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GST
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2018 (7) TMI 665
Extension of time for filing GST Tran-1 - case of petitioner is that despite making several efforts on the last date for filing of the application, the electronic system of the respondent no.2 did not respond - Held that:- The respondents are directed to reopen the portal within two weeks from today. In the event they do not do so, they will entertain the GST TRAN-1 of the petitioner manually and pass orders on it after due verification of the credits as claimed by the petitioner - Petition allowed.
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Income Tax
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2018 (7) TMI 664
TDS u/s 194A - NOIDA - interest paid to the Authority on its deposits - Authority is Corporation or not - conditions to be satisfied as established by a Central, State or Provincial Act as per hte Notification dated 22.10.1970 - Held that:- A Constitution Bench of this Court in Sukhdev Singh and Others vs. Bhagatram Sardar Singh Raghuvanshi and Another, (1975 (2) TMI 111 - SUPREME COURT)had occasion to consider the nature and character of Corporation including its early history. Justice Mathew, delivering his concurrent opinion noted that Corporations in 17th, 18th and 19th Centuries were far more like the bodies corporate we call public authorities today. Section 194A(3)(iii) clauses (b), (c) and (d) refer to expression established . In sub clause (b) expression used is established by or under a Central, State or Provincial Act , in sub clause (c) the expression used is established under the Life Insurance Corporation Act and in sub clause (d) expression used is established under the Unit Trust of India Act . The Section thus uses both the expressions by or under . The expression established by or under an Act have come for consideration before this Court on several occasions. As we revert back to the provisions of 1976, Act. The very preamble of that Act reads an Act to provide for the Constitution of an Authority for the development of certain areas in the State into industrial and urban township and for masses connected through with . Thus, the Act itself provides for constitution of an authority. Section 2(b) of the 1976 Act defines Authority as authority constituted under Section 3 of the Act. This Court having already laid down in Dalco Engineering (2010 (3) TMI 912 - SUPREME COURT OF INDIA) that establishment of various financial corporations under State Financial Corporation Act, 1951 is establishment of a Corporation by an Act or under an Act. We are of the view that the above ratio fully covers the present case and we have no doubt that the Authority have been established by the 1976 Act and it is clearly covered by the Notification dated 22.10.1970. It is further relevant to note that composition of the Authority is statutorily provided by Section 3 of 1976 Act itself, hence, there is no denying that Authority has been constituted by Act itself. Thus High Court [2016 (5) TMI 570 - ALLAHABAD HIGH COURT] did not commit any error in dismissing the appeal filed by the Revenue.
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2018 (7) TMI 663
Treatment of interest on Non Performing Assets (NPAs) - Revenue contends that given the obligation of the assessee to maintain books in accordance with Section 209 of the Companies Act, 1956 on accrual basis, it had to reflect the interest accrued upon unpaid loans (NPAs) - Assessee bound by Reserve Bank of India directions to treat deposit as non-performing asset – Interest does not accrue - Held that:- SLP dismissed. No ground for interference is made out to exercise our jurisdiction under Article 136 of the Constitution of India.
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2018 (7) TMI 662
Reopening of assessment - Held that:- Last opportunity of four weeks is granted to the petitioner to comply with the office report failing which the petition shall be dismissed for non-prosecution.
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2018 (7) TMI 661
Depreciation claim to assessee trust - double deduction since purchase of its assets were claimed as expenditure - ITAT allowed claim - Held that:- SLP dismissed.
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2018 (7) TMI 660
Penalty u/s 271(l)(c) - whether penalty is automatically levied when the assessee makes a claim of write off which consequently reduces the tax incidence to be borne by the assessee? - Held that:- The assessee disclosed all the particulars of his income. The AO has disallowed his claim without holding it to be bogus or false. Hence, the genuineness of the loss occurred is not at question here The intention of the Parliament cannot be taken to have been to penalize everyone who makes a wrong claim for deduction. The legislature does not intend to penalize every person whose claim is disallowed. This is not the aim of the legislature. The Tribunal in the facts of this case, therefore, correctly reached this conclusion. The question of law is answered in favour of the assessee and against the Revenue
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2018 (7) TMI 659
TPA - comparable selection - ALP - substantial question of law or fact - Held that:- The controversy involved herein is no more res integra in view of the decision of this Court in M/S. SOFTBRANDS INDIA P. LTD. [2018 (6) TMI 1327 - KARNATAKA HIGH COURT], wherein it has been observed that unless the finding of the Tribunal is found ex facie perverse, the Appeal u/s. 260-A of the Act, is not maintainable
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2018 (7) TMI 658
Speculative transaction - international price of crude palm oil and related products had declined during the relevant year and the same affected the Indian market - as per tribunal assessee had not taken delivery of a consignment of sugar and the assessee suffered damages as a consequence thereto - Held that:- Tribunal noticed that the international price of crude palm oil and related products had declined during the relevant year and the same affected the Indian market. The Appellate Tribunal also found that the assessee wanted to guard against further loss by not taking delivery of the palm oil that had been ordered but by accepting the claims for damages upon the cancellation of the contracts. The Appellate Tribunal referred to Section 43(5) of the Act and the judgment of HANS MACHOO AND CO. case [2000 (9) TMI 50 - DELHI HIGH COURT] in similar circumstances, held the assessee had not taken delivery of a consignment of sugar and the assessee suffered damages as a consequence thereof. The Appellate Tribunal in the present case relied on the reasoning in the Delhi judgement that what the assessee had done was to act in derogation of the terms of the relevant contract or commit a breach thereof as a consequence whereof it was liable to pay damages. Even if a party in breach accepts the claim for damages that the other party to the contract may put forward, what actually happens is the disposal of a dispute and not any settlement of the kind that is envisaged by the word settled used in Section 43(5) of the Act. Since the Appellate Tribunal relied on a legal proposition that has held the field for a considerable period, the order impugned does not warrant any interference on such score. Date which has to be reckoned for the purpose of determining the arm s length price in a contract with an associate concern - Held that:- Not much has been said on behalf of the Revenue, particularly since the Dispute Resolution Panel accepted the assessee s contention that it is the rate indicated in the contract which has to be compared to the rate prevailing on the date of the contract rather than the rate prevailing when the invoice is raised. The Appellate Tribunal has merely endorsed the view taken by the DRP. Since it is a possible view taken after considerable deliberation and justified with reasons, the Appellate Tribunal s endorsement of such view of the DRP does not call for any reconsideration.
