Refund claim u/s 119 (2) (b) - condonation of delay for issue of belated refund - compensation received by the assessee in pursuance of land acquisition proceedings claimed exempt under Section 10 (37) - benefit of exemption to “agricultural land” denied - HELD THAT:- In the present case, we are concerned with Sub Clause (iii) (b) (II) which provides that agricultural land is exempted from the purview of “capital gains” unless the area is within the distance, measured aerially, not being more than 6 Kms from the local limits of any municipality or cantonment board referred to in item (a) (land situated in in any area which is comprised within the jurisdiction of a municipality whether known as a municipality, municipal corporation, notified area committee, town area committee, town committee, or by any other name o....... + More

Settlement Application u/s 245C(1) - assessee disclosed additional income during the course of settlement - fresh and substantial disclosure or not - it is far greater than the initial disclosure - Commission accepted the disclosures made by respondent assessee after considering the detailed item­-wise explanation submitted by respondent assessee - whether the order of Commission is contrary to any of the provisions of the Act or not and if so, apart from grounds of bias, fraud and malice which of­ course constitute a separate and independent category, has it prejudiced the petitioner or not? - HELD THAT:- Merely because the respondent assessee has disclosed additional income of ₹ 12 Crore during the course of settlement, it cannot be said that Commission has not followed the procedure prescribed under the Act of 1961. The d....... + More

Deduction on provision for bad and doubtful debts u/s.36(1)((vii) as well as U/s.36(1)(viia) - HELD THAT:- As decided in ow case [2018 (5) TMI 1627 - ITAT BANGALORE] held that the deduction u/s.36(1)(viia) of the Act cannot be allowed unless the provision is created by debited to provision for bad and doubtful debts account - we hold that the AO was justified in disallowing the claim for deduction on account of provisions for bad and doubtful debts u/s.36(1)(viia) of the Act as admittedly the Assessee did not debit its profit and loss account any sum towards provision for bad and doubtful debts. TDS u/s 194A - Addition u/s.40(a)(ia) - non-deduction of tax at source in respect of interest paid during the financial year - non filing of Form 15G and 15H with the prescribed authority - HELD THAT:- Respectfully following the decision of the Tr....... + More

Reopening of assessment u/s 147 - underreporting of the rental receipts by the assessee - assessee had understated his rental receipts as against those reflected in his TDS statement for the year under consideration - HELD THAT:- As had been observed A.O while framing the assessment had not made any addition in respect of the aforesaid issue which had formed the very basis for reopening the case of the assessee. Rather, the additions/disallowances made by the A.O in respect of the income shown by the assessee under the head ‘house property’ are absolutely on a different footing as had been culled out by us hereinabove. Accordingly, as the A.O while framing the assessment u/s 143(3) r.w.s 147 had not made any addition as regards the underreporting of the rental receipts at ₹ 99,34,023/- by the assessee in his return of in....... + More

Bogus sundry creditors - addition u/s 68 - CIT(A) accepted the additional evidences restricting part addition - whether sufficient opportunity to AO to rebut the evidences so filed given or not? - HELD THAT:- CIT(A) has categorically observed that the confirmation was also filed with the A.O. vide letter dated 9.1.2015. It is also transpired from the records that the Ld. CIT(A) had sought remand report from the A.O. in respect of additional evidences filed by the assessee. Therefore, it cannot be concluded that the confirmations were filed first time before the Ld. CIT(A) and no opportunity was granted to the A.O. for rebutting the same. From the records, it is clear that the A.O. was given sufficient opportunity to rebut the evidences so filed. Under these facts, we see no reason to interfere with the finding of the Ld. CIT(A) and the same is hereby affirmed. The grounds raised by the revenue are dismissed.

Bogus purchases - CIT- A estimated profit from Hawala purchases by disallowing only 12.5% of the bogus purchases - HELD THAT:- CIT(A) has decided the matter of controversy on the basis of the decision of Hon’ble Bombay High Court in the case of CIT Vs. Nikunj Eximp Enterprises Pvt, Ltd. [2013 (1) TMI 88 - BOMBAY HIGH COURT] and CIT Vs. Simit P. Sheth [2013 (10) TMI 1028 - GUJARAT HIGH COURT] and CIT Vs. Bholanath Poly Fab (P) Ltd. [2013 (10) TMI 933 - GUJARAT HIGH COURT] . The CIT(A) has also gone through the case and restricted the bogus purchase to the extent of 12.5% of ₹ 1,97,383/- i.e.24,672/-. However, at the time of argument, the Ld. Representative of the assessee has no objection to restrict the addition to the extent of 12.5% of the bogus purchase. Anyhow, on seeing the facts and circumstances, it seems quite justifia....... + More

Rectification of mistake - levy of penalty u/s 271(1)(c) - HELD THAT:- Tribunal has disposed of the appeal of the assesee ex-parte for non appearance of the assessee. The contentions of the assessee is that there is an error in the order of the Tribunal, inasmuch as in disposing of penalty appeals, when the quantum appeal was pending before the Ld.CIT(A). We find that when, the quantum appeal is pending before the lower authorities, disposing of penalty appeal on the same issues on which penalty has been levied would constitute a mistake apparent on record. Therefore, we are of the considered view that there is a merit in the miscellaneous applications filed by the assessee and accordingly, the order of the Tribunal is recalled and the appeals are posted for hearing on 26/02/2020, for which no separate notice will be issued to either parties.

Levy of FBT on the provision of free electricity by the assessee to its’ employees - Assessment u/s 115WE(3) - assessee’s stand is that the same is a perquisite in the hands of the employees, forming part of their salary income and, therefore, excluded under FBT (s.115WB(3)) - assessee-employer deny its’ liability u/s. 4 r/w s. 192, as well as u/s. 115WA(1), i.e., qua a benefit to the employees, by raising a plea that the tax on former is payable by the employees, so that the tax gets collected or paid under neither - HELD THAT:- Only an acceptance of it’s liability to deduct and deposit income-tax on the perquisite to its’ employees and, rather, doing so, would operate to save the assessee of it’s liability to tax u/s.115WA(1). The facts of the case are admitted and borne out by the record, being admit....... + More

Addition u/s 14A r.w. Rule 8D - assessee argued that the assessee’s own funds is more than investment - HELD THAT:- Where the interest free funds available with the assessee was sufficient to make the advance to its sister concern then such investment should be presumed to be made from interest free funds available and not out of borrowed funds and in the said circumstances disallowance of interest paid on loan taken would be justified. Thus we are of the view that the no disallowance is required in view of the provisions u/s 14A r.w. Rule 8D(2) of the Act. So far as the disallowance in view of the provisions u/s 8D(2)(3) is concerned, the AO took into consideration of 0.5% of the total value of the investment to the tune of ₹ 4,70,58,853/- which comes to the tune of ₹ 3,66,23,909/-. The assessee nowhere disallowed the e....... + More

Condonation of delay - delay of 1971 days - intimation u/s.200A - HELD THAT:- Intimation u/s.200A of the Act became an appealable order u/s.246A of the Act, only consequent to amendment by the Finance Act, 2015 w.e.f. 1.6.2015. Prior to the said date an intimation u/s.200A was not appealable. At the outset, we observe that the Hon’ble Supreme Court, in the case of Mst. Katiji [1987 (2) TMI 61 - SUPREME COURT] , has explained the principles that need to be kept in mind while considering an application for condonation of delay. The Hon’ble Apex Court has emphasized that substantial justice should prevail over technical considerations. The Court has also explained that a litigant does not stand to benefit by lodging the appeal late. The Court has also explained that every day’s delay must be explained does not mean that a p....... + More

Disallowance of prior period expenses while calculating income under the normal provision of the Act - HELD THAT:- When the assessee followed the mercantile system of accounting, expenditure incurred during the previous year though pertaining to an earlier period is deductable. We have carefully considered the judgment passed in the matter of Kedarnath Jute Mfg. Co. Ltd.-vs-CIT [1971 (8) TMI 10 - SUPREME COURT] where it was held that where the assessee has followed mercantile system of accounting and distributing the liability to pay to sales tax and not making provision in its books of accounts particularly when the demand raised on the basis of the sales made during the accounting year the assessee entitled to deduct the amount of sales tax on the basis of the liability incurred and even in the absence of entries in the books of account....... + More

Deduction u/s 10B on the manufacturing services carried out - apparent mistake in the Tribunal order - HELD THAT:- Ratification by the Board relates back to the date of actual grant. From para no. 30, the Tribunal is discussing about other aspect i.e. the assessee’s claim of deduction u/s. 10B with regard to R&D activities and till para no. 43, the discussion is only about R&D activities and thereafter in para 44 of the impugned Tribunal order as reproduced above, it was held that ground nos. 1 to 5.4 raised by the assessee are dismissed. Hence in our considered opinion, there is apparent mistake in the Tribunal order because ground no. 5.4 raised by the assessee in respect of deduction claimed by the assessee u/s. 10B of the IT Act on the manufacturing services carried out by the assessee was not decided specifically and th....... + More

Disallowance of advances to employees towards travelling expenses - addition as expenditure has not crystallized during the year and the provision made is of contingent nature - CIT-A deleted the addition - HELD THAT:- Amount in dispute was actually paid to the employees during the year, though, the claims of the employees in respect of such expenditure were not received. However, that by itself does not make the provision for expenditure contingent in nature. The factual aspect of the issue was verified by ld. Commissioner (Appeals) and he has concluded that the expenditure has crystallized during the year. The Revenue has also not brought any material on record to show that any part of the aforesaid expenditure was claimed by the assessee in the succeeding assessment year. In view of the aforesaid, we do not find any infirmity in the de....... + More

Review petition - whether referring to guidelines issued by the CBDT in Instruction No.3/2003 the Tribunal was right in observing that by not making reference to the TPO, the AO had breached the mandatory instructions issued by the CBDT? - in this Review Petition it is urged that in view of Circular dated 08.08.2019, benefit ought to be extended in favour of the Review Petitioner as the tax effect in the matter is stated to be less than the limit prescribed in the Circular dated 08.08.2019 - HELD THAT:- Since the matter has been restored to the file of the Assessing Officer so that appropriate reference could be made to the Transfer Pricing Officer (TPO), at this stage the benefit of the aforesaid circular dated 08.08.2019 cannot be extended. Review Petition is dismissed.

Application for recall of an ex-parte order - Dismissal of appeal for non-prosecution - compounding the same by refusing to entertain the application for recall of the order - ITAT has dismissed the application for recall of its order solely on the ground of limitation, observing that it has no power to condone the delay - HELD THAT:- Tribunal lost sight of the main provision as enshrined in Rule 24 of the ITAT Rules, which required the ITAT to dispose of the appeal on merits after hearing the respondent. Since it did not proceed to do so, and specifically gave an option to seek recall of its order, we find no justification for dismissing the application for recall on the ground of limitation. Rule 24 of the ITAT Rules, as noted above, enjoined the ITAT to decide the appeal on merits. The appeal filed in 2014, had ripened for final dispos....... + More

Extension of time for furnishing online Income Tax return in the Bihar which was expired on 31-03-2018 for the Financial Year-2016-17 - private cause OR public cause - HELD THAT:- The petition in its present form is not maintainable, apart from it being deficient of particular materials. However, Tax Payers of Bihar faces ‘unnatural inconvenience’ in not filing income-tax returns within the stipulated period remains unexplained. The petition appears to be espousing private cause instead of public cause.

Enhanced deduction u/s 10A - Further deduction claimed u/s 10A in consonance with the APA Agreement entered by the assessee - Whether the assessee has satisfied the conditions of deduction u/s 10A - HELD THAT:- As decided in own case [2019 (12) TMI 153 - ITAT PUNE] proviso to section 92C(4) does not debar deduction u/s 10A on additional income in assessment u/s 92CD; assessment u/s 92CD provides for granting deduction u/s 10A; and the assessee has satisfied the requirement of section 10A(3) read with section 92CD(2), thereby entitling it to deduction u/s.10A on the additional amount. Thus direct the AO to grant deduction claimed in respect of the incremental invoicing pursuant to APA agreement for computing total income. Thus, the grounds of the assessee are allowed.

Disallowance u/s 37(1) - payments have been incurred by way of cash and hence genuineness of these expenses cannot be proved - AO made disallowance u/s 40A(3) of the Act protectively - HELD THAT:- In the instant case, the AO has, presumably, taken the view that these expenses have not been laid out or expended wholly and exclusively for the purpose of business. Accordingly, he has invoked the provisions of sec. 37 of the Act. There should not be any doubt that, merely because certain expenditure has been incurred by way of cash, the same cannot be considered as not related to the business activities of the assessee. Assessee has incurred 90% of expenses by way of cheque, meaning thereby, in case of business necessity only the assessee has been incurring expenses by way of cash. There is no doubt that the expenses incurred by way of cash m....... + More

Exemption u/s 11 - disallowance of amount utilized for acquisition of assets as application of income u/s 11 - disallowance of claim of repayment of loan as application of income u/s 11 - HELD THAT:- As submitted that the nexus of loan funds and utilization should be examined to find out exact position. Accordingly, the Ld Counsels submitted that the assessee may be provided with an opportunity to furnish the details of utilization of loans, so that the correct amount of application of income could be quantified in terms of the ratio laid down in the above said decision. D.R also agreed to the plea put forth by the Ld counsels for the assessees. Accordingly, we set aside the orders passed by Ld CIT(A) in respect of above said two issues in all the years and restore them to the file of the AO with the direction to examine these issues afre....... + More

Chargeability to tax of long term capital gains - sale of land to assessee's husband which was not disclosed by assessee in return of income filed with Revenue - HELD THAT:- Assessee has brought on record documents such as Vardhamanam Deed, Settlement Deed and affidavit to contend that this entire sale was sham with a view to bring on record market value of said land so that compensation from Government at market value can be claimed. The guideline value of the said property is also higher as against compensation awarded by Government for compulsory acquisition of assessee property being 40.5 cents of land , as we have detailed above . The assessee has filed petition with District Collector for enhanced compensation. The details are elaborated in preceding para of this order. Certain additional evidences are also brought on record by ....... + More

Deduction u/s 80P(2) - CIT(A) passed order u/s 154 wherein the claim of deduction u/s 80P was denied - HELD THAT:- In the case of Chirakkal Service Co-operative Co-operative Bank Ltd. v. CIT [2016 (4) TMI 826 - KERALA HIGH COURT] had held that when a certificate has been issued to an assessee by the Registrar of Co-operative Societies characterizing it as primary agricultural credit society, necessarily, the deduction u/s 80P(2) has to be granted to the assessee. Full Bench of the Hon’ble jurisdictional High Court in the case of The Mavilayi Service Co-operative Bank Ltd. V. CIT [2016 (4) TMI 826 - KERALA HIGH COURT] had held that the A.O. has to conduct an inquiry into the factual situation as to the activities of the assessee society to determine the eligibility of deduction u/s 80P. In view of the dictum laid down by the Full Ben....... + More

Reopening of assessment u/s 147 - long-term capital had escaped assessment - tangible material - HELD THAT:- Specific information received by the Assessing Officer, which constituted tangible material, was analysed, verified and cross-checked by the Assessing Officer and after such analysis and cross verification, a belief was formed by him that this substantial long-term capital gain chargeable to tax in the hands of the assessee for the year under consideration had escaped assessment. He accordingly recorded the reasons giving the details of specific information received by him, analysis and inquiries made by him to cross verify the said information and findings of fact arrived at on the basis of such analysis and cross-verification, which ultimately formed the basis or reason to believe that the income of the assessee in the form of lo....... + More

Unexplained cash deposits - CIT-A estimated the income @4% on total turnover - Estimation of income - turnover of the assessee in purchase and sale of digital dollars - HELD THAT:- There is no provision in the Income Tax Act to tax the unutilized balance received from the customers. If the assessee fails to provide the digital dollars, it would remain as liability and the assessee is obliged to return the money to the depositor. Therefore, the same cannot be treated as income of the assessee. AO also did not invoke any provision of the Act to tax the difference amount. During the course of survey conducted in the case of 133A also, no evidence was found by the AO to hold that the assessee has acquired the assets equivalent to the difference amount taxed by the AO as observed by the Ld.CIT(A). Therefore, we hold that the amount of ₹ ....... + More

Penalty u/s 271AAB - No undisclosed income found - HELD THAT:- When the Revenue has failed to explain any undisclosed income as per the statutory definition and affirm the CIT(A)’s findings deleting the impugned penalty(ies). Revenue fails in its sole substantive grievance

Disallowance u/s 36(1)(iii) out of interest payment on the ground that borrowed funds has not been utilised for business purpose - contention of the assessee is that the amount was not given in the year under consideration - HELD THAT:- Question of genuineness, creditworthiness and business expediency is to be verified in the year when this advance was given. Contention that if genuineness, creditworthiness and business expediency is not proved in that year, in that event, the A.O. would be at liberty to make addition in this year as relying on ACIT Vs. Auto Light (India) Ltd [2016 (7) TMI 1557 - ITAT JAIPUR] merits acceptance. This Tribunal in the case of ACIT Vs. Auto Light (India) Ltd. (supra), has observed that assessee was required to prove whether on the date of making investment or giving the interest free amount to the sister conc....... + More

