre-existing Dispute, is a bar to the initiation of the Corporat....... + More
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2023 (6) TMI 315
Seeking Liquidation of the Corporate Debtor Company - HELD THAT:- M/s. Cantors Fitzgerald is ready and willing to fund any settlement even during the Liquidation Process. In the event, any such settlement is able to be executed, with funds infused, keeping in view the spirit and intent of the Code, the Adjudicating Authority shall proceed in accordance with law giving 14 days time peremptorily, of course from the date of this Order failing which, this Tribunal does not find any tangible ground(s) to interfere with the Order of Liquidation as more than sufficient time was granted by the Adjudicating Authority/Tribunal to the Appellant herein to settle the matter. Appeal disposed off.
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2023 (6) TMI 330
Seeking appointment of an Arbitrator - Section 11(6) of the Arbitration and Conciliation Act, 1996 - respondent has approached the NCLT under the provisions of the IB Code - time limitation - whether the provisions of the IB Code interdict the appointment of an arbitrator by invoking Section 11(6) of the A C Act? - HELD THAT:- At the outset, it is necessary to note that there is no provision in the A C Act, giving the provisions of the Act an overriding effect as is contemplated by Section 238 of the I B Code. However, it is equally trite that the A C Act, is a special Statute, governing the field of Arbitration, and all other Statutes governing the filed earlier thereto, stood repealed in view of Section 85 of the A C Act. Whether there is anything inconsistent in the A C Act, to what has been provided for in Section 7 t....... + More
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Service Tax
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2023 (6) TMI 314
Levy of service tax - Business Auxiliary Service - consulting engineer service received from parent company during the period from April 2008 to March 2009 - reverse charge mechanism - suppression of facts - extended period of limitation - HELD THAT:- In similar circumstances when the Indian company procure orders for foreign company, purely on sales commission basis and received sales commission in convertible foreign exchange then for the period after 26.02.2010, this Tribunal has held that the said activity should be treated as export of service - in para 17 of the show-cause notice dated 22.10.2012, it is stated that the respondent has suppressed the information. The said show-cause notice did not elaborate as to which information was required, in which provision of law and how it was suppressed. Therefore, in the circumstances of ....... + More
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2023 (6) TMI 313
Levy of penalty u/s 78 of FA - entire service tax demanded along with interests paid before issue of the Notice - suppression. of facts or not - requirement to issue SCN as per section 73(3) of the Finance Act, 1994 - HELD THAT:- The Appellant has not paid the service tax on their own. The tax was paid only after initiation of investigation by the department. During the course of investigation, the Appellant has not cooperated with the department. They have furnished wrong information to the investigating authorities on various occasions. The findings of the adjudicating authority indicate that the Appellant tried to mislead the investigation .The Appellant has been receiving money from their client for the services rendered, but failed to pay service tax. From the statements recorded, it is evident that the Appellant was aware of ....... + More
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2023 (6) TMI 312
Classification of services - construction of Jiribam Municipal Corporation building, staff quarter building, Guest House building, overhead tank and R. wall etc. for meeting social needs of the state of Manipur and for upliftment of needy people of the state in terms of the contract awarded by NBCC on behalf of the Ministry of Urban Employment and Poverty Alleviation, Govt. of India - to be classified under Commercial Or Industrial Construction Services or Works Contract Service? - taxability under the category of Works Contract Service has not been proposed in the impugned Show Cause Notice - time limitation. HELD THAT:- It is noted that the contract is inclusive of supply of goods. The Ld. Commissioner while taking note of the fact that the construction service is inclusive of supply of goods has extended the benefits of abateme....... + More
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2023 (6) TMI 311