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2018 (7) TMI 657
Addition being cash found during the course of search on the basis of statement at the time of search - Held that:- We fail to appreciate the contention that an assessee will be in a state of shock at the time of the raid. A person who had done no wrong, cannot be shaken by a search and seizure operation. The search admittedly took place on 09-10-2007. The alleged agreement with Smt. Anantha Lakshmi had been entered into by the assessee, according to his subsequent theory, on 18-9-2007. In other words, the assessee, even according to his story, had received the said cash towards part of the sale consideration, just 21 days before the date of conduct of the search. It is quite strange that such a huge amount was kept in the house for nearly 20 days and the assessee, in a state of shock, had forgotten, to recall how he received the said cash, when questioned during the search operations. It is true that at that time when the assessment was completed, Section 269SS was confined only to loans and advances. But the authorities did not invoke Section 269SS to disbelieve the claim of the assessee. The authorities went by the statement of the assessee at the time of the raid and the explanation offered by him subsequently as an after thought and disbelieved the story with which he came up later. Therefore, in our considered view, the reframed substantial questions of law 1 and 2 are liable to be answered against the assessee Addition as interest income - claiming credit for TDS on entire amount in utter disregard to the provisions of Section 145 and method of accounting followed by the assessee? - Held that:- Issue as decided in PENDURTHI CHANDRASEKHAR VERSUS THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-11, HYDERABAD [2018 (3) TMI 799 - TELANGANA AND ANDHRA PRADESH HIGH COURT] as held that the finding that the assessee has received interest income but chose to keep it in the account in order to get interest, is in conflict with his previous observations that there is no prohibition for the assessee to withdraw the interest on the unsecured loan in the books of account of the company. Indeed, the Revenue has not disputed the claim of the assessee that the loanee company converted the unsecured loan and unpaid interest into equity shares during the year 2011-12 and accordingly issued equity shares certificates in lieu of repayment of unsecured loans and unpaid interest thereon. As submitted by the learned counsel for the assessee, the AO could have at best directed to restrict the claim of TDS in proportion to the income admitted and to allow the balance in the year in which interest income is admitted on receipt basis - decided in favour of assessee
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2018 (7) TMI 656
Assessment u/s 147 r. w. s. 144 denying the claim of deduction u/s 80P(2) - delayed filing or returns - Held that:- It is now submitted that the assessee has filed the returns of income for assessment years 2012-2013 and 2013-2014 when the appeals were pending before the Tribunal. The Hon’ble High Court in the case of Chirakkal Service Co-op Bank Ltd vs CIT (2016 (4) TMI 826 - KERALA HIGH COURT) had held that appeals are continuation of assessment proceedings and even if the return of income was filed before the appellate authority claiming deduction u/s 80P(2), the same has to be acted upon. Return filed beyond the period stipulated u/s 148 can also be accepted and acted upon provided further proceedings in relation to such assessments are pending in the statutory hierarchy of adjudication in terms of the provisions of the I. T. Act. In view of the above conclusions - direct the Assessing Officer to consider the claim of deduction u/s 80P of the I. T. Act as expeditiously as possible. Therefore, the appeals filed by the assessee are allowed for statistical purposes
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2018 (7) TMI 655
Computation of notional annual letting value on unsold shops held as stock in trade by the assessee - Held that:- As decided in M/S. RUNWAL CONSTRUCTIONS RUNWAL AND OMKAR ESQUARE VERSUS ACIT CENTRAL CIRCLE-4 (1) , MUMBAI [2018 (2) TMI 1707 - ITAT MUMBAI] in the case on hand before us it is an undisputed fact that both assessee have treated the unsold flats as stock in trade in the books of account and the flats sold by them were assessed under the head ‘income from business’. Thus, respectfully following the above said decisions we hold that the unsold flats which are stock in trade when they were sold they are assessable under the head ‘income from business’ when they are sold and therefore the AO is not correct in bringing to tax notional annual letting value in respect of those unsold flats under the head ‘income from house property’. We direct the AO to delete the addition made under Section 23 of the Act as income from house property.” Admittedly in this case on hand the unsold property being shops were held as stock in trade. In the circumstances, respectfully following the above decision we uphold the order of the Ld.CIT(A) and reject the ground raised by the Revenue.
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2018 (7) TMI 654
Penalty u/s. 271(1)(c) - whether the treatment given by the assessee to the sale proceeds of unsold stock can be treated as furnishing of inaccurate particulars? - Held that:- We find that the fact of sale of flats was never concealed. There is a difference of opinion between the AO and the assessee about the treatment to be given to the transaction. As far as quantum proceedings are concerned, they stand on different footing. Any addition to the income of an assessee or disallowance of a claim cannot and should not lead to automatic levy of penalty. What has to be seen is that as to whether the explanation filed by the assessee during the penalty proceedings was a plausible explanation. In the case under consideration the assessee had claimed that it was under bonafide impression that profit arising to it was taxable under the head capital gains. Taxability of an item of income under a particular head should not result in levy of penalty - Decided in against revenue
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2018 (7) TMI 653
Estimation of the gross profit - Tribunal not deducting and giving benefit of increased excise rate at 8.18% - Interest receipt not constitute “business income” for the purpose of computation of deduction u/s 80HHC - Held that:- SLP dismissed.
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2018 (7) TMI 652
Validity of assessment u/s 153C - documents stated to have been recovered during the search which did not belong to the Assessee - Held that:- SLP dismissed.
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2018 (7) TMI 651
Addition on account of capital introduction by one of the partner of the firm u/s 68 - creditworthiness of the partner who had made the capital contribution - Held that:- SLP dismissed.
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2018 (7) TMI 650
Provisions of Section 206C applicability - petitioner-Corporation is not a first seller and is a second seller is the question of law that arises for consideration in this appeal - Held that:- SLP dismissed.
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2018 (7) TMI 649
Agricultural or non agricultural land - ascertainment of nature of land - proof of agricultural operation - TDS u/s 194LA - TDS determined only on the basis of records furnished by assessee and no inquiry, investigation, physical verification is permissible/desirable at the end of assessing officer - Held that:- SLP dismissed.
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2018 (7) TMI 648
Set off of brought forward losses against and to the extent of the profit of the year under consideration - Held that: - SLP dismissed.
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2018 (7) TMI 647
TPA - comparable selection - functional dissimilarity - no substantial question of law - Held that:- SLP dismissed.
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2018 (7) TMI 646
Addition on 14A - Tribunal setting aside the issue of 'interest expenses' to the file of the Assessing Officer and deleting the 'other expenses' towards earning exempt income - eligible for deduction under Section 80IA - receipt from Certified Emission Reduction (CER) generated out of capital projects - Held that:- Special Leave petition is dismissed both on the ground of delay as well as on merits.
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2018 (7) TMI 645
Addition u/s 69 on account of unexplained income - violation of principles of natural justice - Held that:- SLP dismissed.
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2018 (7) TMI 644
Interpretation of Total Turnover & Export Turnover under 10A - Held That:- The question of law raised in this appeal is answered against the appellants by this Court in CIT v. Tata Elxsi Ltd. [2011 (8) TMI 782 - KARNATAKA HIGH COURT] confirmed in HCL Technologies Ltd. case [2018 (5) TMI 357 - SUPREME COURT]
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2018 (7) TMI 643
TPA - comparable selection - taking up a 100% government owned company as a comparable - Held that:- SLP dismissed.
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2018 (7) TMI 642
Adjustment of the Arm’s Length Price of the international transaction on payment of royalty by assessee to its Associated Enterprise, from the income of the assessee u/s 92C - Companies functionally dissimilar with of assessee need to deselected from final list - Held that:- SLP dismissed.
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2018 (7) TMI 641
Retrospectivity of amendment to Section 40(a)(ia) by the Finance Act, 2010 - appeal admitted on substantial question of law - Held that:- SLP dismissed.