Pure labour contract services - For construction of a civil structure or any other original works under PMAY - Applicability of N/N. 12/2017-Central Tax (Rate) dated 28.06.2017 - classification and HSN for services provided by the applicant - HELD THAT:- The scope of above said entry is not person-centric but project-centric. The entry does not speak of contractor or sub-contractor but supply of pure services by way of construction under certain projects. It clearly stipulates that whosoever is supplying the pure labour contract services for the construction of a civil structure or any other original works under PMAY is exempted from GST. The services of pure labour contract supplied by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of a civil structure o....... + More

Classification of goods - Fortified Rice Kernels (FRK) - whether fall under Chapter-10, Tariff item 1006 as Rice and description of goods 10061090 others (IGST Nil/ 5%, CGST Nil/2.5%, SGST Nil/2.5%)? - HELD THAT:- The applicant is a manufacturer and supplier of Fortified Rice Kernel (hereinafter called as FRK). The applicant supplies FRK to various units which are engaged in mixing of the FRK in normal rice which is further supplied to government for use in schemes such as Mid-Day Meal, Poshan Abhiyan, ICDS, PDS etc. - first, source rice for FRK is converted to flour form, then, the premix of vitamin-mineral is added to it. Post mix, the prepared material is passed through a machine which converts it back in to granule form of rice, which are known as Fortified Rice Kernel(FRK). The FRK is packed in a 25Kg bag to be further supplied to va....... + More

Classification of services - ‘Ancillary Services’ provided to various passenger/ tourist on behalf of main tour operators - the Applicant receives service orders from the main tour operator to provide a range of services to the passenger/ tourist. - whether the said service falls under Chapter heading 9985 (i) {Supply of Tour Operator Service) or 9985 (iii) {Support Services}? - applicable rate of tax. HELD THAT:- A gross amount should be charged by the Tour Operator for the entire Tour. In present case, the services provided by the Applicant has various activities like Elephant/ Camel ride, Boat ride, Guide services, local sightseeing, dinner/ lunch at local restaurant etc. For each such service no separate invoice is issued to the tourist and one consolidated bill is raised by the Applicant to the tour operator. The Applican....... + More

Permission for withdrawal of Advance Ruling application - Input tax credit - goods and services used in construction of hotel will be available to the applicant engaged in providing taxable services of hotel accommodation and related services - HELD THAT:- The applicant has requested for withdrawal of the advance ruling application vide their letter dated 22.11.2019. Accordingly, no advance ruling is given.

Whether the Compensation to States Act, 2017 is beyond the legislative competence of Parliament? - Refund of amount of compensation cess paid under the impugned legislation - HELD THAT:- There are no merit in the review petition and the same is accordingly dismissed.

Cancellation of registration certificate granted to the 2nd respondent for additional place of business - registration was granted without the consent of the petitioner, who is the owner of the premises - HELD THAT:- The 1st respondent will take up the plea made by the petitioner on Ext.P7 petition without any further delay and after affording reasonable opportunity of being heard to the petitioner as well as the 2nd respondent will render a considered decision thereon within a period of 6-8 weeks from the date of production of the certified copy of this judgment. Petition disposed off.

Exemption of “Supply of Farm Labour” - supplier of manpower - recipient of “Supply of Farm Labour” service is the sole owner of agriculture Land - documents/ evidence required to be kept as a supplier of manpower for availing exemption as “Supply of Farm Labour” - Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 and Notification No. 09/2017 Integrated Tax (rate) dated 28.06.2017 - whether classifiable under SAC 99851? - Whether exemption of “Supply of Farm Labour” as provided in Notification No. 12/2017 and Notification No. 09/2017 Integrated Tax (rate) dated 28.06.2017 is available to supplier of manpower falling under SAC 99851? - HELD THAT:- The supply of manpower services falling under SAC 99851 is not exempted from GST under Notification No. 12/2017- Central Tax (Rate) dated....... + More

Classification of goods - Rubber pad - classification if goods supplied in semi-finished condition to any person other than railways - applicable rate of GST - HELD THAT:- The Government has received representations that certain suppliers are making supplies to the railways of items classifiable under any chapter other than chapter 86, charging the GST rate of 5%. Accordingly a clarification regarding applicable GST rates on various supplies made to the Indian Railways has been issued by Government of India vide Circular No. 30/4/2018-GST dated 25.01.2018 - On perusal of said Circular, we observe that the Government has already clarified that only goods of chapter 86 of GST Tariff Act, 2017 will attract GST @ 5% if supplied to the Railways and goods falling in any other chapter of GST Tariff Act, 2017 will attract GST rate applicable to t....... + More

Classification of goods - Fried Fryums of different shapes, sizes and varieties which are ready to eat - applicable HSN code and GST rate - HELD THAT:- Heading 2106 is an omnibus heading covering all kind of edible preparations, not elsewhere specified or included. Chapter Note 5 provides an inclusive definition of this heading and covers preparations for use either directly or after processing, for human consumption. In 5(b) above preparation for use after processing has been included and mentioned therein such as cooking, dissolving or boiling in water, milk or other liquids - Obviously, the term ‘such as’ is purely illustrative but not exhaustive and therefore processing includes frying also, hence fried goods are also covered under chapter head 2106 which is ready for human consumption. Further, Chapter Note 6 pertaining t....... + More

Constitutional validity of levy of IGST on Ocean Freight - Ultra Vires provisions - Reverse charge - Levy tax twice - once levy of customs duty on imported goods, second IGST on ocean freight - estimated component of the Ocean Freight paid for the transportation of the goods by the foreign seller - N/N. 8 of 2017-Integrated Tax (Rate) dated 28th June 2017 HELD THAT:- In the present case, the writ-applicant is importing goods on the CIF basis, i.e. the contract is for supply of goods delivered at the Indian port. Thus, the transportation of goods in a vessel is the obligation of the foreign exporter. The foreign exporter enters into contract with the shipping line for availing the services of transportation of goods in a vessel. The obligation to pay consideration is also of the foreign exporter. Thus, the writ-applicant could be said to h....... + More

Fundamental rights of citizens by authoritarianism - mute spectator or not - Powers of officers conducting search and seizure to remain stayed in the premises for unlimited period - Key person was not found at home during search - Gujarat GST Act - HELD THAT:- It is apparent that the officer who is armed with a search warrant is authorised to search the premises referred to in the warrant of authorisation and to seize goods, documents, articles or things, which are useful for or relevant to any proceedings under the GST Acts. The provisions nowhere arm the officer, in whose favour the authorisation is issued, to search for any person or to remain in the premises after the search is over, or to monitor what the persons residing in the premises are doing and to reside in the premises. In fact, no provision under the Code permits even the In....... + More

Attachment of Petitioner’s bank account - fraudulent availing of Input Tax Credit - proceedings have been launched against the Petitioner under section 67 section 70 of the Act - Primary defence of the Respondents is that even if section 62, 63, 64, 67, 73 and 74 mentioned in section 83 of the Act are not referable to the case of the Petitioner, since a summons is issued to the Petitioner in pursuant to the inquiry initiated against M/s.Maps Global under section 67 of the Act, by the issuance of summons the proceedings get extended to the Petitioner also. HELD THAT:- The analysis of section 83 of the Act will show that such interpretation is not permissible and not contemplated by the legislature. Section 83 read with Rule 159(1), and the form GST DRC-22, lay down a scheme as to how provisional attachment in certain cases is to be l....... + More

Demand of GST - order issued u/s 73 ignoring the request for granting further time to submit reply to Show cause notice (SCN) - Principles of natural justice - opportunity of personal hearing not provided - HELD THAT:- A perusal of sub-section 4 of the Section 75 of “the Act” makes it clear that whenever an assessee, chargeable with tax and penalty makes a request in writing for opportunity of hearing, such an opportunity should be granted to him - Here, admittedly though a request was made on 4.12.2019 under Annexure-4 for personal hearing, however, without granting the same the impugned orders have been passed. Further, despite receipt of the request dated 3.12.2019 under Annexure-4 for grant of additional time for filing show cause, without passing any order on the same, the impugned orders have been passed. There are no he....... + More

Stay on implementation and operation of the Show Cause Notice - release of seized goods alongwith vehicle - absence of document as per the requirement under Section 68 of the Central Goods and Service Tax Act, 2017 - HELD THAT:- The petitioner is directed to deposit a sum of ₹ 7,50,000/before the respondent No.3 within a period of two weeks from today. Upon such deposit, the vehicle of the petitioner bearing number MP07GA8154 shall be released. Petition disposed off.

Filing of form GST TRAN-1 - transitional input tax credit - transition to GST regime - the grievance of the petitioners is essentially that they had come across a press release by the GST Council, which indicated that the last date for uploading the details in the GST portal for the purposes of carrying forward the accumulated credit from the erstwhile regime was extended up to 31.12.2017 - HELD THAT:- While it is a fact that the petitioners did not make an attempt to log into the system before 27.12.2017, the cut-off date prescribed by the respondents for uploading the TRAN-1 Form to the web portal, it is found that the petitioners were guided by a press release of the GST Council, which suggested that they could upload the statutory form on any date before 31.12.2017. Placing reliance on the said press release, the petitioners had submi....... + More

Benefit of exemption - supply of services by way of leasing of goods transport vehicles without operators to GTA - classification of services - rate of tax - input tax credit - serial no. 22 (b) of Notification no 12/2017 CT(Rate) dated 28/06/2017 (corresponding State Notification No. 1136 - FT dated 28/06/2017) - HELD THAT:- The Applicant intends to lease out vehicles like trucks, tankers etc. that are designed to transport goods. The control and possession of the vehicle will be transferred to the lessee, who will engage operator and bear the cost of repair, insurance etc. It is, therefore, not classifiable under SAC 9966, which is restricted to rental services of transport vehicles with operator. Classification of service - HELD THAT:- The service is classifiable under SAC 997311 as leasing or rental services concerning transport equip....... + More

Maintainability of petition - availability of statutory remedy of appeal - section 107 of the GST Act, 2017 - HELD THAT:- As Statutory remedy of appeal is available to the petitioner, therefore, we are not inclined to accept the aforesaid submissions of learned counsel for the petitioner and grant liberty to the petitioner to challenge the said order under section 107 of the GST Act, 2017 and also after depositing the whole amount as per order dated 22.11.2019, file a copy of the receipt. Petition disposed off.

Enlargement on bail - wrongly availed input tax credit - HELD THAT:- In view of the undertaking submitted by the petitioner to fully cooperate with the investigating agency and provide the information/documents asked for by the investigating agency, this Court is of the opinion that the bail applications filed by the petitioner deserve to be accepted. Bail application allowed subject to condition imposed.

Levy of penalty - Section 129 (3) of the CGST Act, 2017 - HELD THAT:- The petitioner is having remedy to file an appeal against the impugned penalty order under Section 107 of the U.P. GST Act, 2017. Petition dismissed.

Enlargement on Bail - procedure for disposal of rejected Fabric/bags of bags - whole prosecution case against the applicant is without jurisdiction and vitiated under law - HELD THAT:- Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, I am of the view that the applicant has made out a fit case for bail. Bail application allowed.

Advance Licence Scheme - clearance of the consignment free of import duty in terms of Customs N/Ns. 203/1992, 204/1992, both dated 19.05.1992 - HELD THAT:- The order of the High Court is completely unsustainable. The entire consignment was imported under one advance licence issued to the petitioner prior to 19.05.1992. The fortuitous circumstance that part of the consignment was actually imported prior to 25.11.1993 and the rest subsequent thereto is hardly relevant in view of the clarificatory notification dated 18.03.1994 that the exemption would continue to apply subject to fulfilment of the specified terms and conditions. It is not the case of the respondents that the consignments imported subsequently did not meet the terms and conditions of the exemption. It is unfortunate that the High Court failed to follow its own orders in a sim....... + More

Waiver of penalty u/s 114AA of CA - reduction in the quantum of penalty imposed u/s 112(a) of CA - abetment of the smuggling activities - maintainability of appeal - HELD THAT:- As a matter of fact, no question of law arises from the order of the learned Tribunal, much less substantial question of law, which is the requirement for maintaining the appeal under Section 130 of the Act. The matter relates to imposition, deletion or reduction of the amount of penalty are within the discretion of the fact finding bodies and the learned Tribunal being the highest fact finding body, in its fair exercise of discretion, has reduced the penalty under Section 112(a) of the Act while setting aside the penalty under Section 114AA of the Act. The activity of the import of the prohibited goods by covering them with the help of some goods, which are decla....... + More

Imposition of penalty on CHA u/s 112(1)/(b) of the Customs Act - misdeclaration of quantum of imported goods - Synthetic Diamond Powder - allegation that the valuation of Synthetic Diamond Powder is based on the unit of ‘carats’, thus by declaring less number of carats, the importer had declared only 1/5th of the quantity and thus undervalued the consignment to the extent of 80% of the quantity declared in the aforesaid two Bills of Entry. HELD THAT:- There is no allegation of any connivance on the part of the appellant-CHA with the importer. Further, in the statement recorded the appellant-CHA have stated that it was mistake on his part but he was not knowing about the no. of carats in 1 Kg., but the Bs/E were filed as per Carats shown in Invoices and same were appraised by the group as such and he never questioned about this....... + More

Writ of Habeas Corpus - Release of detained petitioner - detention sought on the ground that the detention of petitioner in custody is illegal and the same is violative of Article 14, 21 and 22 of the Constitution of India - smuggling - HELD THAT:- In view of the serious allegations levelled against the petitioner about his involvement in the multi crore scam of the smuggling of gold in which the petitioner has actively participated, we are not inclined to exercise our discretion in favour of the petitioner for issuance of Writ of Habeas Corpus. The petitioner has efficacious remedy of filing the Bail Application and seeking regular bail before the competent court. Even if the remand order is illegal, which is passed mechanically in a cavalier fashion, still the remedy of the Writ of Habeas Corpus cannot be said to be an efficacious remed....... + More

Vires of Policy Circular Nos.6 and 35 - denial of benefit of the DEPB or Duty Drawback - HELD THAT:- There is no merit in the present intra Court Appeals filed by the Revenue and the view of the learned Single Judge deserves to be upheld - We are of the opinion that the Circulars like Circular No.74/1999-Cus dated 05.11.1999 as well as the Circular No.31/2000-Cus dated 20.04.2000 could not have restricted or denied the benefit of Drawback or DEPB if such manufacturing was done by 100% EOU Units and then exports were made by such 100% EOUs. The denial of benefit to the Assessee under the guise of a clarification for which, no power was bestowed on the Central Board. More so, if such Circulars come in direct conflict with clear statutory provisions of law or Import Export Policy having statutory character. Appeal dismissed.

Levy of penalty u/s 112(a) of the Customs Act - Penalty on CEO for abetment - misdeclaration of transaction value as well as retail sales price (RSP) of confectionary items - HELD THAT:- The issue of jurisdiction of Customs Act and its application to the appellant is primarily challenged in the present appeal, besides the legality of the Order of the Commissioner. Though the issue appears to be small it has wide ramifications. No Municipal law can ever be extended beyond the territorial boundaries of a country including its continental self and exclusive economic zone, whether or not there is express provision in the Act or statute to stretch the same beyond the country’s territory since the same would amount to encroachment upon the territorial authority of other State. It is therefore, defined in the Statute of the country that th....... + More

Benefit of exemption N/N. 64/88-Cus dated 1st March 1988 - import of ‘Theratron-Phoenix Cobalt-60 (electro therapeutic apparatus)’ - HELD THAT:- There are no reason to interfere with the impugned order - Appeal dismissed.

