Additions made u/s 68 read with Section 115BBE - LTCG in penny stocks - HELD THAT:- It is recorded that “There is no dispute that the shares of the two companies were purchased online, the payments have been made through banking channel, and the shares were dematerialized and the sales have been routed from de-mat account and the consideration has been received through banking channels.” The above noted factors, including the deficient enquiry conducted by the AO and the lack of any independent source or evidence to show that there was an agreement between the Respondent and any other party, prevailed upon the ITAT to take a different view. Before us, Mr. Hossain has not been able to point out any evidence whatsoever to allege that money changed hands between the Respondent and the broker or any other person, or further that s....... + More

Revision u/s 263 - assessee is not eligible to claim deduction under Section 10A for Assessment Year 2008-09 as the period of 10 years in the case of assessee expired with Assessment Year 2007-08 and the Assessment Year in case of assessee has to be reckoned from Assessment Year 1998-99 - HELD THAT:- In the instant case, the period of 10 consecutive years would start from Assessment Year 1995-96 and would end with Assessment Year 2008-09. It is pertinent to mention here that the period of 10 year commences from 1995-96 irrespective of the fact that whether or not the assessee has claimed benefit in between the Assessment Years and the period of 10 consecutive years therefore, in view of the plain language of the enactment cannot be extended. The Assessing Officer without examining the aforesaid aspect of the matter granted the benefit of ....... + More

Assessment u/s 153A - Addition u/s 68 - Bogus LTCG - CIT(A) deleted the addition holding that the assessee has discharged the onus cast on it by proving the identity and creditworthiness of the share applicants and the genuineness of the transaction - HELD THAT:- A bare perusal of the assessment order shows that the addition is not based on any incriminating material found as a result of search but is based on the verification of the balance sheet of the assessee. The Hon’ble Delhi High Court in the case of CIT vs. Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] has held that in absence of any incriminating material found as a result of search, no addition can be made in a completed assessment. Since the addition in the instant case is not based on any incriminating material found as a result of search in case of the assessee and ....... + More

Addition u/s 14A - Non recording of satisfaction by AO - HELD THAT:- A.O while dislodging the claim of the assessee that as no part of the expenses debited in the profit and loss account was relatable to earning of the exempt dividend income, thus no disallowance under Sec. 14A was called for in its hands, had failed to record his satisfaction as regards the correctness of such claim, having regard to the accounts of the assessee. Rather, we find that the A.O had dislodged the claim of the assessee that no disallowance under Sec. 14A was liable to be made in its hands by holding a conviction that it was beyond comprehension that no expense incurred by the assessee could be related to earning of exempt dividend income. We are of the considered view that in the backdrop of the judgment in the case of Godrej & Boyce Manufacturing Co. Ltd....... + More

Rectification u/s 154 - Exemption u/s 11 denied - audit report in Form no.10B of the Act was filed belatedly - as per assessee since 85% out of the income received has been applied for the objects of the Trust, exemption u/s 11 of the Act is available - HELD THAT:- As decided in KASTURI FOUNDATION [2020 (11) TMI 962 - ITAT MUMBAI] the claim of the assessee that it has obtained the audit report prior to the date of filing of return of income and has filed audit report before the due date of return of income under section 139(1) of the Act has not been controverted by the learned Departmental Representative. Commissioner (Appeals) has also upheld the disallowance of exemption by simply stating that it is not a rectifiable mistake under section 154 of the Act. In our view, when the assessee has complied with the statutory provisions in terms....... + More

Unexplained cash credit u/s 68 - loan taken from M/s. Annapurneshwari Rice Industries a partnership firm and one Mr. Nagaraj is a partner of this firm - HELD THAT:- Without examining Mr. Nagaraj, it is not possible to conclude that the sum which was added as unexplained cash credit in the hands of the assessee is unexplained cash credit. If on examination of Mr. Nagraj, admits having given ₹ 20 lakhs then the addition in question cannot be sustained. In such an event the assessee should be considered to have explained the source of the credit. In the set aside assessment it will not be permissible to examine the source of Mr. Nagaraj as that would amount to examining source of source. With these observations, we set aside the order of the CIT(A) and allow the appeal of the assessee for statistical purposes.