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2018 (7) TMI 640
Addition on account of the sums received upon encashment of bank guarantees - depreciation of claim in respect of assets not registered in the name of the assessee - exemption under Section 80IA - amortized depreciation - Held that:- SLP dismissed.
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2018 (7) TMI 639
Addition u/s 41 - Taxability of income as a perquisite - waiver of loan by creditor - deemed income u/s 41(1) - sum due by the Respondent later on waived off by the lender - applicability of Section 28 (iv) of the IT Act - whether waiver of loan by the creditor is taxable as a perquisite under Section 28 (iv) or taxable as a remission of liability under Section 41(1)? - Held that:- In view of detailed order passed by this Court in “The Commissioner vs. Mahindra & Mahindra Ltd. [2018 (5) TMI 358 - SUPREME COURT] this special leave petition stands accordingly dismissed, in the light of the said order Section 28(iv) of the IT Act does not apply on the present case since the receipts are in the nature of cash or money AND Section 41(1) of the IT Act does not apply since waiver of loan does not amount to cessation of trading liability.
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2018 (7) TMI 638
TDS u/s 194H or 194J - TDS liability on payment made to various milk societies on account of milk price difference - rendering of any services OR commission/brokerage payment - Held that:- Special Leave Petition is dismissed on the ground of delay as well as on merits.
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2018 (7) TMI 637
Application filed u/s 254 (2) seeking rectification of order - condonation of delay - Held that:- SLP dismissed.
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2018 (7) TMI 636
Reopening of assessment - reasons to believe - approach the Court for challenging the reassessment proceedings - Held that:- SLP dismissed.
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2018 (7) TMI 635
TDS u/s 194H - TDS liability on dealer's incentive - examination of the relationship between the Respondent-Assessee and its dealers as principal-to-principal basis - admission of other substantial question of laws - Held that:- SLP dismissed.
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Customs
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2018 (7) TMI 627
Competency of officers of Directorate of Revenue Intelligence to adjudicate the SCN which were kept in the call book - Validity of Circular No.276/104/2016-CX.8A dated 3/01/2017 issued by the Central Board of Excise & Customs - SCN issued by DRI - Held that:- For every issue, some or the other case would be pending in High Court or the Hon'ble Supreme Court. The same cannot cause fetter in exercise of quasi judicial or judicial functions of the authorities or lower courts. If merely for this reason the adjudication is kept in call book, there would be grave injustice and the same would be not in public interest. The matters can be kept in call book, if there is specific direction for the same issued in that case by the Superior Courts. The apprehension of the petitioner that the adjudicating authority would pass a final order without following the said mandatory, statutory and legal requirements and the petitioner would then be forced to hardship of payment of pre-deposit which is pre-requisite for availing appellate remedies, is also unfounded - Had the petitioner prima facie shown any material for such apprehension, we would have issued notice to ensure compliance of statutory requirements or if the final order is passed by the Adjudicating Authority without following the said mandatory, statutory and legal requirement, the petitioner would be entitled for invoking writ jurisdiction under Article 226 of the Constitution of India, irrespective of alternative remedy of appeal provided under the Customs Act, 1962. Petition dismissed - decided against petitioner.
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2018 (7) TMI 626
Smuggling - Cigarettes of foreign origin - Cigarettes concealed in the declared cargo of mattresses - Confiscation - penalty u/s 112 (a) (b) of CA on CHA as well as on employees of the firm - Held that:- So far as Shekhar (employee) is concerned, he was fully aware that everything was not legal and proper and up to the mark so far as the present consignment of M/s Digital Exports was concerned as he has been informed about the sensitivity of the matter by Shri Navin Kumar. Shri Sushil Sharma being responsible person of the CHA firm was also informed by Shri Shekhar about sensitive nature of consignment of M/s Digital Exports, however, both of them has willingly accepted the clearing work of M/s Digital Exports and did what was required for attempted clearance of the smuggled cargo. All the three employees though they have been handling the work of clearance of imported consignments it appears that they are salaried employees of the CHA firm and thus people of limited financial capability and means. CHA firms are the most important link between the importer/exporter and the custom department. It is expected of CHA firm that the credentials of importer/exporter are properly verified by them before undertaking the work of clearances in the various custom house - Both the appellants have failed in ensuring the clean credentials of the importer M/s Digital Exports and, therefore, the penalty under Section 112 (a) & (b) of the Customs Act, 1962 has rightly been imposed on both of them - however, the quantum of penalty reduced from ₹ 50 lakhs to ₹ 10 lakhs on each. Appeal allowed in part.
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2018 (7) TMI 625
Condonation of delay in filing appeal - Time Limitation - appeals having been filed beyond the stipulated period of 60 days - It is the case of the appellant that the appellant was not aware of the Customs procedure and hence it had filed an appeal against the OIO before the Asst. Commissioner vide acknowledgement dated 08.06.2010 - Held that:- The discretion to condone the delay is a statutory power and is not a matter of right for the appellant to expect the delay to be condoned automatically, without there being at least a request in some form or the other. At the same time, judicial propriety demands that in the interest of justice a delay could be condoned even if there is a verbal request - The appellant being a reputed company, would necessarily be guided by able hands/consultants in all aspects of taxation etc., and it is therefore strange for such a reputed company to plead ignorance. It appropriate to put the assessee to terms - The assessee is directed to pay costs of ₹ 25,000/- for each appeal, that is a total of ₹ 50,000/- for both the appeals for restoration of the matter back to the Commissioner (Appeals) for denovo proceedings. Appeal allowed by way of remand.
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2018 (7) TMI 624
Duty Drawback - It was alleged that export product Jute Yarn was being exported as jute twine for claiming higher rate of draw back under the Drawback Rules - imposition of redemption fine - Held that:- The issue is decided in the case of M/S. KAJARIA YARN & TWINS LTD. VERSUS COMMISSIONER OF CUSTOMS (PORT) , KOLKATA [2015 (10) TMI 2546 - CESTAT KOLKATA], where it was held that there is no provision for imposition of penalty in this case as the goods were examined and goods were exported thereafter and draw back claim was allowed - appeal allowed - decided in favor of appellant.
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Corporate Laws
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2018 (7) TMI 632
Disqualification of directors - Held that:- As the petitioners had ceased to be the Directors of the Company, as stated by them, on 8th April, 2011 and that they could not have been penalized for the failure of the company to effect statutory compliances. The respondents shall forthwith take steps for removal of the petitioners’ name from the list of disqualified directors and to alienate their DIN. The orders to this effect would be posted on the website and shall also be communicated to the petitioners within two weeks from today.
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2018 (7) TMI 631
Disqualification as director - Held that:- The petitioner has resigned from the directorship of the company in question, the petitioner would not incur a disqualification under Section 164 of the Companies Act. Consequently, the disqualification of the petitioner as notified in the lists dated 6th September, 2017 and 12th September, 2017 by the respondent no.1 was incorrect and illegal. In view of the above, the disqualification of the petitioner as notified in the impugned list as disqualification of the petitioner as a director of the company and the resultant prohibition under Section 164(2)(a) by virtue of the petitioner’s name featuring in the list dated 6th and 12th September, 2017 is hereby set aside and quashed. The respondent no.2 shall also ensure that its records are properly rectified to delete the name of the petitioner from the lists dated 6th September and 12th September, 2017.