Classification of goods - Kapok - whether Kapok could not be classified under heading 53.05 or not? - HELD THAT:- There is no finding in the order of the Tribunal as to whether the observations of the Commissioner (Appeals) that Kapok could not be classified under heading 53.05, are correct or not. No appeal was filed by the Respondents on this count. The question would now remain whether the Kapok could be classified under heading 14.04. The argument that the Commissioner (Appeals) in the appeal can never look into a different entry is belied by the proviso to Section 128A of the Act. However, a procedure is laid down in the said proviso. A prior notice and time limit is contemplated. The contention of the Appellant that such a notice, even if it is issued, was beyond time even on the date the Commissioner passed the order can be made by....... + More

Imposition of redemption fine - section 125 of CA - goods in question have already been released in favour of the assessee on a bond - HELD THAT:- the mere fact that the goods were released on the bond being executed would not take away the power of the customs authorities to levy redemption fine. However, tribunal has recorded that, "It is also on record that the goods were not physically available for confiscation. Redemption fine was not to be imposed in lieu of confiscation of any goods where the goods are not physically available to be redeemed." The learned Tribunal has erred in holding that the cited case of the Hon'ble Supreme court in the case of WESTON COMPONENTS LTD. VERSUS COMMISSIONER OF CUSTOMS, NEW DELHI [2000 (1) TMI 45 - SC ORDER] referred is distinguishable. This observation written by hand by the learned M....... + More

Smuggling - foreign marked gold bars - acquittal of accused - offence punishable under Section 135 (1) (b) read with Section 135 (1) (i) of the Customs Act, 1962 and under Section 8 (1) of Gold Control Act punishable under Section 85 (1) (ii) of the Gold (Control) Act, 1968 - cross-examination of witnesses. HELD THAT:- There is nothing on record to indicate that respondent no.1 was apprised of his rights under Section 102 and consequences thereof. For proving the offence under Section 135, prosecution must prima facie establish a case of legal seizure of contraband gold from the conscious possession of accused. For that purpose, at the outset, prosecution must prove that the seizure effected from the person of accused on 25th March 1985 at Kalbadevi Road, was legal. The provisions of Section 102 of The Customs Act, 1962 accord a protectio....... + More

Smuggling - sale proceeds from sale of Gold Bars - Indian Currency - acquittal of accused - offence punishable under Section 135 (1) (A) and (B) read with Section 135 (1) (i) of the Customs Act, 1962 - compliance with the provisions of Section 102 of the said Act or not - reliability of statements - HELD THAT:- Admittedly the formalities to be followed under the provisions of Section 102 of the said Act have not been followed. Mr. Natarajan, in fairness, true to his role as an Officer of the Court, admitted that the requirements of Section 102 of the said Act have not been complied with and compliance with those requirements is mandatory - For proving the offence under Section 135 of the said Act, prosecution must prima facie establish the case of legal seizure. For that purpose, at the outset, prosecution must prove that the seizure effe....... + More

Import of new aircraft - Benefit of N/N. 21/2002-cus dated 1.3.2002 as amended - Department got intelligence that the said aircraft had been imported for private use by the appellant under the guise of non scheduled operator (passenger permit) - Whether the appellant herein has violated condition no. 104 (under sl. No. 347 N) of notification no. 21/2002-Cus as amended by notification no. 61/2007-Cus while importing an aircraft vide B/E No. 218981 dated 21.05.2007 by not complying with the undertaking as was given to DGCA at the time of said import? HELD THAT:- The scheduled as well as non scheduled air transport services firm (whether for passenger or charter) are open to use by the members of public and as such stands distinguished from what can be called as private use of the aircraft. The another thing which distinguishes scheduled air....... + More

Exemption from Customs Duty on Copper Concentrate to the extent of duty on the value of Gold and Silver contained in such Copper Concentrate - Denial of the benefit of N/N. 24/2011-Cus dated 01.03.2011 - denial of benefit of notification on the ground that the Assay Certificate of the Mining Company submitted at the time of provisional assessment is not co-relatable with the import documents submitted by the appellant. HELD THAT:- The appellants have produced a provisional assay certificate from the mining Company at the time of import. They have finalized the price with the supplier who is not a mine - Tribunal in the appellants own case HINDALCO INDUSTRIES LTD., COMMISSIONER OF CUSTOMS-AHMEDABAD VERSUS COMMISSIONER OF CUSTOMS-AHMEDABAD, HINDALCO INDUSTRIES LTD. [2015 (3) TMI 948 - CESTAT AHMEDABAD] has held that For a feasible solution ....... + More

Refund of differential duty - Benefit of N/N. 69/2011-Cus dated 29.07.2011 - rejection on the ground that the bill of entry has not been challenged - HELD THAT:- It is not in dispute that the appellant was eligible for the exemption notification but they have not claimed the same in the bill of entry and paid excess duty. Thereafter, they filed the refund claim without challenging the bills of entry under which the duty was paid. It has now been decided by the Larger bench of the Hon’ble Apex Court in the case of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV [2019 (9) TMI 802 - SUPREME COURT] that no refund can be claimed once assessment is finalised without challenging the assessment even if such assessment was done under self assessment procedure. Appeal dismissed - decided against appellant.

Smuggling - Gold - confiscation of seized goods alongwith penalty - process of adjudication of the Show Cause Notice dated 29th August, 2017 has already been started, which is yet to be completed - HELD THAT:- This writ petition has been preferred for correction of methodology of adjudication, which we are not going to interfere at all because it is left on the discretion and wisdom of the respondents and with the expectation that they shall follow the law, rules, regulations and Government policy as applicable to the facts of the case. Petition disposed off.

Smuggling - foreign marked gold bars - complaint not exhibited - sanction for prosecution - acquittal of accused - HELD THAT:- There is a sanction dated 2-4-1993 in the records and proceedings, but the same is not brought on record as exhibit. It is settled law that a sanction for prosecution is not an idle formality. The sanction is a solemn and sacrosanct act, which has to be by due application of mind after satisfaction by perusal of the relevant materials. It was the duty of the prosecution to have the sanction exhibited - It is rather unfortunate that this sanction was also not proved through witnesses and consequently, the sanction is not exhibited. Therefore, one could safely state that the prosecution itself is vitiated - the complaint is not proved and exhibited and the sanction also is not proved and exhibited. On these grounds ....... + More

Smuggling - contraband item - foreign marked gold biscuits - evidences before charge were not cross-examined, but after framing of charges they were cross-examined - acquittal of accused. HELD THAT:- The prosecution has totally failed to prove that accused was responsible or in any way responsible for fraudulent evasion of duty or he had been instrumental in the importation of the gold. Prosecution has also failed to prove that accused knew or had reason to belief that the gold found in his person are liable to confiscation. There is no evidence in that regard because the gold seized admittedly did not have any foreign marking. For proving the offence under Section 135, prosecution must prima facie establish a case of legal seizure of contraband gold from the conscious possession of accused. The provisions of Section 102 of The Customs Ac....... + More

Exemption from Anti-Dumping duty - Benefit of N/N. 95/2006-Cus. dt. 08/09/2006 - who is manufacturer of goods - whole case of the Department is that during the course of examination of the goods prior to the clearance of the goods indicated the manufacturer to be M/s.Nanhai Shangyuan Construction Ceramic Co. Ltd. PRC in place of M/s. Foshan Lungo Ceramics Co. Ltd. as appearing in the invoice. HELD THAT:- Learned Commissioner(Appeals) has not given any findings on the examination report except saying that as per appellants, the examination report was not given at the time of clearance - Further, it is also not forthcoming as to why in the existence of the examination report, clearance was allowed by the Customs authorities; if the country of origin certificate has been challenged through proper verification procedure and if any action has ....... + More

Classification of imported goods - nature of scrap - Shredded Aluminium 6063 Extrusion Scrap “Tread” - As against declaration of shredded Aluminium scrap the goods found appeared to be remnant ends of ingots/ billets obtained during the extrusion process - HELD THAT:- We have perused the panchnama dated 19.02.2009, wherein the goods have been described as “The cargo was mainly consisted of oval and cylindrical pieces of aluminium alloy. The thickness of the said pieces varied from approximately 2” to 21/4’ (feet) and the diameter varied from 6” (inches) to 1’ (feet).” From the examination conducted as per the above said panchnama, we have no hesitation in holding that the goods imported goods were not “shredded aluminium scrap” as declared by the appellants. We agree with the fin....... + More

Jurisdiction - powers of the Appellate Court while dealing with an appeal against an order of acquittal - case of forgery - offence u/s 138 of NI Act - acquittal of accused of offence under Section 5 of the Imports and Exports (Control) 1947 - HELD THAT:- According to P.W.-3, the export, however, was made after the expiry of period fixed by the competent authority. The period, what P.W-3 is referring to, is the period prior to granting of third extension. In this case, the appropriate authority had commenced investigation and filed a complaint in view of non compliance with export obligations by accused. Accused, however, had applied for an extension, which extension was granted after the complaint was filed and investigation was commenced. P.W-3 also has stated that he had discussed the matter in the office of the Chief Controller of Imp....... + More

Attachment of property of petitioner company - separate legal entity of corporation or a company - doctrine of the piercing of corporate veil - HELD THAT:- It is not in dispute that property/cars belonging to M/s OIS Advanced Technology Pvt. Ltd. and registered in the name of company M/s CIS Advanced Technology Pvt. Ltd., being a corporate entity, does not in any manner mean that it is distinct than that of Sanjay Bhandari, who is absconding accused. While passing impugned order, learned Trial Court has given two reasons; firstly, majority shareholding belongs to Sanjay Bhandari; secondly, it is a private limited company and the word ‘belonging to’ under Section 83 Cr.P.C. is of widest amplitude. Even if the fact that the cars should not have been attached is excluded, then the shareholding of the company would have to be atta....... + More

Validity of Arbitral Award - maintainability of application - petitioner contends that the application cannot be proceeded since Corporate Insolvency proceedings under the Insolvency and Bankruptcy Code, 2016 (the IBC) has been initiated against the petitioner as the Corporate Debtor - whether the present application under Section 34 of the Act should be kept in abeyance by reason of the provision of the IBC being invoked by operational creditors against the petitioner? HELD THAT:- It would be evident from the dates since above that the impugned Award of 7th July, 2008 is a culmination of a dispute between the parties which existed before the initiation of corporate insolvency proceedings against the petitioner. It is also true that once the Award was challenged by the petitioner (Award Debtor) in 2008, the debt became disputed and subjec....... + More

Rejection of plaint - Specific performance of agreement of sale - plaint rejected on the ground that there is no substantial legal cause of action for filing the suit and the entire basis for filing the suit is based on an alleged oral agreement between two companies is also absurd, speculative and bad in law. Whether the oral agreement of sale entered by two or more private limited companies validly gives rise to cause of action to file suit for specific performance? HELD THAT:- Section 21 of the Act of 2013 lays down the manner in which the document or proceeding requiring authentication by a company or contracts made by or on behalf of a company. There is no provision of oral agreement in the Act of 2013. In view of Section 465(2)(b) of the Act of 2013 coming into force, Section 46(1)(b) of the Act of 1956 is repealed and therefore, th....... + More

Transfer of shares - execution of transfer deed - entitlement of allotment of 60000 shares which were due to R1 (including R2) on right basis by the appellant company - time limitation - HELD THAT:- Appellant company in their correspondence with the Respondent has already accepted to issue shares to the Respondents as per their entitlement on production of court orders, affidavit and indemnity bond and on payment of ₹ 120000/- being the consideration amount of 60000 shares. During the course of arguments when we asked learned counsel for the appellant when the Letter of Administration has been submitted by the Respondent then why did you insist for affidavit and indemnity bond. When Letter of Administration has been issued, it means that the Appellants are discharged from their liability. On this, the learned counsel for appellant a....... + More

Approval of scheme of amalgamation - valuation report - HELD THAT:- Valuer has to be an independent person assigned the important duty that his report is equitable to all stakeholders for which his report is to be relied upon. As regards the arguments of the learned counsel for the appellant that the valuation report has been got prepared from an unregistered valuer is concerned, we note that earlier there was no such section in Companies Act - Section 247 of the Companies Act, 2013 was notified w.e.f. 8.10.2017. The compliance of Section 247 would arise only after this date. There has been no regulation of valuers under the Companies Act, 1956 though the practice has been well established that this valuation was being done by the Chartered Accountants or valuers. The valuation report was submitted by the Valuer in March, 2017 - But the d....... + More

Stay of operation - Oppression and Mismanagement - case of appellant is that an abiding theme of Respondents’ conduct is the consistent and steady squeezeout of the Appellants’ rights and title to, and interest in, their ownership of 1st Respondent Company in a manner that is lacking in probity and is unfair. HELD THAT:- Permission to file appeals is granted - Issue notice. Until further orders, the operation of the impugned judgment shall remain stayed.

Declaration of consent terms - commencement of winding up proceedings - whether the applicant has pleaded and proved that the consent terms arrived at between the applicant and the respondent in the Comm. Admiralty Suit on 24th October, 2016 after commencement of the winding up proceedings was in the ordinary course of business and was in the best interest of the respondent company in liquidation or not? - HELD THAT:- Under Section 441(2) of the Companies Act, 1956, the winding up of the respondent shall be deemed to have commenced on the date of presentation of the petition for winding up i.e. 28th August, 2014 - It is admitted position that the consent terms between the applicant and the respondent in the said Comm. Admiralty Suit No. 15 of 2016 were filed only on 24th October, 2016. There is no dispute that this Court had already appoi....... + More

Prayer for amendment in the Judgment dated 18th December, 2019 - Conversion of Private Company into Public Company on the basis of average annual turnover - benefit under Section 43A (2A) of Companies Act - HELD THAT:- Section 43A (2A) while empowers a 'Public Company' to become a 'Private Company' on or after commencement of the Companies (Amendment) Act, 2000 by informing the matter to the Registrar for substitution of the word 'private company' with the word 'public company' in the name of the company upon the register and certificate of incorporation issued to the company and its memorandum of association but under Section 43A (4) such 'private company' which has been made public company by virtue of the said provision, will continue to be a 'public company' until it has, with the approv....... + More

Winding up petition - compensation paid by the National Highways Authority of India (NHAI) towards acquisition of the lands of the Company - whether the workers' union of the Company could maintain an application under Section 529A of the erstwhile Companies Act, 1956? HELD THAT:- This Court directs as follows:- I) That the Court continues to be in the position of custodia legis of the Company/BJF. II) That ipso facto there is no permanent stay of winding up. III) That as the custodia legis, this Court appoints a three member Committee of Management (for CoM). IV) The CoM will be constituted of the following members: 1) Mr. Mukul Lahiri, Learned Senior Advocate; 2) Mr. Snehatosh Mazumder, Learned Counsel; and 3) Mr. Sondwip Mukherjee, Learned Counsel (and erstwhile Joint Special Officer). V) The CoM will be entitled to appoint an Audi....... + More

Restoration of name of respondent on the register of companies maintained by the office of the ROC - allegation that the appellant has failed to prove that he is a creditor of the company - Section 421 of the Companies Act, 2013 - HELD THAT:- The Respondent No.3 and 4 has given an affidavit and indemnity in the year 2005, while applying for striking off the name of the company, that the Respondent No.2 company has no assets and liabilities and also undertook to pay any liability arising later on - We cannot say that it is outstanding as on 2005 or it has been paid to somebody who was not entitled to it because there are no records since 1998. Since the company has no assets and the company has not filed any return from 1998 onwards, therefore, it would be futile to restore the name of the company. Appeal disposed off.

Oppression and mismanagement - Prohibitory injunction against Respondents from effecting transfer of shares of the Appellants - application for release of interim payment of amount deposited by the Respondents - share price conversion in separate escrow account with HDFC Bank, Bhavnagar Branch - HELD THAT:- The Consent Terms recorded by the Tribunal amount to a Consent Decree notwithstanding the fact that the Company Petition was kept pending for formal disposal after admitting the Valuation Report and follow up action. Since, part consideration admittedly stands deposited by the Respondents in an Escrow Account, there was no justification in withholding its release in favour of the Appellants. Of course, the Tribunal could have insisted upon simultaneous delivery of share certificates by the Appellants while releasing such part payment a....... + More

Striking of the name of the appellant company from Register of Companies - disqualification of directors - HELD THAT:- Undisputedly the appellants have not filed the annual returns since the financial year 2013-2014 onwards. The appellant company is regularly carrying on its business, in support filed the Auditor Reports and financial statement for the year ended 31st March, 2014 to 31st March, 2017. The order of striking of name of the company from the register of companies is certainly prejudicial to the shareholders of the company - The order is liable to be set aside and is hereby set aside.