Estimation of income - bogus purchases - CIT-A restricted addition at 12.5% being profit earned by assessee on unexplained/unverified purchases - HELD THAT:- We noticed that the CIT(A) has applied profit rate at 12.5% by following the decision in the case of CIT vs. Simit P. Sheth [2013 (10) TMI 1028 - GUJARAT HIGH COURT] wherein as held that where purchases were not bogus but were made from parties other than those mentioned in the books of account, not entire purchase price but only profit element embedded in such purchases can be added to income of the assessee. As the CIT(A) has applied a reasonable profit rate, we do not want to interfere in the same. Hence, the order of CIT(A) is upheld in both the years and appeals of assessee are dismissed.

Validity of notice u/s 143(2) - assumption of jurisdiction by the AO/ACIT, Circle International Tax 2(2)(2) -curable defect u/s 292BB or not? - assessee is a non-resident Indian residing in the USA - HELD THAT:- Undisputedly, assessee being non-resident Indian has been filing her return of income as a non-resident Indian and in any case, assessment is required to be framed by the ITO (International Taxation) - notice in this case u/s 143(2) has never been issued by the jurisdictional ITO to the assessee. Perusal of the notice issued u/s 143 (2) goes to prove that the same has been issued by the Income-tax Officer, Ward 52(5), New Delhi who had no jurisdiction to issue the same. On the basis of notice issued u/s 143 (2) (supra) by the non-jurisdictional AO, the subsequent assessment proceedings on the basis of which assessment order dated ....... + More

Penalty u/s. 271(1)(c) - estimation of income - bogus purchases - CIT(A) has sustained the addition at 12.5% of the bogus purchases - HELD THAT:- Penalty u/s. 271(1)(c) cannot be levied when the income has been estimated. The Ld. DR could not controvert the observations of the Ld. CIT(A) with any cogent evidence except relying on the A.O's order. Accordingly, we are not inclined to interfere with the order of the Ld. CIT(A) who relied on the judicial decisions and passed a reasoned order in directing the assessing officer to delete the penalty. See HARIGOPAL SINGH VERSUS COMMISSIONER OF INCOME-TAX. [2002 (8) TMI 65 - PUNJAB AND HARYANA HIGH COURT] - Grounds of appeal raised by the revenue are dismissed.

Exemption u/s 11 - denying of registration u/s 12AA - On examination of financial statements of last three financial years, the ld. Commissioner of Income Tax, Exemption, Pune observed that the donation received towards corpus funds escaped assessment to tax and, therefore, denied the registration - HELD THAT:- The grant of registration and the issue of assessment or exemption u/s 11 of the Act are separate and distinct. The process of registration is not on occasion for deciding the issue of exemption of donation u/s 11 of the Act. The issue of exemption cannot be examined during the process of registration CIT-E had lost sight distinction between the process of registration and the exemption or assessment of income u/s 11 of the Act. Therefore, the reasoning of the ld. Commissioner of Income Tax, Exemption, Pune in denying the grant of ....... + More

Addition u/s 68 - unsecured loan - HELD THAT:- We consider it just and proper to send back this issue to the file of the AO for giving one more opportunity to the assessee to prove the genuineness of the relevant loans. As rightly submitted by assessee in this regard, the total loan represented opening balance to the extent of ₹ 10,66,42,149/- and the same, therefore, cannot be added to the total income of the assessee in the year under consideration as unexplained cash credit u/s 68. As regards the balance loan amount AO is directed to give one more opportunity to the assessee to explain the same by establishing the identity and capacity of the concerned loan creditors as well as the genuineness of the relevant loan transactions by adducing the necessary supporting evidence. AO is directed to decide this issue afresh to the extent ....... + More

Suppression of profit made by way client code modification - stock broker who carried out the client code modification was a group concern of the assessee and therefore the contention that there occurred a punching error in large scale entering the trade is remote - CIT-A deleted the addition - HELD THAT:- As decided in M/S PAT COMMODITY SERVICES P. LTD [2015 (8) TMI 973 - ITAT MUMBAI] AO has mainly relied upon the report given by the MCX and has drawn adverse conclusions without bringing any material to support his view. CIT(A) has also pointed out that modifications carried out by the assessee works out to around 3% of the total transactions only and in our view, the said volume, in fact, vindicates the explanation of the assessee. Further none of the clients has been found to be bogus and all of them have complied with KYC norms, meani....... + More