Refund of Cenvat credit - Business Support Services - export of output service - denial of refund on the ground that Rule 14 of Cenvat Credit Rules, 2004 has not been invoked while rejecting the refund claim - HELD THAT:- In the matter of BNP Paribas India Solution Pvt. Ltd. [ 2021 (12) TMI 676 - CESTAT MUMBAI] this Tribunal while allowing the appeal of the assessee therein allowed the refund claim u/s. 5 ibid by holding that since the provisions of Rule 14 ibid has not been invoked, the refund of Cenvat credit as claimed by the Appellant under Rule 5 ibid cannot be denied. It is settled legal position that in absence of any notice for recovery as provided by Rule 14 ibid the refund claimed by the assessee under Rule 5 cannot be denied. The decision of the Tribunal in the matter of Qualcomm India Pvt. Ltd. [ 2019 (8) TMI 1645 - CES....... + More
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2023 (6) TMI 310
Levy of Service Tax - Mining Services - service tax registration till 01.06.2007 not taken - Cargo Handing Service - Business Auxiliary Service - Site Formation and Clearance, excavation and Earth Moving and Demolition services - applicability of Board CBEC Circular F. No. 232/2/2006-Cx.4 dated 12.11.2007 - extended period of limitation - penalty - HELD THAT:- The Appellant has got a composite contract for undertaking mining activities . From the work orders, it is evident that the activities were to be performed entirely within the mining area, for a lump sum price. The Department has artificially bifurcated the services under the categories of Cargo Handling Services, Site Formation services and Business Auxiliary Services and demanded service tax. In fact there is no separate charges payable to such services as per the work orders........ + More
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2023 (6) TMI 309
Refund of Service Tax amount - advance amount returned/ refunded to the buyer, upon the cancellation of the flats booked by the said buyer - HELD THAT:- The first principle of service tax is that tax is to be paid only on the services which are taxable under the said statute and for that purpose there has to have some service . Unless service is there no service tax can be imposed. If any service has been provided which is taxable as specified in the Finance Act, 1994 as amended from time to time then certainly the assessee is liable to pay, but when no such service has been provided then the assessee cannot be saddled with any such liability and in that case the amount deposited by the assessee with the exchequer will be considered as deposit only and keeping the said amount by the department is violative of Article 265 of the Cons....... + More
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2023 (6) TMI 308
Refund of Service Tax - time limitation - case of Revenue is that refund claim was made after the period of one year from the date of deposit therefore the same is not eligible for refund - Section 11B of the Central Excise Act, 1944 - HELD THAT:- The heading of Section 11B ibid is claim for refund of duty and interest, if any, paid on such duty . From the language of the heading of the said section it is clear that if there is any claim for refund of duty and interest on such duty then it has to be filed within the period prescribed therein. But the instant case is not about refund of duty as the duty has already been paid by the appellant on 5.10.2016, it is about the refund of the amount inadvertently paid by them again for the very same period i.e. July, 2016 to September, 2016 alongwith interest. It is not the case that the claim....... + More
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2023 (6) TMI 307
Classification of services - Support Services of Business or Commerce or renting of immovable property - royalty / concession fee / lease charges received by the Port from KPPL represents consideration for providing services relatable to the taxable service - notice is time barred or not. Revenue is of the opinion that the entire activities carried out under the concession agreement are in the nature of composite services, which consists of a combination of different taxable service and therefore it should be classified as if it consisted of a service which gives the essential character in accordance with Section 65A of Finance Act, 1994. HELD THAT:- By the Concession agreement, the Appellant has entrusted upon KPPL the rights to develop / operate / maintain the Port including project facilities on a BOT basis. The expression ....... + More
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2023 (6) TMI 306
Levy of Service Tax - Business Auxiliary Service - appellant is individual or a commercial concern? - whether the appellants who rendered Business Auxiliary Services as a proprietor can be treated to be a commercial concern before 01.06.2005 also? - extended period of limitation - penalties - HELD THAT:- Tribunal in the case of MR. CHARANJEET SINGH KHANUJA AND OTHERS VERSUS CST, INDORE/LUCKNOW/JAIPUR/LUDHIANA AND OTHERS [ 2015 (6) TMI 585 - CESTAT NEW DELHI ] has held that When an individual engages himself in a commercial activity, he has to be treated as business or commercial concern. Therefore, notwithstanding the fact that w.e.f. 1-5-2006 the term, 'commercial concern' in Section 65(105)(zzb) was replaced by any person', we are of the view that even during the period prior to 1-5-2006, the Business Auxiliary Servi....... + More