Stay on encashment of the Bank Guarantee - appealable order or not - HELD THAT:- As the impugned order dated 13th December, 2019 passed by the NCLT is an appealable order under Section 61 of the Code, 2016, we are not entering into the merits of the case. This is neither a case that a Labour Court is conducting a criminal case, nor a revenue Court is conducting a labour matter. In such eventuality, it can be said that there is want of jurisdiction - In the facts of the present case, the NCLT, Principal Bench, New Delhi has all power, jurisdiction and authority to decide the case in question. There can be an erroneous order of the NCLT, Principal Bench, New Delhi, but, an efficacious alternative remedy is available with the petitioner by way of statutory appeal under Section 61 of the Code, 2016 - thus, there is no reason to exercise our p....... + More

Vires of the proviso to Section 167(1)(a) of the Companies Act - Disqualification for appointment of Director - case of petitioner is that petitioner's rights have not been in any manner affected by the insertion of the proviso in as much as the petitioner is not a Director in any company and has not had to vacate his office by virtue of the proviso inserted in Section 167(1)(a) of the Companies Act by the Companies (Amendment) Act 2017 - HELD THAT:- As per Section 167(1)(a) of the 2013 Act, the office of the Director is to become vacant if a Director incurs any disqualification as provided for under Section 164. However, such all-encompassing provision existed in the 1956 Act with each of the grounds for vacation being listed individually. It is important to note that liability under Section 274(1)(g) was not a ground for a Director ....... + More

Appointment of Directors in contravention of provisions of law - Compounding for violation of provisions of section 165 of the Companies Act, 2013 - case of petitioner is that on August 1, 2018 he resigned as director from M/s. Yashoda Special Metals P. Ltd., and submitted his resignation to the company. With this resignation, he was director in 19 companies only. He was eligible to be appointed as director in one more company as provided under section 165 of the Companies Act, 2013 - According to the applicant, M/s. Yashoda Special Metals P. Ltd., failed to file Form DIR-12 with the Registrar of Companies, Hyderabad informing the resignation of the petitioner as director. HELD THAT:- In this case, there is no dispute that Form DIR-12 was filed on April 13, 2019. However, Form MGT-7 was also filed beyond the date of filing Form DIR-12. Th....... + More

Grant of bail - Illegal mining - unaccounted money - summon for alleged commission of offences punishable under Sections 477A read with Section 120B Indian Penal Code, 1860 and under 628 of the Companies Act 1956 and under Section 448 of the Companies Act, 2013. HELD THAT:- In terms of Section 212 (6) of the Companies Act, 2013, the offence prescribed under Section 448 of the Companies Act, 2013 which relates to making of a statement which is false in any material particulars knowing it to be false or which omits any material fact, knowing it to be material in any return, report, certificate, financial statement, prospectus, statement or other document required by, or for, the purpose of any of the provisions of this Act or the rules made thereunder makes a person culpable under Section 447 of the Companies Act, 2013 - In terms of the amb....... + More

Maintainability of petition - memebership in a club - permanent membership sought, as petitioner is son of a permanent member - whether the EGM ought to be permitted to be held? - HELD THAT:- The holding of a EGM is inherent for the functioning of any company including the Respondent Club. All decisions regarding the manner in which the Club is to be run first vests with the members and then the governing bodies. The Court’s intervention ought to be minimal. Unless there is complete perversity or fraud or illegality in the functioning, there ought to be no interference. Moreover, the entertaining of a petition at the instance of a person who is not a member is a serious issue of maintainability that will have to be determined by the Court. Whether prior approval by the Government is required for placing the amended MOA and AOA befor....... + More

Sanction of the Composite Scheme of Arrangement - dispensation of the meeting of Equity Shareholders of the Petitioner Company No.2 and the Petitioner Company No.3 - main thrust of the argument was that by scheme of arrangement, the transferor company has sought to convert the redeemable preference shares into loans i.e. conversion of equity into debt which is not only contrary to the well settled principles of company law as well as Section 55 of the Companies Act, 2013 but also would reduce the profitability or the net total income of the transferor company causing a huge loss of revenue to the Income Tax Department. HELD THAT:- The case of the Appellant(s) is covered by the decision of the Hon'ble Supreme Court in "Department of Income Tax v. Vodafone Essar Gujarat Limited and Another" [2012 (9) TMI 100 - GUJARAT HIGH COURT] where it was held that Appeal dismissed.

Grant of Anticipatory bail - money laundering - siphoning of funds - Director of companies, which had caused a loss to the State by hatching a conspiracy - HELD THAT:- Though undoubtedly, the allegations which are levelled against the applicant/petitioner of his being a Director of four shell companies/ dummy companies which companies are stated to have been created so that they could be taken over by the prime accusedA-1 Mohd. Iqbal for the purpose of laundering his ill-gotten money through engaging in illegal sand mining operations in the State of UP and in/around the District Saharanpur, so that he could project the said ill-gotten money as legitimate assets and these companies were utilized to purchase land and that majority of the transactions made by these companies were outside the banking channels and the companies did not even ma....... + More

Oppression and Mismanagement - case of appellant is that an abiding theme of Respondents’ conduct is the consistent and steady squeezeout of the Appellants’ rights and title to, and interest in, their ownership of 1st Respondent Company in a manner that is lacking in probity and is unfair - conversion from ‘Public Company’ to ‘Private Company’ - HELD THAT:- It is not open to the Respondents to state or allege that loss in different ‘Tata Companies’ was due to mismanagement of Mr. Cyrus Pallonji Mistry (11th Respondent). If that be so, why the nominated Directors who have affirmative voting right over the majority decision of the Board or in the Annual General Meeting of the shareholders allowed the ‘Tata Companies’ to function in a manner which caused loss, as accepted in the pre....... + More

Jurisdiction - allegation that NCLAT had exceeded its jurisdiction in directing matching of liquidation value in the resolution plan - HELD THAT:- MSL in the appeal have sought to sustain the resolution plan but their prayer in the interlocutory application is refund of the amount remitted coupled with the plea of withdrawal of resolution plan. However, their main case in the appeal is that final decision on resolution plan should be left to the commercial wisdom of the Committee of Creditors and there is no requirement that resolution plan should match the maximized asset value of the corporate debtors. No provision in the Code or Regulations has been brought to our notice under which the bid of any Resolution Applicant has to match liquidation value arrived at in the manner provided in Clause 35 of the Insolvency and Bankruptcy Board of....... + More

Constitution of 'Committee of Creditors' - settlement agreement - HELD THAT:- As the parties have reached the settlement and the 'Committee of Creditors' was not constituted, in exercise of powers conferred under Rule 11 of the NCLAT Rules, 2016, we set aside the impugned order - petition disposed off - appeal allowed.

Maintainability of application - initiation of CIRP - Corporate debtor failed to make repayment - dispute regarding the operational debt payable - existence of dispute or not - HELD THAT:- Hon'ble Supreme Court in the case of Innoventive Industries Ltd. v. ICICI Bank Ltd. [2017 (9) TMI 58 - SUPREME COURT] after setting out some of the sections of the Code, laid down the scheme of the Code, came to financial and operational creditors triggering the Code against a corporate debtor and held that The Code gets triggered the moment default is of rupees one lakh or more. The Corporate Insolvency Resolution Process may be triggered by the corporate debtor itself or a financial creditor or operational creditor. In the light of the Hon'ble Supreme Court Judgment and the provisions thereof as enshrined in Insolvency & Bankruptcy Code, t....... + More

Practice as a 'Professional' like Advocate, Resolution Professional etc. - Practice after retirement - HELD THAT:- Merely because he has joined a profession and is an ex-employee, no bias can be alleged on the character of such person or the persons engaged such profession like Advocate or Resolution Professional in any matter including the 'Corporate Insolvency Resolution Process'. Let notice be issued on the Respondent by Speed Post. Requisites along with process fee be filed by 18th January, 2020 - Place the case 'for orders' on 3rd February, 2020.

Maintainability of application - initiation of CIRP - Corporate Debtor committed default in making repayment - Section 7 of Insolvency and Bankruptcy Code, 2016 read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 - HELD THAT:- It can be said that the Applicants have not been able to establish a prime facie case of being a financial creditor and trigger Section 7 of the IBC as allottee in the real estate project as there was no default on the part of the Respondent to deliver the said flat as on 01.02.2019, when the applicants chose to seek refund of amounts paid to the Respondent. But the said flat was promptly offered for delivery on 07.06.2019 and there was a deemed extension of time due to force majeure, and granting of stay by the court for the period of six months, which caused a dela....... + More

Permission for withdrawal of application - initiation of CIRP - Corporate Debtor failed to make repayment - existence of debt and dispute - HELD THAT:- The total amount stands paid in favour of Mr. Hukum Singh ('Financial Creditor'). The parties informed that the 'Committee of Creditors' has not been constituted. In exercise of powers conferred under Rule 11 of the National Company Law Appellate Tribunal Rules, 2016, we set aside the impugned order dated 6th November, 2019 and allow Mr. Hukum Singh to withdraw the application under Section 7 which stands disposed of as withdrawn. Appeal allowed.

Appointment of the proposed IRP - apprehension of bias against the appointment of the proposed IRP - It is submitted that Mr. Shailesh Verma is an ex-employee of SBI; joined the services of SBI in the year 1977 and since then he had been working with SBI till his retirement in 2016. He has been in the services of SBI for a period of over 39 years - HELD THAT:- It is evident that such an Interim Resolution Professional is unlikely to act fairly and cannot be expected to act as an independent umpire. We grant an opportunity to the Financial Creditor to perform its statutory mandatory obligation by substituting the name of the Resolution Professional to act as an Interim Resolution Professional in place of the earlier one. The hearing is deferred to 15.01.2020 for compliance.

Maintainability of application - initiation of CIRP - Corporate debtor failed to make repayment - existence of debt and dispute or not - Section 9 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The Corporate Debtor has placed sufficient material on record vide Report of Architect dated 25.04.2018, its Letter of Termination dated 17.01.2019 and Email dated 02.02.2019 to establish the pre-existing disputes between the Parties. Further, it is observed that the total amount due and payable mentioned in the Demand Notice sent on 30.04.2019 by the Operational Creditor to the Corporate Debtor is ₹ 1,86, 11,538 along with an interest @ of 8% per annum, which is at variance with an amount of ₹ 1,52,52,527 along with an interest of 18% per annum mentioned in the Part IV of the Petition - these disputes require adducing of fur....... + More

Maintainability of application - initiation of CIRP - Corporate debtor failed to make repayment - time limitation - Section 7 of the I&B code - HELD THAT:- In the present case, there is nothing on record to suggest that the ‘Corporate Debtor’ acknowledged the debt within three years and agreed to pay the debt. The application moved by ‘Corporate Debtor’ to restructure the debt or payment of the interest, does not amount to acknowledgement of debt. There is nothing on record to suggest that the ‘Corporate Debtor’ or its authorized representative by its signature has accepted or acknowledged the debt within three years from the date of default or from the date when the account was declared NPA, i.e., 29th September, 2015 - Any dues payable, even if acknowledged after three years of limitation period, ....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment - application rejected on the ground of existence of dispute prior to issuance of SCN - HELD THAT:- It is an admitted fact that the Appellant failed to supply coal as per the P.O. dated 9.8.2016. It is not in dispute and in view of the requirement, the Respondent had placed Purchase Order on one Trona Minerals India Pvt. Ltd. vide Purchase Order no. 4400000028 dated 19.09.2016 for supply of 3000 MT of Coal. The stand of the Respondent is that the Appellant had failed to supply coal as ordered on 09.08.2016 and in view of necessity, they had placed and purchased coal from Trona Minerals India Pvt. Ltd. and raised a Debit Note on the Appellant in accordance with clause-8 of the Terms and Conditions as specifically mentioned along with the Purchas....... + More

Winding up petition - Order and direction against the Prothonotary & Senior Master of this Court to encash the bank guarantee and to receive the funds in his account - whether the bank guarantee furnished by the respondent pursuant to an order passed by this Court on 5th April, 2017 could be encashed or not in view of the order passed by the National Company Law Tribunal under section 14(1) of the Insolvency & Bankruptcy Code, 2016 and thereafter if encashed, the applicant could apply for release of the amount lying with the office of the learned Prothonotary & Senior Master of this Court or not? HELD THAT:- It is not in dispute that in this company application the applicant had prayed for an order and direction against the learned Prothonotary & Senior Master of this Court to encash the bank guarantee and to receive the f....... + More

Maintainability of application - initiation of CIRP - Section 9 of Insolvency and Bankruptcy Code, 2016 - period of limitation for claiming outstanding dues - HELD THAT:- The Insolvency and Bankruptcy Code was enacted only on 2016. Till such time we failed to understand as to why the petitioner has not made any attempt to claim the amount due and payable to it. The petitioner has not stated whether there is any pre-existing dispute between the petitioner and the respondent. Hence, when the documents filed before us are not reasonably proved whether the authorised signatory is backed by Board Resolution to sign this balance of confirmation is not proved. No facts, details and transactions during the period are also enclosed. It is settled position of law that the provisions of Code cannot be invoked for recovery of outstanding alleged amou....... + More

Maintainability of application - initiation of CIRP - Corporate debtor failed to make repayment - pre-existing dispute or not - HELD THAT:- There is a suit pending with regard to the same claim and parties have agreed to settle the matter. In view of the fact that there was a pre-existence of dispute and parties have settled the matter before the constitution of the 'Committee of Creditors', we set aside the impugned order dated 18th October, 2019 - the 'Corporate Debtor' (company) is released from all the rigours of law and is allowed to function independently through its Board of Directors from immediate effect. The 'Interim Resolution Professional' will hand over the assets and records to the Board of Directors. Appeal allowed.

Service of notice - initiation of CIRP - Whether the demand notice issued U/S 8 of the I & B Code 2016, against the corporate debtor, for the dues of sister concern/group company, can be treated as a valid notice? - HELD THAT:- Admittedly invoices have been issued in the name of 'M/s Flywheel Logistics Pvt. Ltd.'. It is also on record that 'M/s Flywheel Logistics Pvt. Ltd.' and 'M/s Flywheel Logistics Solutions Pvt. Ltd' are different 'Corporate Entities', having deferent CIN Numbers and registered addresses - it is clear that the Respondent No 1 Applicant / 'Operational Creditor' has no right to claim dues, relating to the invoices issued against 'M/s Flywheel Logistics Pvt. Ltd.', from the corporate debtor M/s 'Flywheel Logistics Solutions Pvt. Ltd.' i.e. FLSPL, the Respondent ....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor defaulted in making repayment - existence of debt and default or not - Section 9 of Insolvency and Bankruptcy Code, 2016, R/w Rule 6 of Insolvency & Bankruptcy (Application to the Adjudicating Authority) Rules, 2016 - HELD THAT:- There is no dispute with regard to filing of application on behalf of the corporate debtor under section 10 of the I&B Code. Admittedly, it is not the case of the corporate debtor that it had paid the agreed fee to the operational creditor. However, the corporate debtor is contending that certain obligations to be discharged in respect of agreement dated 27.03.2018. Said obligations, whatever they may be, have no connection to the obligation discharged under the agreement dated 02.05.2018. The alleged dispute, if any, in respect of agr....... + More

Maintainability of petition - initiation of CIRP - Corporate Debtor defaulted in making repayment - Section 7 of the Insolvency and Bankruptcy Code, read with Rule 4 of AAA Rules - it is the case of Corporate Debtor that proceedings was initiated against Corporate Debtor by Financial Creditor only basing on the circular issued by RBI dated 12.02.2018 - HELD THAT:- The Corporate Debtor has mainly relied on JLF meeting held on 06.09.2018. We have gone through the details of the minutes of JLF meeting held on 06.09.2018. It is very clear that the Financial Creditor mainly relied on the guidelines given in the circular of RBI dated 12.02.2018 and timelines provided thereunder and as resolution plan could not be implemented, therefore, the Financial Creditor to approach NCLT as per the circular of RBI. So, there is no other reason to refer the....... + More

Approval of Resolution Plan - requirement on the part of ‘Resolution Applicants’ to obtain approval of the Competition Commission of India prior to approval by the ‘Committee of Creditors’ - compliance with the mandatory requirement under the proviso to Section 31(4) of the Insolvency and Bankruptcy Code, 2016. HELD THAT:- The proviso to sub-section (4) of Section 31 of the ‘I&B Code’ which relates to obtaining the approval from the ‘Competition Commission of India’ under the Competition Act, 2002 prior to the approval of such ‘Resolution Plan’ by the ‘Committee of Creditors’, is directory and not mandatory. It is always open to the ‘Committee of Creditors’, which looks into viability, feasibility and commercial aspect of a ‘Resolution Plan&rsquo....... + More

Status of the appellant - Auction - Lien/ charge of the appellant on the goods sold and services rendered for the corporate debtor - security interest - whether appellant is a secured creditor or unsecured Operational Creditor? - cancellation of auction or not. Whether liquidator has complied with the order of the Tribunal? - HELD THAT:- It is to be noted that in Form C both monetary claim and claim of security interest were made. Further, appeal filed by the appellant was allowed and in para I & Il of the order, wherein it has been specifically directed that the liquidator was to pass an appropriate reasoned order "by reiecting or allowing/ partly allowing the claim of the appellant as per Rules" and to decide the claim within 30 days from the date of this order. The approach of liquidator in deciding the claim was also not....... + More

CIRP Proceedings - ‘Secured Creditor’ has relinquished ‘security interest’ or not - Jurisdiction - power of Adjudicating Authority u/s 52 r/w Regulation 37 of the IBBI (Liquidation Process) Regulations, 2016 to decide disputed question of fact with regard to realization of ‘security interest’ by a ‘Secured Creditor’ - HELD THAT:- After enforcement of right under Section 52 by one of the ‘Secured Creditor’, no other ‘Secured Creditor’ can enforce his right subsequently for realization of the amount for the same secured assets, as the excess amount by way of proceeds pursuant to the first enforcement is deposited in the account of the Liquidator. Only one ‘Secured Creditor can enforce his right for realization of its debt out of the secured assets as per Section 5....... + More

Maintainability of application - initiation of CIRP - time limitation - Appellant has declared that he has filed the said Appeal within the period of limitation specified under Section 61(2) of the I&B Code - existence of dispute or not - HELD THAT:- It is a clear case of chasing of payments & existence of disputes in terms of Insolvency and Bankruptcy Code, 2016. The Adjudicating Authority can admit the Application only if the conditions imposed are fulfilled as per Section 9(5) of the I&B Code, 2016. The Appellant is no doubt chasing payment continuously from 2015. They have also involved NTPC to pressurize to the Corporate Debtor to release the said payment - The Operational Creditor has not completed the work within the stipulated contract schedule and failed to fulfill their contractual obligations leading to disputes bet....... + More