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Insolvency & Bankruptcy
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2018 (7) TMI 634
Corporate insolvency process - pre existing debt - Held that:- The operational creditor has filed supplementary affidavit indexing the certified copy of the bank's statement. The operational creditor has complied with the provision of section 9(3)(b) and (c) of the Insolvency in Bankruptcy code. It is pertinent to mention that proceeding before they Hon'ble High Court relating to criminal case filed under section 138 of the Negotiable Instrument Act has been stayed vide order of the Hon'ble High Court dated 7 December 2017. Criminal proceedings were relating to criminal liability in connection with dishonouring of cheques. There is nothing on record which proves that there was pre-existing dispute relating to the alleged debt amount. The corporate debtor has itself issued the balance confirmation letter wherein he has accepted the liability of the alleged dues of ₹ 85,53,570 along with interest at the rate of 24% per annum. Given above said facts and principle laid down the contention of the respondent that there was a pre-existing dispute regarding goods given by the Operational Creditor to the Corporate Debtor and that the Pendency of Mediation Proceedings initiated at this instance bar the proceedings under IB Code is found devoid of merit. The Operational Creditor had not received the outstanding dues from the Corporate Debtor, and the requirements as prescribed under IB Code have been completed by the Petitioner. The operational creditor has not proposed the name of any insolvency professional, but under section 9 of the insolvency in the bankruptcy code, it is not mandatory to propose the name of insolvency professional - this Petition deserves 'Admission.' Hence Admitted.
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2018 (7) TMI 633
Corporate insolvency process - eligibility criteria for resolution application - Held that:- Referring to the note of the 1(a) of the category A of eligibility criteria for resolution applicant (vide Annexure-A), it has been submitted for and on behalf of the RP/CoC that said eligibility criteria allows two or more companies to form a SPV and to participate in the bidding. Therefore, it is not correct say that any company whose minimum NTW is less than 400 crores is not allowed to participate in the CIRP. On considering such submission in the light of material on record, it is found that such an argument too is found unequal to the task, assigned. It is for the reason that I have already found that fixation of minimum NTW for corporate for participating in the CIRP at ₹ 400 crores is found to be quite arbitrary and unreasonable. My discussion hereinbefore makes such position very clear and same needs no further restatement Since the very fixation of minimum NTW for corporate for participating in the CIRP at ₹ 400 crores is held to be arbitrary and consequently illegal, it is irrelevant to argue that two or more companies may come together to form a SPV to attain such qualification in order to participate in the CIRP under consideration. Being so, I have no hesitation at all to reject such a contention, advanced from the side of the RP/CoC. As found that both applicant and RP/CoC got locked over some other controversies as well in the proceeding under consideration. But then, since some alleged offending conducts of the RP and CoC are to be found unreasonable and arbitrary, I have found those remaining controversies to be redundant and they, therefore, merit no further discussion. As already held that the keeping the companies- who are best players in the tea industry beyond the purview of CIRP under consideration--- was not in the best interest of the CD undergoing CIRP - since--- I have also found that the ratio between the debts and minimum NTW fixed for corporates for participation in the CIRP, is illogical and unrealistic and since I have also held that such acts on the part of RP/CoC make the eligibility criteria in 1(a) of the category A totally arbitrary and unreasonable, therefore, in my considered opinion, the application under consideration deserves acceptance . This Authority deems it proper and appropriate to interfere, of course in a very limited way, the ongoing CIRP in order to remove some illegalities that had occurred in prescribing the criteria for the submission of Eol from the prospective resolution applicants. In the light of various observations made herein before, the eligibility criterion, viz, a) The eligibility criteria regarding requirement of minimum Tangible Net Worth of ₹ 400 crores for Category-A prospective resolution applicants, i.e. private/ public limited companies, LLPs, body corporates -and--- b) Publish /advertise such revised the eligibility criteria afresh pursuant to such relaxation/modification in accordance of the prescription of law as well as the Rules, framed there-under; c) All these must be complete as early as possible having regard to various time limits, prescribed under Code and rules framed there under. Upon the above directions, the present application stands disposed of.
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Service Tax
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2018 (7) TMI 667
Service Tax Audit - Vires of sub-rule (2) of Rule 5A of the Service Tax Rules, 1994 as substituted by notification no. 23/24/ST dated December 25, 2014 - case of petitioner is that the said sub-rule is in conflict with provisions of Section 72A of the Finance Act, 1994 - Held that:- It would be appropriate to follow Mega Cabs Pvt. Ltd. [2016 (6) TMI 163 - DELHI HIGH COURT]. - Such provisions were struck down. - Such provisions were also struck down - Appeals are pending against the judgment and order - Therefore, it would be iniquitous to allow the respondents to proceed on the basis of provisions struck down by a High Court, against the petitioner. Decided in favor of petitioner.
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2018 (7) TMI 666
Service Tax Audit - Vires of sub-rule (2) of Rule 5A of the Service Tax Rules, 1994 as substituted by notification no. 23/24/ST dated December 25, 2014 - case of petitioner is that the said sub-rule is in conflict with provisions of Section 72A of the Finance Act, 1994 - Held that:- It would be appropriate to follow Mega Cabs Pvt. Ltd. [2016 (6) TMI 163 - DELHI HIGH COURT]. - Such provisions were struck down. - Such provisions were also struck down - Appeals are pending against the judgment and order - Therefore, it would be iniquitous to allow the respondents to proceed on the basis of provisions struck down by a High Court, against the petitioner. The respondents have chosen not to bring to the notice of the Court, by their nonappearance, any relevant fact or law which may have weighed in the Court in taking a contrary view. In absence of such assistance, Mega Cabs Pvt. Ltd. (supra) is followed. Decided in favor of the petitioner.
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2018 (7) TMI 623
Club or association Service - Held that:- The first petitioner does not come within the meaning of Chapter-V of the Finance Act, 1994 as amended by the Finance Act, 2005. The authorities will refund the amount of service tax realized, from the first petitioner, along with statutory interest from the relevant dates of deposit till the date of refund - Petition disposed off.
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2018 (7) TMI 622
Validity of SCN - Case of Revenue is that Since a prima facie case is made out for initiating proceedings against the appellant, there is no question of interdicting the proceedings during the show cause stage - Levy of Service Tax on charges/fees received out of the profit on sale of securitization of future receivables. Whether the appellant has made out a case for quashing the show cause notice issued by the first respondent? Held that:- The proceedings under challenge in W.P.No.35241 of 2016 was only a show cause notice. The appellant has no case that the first respondent has no jurisdiction to initiate proceedings by issuing the show cause notice. The appellant has taken up a contention that the proceedings are barred by limitation. The issue regarding limitation is a mixed question of fact and law. In fact, the learned Senior Standing Counsel for the Revenue has produced materials in support of his contention that the show cause notice was issued within the period of limitation. It is for the adjudicating authority to decide this issue. The first respondent is the adjudicating authority. The appellant cannot be heard to say that the explanation would not be considered by the first respondent and an order on merits would not be passed. None of the ground taken by the appellant in the writ petition would constitute 'sufficient grounds' to set aside the show cause notice. Petition rightly dismissed.