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2023 (6) TMI 305
Classification of services - coaching and training services in Foreign Trade and Business Management - Department alleged that the coaching and training services provided by the Appellant did not fall under the category of Vocational Training and accordingly, the Appellant cannot be classified as vocational training institute - N/N. 09/2003-ST dt.20.06.2003 - period July, 2003 to September, 2005. HELD THAT:- It is observed that the very issue as to whether any coaching and training given in respect of business management studies would call for Service Tax payment, has been gone into by the Tribunal in the case of Ashu Export Promoters (P) Ltd [ 2011 (11) TMI 387 - CESTAT, NEW DELHI ] and the Tribunal has held In relation to education and training it gives the meaning directed at a particular occupation or its skill . When engage....... + More
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2023 (6) TMI 304
Classification of services - single work order for carrying out the services - Trucking, loading and unloading of dolomite boulders from mines to crusher plant - Haulage of Dolomite from stock-pile/washery through trucks - Loading of dolomite into all types of railway wagons by machine/manual labour, with separate rate for each activity, was entered between the appellant and M/s TISCO - to be classified under the category of transportation within mines as contended by the Appellant or cargo handling services as alleged by the Revenue? HELD THAT:- The essence of the service to be provided by the Appellant is of transportation of dolomite within various locations in the mining area and its final loading into railway wagon which is evident from the scope of services. This constitutes a single taxable service for transportation of dolom....... + More
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2023 (6) TMI 303
Levy of Service Tax - Business Support Service - Manpower Recruitment and Supply Agency Service - Commercial Coaching Training Services - providing infrastructure facilities like computer systems, refreshments, lunch etc. to their corporate clients - supply of employees as per the requirement of their client - period April 2007 to March 2008 - time limitation - validity of SCN. HELD THAT:- In the SCN dated 28.1.2008 in paras 4 to 7 along with Annexure-A to the SCN, the details of income received by the appellant and as to how these amounts would be subject to levy of service tax under the category of BSS and MRSS are explained. It is found that the argument of the appellant that SCN does not furnish required details for the appellant to rebut or defend the allegation is without any substance - The SCN cannot be too hyper-technical....... + More
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2023 (6) TMI 302
Levy of Service Tax - GTA Services - goods are transported by rail - liability of appellant to pay tax on Freight Charges - consignor has discharged service tax on freight charges - applicability of Reverse Charge Mechanism - period 1.6.2006 to 16.8.2006 - Extended period of limitation - demand of service tax with interest and equal penalty under section 78 of the Finance Act, 1994 - HELD THAT:- The appellant has collected freight charges only for transportation of goods by road from the service recipient. They had to opt for transportation of goods by rail due to unforeseen circumstances such as unavailability of lorries. The intention between the parties, namely service recipient and service provider, was not to provide transportation of goods by rail. From the invoices issued by the appellant to the service recipient namely M/s. Ste....... + More
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2023 (6) TMI 301
Jurisdiction of Commissioner (Appeals) to issue fresh Show Cause Noice (SCN) or to raise demand on new ground - Exercise of powers under the second proviso to section 35A(3) of the Excise Act - Reversal of CENVAT Credit - manufacturing excisable goods as well as trading of goods - exempted service - HELD THAT:- Chapter V of the Finance Act deals with Service Tax and contains sections from 64 to 96. Section83 of the Finance Act provides that certain sections of the Excise Act shall apply, so far as may be, in relation to service tax as they apply in relation to a duty of excise. Section 35A of the Excise Act is not a section mentioned in section 83 of the Finance Act - It would be seen that sub-section (4) of section 85 of the Finance Act provides that the Commissioner (Appeals) shall hear and determine the appeal and pass such orders a....... + More