Assessment u/s.158BC - limitation to complete the assessment - Reference to limitation provisions of section 158 BE - HELD THAT:- Merely because no seizure was effected on the new valuables found in the search carried out just to extend the time limit to pass the assessment order. Keeping in view of the facts and circumstances explained above, after examining the three panchnamas dated 23.3.1999; 21.5.1999 and 16.7.1999, we are of the considered view that search was validly concluded only in July, 1999 and assessment was separately framed within the time limit which expires only on 31.7.2001 being 2 years from the end of the month in which the search was conducted as the assessment order was passed on 25.7.2001. Legal grounds raised by the assessee is not supported by any valid documentary evidences, but on the contrary, revenue’s c....... + More

Disallowance of depreciation of software @60% - Claim allowed by the ld AO @25% - CIT(A) allowed the claim of assessee - HELD THAT:- DR could not show us any reason that why we should deviate from the orders of the coordinate bench in assessee’s own case, as far as the rate of depreciation on the software is concerned. With respect to the existence of the work in progress we have already dealt with this issue earlier wherein reading the management discussion and analysis in the director’s report clearly shows that assessee has several of the software, it cannot be said that assessee does not have the asset on which depreciation is claimed. Naturally, when the software is developed in-house as stated by the assessee, there cannot be any bill for purchase of the software. The assessee has maintained the books of accounts and sho....... + More

NP rate determination - net result of trading operations of assessee JV - applying net profit rate of 8% on contract receipts by assuming that the contract work was executed by the assessee itself and not by its lead partner M/s KIEL though the payments made to it were not doubted - two entities joined together and formed a Joint Venture (JV) for making a bid for the supply and installation, testing & Commissioning of Signaling equipment - furnishing bills and supporting vouchers in respect of expenses claimed by KIEL - HELD THAT:- M/s KIEL is a separate legal entity and assessee had neither access to books of accounts of KIEL nor had authority to direct its office bearers to provide books of accounts to be produced before AO. Therefore, during the course of assessment proceedings, it was requested by the assessee before AO that direc....... + More

Addition u/s 68 - unexplained cash deposits - Non maintenance books of accounts - As the assessee filed return of income U/s. 44AD i.e. under presumptive tax scheme, the assessee was not maintaining books of account - HELD THAT:- The Co-ordinate Bench of the Tribunal in the case of Shri Kokarre Prabhakara vs. ITO [2020 (9) TMI 536 - ITAT BANGALORE], in a similar situation where the assessee had declared income under section 44AD of the Act without maintaining books and the Assessing Officer had invoked the provisions of section 68 of the Act, the Tribunal deleted the addition by placing reliance of various decisions of the Tribunal holding that where the returns are filed on the basis of income declared under section 44A of the Act, there cannot be any application of section 68 of the Act. Thus, in the back drop of the facts, relevant pro....... + More

Revision u/s 263 - provision for expenses disallowable or it is provision for contingent liability - HELD THAT:- Finding of the CIT-2, Pune that the provision for expenses is contingent liability is not based on any material, it is mere ipse dixit - impugned order does not contain an allegation by the ld. Pr. Commissioner of Income Tax-2, Pune that the Assessing Officer had not enquired into this issue during the course of assessment proceedings. Thus, it is clear that it is not even case of learned CIT that AO had not enquired into this case. Therefore, the case even does not fall within ambit of Explanation 2 to sub-section (1) of section 263 of the Act inserted by Finance Act, 2015 w.e.f. 1.6.15. Considering all the above facts, it cannot be said that the assessment order is erroneous causing consequence prejudice to the interests of the revenue. - Decided in favour of assessee.

Deduction u/s 80IB - Reopening of assessment - material evidence being available, the same had been ignored by the Assessing Officer and the same was taken note of by the CIT(Appeals) to allow the deduction claimed under section 80-IB by the assessee - HELD THAT:- We are of the view that the impugned Judgment does not warrant any interference. However, we make it clear that the observations as to the scope of Section 310(2) of the Income Tax Act, made in the impugned Judgment are qua the State of Karnataka, given the particular local act in that case.