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2018 (7) TMI 621
Refund of unutilized CENVAT Credit - Rule 5 of CENVAT Credit Rules, 2004 - rejection on the ground that the premises has not been registered by the appellant before availing the credit - Held that:- The issue stands settled in the case of COMMISSIONER OF SERVICE TAX-III, CHENNAI VERSUS REED ELSEVIER PRIVATE LIMITED, CUSTOM, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, CHENNAI [2017 (4) TMI 1234 - MADRAS HIGH COURT], where it was held that Rule 5 of the 2004 Rules does not stipulate registration of premises as a necessary prerequisite for claiming a refund - refund cannot be rejected on this ground - appeal allowed - decided in favor of appellant.
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2018 (7) TMI 620
Classification of services - Dredging Services - Penalty - Held that:- In respect of dredging services It then appears to reason that not only are the two essentialities of the definition of ‘dredging’ under Section 65 (36a) of the Act namely, removal of material and such removal related to or while excavating, cleaning etc., required to be present in tandem, but also, such activity will require the use of a boat, ship etc. equipped with a dredger, or, at the very least, there has to be use of dredging apparatus for enabling the activity - While assessee has certainly performed the works of deepening, widening and construction of flood protection walls etc. using cement and steel, there are no attendant contracts to “dredge” From the facts and records there is also no narration that boats or ships equipped with dredgers or for that matter, any dredging apparatus or equipment was used by the assessees for clearing or deepening these water bodies - decided in favor of the assessee. Construction of residential complex - Held that:- The periods of demand in all these disputes related to construction of residential complexes for KHB etc. spans from 2005 to 2015. There are merit in the appellant’s contention that demands on this score prior to 1.6.2007 is liable to be set aside in view of the decision of the Hon’ble Apex Court in CCE & CC Kerala Vs Larsen & Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT] - demand set aside. Demands for the periods subsequent to 1.6.2007 - Held that:- In a number of decisions, the higher appellate forums have consistently held that there is no liability to pay service tax for the reason that the complex so constructed are intended for personal use which is excluded in the definition of construction of residential complex - Even after the negative list regime w.e.f. 1.7.2012, higher appellate forums have consistently held that services provided by contractors to Housing Boards, Local Development Authority under JNNRUM etc. there could be no service tax liability since such houses etc. were meant for residential purpose, was within exemption under Notification No.25/2012- ST. Tax liability - CICS, MMR services etc. alleged to have been provided by the appellant - Held that:- The appellants had undertaken the construction as a composite contract and received payment from June 2005 to October 2005. This being so, in view of the settled law as laid down by the Hon’ble Apex Court in the case of L&T Ltd. [2015 (8) TMI 749 - SUPREME COURT]. These services will have to be treated as works construction service which cannot be exigible to service tax levy prior to 1.6.2007 - demand set aside. Appeal allowed in toto - decided in favor of the assessee.
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2018 (7) TMI 619
Classification of Services - various types of work including erection, commissioning and installation of plant, machinery and equipments as well as construction of outlets for petrol pumps, commercial or industrial buildings and civil structures - classified under Works Contract Service or under the head Erection, Commissioning and Installation Services? - Held that:- The activity will be appropriately classifiable under Works Contracts Service included in the statute w.e.f. 01.06.2007 under the category of Section 65(105)(zzzza) of the Finance Act, 1994 - The apex court in the case of M/s Larsen & Toubro [2015 (8) TMI 749 - SUPREME COURT] has categorically held that for the period prior to introduction of WCS, i.e. 01.06.2007, the activity cannot be covered under any other category - there is no justification for demand of service tax prior to 01.06.2007. For the period from 01.06.2007, the appellant will be entitled to pay the service tax under the Works Contract Service - appellant claims that the service tax payable under the WCS has already been paid - matter requires reconsideration. Appeal allowed by way of remand.
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2018 (7) TMI 618
CENVAT Credit - duty paying documents - case of Revenue is that since the invoices are addressed to SMF and not in the name of the respondent, credit is not eligible - Rule 9 of CENVAT Credit Rules - Held that:- Proviso to Rule 9 of CENVAT Credit Rules states that whenever there is any doubt with regard to the requirement of necessary details in the documents for availing credit, the AC/DC has to verify the same and be satisfied that the same has been properly credited by the assessee - In the present case, the Commissioner (Appeals) has called for report from the range officer who has reported that the particulars as furnished by the Chartered Accountant is correct and it was found that these services were availed by the respondent and not by SMF. CENVAT Credit - Input Services - insurance, outdoor catering service, advertisement services etc. - Held that:- These services except outdoor catering services were held to be eligible services for the respondent for the subsequent period - The outdoor catering services are eligible for credit for the reason that the period involved is prior to 1.4.2011 - credit allowed. Appeal dismissed - decided against Revenue.
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2018 (7) TMI 617
Interpretation of Statute - scope of Consulting Engineer Service - agreements with the Bihar State Electricity Board for providing consultancy services in connection with implementation of rural electrification in Bihar - levy of tax made applicable to “Any Body Corporate or Any other Firm” - disputed period is 15.12.2003 to 02.09.2004. Whether the service tax liability under the category of “Consulting Engineer” will be applicable to the appellant for the period prior to the amendment in the said definition w.e.f. 01.05.2006? Held that:- Hon’ble Karnataka High Court in the case of Tata Consultancy Services [2004 (7) TMI 664 - KARNATAKA HIGH COURT] as well as the Hon’ble Calcutta High Court in the case of M.N.Dastur and Co. Ltd [2005 (2) TMI 11 - HIGH COURT (CALCUTTA)] have discussed the precise issue in length and have concluded that the definition of “Consulting Engineer” for the period prior to subject amendment w.e.f. 01.05.2006 will cover within its ambit, “Company as much as individual” - the definition of “Consulting Engineer” will include the appellant for the period prior to 01.05.2006 also and hence during the disputed period appellant will be liable to payment of service tax. Penalty - Held that:- The appellant is a Government of India Undertaking and it cannot be said that the non-payment of service tax was on account of willful misstatement or suppression on the part of the appellant - penalty not warranted. Appeal allowed in part.
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2018 (7) TMI 616
Penalty - security services - legal consultancy services - reverse charge mechanism - revenue neutral situation - Held that:- The service tax paid on security services as well as legal consultancy services being paid under reverse charge mechanism, the appellant as a service recipient would be eligible to avail credit. Thus the situation is a revenue-neutral one - the intention to evade payment of tax cannot be saddled upon the appellant - penalty not warranted. Penalty - Supply of Tangible Goods Service - service tax along with the interest paid immediately on being pointed out by the department - Held that:- The demand has been raised within the normal period and the department has not furnished any evidence to show that there was any intent to evade payment of duty on the part of the appellant and the amount has been collected from the books of accounts maintained by the appellant - demand of penalty do not sustain. The impugned order is modified to the extent of setting aside penalties imposed without disturbing the duty demand, interest thereon - appeal allowed in part.