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Central Excise
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2023 (6) TMI 300
Fixation of special rate of refund of duty - Area Based Exemption - Order beyond the scope of show cause notice (SCN) - value addition at the rate of 62.65% (if the sale value is considered at MRP) or 58.60% (if the actual sale value is considered) - Benefit of Notification No.56/2002-CE as, amended - whether the Adjudicating Authority was correct in rejecting the appellant s claim for value addition? - HELD THAT:- On an application, dated 29.09.2009, made by the appellants, Commissioner vide letter dated 20.04.2010 informed the appellants that the value addition comes to 45.73% as against the claim of 58.6% or 62.65% by the appellants. The appellants have submitted a detailed written reply and a Statutory Auditor s certificate to establish their claim. On-going through the records, it is found that the learned commissioner, vide le....... + More
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2023 (6) TMI 299
100% EOU - extended period of limitation - demand of duty under the wrong provisions - import of raw-material Polypropylene from Singapore for use in manufacture for the final product - applicability of N/N. 5/94-CUS read with Notification No. 52/2003-CUS dated 31.03.2003 read with Section 9A (2A) (ii) of Customs Tariff Act, 1975 - penalty u/s 112 of Customs Act, 1962 - HELD THAT:- In view of specific amendment brought in 2008 in the statutory provisions, Anti Dumping Duty was clearly chargeable even if the impugned raw-material was contained in the finished goods cleared in DTA. Notwithstanding the decisions of the prior period, the Anti Dumping Duty was required to be paid by the appellant. It is found that though the show cause notice has not demanded duty under the provision of Central Excise Act particularly under section 3 and No....... + More
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2023 (6) TMI 298
Recovery of inadmissible Cenvat Credit - Input Services - Capital Goods - denial on the premise that factory and COB Plant are having separate registration numbers and one cannot take credit of another - whether the CENVAT credit on services availed at the mines and capital goods installed at the COB Plant would be an eligible credit in the hands of the factory? HELD THAT:- The mines and COB Plant at Sukinda and factory at Balgopalpur are integral part of the same captive arrangement which is evident from Government of Odisha Order dated 22.05.2000, whereby mining lease was granted with a condition that it shall be exclusively used for captive purpose to ensure steady supply of Chrome Ore to the Ferro Chrome Plant. As it is seen from the submission of the Appellant that the services of mining, cargo handing etc. were used for exc....... + More
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2023 (6) TMI 297
CENVAT Credit - inputs and input services received for construction of Coal Handling plant (CHP) - denial of credit on the ground that the input services received by the appellant does not constitute eligible input service in terms of the definition under Rule 2 (l) of the Credit Rules, under the exclusion clause - HELD THAT:- The present Show Cause Notice is by way of continuation as statement of demand have been issued with reference to earlier Show Cause Notice No.V(30)78/CEX/BCCL Govindpur/Adj/DNB(H)/2016/8705 dated 27.09.2016 for the period June 2013 to November 2015. On going through this Tribunal in M/S BHARAT COKING COAL LTD. VERSUS COMMR. OF CENTRAL EXCISE S. TAX, RANCHI [ 2021 (10) TMI 383 - CESTAT KOLKATA ], it is found that the very same issue had come up before a Division Bench of this Tribunal and the Division ....... + More
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2023 (6) TMI 296
Wrongful availment of CENVAT Credit - input services - Outdoor Catering service - Membership of Club - General Insurance services - Maintenance of ETP - input service credit related to other units on the basis of ISD invoice related to the period from September 2013 to February, 2014 i.e. prior to the Credit Rules, 2004 - HELD THAT:- Reverting to the facts of the present case it is observed that entire demand as proposed vide the Show Cause Notice denying the availment of Cenvat Credit was confirmed by the Original Adjudicating Authority. However, the services as were shown to have been utilized in relation to effluent treatment plant was held to be indirectly relevant for the manufacture of the Final Product. The demand of Rs.1,17,720/- on this ground was set aside by Commissioner (Appeals) after following the decision of Hon ble Sup....... + More