Attachment of property - property which was rented out for ₹ 65,000/- has been vacated by the tenant and the refundable security deposit of ₹ 3,00,000/- was adjusted against the last four months rent. The date of vacation has not been mentioned nor has the period against which the security deposit has been adjusted been revealed - notice issued under Section 8(4) of the PMLA - HELD THAT:- The property was rented out on the basis of unregistered rent agreement. Admittedly Mrs. Poonguzhali, appellant is the owner of the aforesaid property. She had executed the unregistered rent agreement on 01.04.2017. According to the said agreement, she was getting ₹ 65,000/- as rent per month from the tenant. She has not filed any affidavit though an affidavit has been filed by another appellant namely Mr. P.K.M. Selvam, who is her husb....... + More

Money Laundering - Provisional attachment of properties - properties mortgaged with the Banks have been acquired out of tainted money - proceeds of crime - HELD THAT:- The bonafide as well as due diligence in sanctioning the loans by the appellants to M/s. CCL have not been doubted by the respondent no.1 at any point of time. It could not be explained by the respondent no.1 as to how the properties in question are acquired out of proceeds of crime. In terms with the statutory safeguards incorporated in the Act, any party aggrieved by the confirmation of the Provisional Attachment Order by the Adjudicating Authority may challenge such confirmation in an appeal to this Tribunal under Section 26 of the Act and then before the Hon’ble High Court under Section 42 of the Act against the order of this Tribunal. Accordingly, under the legis....... + More

Cancellation of granted Bail - offences punishable u/s 120-B r/w 420 of IPC and Sections 7,8,9,12, 13(2) r/w 13(l)(d) of Prevention of Corruption Act, 1988 - scheduled offences - proceeds of crime - the learned Additional Solicitor General argued that investigation in the present case is still going on - HELD THAT:- It is settled that once bail granted should not be cancelled in a mechanical manner without considering any supervening circumstances which is not conducive to fair trial. It cannot be cancelled on a request from the side of the complainant/investigating agency unless and until it is established that the same is being misused and it is no longer conducive in the interest of justice to allow the accused any further to remain on bail. No doubt, the bail can be cancelled only in those discerning few cases where it is established ....... + More

Restoration of appeal - delay in filing of restoration application - Default in appearance - applicant submitted that the argument from the side of the appellant was over and the argument from the side of the respondent was yet to be completed - HELD THAT:- Admittedly the restoration application has been filed without any application for condonation of delay. The appeal was dismissed for default on 19.08.2015. The application for restoration has been filed on 02.05.2019. There is a delay of about 1350 days. The applicant who is not the appellant herself could have intimated the appellant about her compulsion/situation of not appearing in the appeal. Further, the other two counsels who have signed the Vakalatnama and represented the appellant in the appeal on various occasions could have appeared on 19.03.2015, 30.04.2015 & 19.08.2015........ + More

Money Laundering - proceeds of crime - attachment of mortgaged property - tri-partite agreement - criminal activity or not - HELD THAT:- Admittedly, the factory premises were purchased in the year 2005. Therefore, the Tribunal accepted the contention that the said property, which was mortgaged to Bank of Baroda, could not be subject to attachment as proceeds of crime. Admittedly, the said properties had been acquired prior to the commission of the alleged crime, which is stated to be committed somewhere in 2011-12. Thus, the said properties could not be stated to be assets which were derived from any criminal activity. The proceeds of crime are defined to mean any property derived or obtained directly or indirectly by any person, as a result of criminal activity relating to a scheduled offence. Indisputably, the properties involved in thi....... + More

Money Laundering - proceeds of crime - attachment of property - charge or encumbrance of a third party in a property attached under PMLA - scheduled offences - privity/complicity of contract - HELD THAT:- The appellant is a third party bonafide claimant of the property - The security interest has been created on the property in question and there are legitimate banking transactions. There is no allegation on the part of Enforcement Directorate that the appellant has not exercised due diligence in sanctioning loan. Such facilities were extended after conducting due diligence and the necessary checks and balances. The security interest has been created in the year on 29.03.2007, whereas the ECIR has been registered much later and the Provisional Attachment Order has been passed on 24.03.2017. Much prior to the year 2017, Section 13(2) notic....... + More

Power of Tribunal to proceed with the matter - this court remanded the matter to the Appellate Tribunal for PMLA and directed the said Tribunal to restore the appeal and after hearing both the parties decide the same within six weeks from the receipt of this order - HELD THAT:- The petitioner submits that the Hon’ble Supreme Court has granted status quo qua the property in question, however, there is no status quo to proceed with the matter by any court including the Appellate Tribunal of PMLA. This fact has not been disputed by counsel for the respondent. Thus, it is clarified that the order of the status quo of the Supreme Court is regarding the disposal of the property, therefore, Appellate Tribunal of PMLA is directed to comply with the order dated 01.11.2019 passed by this court within six weeks from today - application disposed off.

Restoration of application - withdrawal of vakalatnama by earlier lawyer - eviction notice - no sale of the properties which have been attached by the ED has taken place - HELD THAT:- The order of the Tribunal dated 17.7.2017 clearly mentions that the advocate appearing on behalf of the appellants had withdrawn his vakalatnama and it is recorded that he had already intimated to his client who shall make necessary arrangement to represent his case - Thereafter the case was fixed for hearing at least on four occasions almost covering a span of one year, but no one ever appeared. However soon after the case was dismissed for non prosecution on 07.09.2018, it is seen that the appellants filed the Restoration applications on 24.09.2018, within 17 days of the dismissed order. This does point out the intention of the appellants of deliberately n....... + More

Grant of interim stay on provisional attachment order - de-freezing of bank accounts of appellant - applicant has confined his submission an order for release of amount deposited in Madhya Pradesh Gramin Bank subsequent to the passing of provisional attachment order - HELD THAT:- It is the uncontroverted fact that the appellant/applicant is maintaining the account bearing no. 2004101130000261 with Madhya Pradesh Gramin Bank, Shahpura Branch, Bhopal. It is the contention of the appellant/applicant that the Madhya Pradesh Govt. has transferred certain amount which is required for the purpose of payment to be made to the vendors and salary of the staff etc. and if the amount so deposited by the Madhya Pradesh Govt. is not released it is likely that the entire project shall be terminated. During the course of hearing, it is clearly submitted ....... + More

Money Laundering - proceeds of crime - provisional attachment of immovable properties - Section 42 of the Prevention of Money Laundering Act, 2002 - HELD THAT:- There is considerable merit in the appellant’s contention that it is not necessary that proceeds of crime in the hands of a person can be attached, notwithstanding that the person is not accused of any scheduled crime or the offence of money laundering. Plainly, if an asset which is derived by any person from a criminal activity is entrusted to another person, who is neither complicit in the criminal activity and is oblivious of the means by which the asset was acquired; he would neither be charged of committing a scheduled offence nor the offence of money laundering. Notwithstanding the above, the asset in his possession would be liable to be attached and confiscated in ter....... + More

Grant of anticipatory bail - money laundering - proceeds of crime - allegation of possession of pecuniary resources or property disproportionate to his known source of income for which he could not satisfactorily account - HELD THAT:- It is evident that Dr. Pradeep Kumar, Rajendra Kumar, Nandlal HUF, Shyamal Chakravarty, Dharmendra Kumar Dhiraj, Naresh Kumar Kejriwal, Inderlal Kejriwal and Sitaram Pathak are knowingly involved in acquisition, concealment and transfer of proceeds of crime and are knowing involved in projection of tainted properties as untainted - That, the complaint under section 45 read with section 44 of the PMLA for commission of offence under section 3, punishable under section 4 of the PMLA was also duly filed on 03.11.2018 before the Hon'ble Court of Special Judge, CBIcum under PMLA at Ranchi against the six accu....... + More

Petition for grant of regular bail - Money Laundering - siphoning of funds - when the account of the above said 70 CUI of Adarsh Group of Companies were investigated; it was found that these Companies were having an amount of ₹ 90.03Crores as Cash-in-Hand on 31-03-2016. However, by the end of the financial year on 31-03-2017, this Cash-in-Hand was reduced to ₹ 1.15Crores - during this relevant time, ‘Demonetization’ of currency notes of denomination of ₹ 1000/- and ₹ 500/-. HELD THAT:- Referring to the provision of the section 212 the counsel for the petitioner has laid stress on the argument that the Investigating Officer has vast powers to arrest the accused if he had the valid reasons and material with him to justify the arrest. If during the investigation he had the material and he did not find the ....... + More

Issuance of notice prior to arrest - Grant of anticipatory Bail on certain terms - while disposing of the application for anticipatory bail has passed the direction that the petitioner agency shall serve three working days notice, on proposing to arrest the petitioner in this case - whether the Court has power to direct the Investigating Agency to issue notice prior to arrest? HELD THAT:- The terms ‘arrest’ is neither defined in the Code of Criminal Procedure, 1973 nor in the Indian Penal Code, 1960 nor there is any enactment dealing with offences demanding arrest. The word ‘arrest’ is derived from a French word ‘ARRATER’. It means to stop, to restrain a person. ‘Arrest’ is thus restraining of a person, obliging him to be obedient to law. Anticipatory bail being an extraordinary remedy avail....... + More

Money Laundering - Grant of Regular Bail - concealmant of investment received - in INX Media (P) Ltd., M/s INX News (P) Ltd. - permission for the downstream investment sought - whether the further consideration made by the learned Judge of the High Court, despite holding the triple test in appellant’s favour was justified and if consideration is permissible, whether the learned Judge was justified in his conclusion? HELD THAT:- The basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and ci....... + More

Restoration of appeal - Offence under PMLA - attachment of property involved in “money laundering” - HELD THAT:- In view of the judgment passed by a coordinate bench of this court in the case THE DEPUTY DIRECTOR DIRECTORATE OF ENFORCEMENT DELHI, UNION OF INDIA VERSUS AXIS BANK & ORS., STATE BANK OF INDIA & ORS. IDBI BANK LTD., PUNJAB NATIONAL BANK [2019 (4) TMI 250 - DELHI HIGH COURT], the present case be remanded to Appellate Tribunal for PMLA and the tribunal shall restore the appeal and after hearing both the parties, decide the same within six weeks from the receipt of this order. Appeal disposed off.

Enhancement of the period of police remand - offence of money laundering - siphoning of funds - proceeds of crime - refusal of police custody - petitioner submitted that the Judge has not applied its mind while refusing the police custody for the purpose of custodial interrogation of the respondents and passed the order which is bereft of any sound reasoning - Principles of natural justice - whether the Judge has properly applied his mind regarding the material available on record and has given sufficient reasons in the impugned order or not while rejecting the police remand of the respondents? - HELD THAT:- The remand, admittedly, is a fundamental judicial function of a Magistrate; the Magistrate has to satisfy himself/herself that there are reasonable grounds and that the material placed before him justify the police remand of the accus....... + More

Money Laundering - proceeds of crime - grant of anticipatory bail - attachment proceedings - scheduled offences - HELD THAT:- The endeavour under the Amendment Act, 2013, vis-a-vis Sections 5 & 8 is to enable attachment proceedings against the persons who are accused of a scheduled offence; persons who have been accused of money laundering alone; persons who have come in possession of the proceeds of crime. It is evident that in view of the 2013 Amendment to the PML Act, a person can be tried for an offence of money laundering alone without restricting the meaning attributable to it as being with reference to a scheduled offence alone - Hence, section 8, as amended by the Amendment Act of 2013, cannot be said to be arbitrary and violative of the fundamental right of a person if the proceedings are continued under the PML Act, even if ....... + More

Money Laundering - proceeds of crime - scheduled offences - HELD THAT:- It is not in dispute that the Prevention of Money Laundering Act is a complete code in itself dealing with the offence of money-laundering. It provides complete mechanism for investigation by an independent agency other than the police, in respect of offences under Prevention of Money Laundering Act - It is clear that unless and until there is a case registered under a scheduled offence, Enforcement Directorate shall not have cause of action to institute proceedings under Prevention of Money Laundering Act which means that registration of ECIR by Enforcement Directorate can be only after registration of case for a scheduled offence. ECIR is the information recorded by the Enforcement Directorate regarding the registration of predicate offences and is basis for initiat....... + More

Contravention of FEMA - Investment in three step-down subsidiaries through Wholly Owned Subsidiary (WOS) without the permission of the RBI - Penalty imposed - HELD THAT:- As provided that if any person contravened any provision of this act or contravened any rules, regulation, notification, direction or order issued in exercise of the powers under this Act be liable to penalty upto thrice the sum involved in such contravention where such amount is quantifiable. In the present case the sum involved are quantifiable. During the course of argument the learned counsel for the appellants submitted, on query by the Bench, submitted that more than six crores of INR were invested in the step-down subsidiaries. If it is so the imposition of ₹ 70 lakhs on the appellant company and ₹ 20 lakhs on the Managing Director is not disproportion....... + More

Condonation of delay in filing applications for substitution of Legal Heirs (LRs) of the deceased appellant - common application for substitutions of LRs has been filed on 01.11.2018 i.e. around 370 days from the date of death of the deceased appellant - HELD THAT:- There is a huge delay of 370 days in filing the application. It is not the case of the proposed appellants that they are not aware of the pendency of the appeals before Appellate Tribunal, it is also not the case that the proposed LRs were not running the Company or that the Company was closed after the sad demise of deceased appellant for one year. In the present case, there is not only a huge delay but also there is no sufficient explanation as to why there is a delay of 370 days in filing the application. In the present case, there is not only a huge delay but also there is....... + More

Valuation - inclusion of value of the electricity charges recovered as reimbursements from Gujarat Gas - liability to pay Service tax on the electricity charges on actual basis paid by them - HELD THAT:- The contract puts the liability of expenditure of Service Tax on Gujarat Gas and they have also placed a separate meter for assessment of the actual electricity consumed. The issue is squarely covered by the decision of this Tribunal in the case of M/S. KIRAN GEMS PVT LTD VERSUS C.C.E. & S.T. -SURAT-I [2018 (11) TMI 1388 - CESTAT AHMEDABAD] where after relying on the decision of Tribunal in the case of M/S ICC REALITY (INDIA) PVT LTD & OTHERS VERSUS COMMISSIONER OF CENTRAL EXCISE [2013 (12) TMI 854 - CESTAT MUMBAI], M/S. HOTEL LAKE VIEW ASHOK VERSUS CGST, CE & CC, BHOPAL [2018 (9) TMI 500 - CESTAT NEW DELHI] and M/S S.B. DEVEL....... + More

Jurisdiction - appointment and jurisdiction of Central Excise Officers post GST - Validity of SCN issued demanding service tax post GST - power to inquiry / investigate / audit - Repealing of Chapter V of Finance Act of 1994 - Vires of Notification dated 09.06.2017 - Rule 3 of the Central Excise Rules, 2002 - recovery of short paid money alongwith interest and penalty - HELD THAT:- Perusal of Rule 3 in general and Sub Rule (2) of the said Rule in particular makes it clear that the Board in its discretion can specify the jurisdictional limits of the Excise Officers, for the purpose of the Act and the Rules promulgated thereunder; this apart, Sub Rule (3) is structured in such a way that any Central Excise Officer may exercise the powers vested in his sub-ordinate officer; the impugned Notification thus needs to be interpreted in the light ....... + More

Levy of service tax - construction works - grant of reimbursement of service tax - petitioner would contend that he has already paid service tax on the works contract executed by him and that therefore, as per the norms he is eligible to get reimbursement of the service tax paid - HELD THAT:- It is ordered in the interest of justice that the 2nd respondent will take up the matters raised in Ext.P8 for consideration and after affording reasonable opportunity of being heard to the petitioner, will render a considered decision thereon on the matters raised therein, without much delay, preferably within a period of 6 to 8 weeks, from the date of production of a certified copy of this judgment. Petition disposed off.

CENVAT Credit - exempt services - agency commission - trading activity - Services covered by Rule 6(5) of CCR, 2004 - services rendered in Jammu & Kashmir - recovery u/r 14 of the Cenvat Credit Rules, 2004 read with Rule 6(3A) of the Cenvat Credit Rules, 2004 and Section 73(1) of the Finance Act, 1994. CENVAT Credit on agency commission - HELD THAT:- In respect of the same appellant for a different period it has been held by this Bench that they are not entitled to cenvat credit on the agency commission because the commissions has been paid for procuring orders and not in relation to rendering the service - the appellant is not entitled to cenvat credit on the agency commission paid for procuring order either for selling the goods or for procuring orders for AMC. Trading activity being an exempted service only post 01.04.2011 - HELD T....... + More

Benefit of reduced penalty u/s 78 - failure to pay within stipulated time - service tax and interest has already and duly been paid even before issuance of the show cause notice - Appellant had also sought option to pay 25% (reduced) mandatory penalty under Section 78 of the Act as the said option was not given to the appellant at the lower levels - HELD THAT:- In the present case, the appellant had failed to deposit 25% of the imposed penalty before the issuance of show cause notice or within 30 days of finalization of demand by the adjudicating authority - learned tribunal rightly came to the conclusion that appellant could not be granted option to pay 25% (reduced) mandatory penalty under Section 78 of the Act. Appeal dismissed.