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Central Excise
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2018 (7) TMI 615
Pre-deposit - acceptance of entire amounts of pre-deposit made by each petitioner - Held that:- The special leave petitions are dismissed.
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2018 (7) TMI 614
Utilization of CENVAT Credit - Held that:- There is no ground to interfere with the impugned order - SLP dismissed.
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2018 (7) TMI 613
Pre-deposit - Section 35G of CEA - Held that:- We are not inclined to interfere in view of the fact that the matter has been remanded to the jurisdictional authority by the learned Customs Excise & Service Appellate Tribunal in M/S JAI BALAJI INDUSTRIES LIMITED VERSUS CCE & ST, RAIPUR [2016 (12) TMI 841 - CESTAT NEW DELHI] which has been affirmed by the impugned order of the High Court - SLP Dismissed.
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2018 (7) TMI 612
Manufacture - labelling and packing of handmade Biri in printed plastic wrappers with the aid of power operated machine to bring into existence retail pack , having brand name, meant for ultimate consumer - Held that:- The special leave petitions are dismissed.
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2018 (7) TMI 611
CENVAT Credit - input services - Director Sitting Fees - premium for product liability insurance - Revenue claims that the insurance is post manufacturing activity - Held that:- The risk covers the defects with the product. In such cases, when there are defects to the product, the appellant / manufacturer will have to recall the product and thereby incur huge financial loss. The insurance is for covering the financial loss of the appellant / manufacturer and it cannot be considered as a post-manufacturing activity - This cannot be said to be a post-manufacturing activity for the reason that such insurance policies addresses the financial risks of the manufacturer - denial of credit unjustified. Director Sitting Fees - Held that:- It is the duty of the director to attend the meetings and therefore the service tax paid on such fees is eligible for credit - credit allowed. Appeal allowed - decided in favor of appellant.
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2018 (7) TMI 610
CENVAT Credit - capital goods sent to job-worker premises not brought back - Held that:- The appellants after shifting the capital goods to their job worker in 2005 has issued a returnable delivery challan with central excise invoice and also paid duty. Thereafter in 2011, though invoices were issued showing that the capital goods were turned to the appellant’s factory, they have not been actually returned - The only explanation given by the appellant is that the documents evidencing that the goods have been returned is not traceable. Such a flimsy explanation is not acceptable. Demand upheld - appeal dismissed - decided against appellant.
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2018 (7) TMI 609
Clandestine removal - Man Made Fabrics - cross-examination of panchas denied - retraction of statements - Held that:- Even if, retraction of Shri. Manharlal R. Bhachkaniwala is considered as acceptable, there are ample of evidences such as the Note Book recovered from the appellant’s premise under the Panchanama which was further corroborated by the statement of Merchant Manufacturer who admitted that they have received the processed Man Made Fabrics from the appellant to whom the Gray Fabrics was supplied. Further, the Revenue could laid their hands only in respect of 22 Merchant Manufacturer while 27 merchant’s manufacturer statement could not be recorded - the demand against appellant in respect of all the Merchant Exporter cannot be confirmed. Confiscation of Land, Building, plant and Machinery - Held that:- In consideration of overall facts and circumstances of the case and reduction of demand to substantial extent the confiscation of Land, Building, plant and Machinery is not justified, therefore, the confiscation is set aside. The total demand should be made only on the quality of Man Made Fabrics relates to 22 Merchants Manufacturer, the duty of ₹ 7,55,161/- if paid by Merchant Manufacturer, the same may be reduced from our re-quantified demand against the appellant - matter remanded for re-quantification - appeal allowed by way of remand.
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2018 (7) TMI 608
Valuation - PVC adhesive - impugned goods cleared to different states adopting different Retail Sale Price (RSP) values for each state - Section 4A of the Central Excise Act, 1944 - Held that:- In terms of Explanation (b) under sub-rule (4) of Section 4A where different retail sale prices are declared on different packages for the sale of any excisable goods in packaged form in different areas, each such retail sale price shall be the retail sale price for the purposes of valuation of the excisable goods intended to be sold in the area to which the retail sale price relates - as long as the area to which such retail sale price relates is mentioned on the packages, different retail sale prices for different areas can be allowed. Wherever the appellants have used more than one MRP for a specific state, we hold the department’s contention that highest of such MRP should be taken into account for charging the duty - looking into the fact that the appellants have accepted the duty liability of ₹ 3,53,148/- and Education Cess of ₹ 7,063/- and have paid it along with interest and have not raised any objection on the extended period involved in the show-cause notice, we find that the appellants are liable to pay duty of ₹ 3,53,148/- and Education Cess of ₹ 7,063/- along with interest and equivalent penalty under Section 11AC of the Central Excise Act, 1944. Appeal allowed in part.
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2018 (7) TMI 607
Denial of suo moto credit availed - duty paid on supplementary invoice due to price escalation clause - buyer refused to pay - case of Revenue is that the Appellant is not entitled to take suo moto credit but they are required to file refund claim of duty paid on supplementary invoices - Held that:- An identical issue came up before this Tribunal in the case of Pushp Enterprises vs. CCE, Jaipur I [2015 (10) TMI 1651 - CESTAT DELHI], where it was held that suo moto credit can be taken if duty is paid twice as excess duty paid is not a duty and same is deposit. The Appellant is not required to file refund claim and suo moto credit taken by the Appellant is correct - appeal allowed - decided in favor of appellant.
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2018 (7) TMI 606
CENVAT Credit - capital goods - Rule 4 (2) of Cenvat Credit Rules - Held that:- Apparent and admitted fact is that the utilization in the present case is for the months of January to March, 2011 (three months only) and the remaining availed cenvat credit is lying as unutilized credit. The same has nowhere been disputed by the Department also, rather it is very much apparent from para 3 of the show cause notice. In the given circumstances, since the Revenue has not denied that 50% of the availed Cenvat Credit has been reversed even prior to the show cause notice and that the entire amount has not been utilised except for last three months of year 2010 but has issued the show cause notice even based upon Rule 14 as is impressed upon during the arguments, is not sustainable. CENVAT credit - MS bars - Held that:- The article in question i.e. MS Bars since has not been customized / fabricated in such other form to have been exclusively fastened to the cranes herein but have merely been utilized in their existing form for a pathway meant for these cranes, the MS bars in the given circumstances, to my opinion, do not even fall under the definition of either component or spare or accessories of the capital goods as mentioned in Rule 2 (a) (iii) of CCR, 2004. Appeal allowed in part.
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2018 (7) TMI 605
CENVAT Credit - Rule 4(1) of CENVAT Credit Rules, 2004 - SSI Exemption - Held that:- The assessee is entitled to avail CENVAT credit on inputs, work in progress, when their product became dutiable. Admittedly, after crossing the SSI exemption limit, their product has became taxable. This fact has not been disputed by the Revenue. Therefore, in terms of Rule 3(2) of the said Rule, the assessee is entitled to avail CENVAT credit on inputs but in terms of Rule 4(1) of CENVAT Credit Rules within six months from the said date when the goods become dutiable. The appellants are entitled to avail CENVAT credit - appeal allowed - decided in favor of appellant.