Penalty u/s. 271(1)(b) - AO issued a notice u/s. 142(1) - jurisdiction of the AO by holding that this penalty proceedings has been initiated after the insertion of Section 292BB - HELD THAT:- The assessee has given his reply dated 06.10.2008 that he has not received the earlier notices and given the new address of his Advocate and he further sent a letter dated 10.10.2008 and argued that having not received the earlier notices u/s. 142(1) and there could not be any proceedings pending under the Act before the AO meaning thereby the assessee is having the knowledge of all the notices which has already been served upon the assessee and he was watching the proceedings through his counsel/AR. Assessee has also requested for various adjournments which was given by the Assessing Officer. Sh. Sachin Kumar, CA/Authorised Representative of the Ass....... + More

Eligible to claim deduction u/s 54 on account of investment made - exemption of reinvestment of capital gain to one residential house property by taking view of phrase "a residential property" in Section 54(1) as only one house property ignoring the explanations and submissions made before him - HELD THAT:- We find that the provisions of Sec. 54 as it stood during AY 2011-12, provides for a deduction against certain Long-Term Capital Gains earned by an individual assessee on account of investment made by way of purchase / construction of ‘a residential house property’ within specified time period. The Finance Act, 2014 substituted the expression ‘a residential house property’ with the words ‘one residential house’ with effect from 01/04/2015. The Finance Act, 2019 has further amended the said ....... + More

Addition on account of bonus payable to General Electric International Ltd. - HELD THAT:- Assessee has entered into a long term Comprehensive Service Agreement (CSA) with GE International, a renowned International organization, on 20.06.2009 for the power plant and the said agreement is valid till March 31, 2025. As per the agreement with GE, the party has to ensure 90% availability of the Power Plant for operation and if they ensure availability above 90% then they are eligible for Bonus otherwise they are liable for penalty. This will accrue on year to year basis and will be finally settled on closure of the contract. During the year under consideration, the contractor has ensured the 90% availability of the power plant to the assessee. Accordingly, the assessee booked an expenditure on account of bonus payable to the contractor. These ....... + More

Addition u/s 40A(2)(a) - interest expenditure crystallized as an liability to the assessee during the previous - admission of additional evidence is a loan availed by the assessee from Kotak Mahindra Bank @ 13.5% without security which will have a bearing on a decision on grounds 4 to 8 and the invocation of provisions to section 40A(2)(b) - HELD THAT:- We are of the view that the issue sought to be raised in grounds 4 to 8 which is a disallowance under section 40A(2)(b) of the Actand the issue sought to be raised in grounds 9 to 12 with regard to the question whether interest expenditure of ₹ 1,90,06,180/- crystallized as an liability to the assessee during the previous year relevant to Assessment Year 2011-12 requires fresh consideration by the AO in the light of the additional evidence filed before us by the assessee - we remand ....... + More

Validity of reopening of assessment u/s 147 - whether new information or facts for issuance of notice of re-assessment should be seen? - whether the reopening of the assessment amounts to “review” or “change of opinion” should be seen at a next stage? - HELD THAT:- In the instant case in the light of the decision of the Hon’ble Delhi High Court in the case of Madhukar Khosla [2014 (8) TMI 568 - DELHI HIGH COURT] it is evident that the Assessing Officer has merely perused the records available with him and formed reason to believe that income had Assessment. There is no mention of any ‘trigger’ as how the Assessing Officer came to know this under assessment. If without any information or any new fact came into his possession, he simply revisit or peruse the completed assessment, it definitely amoun....... + More

Revision u/s 263 - loss on OTS is nothing but the claim of deduction of bad debt during the previous year and same is allowable as a deduction u/s.36(1)(vii) - HELD THAT:- The provisions of section 36(1)(vii) provides that in case of the banks, who are eligible deduction u/s.36(1)(viia), deduction on account of bad debts relating to rural advance/loans shall be first set off against credit balance in the provision for bad and doubtful debts account and deduction will be allowed to the extent of debts relating to rural debts which exceeds credit balance available in the said provision created under section 36(1)(vii). Present case are that the assessee had a credit balance in its balance sheet as on 31.3.2014 as “provision for bad and doubtful account”. Thus, as per proviso to section 36(1)(vii) of the Act, the amount of loss o....... + More