Refund of unutilized CENVAT Credit - Violation of Condition 2(h) of the Notification No. 27/2012-CE dated 18.06.2012 - denial of refund on the ground that proof of debit of the amount was not submitted - HELD THAT:- It is not open to the Department to examine the eligibility of CENVAT credit while adjudicating the refund claim application, since in such matters of admissibility, the Department has mandated to take recourse under Rule 14 of the CCR. Further, the rejection of entire refund claims only on the ground of violation of Condition 2H of Notification No. 27/2012 is also not sustainable in law. Since, the appellants have debited the CENVAT account but only after filing the refund claim. Debiting the CENVAT account subsequent to the filing of the refund claim is only a procedural violation which cannot defeat the substantive right of....... + More

Demand of interest and penalty - CENVAT credit wrongly on Additional Duty of Customs - Section 3(5) of Customs Tariff Act - irregularly availed credit reversed on being pointed out - HELD THAT:- The appellants have reversed the CENVAT credit of ₹ 24,14,131/- availed on Special additional duty and the same was reversed in March 2017 as shown in the relevant Returns furnished in the Court. Further, this reversal was done before the issue of SCN which was issued on 18.05.2017. Further, the appellants have filed ST Returns for various periods to show that they have enough balance as unutilized amount of CENVAT credit almost in all periods from the quarter of availment of CENVAT credit (October 2013 to March 2014) to the quarter in which the said amount is reversed (October 2016 to March 2017) to cover the said availment of CENVAT credit....... + More

CENVAT Credit - capital goods - motor vehicle - General Insurance Service on cash vans - HELD THAT:- The definition of “capital goods” covers motor vehicles other than those inter alia used for providing output service and Sub-clause (B) requires registration in the name of the provider of output service. Hence, when the assessee is trying to make out a case that the cash vans in question are its capital goods, then it has to necessarily prove that the same are registered in its name and that the same were registered in its name during the length of the period of dispute involved. Otherwise, the appellant would not satisfy that the same is capital goods and hence, will be covered under the exclusion clause to Rule 2 (l) ibid. Further, there is a clear finding by the lower authorities that the appellant did not produce any docu....... + More

Imposition of penalty u/s 78 - short paid of service tax under Reverse Charge Mechanism, which was subsequently paid alongwith the interest - HELD THAT:- So far as invocation of Section 78 of the Act is concerned, the ingredients mentioned therein namely fraud, suppression, willful misstatement etc. have to be established by the department. The learned adjudicating authority in this case has specifically mentioned that based on the records, maintained by the appellant, the short payment of Service Tax on the GTA service was detected by the department. Thus under such circumstances, the charges of suppression, misstatement etc. cannot be leveled against the appellant, justifying invocation of the provisions of Section 78 of the Act for imposition of penalty. Late fee for delayed filing of ST-3 returns - HELD THAT:- The SCN had not specific....... + More

Exemption from job-work - intermediate process - services of cutting of fabric according to the pre-determined shapes, sizes, specifications as designed, on job work basis to one M/s Aero Club, who was engaged in the manufacture of readymade garments - Serial No.30 of N/N. 25/2015-S.T. dated 20 June, 2012 - HELD THAT:- There is no dispute about the legal position. If the goods are the one on which appropriate duty is payable by the principal manufacturer, exemption from service tax would be available to the job worker. Though the expression used in Serial No.30(c) of the Notification is ‘Payable’ and not ‘Paid’ but definition 2(b) clarifies that such payable would not include nil rate of duty or duty wholly exempted. As such, the principal manufacturer is required to pay the duty on their final product so as to mak....... + More

Liability of sub-contractor to pay tax - construction of residential complex - Department was of the view that the Appellant as sub-contractor were liable to pay service tax on the value of services provided to main contractor, including Manglam - period 2011-12 to 2012-13 - HELD THAT:- As far as the payment of service tax by the sub-contractor is concerned, the same is settled by the order of this Tribunal in case of COMMISSIONER OF SERVICE TAX VERSUS MELANGE DEVELOPERS PVT. LTD. [2019 (6) TMI 518 - CESTAT NEW DELHI] therefore, the Appellant is required to pay service tax on the work undertaken by him as sub-contractor. The Appellant has contended that for relevant period they would be entitled for exemption of from payment of service tax under N/N. 06/2005 as amended and also for the construction activities undertaken services provided ....... + More

Classification of services - mandap keeper service - appellant also providing catering services to the persons/companies availing the facility of the Mandap Keeper Service - splitting the value of service into two parts; one part with invoices raised for banquet hall charges and another for catering/food charges - sale of food-whether service or not - benefit of N/N. 12/2003-ST dated 20 June 2003. HELD THAT:- The matter is no longer res-integra as the issue has already been decided in appellant’s own case CCE, JAIPUR VERSUS CHOKHI-DHANI RESORTS PVT. LTD. [2017 (1) TMI 38 - CESTAT NEW DELHI] where it was held that the supply of food and beverages is not an activity ancillary to the primary activity of convention service, value of food items need not be added. Appeal allowed - decided in favor of appellant.

Classification of services - activity for the lease holder in excavation raising and transport of ore - mining services and GTA services - composite services or not - short payment of service tax - case of appellant is that the activity undertaken by the appellant is correctly classifiable under ‘GTA Services’ and Service Tax on the same has already been paid only to the extent of 60% of the consideration received and Service Tax was also paid by them under ‘Mining Services’ for the 40% of the remuneration they have received - demand under the head Cargo Handling services. HELD THAT:- The essence of the contract is that the contractor i.e. the appellant shall extract iron ore from the said mine and shall deliver it exclusively to the leaseholder. In consideration thereof the leaseholder shall pay to the contractor ....... + More

Classification of services - contract for supply of mud and spreading and dumping of earth on agricultural land - classifiable under site formation and clearance service, excavation, earth moving and demolition service or not - period 01 October, 2007 to 31 March, 2008 - time limitation - HELD THAT:- The services of providing mud and spreading the same was undertaken by the appellant during the period 01 October, 2007 to 31 March, 2008. As per the contract entered by the appellants with M/s Arrow Infra Limited the land in question upon which the mud was to be spread was admittedly agricultural land. Revenue has also not disputed the said fact. As per the definition of site formation and clearance etc, any activity done in relation to agriculture is excluded - Inasmuch as the services in the present case were provided in relation to agricu....... + More

Business Support Service - Business Auxiliary Service - appellant was collecting service tax from the clients from day one and not depositing the amount so collected with the department - Benefit of N/N. 30/2012 dated 20/06/2012 - ‘out-of-pocket’ expenses and ‘reimbursable expenses’ - extended period of limitation - HELD THAT:- In this case, the appellant is collecting service tax from their clients from day one. Therefore, they are not entitled to the benefit of threshold exemption for the first year and service tax is rightly demanded from them. As they have charged service tax from their clients from day one, the amount of service tax collected from the clients is required to be deposited with the department. The appellant is charging service tax @ 25% of the service provided by them on ‘manpower recruitme....... + More

Non-payment of service tax - GTA services or not - appellants were allegedly availing the services of Goods Transport Agency for transporting iron ore by road in a goods carriage - extended period of limitation - HELD THAT:- The appellants have availed the transport services for transporting their minerals from transport owners/operators - Further, in the present case, the Revenue has not been able to establish that the consignment note was issued by Goods Transport Agency. Though, the Commissioner (A) in the impugned order has mentioned that consignment note was issued - If we see the definition of “Goods Transport Agency”, it clearly shows that the services must be provided by a person in relation to transport of goods by road and issues consignment note, “by whatever name called” whereas in the present case, we ....... + More

Recovery of service tax - Supply of Tangible Goods Service - services provided as Lessee - CENVAT Credit - HELD THAT:- We do not find that the Revenue has specifically alleged or pointed out any discrepancies in the observations recorded in the original order. Since upon proper analysis and verification the documentary evidences, the Ld.Adjudicating Authority has dropped the proposed duty demand on the assessee appellant, we are of the view that at this juncture, we cannot re-appreciate the arithmetical accuracy of the proposed demand of recovery, which has been adequately dealt with by the Ld.Adjudicating Authority. Thus, we do not find any infirmity in the impugned order, so far as the Ld.Adjudicating Authority has dropped the proposed demand of ₹ 65,86,87,931/-. CENVAT Credit - HELD THAT:- The Ld. Adjudicating authority had refer....... + More

Reverse charge mechanism - reimbursements received towards the services of the manpower and other miscellaneous costs incurred on behalf of the Overseas Group Company - levy of service tax - HELD THAT:- Identical issue decided in appellant own case M/s Lucy Electric India Pvt. Ltd., M/s Lucy Electricals Pvt ltd. Vs C.C.E & S.T., Vadodara-II [2019 (9) TMI 749 - CESTAT AHMEDABAD] where it was held that Since the appellant are not receiving any service, on the contrary, they are providing services to overseas group companies, the provision of Section 66A and Rule made there under is absolutely not applicable, therefore, the demand is also not maintainable. Appeal allowed - decided in favor of appellant.

Refund claim - Completion of Finishing Services - service tax was paid but the said activity does not attract levy of service tax - refund was rejected on the ground of unjust enrichment - HELD THAT:- It is undisputed fact that the appellants are traders and this being so, it is not possible for them to collect service tax by issue of invoices. Further, the Chartered Accountant’s certified to the effect that they have not passed on the burden of service tax, interest or the penalties to their customers. The Hon’ble High Court in the case of M/S. SHOPPERS STOP LTD. VERSUS THE COMMISSIONER OF CUSTOMS (EXPORTS), CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL [2017 (7) TMI 11 - MADRAS HIGH COURT] had held that such certificate of Chartered Accountant cannot be the sole evidence for concluding that the burden of tax has not bee....... + More

Imposition of penalty - non/short payment of service tax - demand of tax alongwith interest and penalty - HELD THAT:- As per the reports dated 25-02-2011 and dated 18- 12-2013, the Appellant has already filed ST-3 returns for the entire period under dispute and have also paid service tax of ₹ 12,99,634/- with returns and the balance amount of ₹ 70,34,271/- is paid as per stay order passed by this tribunal aggregating to ₹ 83,33,905/-, hence, the entire tax demand as per the impugned Order stood paid, which is upheld. With respect to payment of interest, the learned Authorized Representative submits that the Appellant is liable to pay interest on the delayed payment of service tax. We agree with the contentions of the learned Authorized Representative and hold that the Appellant would be liable to payment of interest in a....... + More

Benefit in the “Arrears Category” of SAB KA VISHWAS (LEGACY DISPUTE RESOLUTION) Scheme 2019 (svldrs scheme) - HELD THAT:- There is force in the submission of the learned counsel for the petitioners that the Scheme in question being for the benefit of Assesses needs to be construed liberally to effectuate the purpose and therefore, if the petitioners’ claim cannot be considered under the Arrears Category, they should be permitted to avail the benefit under any other Category into which their case is fit; the respondents in their Statement of Objection dated 09.01.2020 at paragraph 6 have specifically stated that though the petitioners are not entitled to stake their claim under Arrears Category, they may opt for the benefit under Voluntary Disclosure Category; the statement of the learned Panel Counsel for the Revenue tha....... + More

SSI exemption - use of brand name of others - demand has been made against M/s JSFPL on the ground that they have shown their own clearances as being manufactured and cleared by other units as well as sold own manufactured goods under resale invoices by showing the same as traded goods - reliance placed upon the statements of partners/proprietors of units and statement of director of M/s JSFPL. HELD THAT:- The Appellant during adjudication proceedings have contended that all the partners/ proprietors cannot read/ write English being only 7th or 9th standard pass in vernacular language and even signed the statements in Gujarati Language. Thus in view of the fact that the evidences found during search are just contrary to the allegations, no adverse inferences can be drawn against Appellant and its associate manufacturing unit. When against....... + More

CENVAT Credit - input services - contract for supply of certain technology/Know-how - entire case of revenue is that the appellant have not used the service provided by SPIL & SPARC and, therefore, they cannot avail the said credit of service tax paid by SPIL & SPARC - HELD THAT:- The only fact that revenue has used to insist that the service was provided to the appellant and exported by the appellant on the same day is that the date of invoice is common. It is apparent from the facts of the case that the service was not provided in one day, the service was provided in a particular time duration and the service provided was being simultaneously used by the appellant by Supervising and Monitoring the activity in the entire duration. Thus, it cannot be correct to say that the service provided by the SPIL was not used by the appellan....... + More

CENVAT credit - input services - outward transportation of finished goods from the factory to the buyer’s/customer premises - place of removal - scope of SCN - principles of natural justice - HELD THAT:- The Notice proceeds on the basis that the alleged irregular credit of ₹ 32,86,580/- pertains entirely in respect of service tax paid on outward transportation of finished goods from the factory to the buyer’s premises. However, the ‘OIA’ has accepted that the Cenvat credit involved on this score is confined to ₹ 3,26,055/- only and that rest of the disputed credit relates to four other issues. The break-up of the disputed credit involved in each of these issues are duly supported by a certificate dated 7 February 2018 from an independent Chartered Accountant and the same has not been disputed in the OIA....... + More

Refund of CENVAT credit - It is brought to the notice of this Court that Ext.P6 petition dated 16/08/2019 filed by the petitioner was filed by the petitioner before the 2nd respondent in the matter of the claim of the petitioner for grant of refund on the basis of the claim entitled for CENVAT credit - HELD THAT:- Without getting into the merits of the controversy in any manner, it is ordered that R7 may treat a copy of Ext.P6 petition as annexed to this petition as if it’s a petition duly filed before him and then after affording reasonable opportunity of being heard to the petitioner, the authorized official or counsel if any will render a considered decision thereon, in accordance with the norms and procedure governing the field and in accordance with law without much delay preferably within a period of 6 weeks from the date of receipt of a certified copy of this order. Petition disposed off.

Special Audit - Section 14AA of the Central Excise Act, 1944 - allegation of over-utilisation of credit of duty by the assessee in the relevant period - HELD THAT:- The order dated December 06, 2016, passed in the earlier round of writ petition, cannot be construed to mean that the learned Single Judge directed the Commissioner, Central Excise, Kolkata - II to pass the reasoned order, though such Commissioner may have had no authority to pass an order for special audit under Section 14AA of the Central Excise Act, 1944 at the relevant point of time. The Revenue admits that at the time of passing the order dated June 06, 2017, the power to pass an order for Special Audit under Section 14AA of the Central Excise Act, 1944 was taken away from the Commissioner, Central Excise, Kolkata -II and the said power was vested with the Commissioner, A....... + More

Cenvat credit on the Special Additional Duty (SAD) - SAD paid by them by debiting under Target Plus scheme as per notification No.32/2005-CUS dt.08.04.2005 - HELD THAT:- The jurisdictional High Court of Andhra Pradesh has, with respect to the very specific scheme, viz., Target Plus scheme in the case of COMMISSIONER OF CUS. & C. EX., HYDERABAD-IV VERSUS RCC SALES (P) LTD. [2012 (10) TMI 452 - ANDHRA PRADESH HIGH COURT], held that Cenvat credit is available in respect of the SAD debited in Target Plus scheme. Credit allowed - appeal dismissed - decided against Revenue.

Valuation - printing and engraving charges - inclusion of extra charges collected by the appellant through debit notes in the assessable value - whether the appellant have availed credit in respect of manufacture of Printed Plastic Packing Bags? - Claim of benefit of exemption notifications 4/97-CE and 5/98-CE where no credit is availed - HELD THAT:- The show cause notice itself admitted that the appellant have availed modvat credit on inputs such as granules used in Lay Flat Tubing. As regards other inputs, whether the credit is availed or otherwise, the same was not produced by the appellant before the Adjudicating Authority in the de-novo adjudication - if the appellant have not taken any credit on inputs used in the manufacture of Printed Plastic Packing Bags, even though the credit was availed on the inputs used in the manufacture of....... + More

Maintainability of appeal - monetary limit involved in the appeal - HELD THAT:- In the present case, there is no challenge to the constitutional validity of any particular Provision, Act or Rule nor there is any challenge to the legality, validity of any Notification/Instruction/Order or Circular. In such circumstances, the Instruction dated 17th August 2011 referred to in Paragraph-4 of the Instruction dated 22nd August 2019 will have no application. In view of the monetary limit prescribed by the Ministry of Finance, Department of Revenue, this appeal is disposed of accordingly.

Clandestine removal - corroborative evidences - whether the electronic evidence collected during the course of the investigation by the appellant is properly taken into consideration by the Tribunal for adjudication in the appeal or not? HELD THAT:- In view of the findings of facts arrived at by the Tribunal, after considering the material placed before it, no question of law much less any substantial question of law arises for consideration out of the impugned order - appeal dismissed.