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2018 (7) TMI 604
CENVAT Credit - parts / components required for the said captive power plant - the adjudicating authority took a view that the said parts / components were procured by the contractor, and the power plant being attached to grounds, is not goods as such - Held that:- In the case Bannari Amman Sugars Ltd. vs. CCE, Mysore, [2009 (11) TMI 232 - KARNATAKA HIGH COURT], the High Court of Karnataka has held that even if the capital goods become immovable after installation / commissioning, again will not be the criteria for the purposes of CENVAT Credit. Keeping in view that the benefits which cannot be availed directly, cannot be allowed to be availed indirectly, it is held that the order under challenge has no infirmity - appeal dismissed - decided against appellant.
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2018 (7) TMI 603
CENVAT credit - Capital goods - Tipper Trucks - Held that:- The trucks play a vital role in the movement of raw material within the factory and without these trucks the movement of material would be adversely impacted which would affect the manufacture of final product - This Tribunal in the case of Tata Steel Ltd. v. CCE, JSR [2012 (10) TMI 647 - CESTAT, KOLKATA] has held that ‘coke transfer cars’ used for the transportation of coke from oven to furnace is a material handling equipment without which coke could not be transferred to the furnace, and is eligible for CENVAT credit. Further, the contention of the Revenue that they were unaware of the availment of credit by the appellant on the impugned goods cannot be accepted. Appeal allowed - decided in favor of appellant.
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2018 (7) TMI 602
Trading activity - It is the case of the Revenue that during the course of audit of books of accounts of the appellants, the officers of the audit wherein noticed that in addition to its main activity of manufacture of dutiable goods, the appellant was also doing trading activity from its factory premises - Rule 3 (5) of CCR, 2004 - Held that:- The department has not disputed the fact that the appellant had removed the inputs as such to its sister concern by reversing the credit availed on such inputs as per Rule 3 (5) of CCR, 2004 - this itself is not sufficient to hold that it is a trading activity. The adjudicating authority shall examine the documents if any furnished by the appellant and pass order - appeal disposed off.
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2018 (7) TMI 601
CENVAT Credit - It is the case of the appellant that it has been availing cenvat credit by filing monthly returns regularly which were also being regularly scrutinized by the Range Officers / Divisional Officers - Held that:- It is clear that the appellant had availed 50% of Cenvat credit on certain items like Beam, MS Angles, MS Channels, Joint and MS Bars falling under Chapter 72 of Central Excise Tariff Act, 1985, claiming to be capital goods - appeal allowed - decided in favor of appellant.
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2018 (7) TMI 600
CENVAT Credit - input services - Outdoor Catering service - period involved is from March 2006 to February 2011 - Held that:- The period is prior to 01.04.2011 and the issue has been settled by the decision in the case of CCE, Chennai Vs. Visteon Powertrain Control Systems Pvt. Ltd. [2015 (3) TMI 736 - MADRAS HIGH COURT], where it was held that use of the outdoor catering services is integrally connected with the business of manufacturing cement and therefore, credit of service tax paid on outdoor catering services would be allowable - credit allowed. However, the appellant is not eligible to avail credit on the contribution collected from the employees. It is brought from the facts as well as from the records that the appellant has reversed an amount (credit to the tune of ₹ 6,11,608/-) being the credit applicable to the employees contribution - The appellant is definitely eligible for the credit on the amount contributed by them being the employer’s contribution. Appeal allowed - decided in favor of appellant.
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2018 (7) TMI 599
Refund claim of duty paid - Area based exemption availed - refund was restricted for the period January-March, 2003 on the basis of the amendments carried out in the N/N. 32/99-CE dated 08.07.1999 vide N/N. 65/2003-CE dated 06.08.2003 - Held that:- In terms of the N/N. 32/99-CE dated 08.07.1999, as amended vide N/N. 61/2002-CE dated 23.12.2002 ibid, the refund is to be worked out by restricting the same to the amount of duty paid less the amount of cenvat credit availed in respect of the duty paid on the inputs used in or in relation to the manufacture of the goods cleared under this notification. Further restrictions were imposed by the amendment under Notification No.65/2003-CE dated 06.08.2003 which appears to have been taken into account in restricting the refund claim by Revenue for the period January –March, 2003. We find no jusitification for such restriction. Appeal dismissed - decided against Revenue.
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2018 (7) TMI 598
Clandestine removal - entire demand was made on Input and Output norm of 1.3:1 basis - case of Revenue is that the Assessee failed to produce any evidence to substantiate that the goods were not cleared clandestinely - Held that:- It is well settled that the burden of proof on the charge of clandestine removal of goods lies with the Revenue. It cannot be discharged in a casual manner - In the present case, the charge of clandestine removal is raised on the basis of the E.R-I Returns. For the Input/Output ratio, no enquiry was conducted. The Tribunal in the case of Hindustan Coca cola Beverages Pvt Ltd Vs. CCE & ST, Patna [2012 (5) TMI 525 - CESTAT, KOLKATA] observed that the charge of clandestine removal of goods cannot be substantive only on a single parameter i.e. Input Output ratio. Appeal dismissed - decided against Revenue.
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2018 (7) TMI 597
CENVAT credit - various input services - It was alleged that the assessee had availed the above mentioned input services after removal of finished goods from their factory gate and therefore, such input services had not been used in or in relation to the manufacture of finished goods and clearance of final products upto the place of removal - Held that:- On a careful reading of the definition of input service, it can be observed that it was never the intent of the legislature to give it a restrictive meaning. Further, during the period July, 2007, to February, 2008, the definition of input services contained the phrase activities relating to business, which had a very wide connotation - credit allowed - appeal dismissed - decided against Revenue.
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2018 (7) TMI 596
Refund of duty paid - enhancement of rate of duty by way of Circular - rejection on the ground of time limitation in terms of Section 11B (1) of the CEA 1944 - commissioner (appeals) allowed the refund - Held that:- CBEC vide Circular dated 11.02.2014 clarified that the enhanced rate of duty was effective from 28.05.2012 and not from 17.03.2012. The refund claim was filed for the period from 01.04.2012 to 30.06.2012 - As per Board’s Circular, old rate of duty is payable prior to 28.05.2012. It is seen that the appellant paid the amount by debiting their cenvat account. Hence, they are entitled to re-credit the refund amount to their cenvat account. Appeal dismissed - decided against Revenue.
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2018 (7) TMI 595
CENVAT credit - common input services for manufacturing as well as trading activities - non-maintenance of separate accounts for common inputs - case of appellant is that that prior to 1.4.2011, there was no requirement to maintain separate accounts in respect of common input services that were availed at the depot and that such requirement was only with regard to input services utilized at the factory. Held that:- The definition of exempted services was amended by the Explanation with effect from 1.4.2011 whereby trading was deemed to be an exempted service. Consequent amendments were brought forth in Rule 6(2) as well as 6(3A) to lay down procedures when common input services are used for dutiable products / services and trading activities. This amendment was brought forth in Rule 6(2) with effect from 1.4.2011 making it necessary to maintain separate accounts upto place of removal / depot when common input services are used by the appellant. The appellant cannot take refuge of the part of the amendment brought forth in Rule 6(2) and thereafter apply it to the period prior to 1.4.2011. Appellant also claims that there are apparent mistakes in the quantification of demand - matter requires reconsideration. Appeal allowed by way of remand.