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2023 (6) TMI 295
CENVAT Credit - interim product/intermediate goods - rubberised textile fabric - requirement to pay 8% of the value of exempted goods as duty - HELD THAT:- The appellant had availed the credit in respect of input used in manufacturing of interim product i.e. rubberised textile fabric. The benefit of exemption was not admissible as the goods were liable to be charged at nil rate of duty. If no credit was taken moreover the said rubberised textile fabric being input used for manufacture of PSP which were cleared at nil rate of duty and consume for same purpose was not eligible for the benefit of exemption Notification No. 67/95-CE dated 16/03/1995. Therefore, the appellant was required to pay 8% of the value of PSP bed cleared by them without payment of duty. It is clear that the appellant has paid 8% of the value of the rubberized te....... + More
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2023 (6) TMI 294
Maintainability of appeal - time limitation - refund claim on account of value addition deductions for the period of June, July and September 2014 - HELD THAT:- The respondent has not been able to produce any material conclusively showing that the order dated 25.03.2019 was served on the same day i.e. 25.03.2019 itself. The dispatch register produced by the respondent only shows the dispatch and there is no material on record showing that the appellant was served the copy of the order on 25.03.2019 itself - Moreover, the authorized representative of the company Jugal Kishore Sharma has filed the affidavit stating that he got the copy of the said order by hand on 18.06.2019 and the same was communicated to the company on 22.06.2019 and thereafter admittedly the appeal was filed within the statutory period of limitation. The dismissal....... + More
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2023 (6) TMI 293
Invocation of provisions of Rule 8(3A) of CCR - default in making monthly payment of duty or not - CENVAT Credit - wrong mentioning of assessee code number - whether the payment made mentioning the wrong assessee code number in the Central Excise account is not considered as any payment. HELD THAT:- It is found from the records that the Ld.Commissioner failed to appreciate that the Appellants had three units at Kolkata, Hyderabad and Faridabad. For the month of February the appellants were required to make payment with 6th March 2010 and while making such payment for the March 2010 for an amount of Rs.58,40,599/- from their Kolkata unit from PLA code number of Hyderabad unit was wrongly mentioned in the GAR-7 Challan and as a result the amount though deposited, but under a wrong assessee code number. It is the submission of the Appe....... + More
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CST, VAT & Sales Tax
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2023 (6) TMI 292
Violation of principles of Natural Justice (audi alterem partem) - no opportunity of personal hearing granted before passing the impugned order - HELD THAT:- In the impugned order dated 02.12.2022, it is seen that the notice has been given to the petitioner and the petitioner has also submitted his reply and thereafter enquiry has been conducted. The request of the dealer is seen to be not capable for consideration and that finding is recorded after considering the materials produced by the petitioner. Even if the petitioner is aggrieved due to any omission committed on the part of the respondent authority, there is an effective alternative remedy available to the petitioner to challenge the impugned orders by way of filing revision/ appeal before the competent authority. This is a fit case which should be considered for lack of opportunity in compliance of the principles of natural justice. Sufficient opportunity is given to the petitioner - petition disposed off.
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Indian Laws
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2023 (6) TMI 291
Dishonour of Cheque - insufficient funds - discharge of legally enforceable debt or liability or not - acquittal of the accused - rebuttal of statutory presumption - HELD THAT:- In the instant case, issuance of cheque in discharge of legally enforceable debt is admitted by the respondent. The presentation of cheque for clearance through banker and its dishonor is also proved. Service of notice is also not denied. The only defence projected by the respondent is that the loan against which the cheque in question was given as security to the appellant stands liquidated but he has not stated anything about demand to return the cheque and if refused what steps have been taken by him for recovery of the cheque. It has also come in the evidence that the vehicle against which the loan was got by the respondent in the year 1997 from the appel....... + More