CENVAT credit - paints which were used for job work activities - cost of paints have been separately shown in the invoices and not recovered from the manufacture - allegation that the appellant was not paying Central Excise duty for the said job work - benefit of N/N. 214/1986-CE dated 25.03.1986 - HELD THAT:- The Hon’ble Larger Branch of this Tribunal in case of STERLITE INDUSTRIES (I) LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE [2004 (12) TMI 108 - CESTAT, MUMBAI] held that the job worker, who has received the goods from the manufacturer under Rule 57F of erstwhile Central Excise Rules, entitled to Cenvat credit of duty paid in respect of input received directly and used by him in the manufacture of said goods on a job work basis. Credit allowed - appeal allowed - decided in favor of appellant.

CENVAT Credit - excess found goods - credit denied and penalty imposed on the ground that the goods were found physically excess as compared with statutory record in the stocks - time limitation - HELD THAT:- The adjudicating authority has not denied the fact that on the same facts a Show Cause Notices as already been issued to the appellants on 01.07.1994 to deny Cenvat credit. Further, on the same invoices the impugned show cause notice has been issued to the appellant on 28.02.1996. The impugned show cause notice is barred by limitation as the fact of availment of Cenvat credit was not in the knowledge of the Revenue while issuing Show Cause Notice dated 01.07.1994. The impugned show cause notice is not sustainable, consequently, the demand raised against the appellant to deny Cenvat credit is not sustainable - Appeal allowed - decided in favor of appellant.

CENVAT credit - denial on the ground that the manufacturer are non-existent - HELD THAT:- No investigation have been conducted with the transporters to ascertain the fact whether the transporter has directly supplied the goods to the appellant or not - Moreover, the appellant sought cross-examination of the witnesses whose statements have been relied upon by the Revenue and no such cross-examination was granted. The case has been made out against the appellants on the basis that the manufacturers are not existent. In fact, the appellant has purchased the goods from M/s Shree Mahalaxmi Scrap Trading Co,. a dealer who has issued the proper invoice and same has been accompanying with the goods, the buying manufacturer was not required to ascertain the fact whether the manufacturer is existent or not. Admittedly, nothing adverse has been brou....... + More

Classification of goods - Rexona - Lux - whether classified under S. H. No. 3401.10 of CETA or under sub-heading 3307.30 of CETA? - CBEC Circular No. 31/89 dt. 12/05/1989 - HELD THAT:- The issue has been settled by the Tribunal in the case of appellants themselves in the case of HINDUSTAN LEVER LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NAGPUR [2002 (10) TMI 143 - CEGAT, MUMBAI] and was upheld by the Supreme Court in COMMISSIONER OF CENTRAL EXCISE, NAGPUR VERSUS HINDUSTAN LEVER LTD. [2013 (8) TMI 722 - SC ORDER], where it was held that the item in question is soap only for classification under Chapter Heading 34 and it is not bath preparation for classification under Heading 33.07 of the Central Excise Tariff Act as contended by the Revenue. Appeal allowed - decided in favor of appellant.

CENVAT Credit - input service distribution - Credit distributed by their head office as ISD is denied - input services or not - HELD THAT:- As it is not disputed at the end of the head office, therefore, the admissibility of Cenvat credit cannot be disputed at the end of the appellant. Therefore, the appellant is entitled to avail the Cenvat credit on the disputed services in question and, accordingly, the impugned order is set aside - Appeal allowed - decided in favor of appellant.

Valuation - Waste and scrap - waste and scrap used captively for Manufacture of exempted reprocessed granules - benefit of N/N. 67/95-CE dated 16.03.1995 - captive consumption - Whether the valuation should be done in terms of Rule 8 of Central Excise Valuation Rules that is on Cost Construction Method or on the comparable value of waste and scrap sold to independent customer on Principle to Principle basis? HELD THAT:- The waste and scrap consumed captively and sold to independent buyers are one and the same. There is no allegation in the Show Cause Notice that the waste and scrap cleared for captive consumption and the one sold to the independent buyers are different. No investigation was carried out to establish that the waste and scrap sold and captively consumed are different in nature. Also, the waste and scrap as generated in the c....... + More

CENVAT Credit - input services - House Keeping Service - C & F Services - Warehousing maintained at C & F Agent - HELD THAT:- There is no dispute about the nature of service and use thereof. Housekeeping service was used in the appellant’s factory and/or Head Office. The House keeping service is used to up keep the property of the manufacturer which is essential requirement for manufacturing unit under the Factories Act, therefore, the same is qualified as input service. C & F Service - HELD THAT:- Since the same is related to the warehousing at C & F Agent where the finished goods is stored before clearance thereof and in case of goods sold through C & F the place of removal stand extended up to the premises of C & F Agent - thus, all the services related to clearance of the goods up to the place of removal ....... + More

CENVAT Credit - input services - credit on input Services in respect of Head Office and Corporate Office were allowed to the manufacturing unit by issuing ISD invoices - HELD THAT:- The issue is no longer res-Integra as in the appellant’s own case in M/S UNIQUE PHARMACEUTICALS LABORATORIES VERSUS C.C.E. & S.T., - VADODARA-II [2018 (12) TMI 726 - CESTAT AHMEDABAD] and M/S UNIQUE PHARMACEUTICAL LABORATORIES VERSUS C.C.E. & S.T. VADODARA-II [2018 (12) TMI 1099 - CESTAT AHMEDABAD]. Cenvat Credit on input services distributed by the Head Office has been allowed. Credit allowed - appeal allowed - decided in favor of appellant.

Whether the Cenvat Credit of duty paid by a 100% EOU, which according to the department is customs duty, is admissible to the receiver? - HELD THAT:- A plain reading of N/N. 23/2003-CE dated 31/03/2003 reveals that when 100% EOU has paid Excise duty under Section 3 ibid r/w Sr. no. 2 of the said notification, the admissible quantum of Cenvat Credit be calculated in accordance with the formula prescribed under Rule 3(7) of Cenvat Credit Rules, 2004 whereas Section 3 of Central Excise Act provides that the duty charged by an EOU is a duty of Excise charged by 100% EOU and the amount of duty charged is one single amount and it does not contain any bifurcation like DCD,CVD etc. In the instant Appeal, it is not the case of the Revenue that the supplier i.e.100% EOU has availed the exemption under Serial No. 2 of Notification No. 23/2003, their....... + More

CENVAT Credit - allegation that credit on the invoices issued by M/s Laxmi Dye Chem and M/s Harshlaxmi Chemisolv without receipt of inputs - reliance placed on statements and evidences - case of appellant is that the whole case has been made against them on the basis of documents alleged to have been seized from third party and statements of various parties without extending investigation of persons to whom the goods were actually alleged to be sold. HELD THAT:- The allegations of non receipt of goods alongwith the invoices by both the Appellants from M/s Laxmi Dyechem and M/s Harshlaxmi Chemosolv are based upon the diary/ norte books seized from said two concerns. Further the statements of authorised persons of said two concerns as well as authorised persons of the Appellant concerns have also been relied upon to show that no inputs were....... + More

Central sales tax / CST - branch transfers or inter-state sales? - HELD THAT:- The findings of facts, even though giving rise to the mixed question of facts and law as to inter-state sales or branch transfers, but such question of law does not arise in the facts of the present case. The correct findings of fact has been arrived at by the learned Tribunal based on the relevant documents and evidence, which they have analyzed in detail and came to the conclusion that branch transfers cannot be subjected to tax treating those transfers as inter-state sales as per the relevant provisions of the Central Sales Tax Act 1956. Petition dismissed - decided against Revenue.

Central sales tax / CST - Branch transfer or inter-state sales - pre-concluded contract of sale executed with the Agent in Kerala - Central Sales Tax Act - HELD THAT:- There are no merit in the submission made by the learned counsel for the Revenue that any pre- existing contract was established by the Revenue to tax the Branch transfers made by the Assessee Principal from the State of Tamil Nadu to the State of Kerala to its Agent M/s. Pandian Agencies. Merely because the sales made by the Agent are immediately on the succeeding day or dates or in the near future, it does not entitle the Revenue to draw any presumption of link between movement of goods to the sale conducted by the Agent in the Kerala as Branch of the Assessee Principal. The essential ingredient of Inter State Sale viz., movement of goods commencing from one State to anot....... + More

Validity of assessment order - time limitation - notices for audit assessments in relation to such returns were issued, however, no final orders of assessment were passed before the period of limitation prescribed under the Act - HELD THAT:- The provisions contained in Section 27 of the TVAT Act are vastly different from the provisions for self-assessment under Section 29, provisional assessment under Section 30 and most significantly, the audit assessment under Section 31 of the TVAT Act - The special powers can be exercised only in relation to a dealer to whom notice has been issued by the Commissioner under Section 24 of the Act. Section 24 refers to issuance of notice only under sub-section (2) of the Act. Necessarily, therefore, unless and until such notice is issued in terms of sub-section (2) of Section 24 of the TVAT Act, the TVAT....... + More

Non-compliance with the pre-deposit - Whether the Gujarat VAT Tribunal was justified in holding that it cannot travel beyond the direction to pre-deposit 20% of the tax issued by the first appellate authority under sub-section (4) of section 73 of the Gujarat Value Added Tax Act, 2003 on the application made by the appellant for waiver of pre-deposit? HELD THAT:- On perusal of sub-section (4) of Section 73 of the GVAT Act, it is clear that before filing the appeal against the order of assessment or before the Tribunal challenging the order of appeal, unless the appeal is accompanied by the satisfactory proof of payment of tax in respect of which the appeal has been preferred, no appeal would be entertained by the Appellate Authority. Proviso to sub-section (4) of Section 73, provides that the Appellate Authority in its discretion, if it t....... + More

100% EOU - Refund of central sales tax - amount deposited under protest - Circular No.13/8/2013-EOU dated 11th April, 2014 - HELD THAT:- The learned counsel appearing for the respondents, has made a statement that the respondents shall dispose of the application of the writ applicants for refund of the amount of ₹ 18,28,199/- within a period of three months from the date of the receipt of the writ of this order. In view of such statement being made by the learned counsel appearing for the respondents, this writ application is disposed of directing the respondents to dispose of the refund application filed by the writ applicants within a period of three months from the date of the receipt of the writ of this order.

Renewal of IMFL license - issuance of Tax Clearance Certificate - validity of Section 4-A of the Pondicherry General Sales Tax Act, 1967 - HELD THAT:- The present Writ Petitions were not only premature even when the same was filed, but also, barring the ground of validity of the provisions of Section 4-A of the Act, the same were not even maintainable. The ground of validity of the said provision appears to have been raised as a tangent attack just to maintain the writ petitions. The question, really if any arises, is only of the applicability and interpretation of the provisions of Section 4-A of the Act. The said provision providing for the levy of the Turnover Tax would naturally involve determination of facts and extent of turnover for applying the said provisions. The present case arises on the application filed by the Assessee for s....... + More

Requirement with the pre-deposit - Validity of assessment order - sub-section (2) of Section 70 of the VAT Act - HELD THAT:- Section 70 of the VAT Act pertains to the revisional powers of the Commissioner. Under sub-section (1) of Section 70 the Commissioner has the power to call for and examine the record of any proceedings under the Act and take it as a revision if he finds that the order is erroneous insofar as it is prejudicial to the interest of the revenue. Under sub-section (2) of Section 70 an aggrieved assessee would likewise urge the Commissioner to exercise his revisional powers against any order passed by person subordinate to the Commissioner. Under proviso to sub-section (2) of Section 70, no petition for revision by a dealer or a transporter would be admitted by the Commissioner unless at least 50% of the amount of tax asse....... + More

Refund along with interest - Delhi VAT Act - principles of unjust enrichment - HELD THAT:- The concerned respondent authorities are directed to decide the claim of refund of this petitioner in accordance with law, rules, regulations and Government policy applicable to the facts of the case and also keeping in mind the principle of unjust enrichment as propounded by Hon’ble Supreme Court in MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT] as early as possible and practicable. Petition disposed off.

Issuance of C-form - failure to issue C-form for certain supplies - stand taken by respondent Nos. 1 in their counter-affidavit is that the ‘C’ Forms have not been issued to respondent No. 5 due to non-inclusion of particulars of the purchases made by respondent No.5 from the petitioner No. 1 in its returns filed with the Department for the relevant period 2012-13 - applicability of time limit as provided in Section 28 of the DVAT Act - HELD THAT:- The respondent No.5 is an undertaking of the GNCTD, and respondents No.1 to 3 are also GNCTD, and thus, the omissions made by respondent No.5 could not be a ground for respondents No.1 to 3 not to issue the ‘C’ Forms, has no merit. This is for the reason that respondent No.5 - though an undertaking of the GNCTD, is an assessee under the law and is bound by the same disci....... + More

Levy of Sales Tax - sale of goods imported from foreign country - to foreign bound ships as “ship stores” - sale or not - whether the subject sales (of goods imported from foreign country and after unloading the same on the landmass of the State of West Bengal, kept in the bonded warehouse without payment of customs duty) to foreign bound ships as “ship stores” can be regarded as sale within the territory of the State and amenable to sales tax under the West Bengal Sales Tax Act, 1954 or the West Bengal Sales Tax Act, 1994? HELD THAT:- The sale to be in the course of import, must be a sale of goods and as a consequence of such sale, the goods must actually be imported within the territory of India and further, the sale must be part and parcel of the import so as to occasion import thereof. Indeed, for the purposes ....... + More

Waiver of penalty levied under Section 54(1)(14) of U.P. Value Added Tax Act, 2008 - Form 38 had certain unfilled (blank) column - intent to evade tax or not - HELD THAT:- Non-filling up of column no. 6 i.e. not mentioning of bill / cash memo / chalan / invoice number may lead to an inference that in case of non-checking of goods the declaration form may be re-used for importing goods of same quantity, weight and value to evade payment of tax but it cannot be the sole ground to impose penalty under Section 54(1)(14) of the Act, 2008. Satisfaction has to be recorded after giving opportunity to the dealer / person and after considering all the relevant materials / evidences on record that there was an intention to evade payment of tax. The guilty mind is necessary to be established to impose penalty under Section 54(1)(14) of the Act, 2008........ + More

Doctrine of merger - Levy of Purchase Tax - transfer of right to use the goods - Section 8A of the U.P. Trade Tax Act, 1948 - applicability of Section 22 of the Act, 1948 - Contention of the revisionist is that the lease rent received by the revisionist from the lessee, was not amenable to levy of tax on the transfer of right to use the goods as per Section 3F of the Act, 1948 and therefore they were not liable for payment of any tax, as such. HELD THAT:- The application under Section 22 of the Act, 1948 sought to rectify the mistake committed by the assessing authority who passed the assessment order in ignorance of the amendments made in Section 3F of the Act, 1948 by means of Amendment Act No. 11 of 2001 and therefore the said application was clearly not maintainable, inasmuch as, in exercise of power under Section 22 of the Act, 1948,....... + More

Imposition of penalty U/s 10-A read with Section 10(b) of the Central Sales Tax Act - quantum of penalty - addition/amendment with regard to the items required to be imported by the revisionist - amendment in the registration certificate. HELD THAT:- The admitted facts of this case are that the revisionist had moved an application for adding of Branch of his firm and also for addition of items. The competent authority had only added the Branch but no order was passed with regard to addition of the items. It is true that Form-C was issued in respect to the items to be imported, which did not find mention in the certificate of registration and the revisionist is claiming that the said goods were imported under the bona-fide belief that the goods have been included in the amended certificate of registration - It is also uncontroverted that a....... + More

Waiver of penalty u/s section 54(1)(14) of the VAT Act - Form 38 was blank - contravention of the provisions of Section 50 of the Act, 2008 - HELD THAT:- Perusal sub Section 6 of Section 28A itself indicates that penalty can be imposed only after giving opportunity of being heard that the goods were being so transported in an attempt to evade payment of tax due or likely to be due under the Act and therefore mens rea becomes essential ingredient - Non-filling up of column no. 6 i.e. not mentioning of bill / cash memo / chalan / invoice number may lead to an inference that in case of non-checking of goods the declaration form may be re-used for importing goods of same quantity, weight and value to evade payment of tax but it cannot be the sole ground to impose penalty under Section 54(1)(14) of the Act, 2008. Satisfaction has to be recorde....... + More

Waiver of penalty u/s 54(1)(14) of U.P. Value Added Tax Act, 2008 - unfilled (blank) column of Form 38 - contravention of the provisions of Section 50 of the Act, 2008 - HELD THAT:- In the instant case it is admitted fact that the respondent had duly applied for and obtained Form 38 for import of goods and the Column 6 of the said Form was left blank on account of negligence of the respondent. It is only on account of non filling of Column 6, penalty has been imposed upon the respondent. It has been submitted on behalf of the respondent that there was no intention to evade tax and the driver of the vehicle carrying the goods was carrying all the relevant documents including the bill/challan/bilty etc. from which the details of goods being carried on the vehicle could have been verified by the officer concerned and therefore there was no o....... + More