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2018 (7) TMI 594
CENVAT Credit - Input - detergent cakes - Held that:- An identical issue came before the Tribunal in the case of CCE, Chennai Vs. Dynavista Industries (P) Ltd. [2015 (10) TMI 279 - CESTAT CHENNAI], wherein a detergent cake was being supplied in the pack of detergent powder cleared under the same brand name “Kite” and it was held that the assesse is entitled to the CENVAT credit of duty paid on the detergent cake soap, which is packed in the pouch of the detergent powder, which is being cleared on payment of duty on MRP basis. Appeal allowed - decided in favor of appellant.
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CST, VAT & Sales Tax
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2018 (7) TMI 593
Release of seized goods - demand of high amount of cash security for release of goods - Held that:- The special leave petition is dismissed.
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Wealth tax
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2018 (7) TMI 592
Wealth tax assessment - Whether a land in which construction is being carried on could be excluded from the definition of “urban land” and thus from the definition of “assets” as available in Section 2(ea) of the WT Act - Held that:- The issue is one covered by the judgment of the Hon'ble Supreme Court in Giridhar G.Yadalam v. CWT [2016 (1) TMI 826 - SUPREME COURT OF INDIA] as found that only a land in which the building is completely constructed stands excluded under the exclusionary provision under Explanation (1)(b)(ii) of Section 2(ea). Respectfully following the aforesaid decision, we set aside the orders of the Tribunal and affirm the order of the Assessing Officer. The Wealth Tax Appeals would stand allowed, answering the question of law in favour of the Revenue and against the assessee. However, there is question of valuation which has to be considered by the Tribunal, which the Tribunal did not consider. Hence, to decide on the quantum, the matter is remanded back to the Tribunal
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2018 (7) TMI 591
Maintainability of appeal - tax effect of appeal - Held that:- Instruction No.1979 dated 6.1.2005 as modified by Instruction No.1985 dated 29.6.2000 and Instruction No. 2/2005 dated 24.10.2005 would apply to filing of appeals under the Wealth Tax Act, 1957 as the CBDT Circular No.21/2015 is one issued u/s.268A of the Income Tax Act, 1961 and therefore cannot supersede a Circular which was applicable to filing of appeals under the Wealth Tax Act, 1957 viz., Instruction No.1979 dated 27.3.2000 as modified by Instruction No.1985 dated 29.6.2000 and Instruction No.2/2005 dated 24.10.2005. Therefore the monetary limit of ₹ 2 lacs for filing appeals under the Wealth Tax Act, 1957 before the Tribunal as laid down in Instruction No.2/2005 dated 24.10.2005 will be applicable for appeals filed after 24.10.2005. In that view of the matter the monetary limit for filing appeals by the Revenue are not satisfied and therefore the appeals by the revenue are not maintainable as they have contrary to the Board’s instructions. The appeals are therefore liable to be dismissed as not maintainable.
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Indian Laws
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2018 (7) TMI 630
Dishonor of Cheque - Section 138 of the Negotiable Instruments Act - Held that:- There have been animosity between the petitioners and the respondent. In such circumstances, mala fides of the respondent has to be looked into. It is apparent that as a counter blast for the proceedings initiated by the petitioners this case has been initiated by the respondent. Hence, necessary ingredients of the offence of cheating or criminal breach of trust have not been made out, on the other hand attendant circumstances indicate that the complaint has been made with an ulterior motive to wreck vengeance in view to spite for the 138 cases initiated by the petitioners against the respondent. The proceedings were initiated as a counter blast to the proceedings initiated by the petitioners. Continuance of such proceedings will be nothing but an abuse of process of law. Petition allowed - decided in favor of appellant.
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2018 (7) TMI 629
Subject matter of cheque issue in dispute - Dishonor of Cheque - insufficiency of funds - it was claimed that the cheque was given as a security to the complainant as a security for the chit transaction - cheque issued for discharge of debt or not? - Section 138 of the Negotiable Instruments Act. Held that:- There was no way the accused and her husband while bringing the promissory note would have known that one Jagadish will be the witness in the promissory note and therefore the version of the complainant that the promissory note was brought typed by the accused and her husband is not believable. This only substantiates the case of the defense that the promissory note was a blank promissory note that was available with the complainant towards the earlier chit transaction and this promissory note has been typed and used for the purpose of this case. If really the version of the complainant is true, the best evidence that was available for the complainant was to examine Jagadish who is none other than a person who is working in his own office - It must also be noted that it is during this period of time, the chit transaction was going on between the complainant and the husband of the accused. Out of these two cheques, one cheque bearing No.88032 is the subject matter of the present case. The version of the defense that the subject matter cheque was given as a security to the complainant as a security for the chit transaction has been established by preponderance of probabilities. After the burden of proof was rebutted by the accused, the complainant must have at least examined Jagadish who according to him was the person who was present at the time when the loan was given by the complainant to the accused and her husband. However for reasons best to known to the complainant this was not done. The Appellate Court after discussing the entire evidence that was available on record has rightly come to the conclusion that the complainant failed to prove the fact that the subject matter cheque was issued towards a discharge of debt said to have been taken by the accused and her husband. Appeal dismissed.
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2018 (7) TMI 628
Non-payment of borrowed money - dishonor of cheque issued for repayment - Instead of paying the amount, respondent has sent a reply notice dated 12.10.2002 with false averments - section 138 of N.I. Act - Whether the learned Additional Sessions Judge (Fast Track Court No.II) Tiruchirapalli was right in setting aside the Judgment of the trial court? - Whether this appeal has to be allowed? Held that:- The accused has not disputed the fact that Ex.P2/cheque is his cheque. He has also not disputed that the signature found in the said cheque is his signature. However, he denied the allegation that he borrowed the amount from the complainant on 02.12.2001 and in order to discharge the said debt, he issued Ex.P2 cheque. According to him, he does not know the complainant. He only knows PW1 as she conducted a chit in which his mother was a subscriber. The complainant has stated in Ex.P1 (power of attorney that he is not able to personally be present and perform various acts and deeds and hence he executed the power of attorney in favour of PW1. The accused has not disputed the genuineness of Ex.P1. Further, the evidence of the PW1 would show that she had personal knowledge about the transaction which took place between her father (complainant) and the accused. Hence no adverse inference can be drawn against the complainant for his non-examination as witness. The findings of the learned Judicial Magistrate No.IV, Tiruchirapalli in C.C.No.460 of 2002 dated 17.05.2006, that the accused has committed an offence u/s.138 of the Negotiable Instruments Act is restored - In so far as the sentence awarded by the trial court is modified as six months Rigorous Imprisonment and fine of ₹ 5,000/-, in default, three months Rigorous Imprisonment is awarded.