Maintainability of revision - rectification of mistake - wrong finding has been given in the order in the appeal which is already on the record of the Trade Tax Tribunal - Section 22 of the U.P. Trade Tax Act - limited scope of Tribunal u/s 22 of the U.P. Trade Tax Act - evidence on record but ignored and not considered under the judgment. HELD THAT:- The scope of Section 22 of the Act, 1948 is limited and the same is attracted only when the applicant is able to demonstrate that there is error apparent on the face of record, requiring rectification. If an error is discovered after dwelling deep in the matter and after debating, then such a error would not amount to "error apparent on the face of record" and in fact would amount to review of the order, which cannot be done under the garb of an application under Section 22 of the ....... + More

Seizure of goods by police - goods seized by the police under the Trade Tax Act for the reason, the applicants are not the importer as per the definition of importer provided under Section 2E of the U.P. Trade Tax Act and contesting the matter before the authorities - HELD THAT:- The conjoint reading of Section 28-A and Section 15A(1)(o) clearly provides that in case of contravention of the provisions of Section 28- A of U.P. Trade Tax Act, the person is liable to be penalised under Section 15A(1)(o) - From the perusal of the FIR and the impugned order dated 17.01.2007 passed by the learned trial court clearly establishes that the basis of applying Section 420 of I.P.C. is that the applicants have acted in contravention of Section 28-A of the U.P. Trade Tax Act. The perusal of Section 5 Cr.P.C., which is saving clause and protects the pro....... + More

Validity of revision - imposition of penalty - Form-31/documents prescribed for inter-State sale not produced - revision relates to assessment year 2005-06 - HELD THAT:- It is clear that the First Appellate Authority has recorded findings of fact that the goods were being imported for production of non taxable goods and therefore import of said machine is not liable to be taxed - Secondly, that the said machine was not found in working condition and therefore the same was returned to M/s Disha Enterprises, therefore there was no sale on which such penalty can be imposed. Aforesaid facts, in the opinion of this Court, should have been considered by the Tribunal in their proper perspective and in case explanation given by the revisionist are accepted, then it is clear that it indicates that there was no intention to evade tax. Though the Tr....... + More

Principles of Natural Justice - cancellation of registration - Petitioner was purchasing natural gas by paying Central Sales Tax - SCN was issued to the Petitioner for cancellation of registration under the Central Sales Tax Act, 1956 - HELD THAT:- The authority cancelling the certificate has to be satisfied that cause exists for cancellation of registration and the cancellation is to be done after due notice to the dealer. Therefore, if the dealer submits explanation to the show cause notice, the authority, before proceeding to cancel the registration, will have to be satisfied that the explanation is not proper. This procedure envisages that reasons need to be given to cancel the registration. The registered dealer is entitled to know why his explanation was not found satisfactory. The SCN issued to the Petitioner on the basis that the ....... + More

Refund claim alongwith interest - Section 42 of the Delhi Value Added Tax Act - case of petitioner is that direction to be given to the respondent no.3/ Value Added Tax Officer to decide the claim and refund of the petitioner within the stipulated time in accordance with law - HELD THAT:- The respondent no.3/ Value Added Tax Officer , Ward 80, I.P. Estate, New Delhi are directed to decide the claim and refund of the petitioner in accordance with rules, regulations and Government policies applicable to the facts of the case and also keeping in mind principle of unjust enrichment - petition disposed off.

Grant of post-arrest bail - mandate of Section 37(1)(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ignored - allegation against the accused respondent (A5) was that he entrusted hashish oil to A1 through A2 for sale in the International market and Crime was registered against him for the offences punishable under Sections 20(b)(ii)(c) and Section 29 of the NDPS Act and after investigation, charge-sheet was filed on 10th May, 2019. HELD THAT:- Hashish oil is shown at Sl. No. 13 in the notification dated 19th October, 2001 issued by the Central Government in exercise of power under Section 2(viia) and (xxiiia) of the NDPS Act. Hashish oil above 1 kg is commercial quantity - The jurisdiction of the Court to grant bail is circumscribed by the provisions of Section 37 of the NDPS Act. It can be granted in case there are re....... + More

Promotion under Time Bound Promotion Scheme (TBPS) - superannuated respondent - pay scale and designation of a Section Officer with effect from 05.03.1993 - pay scale and designation of an Executive Officer with effect from 05.03.2002 - direction to pay arrears of salary and emoluments to the respondent, as revised for the aforesaid scales from time to time - HELD THAT:- It is required to be noted that the dispute is with respect to the promotion under the TBPS. An employee is entitled to the promotion under the TBPS only in accordance with the scheme and the promotion to the next higher post is provided under the TBPS. It is to be noted that, in the present case, the terms and conditions of the service of the employees of the appellant ICAI were governed by the settlements/agreements arrived at from time to time between ICAI and its Empl....... + More

Dishonor of cheque - rebuttal of presumption u/s 139 - offence u/s 138 of Negotiable Instruments Act - acquittal of accused - rebuttal of presumption - legally enforceable debt or not - cross-examination of respondent - HELD THAT:- After perusal of the whole statement of all the witnesses, it reveals that it has not been denied by the respondent before the trial Court that Ex.P/1, questioned cheque, has not been issued by him. He pleaded the defence only that he has falsely been implicated in this false case. Learned trial Court also not found that cheque (Ex.P/1) has not been issued by the respondent in favour of the appellant. Learned trial Court only concluded the fact that the cheque had not been issued for legally enforceable debt after considering so many case-laws - On the basis of evidence adduced by both the parties, this Court i....... + More

Dishonor of Cheque - insufficiency of funds - original postal receipt along with the written envelope misplaced - HELD THAT:- The Court should be liberal at the time of granting the permission of adducing the secondary evidence. If it is found that the refusal of aforesaid permission would collapse the entire case of the complainant, then the Court should permit the production of secondary evidence - In the present case, the complainant has filed the complaint under section 138 of the Negotiable Instruments Act. It is mandatory requirement for the aforesaid offence that after receiving the information of dishonour of cheque, notice should be given to the accused for demanding the money. If the accused did not pay the aforesaid money within 15 days from the date of receiving the notice, the complainant may file the complaint. If the postal....... + More

Allocation of Petitioner either to the Indian Revenue Service (Income Tax), Group ‘A’ [‘IRS (IT)’] or to the Indian Revenue Service (Customs & Central Excise), Group ‘A’ [‘IRS (C&CE)’] - petitioner under the quota for the Physically Handicapped (‘PH’) category - HELD THAT:- The Court finds from the replies given to the Petitioner from time to time under the RTI, that there were indeed unfilled vacancies in the PH quota in both the IRS (IT) and the IRS (C&CE), and that these ought to have been carried forward for at least two years. The second fact that emerges is that the CAT proceeded on the erroneous premise that the Department of Revenue had been granted exemption from the applicability of Section 33 of the PWD Act in terms of the proviso thereto. Although the minu....... + More

Dishonor of Cheque - insufficiency of funds - compounding of offences - petitioner accused guilty of having committed an offence punishable under Section 138 of the Negotiable Instruments Act - HELD THAT:- This Court sees no impediment in accepting the prayer made on behalf of the learned counsel representing the petitioner that in view of the amicable settlement arrived inter se parties, this Court can proceed to compound the offence while exercising power under section 147 of the Negotiable Instruments Act and as per the guidelines framed by the Hon’ble Apex Court in DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [2010 (5) TMI 380 - SUPREME COURT]. Hon’ble Apex Court in Damodar S. Prabhu case has categorically held that Court while exercising power under Section 147 of the Act, can proceed to compound the offence even after recor....... + More

Dishonor of Cheque - insufficiency of funds - enforceable debt and liability or not - Validity of Verdict of acquittal pronounced by the learned trial court - HELD THAT:- Even though, the, accused, has placed reliance, upon, Ex. Dx, containing echoings, vis-a-vis, Ex.CW1/A becoming lost, hence the banker concerned, becoming requested to not honour the afore exhibit, (i) nonetheless, veracity, of, the, afore echoings, as, borne therein, becomes rather underwhelmed or eroded, vis-a-vis, their vigour, in, the, face, of, the, afore suggestions becoming hence meted, to, the, complainant, during, his, becoming cross-examined, hence, by, the, defence counsel. Since, the, afore statutory presumption, is, hence workable, vis-a-vis, the complainant, and, when also, the, afore statutory presumption, hence, remained un-displaced, by, any cogent rebut....... + More

Dishonor of cheque - Responsibility of Director not engaged in day to day affair of the company - Director having majority shareholding - offence u/s 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- As per Section 141(1) of the N.I. Act, the person, who was incharge of and responsible to the Company for the conduct of the business of the Company, as well as the Company, shall be deemed to be guilty of the offence - In the present, although the petitioner is the Director of the Company, she is not responsible for the day to day affairs of the Company. The complainant in his complaint has not alleged the specific role against the petitioner, to the fact that how she is responsible for issuance of the cheque. It is also perused that even the cheque has not been signed by the petitioner. Thus, as per this section, the person, who was....... + More

Leave to appeal - Dishonor of Cheque - friendly loan - existence of legally enforceable debt or not - offence u/s 138 of NI Act - the case of complainant/petitioner is that she had advanced loan of ₹ 3,15,000/- to accused/respondent no.2 but the same has not been supported by any document to prove that the loan was actually advanced - HELD THAT:- It is not in dispute that loan was given in the year 2012. The petitioner has also stated in her complaint Ex.CW1/6 in para 5 that “the accused had issued two other cheques out of which cheque for ₹ 5,000/- was honoured on 08.08.2012 and another of ₹ 15,000/- was dishonoured on 28.12.2012”. She has also stated in her cross-examination as CW-1 that “I had received total three cheques from the accused. The first cheque was cleared on 08.08.2012 and second cheque ....... + More

Waiver of pre-deposit - Direction to deposit 50% of the amount of debt due - applicability of Section 18(1) of the SARFAESI Act - It is a conceded case of the respondents that none of the eventualities exist as the amount due to the Bank has been recovered - HELD THAT:- Section 18(1) of the SARFAESI Act clearly stipulates that any person aggrieved by any order made by the DRT under Section 17, may prefer an appeal to DRAT within 30 days from the date of receipt of the order of the DRT. The second proviso to Section 18(1) stipulates that no appeal shall be entertained by the DRAT unless the borrower has deposited with it 50% of the amount of debt due from him, as claimed by the secured creditor or as determined by the DRT, whichever is less. The third proviso to Section 18(1) gives a discretion to DRAT to reduce the aforesaid amount to not....... + More

Grant of Regular Bail - Section 437/439 of Code of Criminal Procedure, 1973 - flight risk - tampering evidence - influencing witnesses - it is submitted that the entire case against the Applicant is completely false and fabricated - HELD THAT:- The Applicant has no role to play in the transactions alleged in the FIR, the complaint dated 27.12.2019 and/or the verification memo dated 27.12.2019/28.12.2019. As stated above, he was illegally detained on 31.12.2019 while he was on his way to the airport and was thereafter forced to carry out various acts against his wishes and under pressure and coercion of the CBI officials. The Applicant has not demanded or accepted any bribe amount, nor has made any attempt to do so. Even as per the case of CBI in the remand Application dated 02.01.2020, the Applicant has not handled the tainted money at an....... + More

Procedure for recovery of tax - contention urged by the petitioner is that as per the provisions contained in the Second Schedule to the Income Tax Act as made out in the procedure for recovery of tax, (the Rules applicable for recovery under the SARFAESI Act), the 1st respondent cannot conduct a resale without repaying the amount remitted by the petitioner etc - HELD THAT:- A mere glance of the provisions contained in Rule 58 of the Rules in terms of the Second Schedule to the Income Tax Act, which deals with the procedure for recovery of tax (which has been made available for recovery under SARFAESI Act) as well as Rule 9(5) of the Security Interest (Enforcement) Rules, 2002 framed under the enabling provisions contained in SARFAESI Act would clearly mandate that in default of payment by the purchaser within the period mentioned in the ....... + More

Dishonor of Cheque - insufficiency of funds - legally enforceable debt or other liability or not - rebuttal of presumption - section 139 of NI Act - HELD THAT:- The standard of proof for rebutting the presumption is that of preponderance of probabilities and not beyond reasonable doubt. To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. It is not necessary for the accused to come in the witness box in support of his defence because Section 139 imposed an evidentiary burden and not a persuasive burden. The subject matter....... + More

Dishonor of Cheque - insufficiency of funds - rebuttal of presumption - section 138 of the N.I. Act - trial court on the basis of the evidence on record has drawn the presumption under section 139 of the N.I. Act that the accused had issued the said cheque in favour of the complainant for discharge of his debt and liability - whether the accused has been able to rebut the presumption as available under section 139 of the N.I. Act in respect of issuance of the cheque in question? HELD THAT:-All the important facts emanating from evidence, have not all been dealt and to me, it appears that the courts below have remained under an erroneous impression that the presumption has to be rebutted by the accused only by leading evidence from his side. The view taken that the accused having not responding in that light, right from the time of demand ....... + More

Dishonor of cheque - the notice was issued against the accused and he did not plead guilty and claimed trial - grounds urged in the appeal are that the learned Magistrate failed to consider both oral and documentary evidence on record - Drawing of presumption - principles of natural justice - Whether the Court below has committed an error in dismissing the complaint in coming to the conclusion that the transaction was not proved by the complainant? - HELD THAT:- The learned counsel appearing for the complainant relied upon the document Ex.P5 and also bank statement produced by the complainant which shows the address as shop No.5, Raghu buildings behind Bharat Motors, Banaswadi, Bengaluru. But the question before this Court is that when the VAT certificate produced as Ex.D4 discloses the commencement of business and the business address, t....... + More

Dishonor of cheque - Section 138 of the Negotiable Instruments Act, 1881 - issue raised by the petitioner in the present petition cannot be appreciated at this stage as the same can only be adjudicated at the time of trial - HELD THAT:- It is well settled that for the purpose of quashing of a complaint, the High Court cannot look into the defence of the accused. The Court is only required to see whether on the basis of the averments made in the complaint and the relevant particulars produced by the Complainant, there are grounds for proceeding against the accused. Inherent power of quashing criminal proceedings should be exercised very sparingly and with great circumspection. It does not confer on the court to act arbitrarily as per its own whims and caprice. The basic law is that the complaint under Section 138 of Negotiable Instrument A....... + More

Dishonor of Cheque - insufficiency of funds - Section 138 of the Negotiable Instruments Act - time limitation - HELD THAT:- The documents on record, which show that the cheque was presented in the Bank, which was dishonoured and then the stipulated time, as required under law on 22.12.2014 with the endorsement “Insufficient funds” thereafter, notice was issued to the respondent within two days through Bank, which is Ex.CW1/D, in the learned Court below, on the address of the respondent, which is the same address and now in the present petition, endorsement on the same was unclaimed and before that intimation was left by the addressee by the postal authority. In these circumstances, the presumption is that it was received by the respondent and the same was returned to the addressee by the Post Office on 24.12.2014 and it could ....... + More

Dishonor of Cheque - Section 138 of the Negotiable Instruments Act - rebuttal of presumptions - HELD THAT:- It appears that admittedly the cheques in question were issued by the petitioner in favour of the complainant. It is also an admitted fact that all the cheques were dishonoured when the complainant presented the same for encashment. In the present case the materials placed on record show that both the Learned Courts below came to the concurrent findings that the petitioner issued the cheques in question in discharge of his liability to repay the loan as par the loan agreement. Issuance of cheques in question is an admitted fact. Defence was taken by the petitioner that those cheques were issued by him for consultancy which the complainant was required to provide him. The said consultancy was not provided to him. But the petitioner h....... + More

Dishonor of Cheque - insufficiency of funds - cheque not issued towards any debt - allegation that accused persons made mischief by issuing cheque for which they committed an offence under the provision of Negotiable Instrument Act, 1881 - HELD THAT:- As per complaint the cheque was not issued towards any consideration or to clear of any debt or liability. As there was no deed / agreement for sale executed as required under law, the payment for consideration does not arise and in that view of the matter the requirement of Section 138 N.I. Act, i.e., money paid to discharge in whole or in part of any debt or other liability, is found absent. As the ingredients of the offence U/s.138 N.I. Act are lacking, taking of cognizance for that offence by the learned S.D.J.M., Bhubaneswar is not sustainable in the eye of law, hence, the same is liable to be quashed. The proceeding u/s138 of the Negotiable Instruments Act, 1881 is quashed.

Dishonor of cheque - Legality of Amendment to Article 142(2) of the Negotiable Instruments Act - challenge made primarily on the ground that the amendment goes completely contrary to the judgment of the Honourable Supreme Court in DASHRATH RUPSINGH RATHOD VERSUS STATE OF MAHARASHTRA & ANOTHER [2014 (8) TMI 417 - SUPREME COURT] where it was held that Once the cause of action accrues to the complainant, the jurisdiction of the Court to try the case will be determined by reference to the place where the cheque is dishonoured. HELD THAT:- By virtue of the said amendment, the entire basis of the judgment of Dashrath Rupsingh Rathod has been removed. The power of the Legislature to take away the basis of a judgment by making amendments is well settled. It is trite law that the Legislature can take away the basis of the judgment of a judicia....... + More