Disallowance of the expenditure claimed on account of interest paid on borrowed funds - HELD THAT:- Issue decided in favour of assessee as relying on assessee's own case. [2016 (8) TMI 1522 - ITAT JAIPUR]. Disallowance of depreciation charged for the year under appeal - HELD THAT:- There is no dispute that there are assets which were acquired in the earlier years and forms part of the opening block of assets and there are fresh assets in the nature of air conditioner and open well (pump) to the tune of ₹ 62,455 which have been acquired by the assessee during the year under consideration and used for the purposes of business. Therefore, in absence of any adverse finding by the AO, the disallowance of claim of depreciation is hereby set-aside and the ground of appeal so taken by the assessee is allowed. Disallowance of expenditure....... + More

Movable or Immovable property? - Temporary Structure (i.e. hall or pandal or shamiana or any other place) built up with Iron/Steel Pillars tight up with Nuts and Bolts (as shown picture enclosed) specially created for functions - Input Tax Credit - Iron/Steel Pillars tight up with Nuts and Bolt used for the creation of Temporary Structure (i.e. hall or pandal or shamiana or any other place) especially for functions - section 16 of the CGST Act, 2017 - CBEC through its Circular No. 58/1/2002-CX dated 15.01.2002 - HELD THAT:- As per the definition of goods some movable property is excluded from the category of goods whereas at the same time, some immovable properties are treated as goods. But the terms movable and immovable property have not been defined under the GST Act. In laymen terms, any goods that can moved is a movable property and ....... + More

Release of goods alongwith conveyance - Section 130 of CGST Act, 2017 - HELD THAT:- It appears from the materials on record that the matter is at the stage of MOV-GST 10 issued under the provisions of the Central Goods and Services Tax Act, 2017. Thus, the writ applicant has been issued with the showcause notice under Section 130 of the Act, 2017 calling upon him to show cause as to why the goods and conveyance should not be confiscated for the contravention of the provisions of the Act and the Rules as alleged in MOV 10. It is expected that the writ applicant to file his reply to the showcause notice and appear before the authority in the confiscation proceedings. However, we direct the authority concerned to immediately look into the application filed by the writ application under Section 67(6) of the Act for the provisional release of ....... + More

Provisional attachment of Bank Accounts - no notice under Sections 73 & 74 of the CGST Act has been issued to the petitioner as yet - Section 83 of the Central Goods and Service Tax Act, 2017 - HELD THAT:- This writ petition is disposed off directing the respondents to, on or before 29th January, 2021, issue instructions to the banks aforesaid, of lapsing of the attachment earlier affected and impugned in this petition. However if there is any other order of attachment of the same bank accounts, the same be served on the petitioner, through the counsel, on or before 29th January, 2021. It is clarified that even if the respondents, on or before 29th January, 2021 do not issue the instructions as aforesaid to the banks or do not serve on the petitioner through advocate any other order attaching the said bank accounts, the attachment eff....... + More

Detention of goods alongwith conveyance - Section 129(1) of the GST Act - HELD THAT:- It appears that this writ application was filed at the stage of MOV10 and coordinate Bench of this Court thought fit to pass the order releasing the detained goods together for the conveyance. The matter is still at the stage of adjudication of the showcause notice issued in MOV-10. It is expected that the writ applicant now to appear before the authority concerned and participate in the confiscation proceedings. It shall be open for the writ applicant to file his reply, if not yet filed, and make submissions for the purpose of getting the notice in MOV10 discharged. The authority concerned shall take appropriate decision in accordance with law bearing in mind the principle of law explained by this Court in the case of Synergy Fertichem Pvt. Ltd. Vs. State of Gujarat [2019 (12) TMI 1213 - GUJARAT HIGH COURT]. Application disposed off.

Principles of Natural Justice - cancellation of registration - opportunity of personal hearing not provided - HELD THAT:- This writ application is disposed off, asking the writ applicant to prefer an application under Section 30 of the CGST Act at the earliest. Once such application is filed, the authority concerned shall pass appropriate order within 3 (three) days in accordance with the statement made by Mr. Gandhi, learned Standing Counsel for the respondents.

Speaking to minutes is filed for inclusion of the captioned case - HELD THAT:- The speaking to minutes note is not required to be allowed. The captioned matter was already de-tagged at the relevant point of time. The matter be listed in the week commencing after the regular physical Courts are resumed.

Profiteering - supply of restaurant service - Applicant had alleged that the Respondent had increased the base prices of his items and did not pass on the benefit of reduction in the GST rate by way of commensurate reduction in prices - contravention of Section 171 of the CGST Act, 2017 - Penalty - HELD THAT:- It is revealed from the record that the Respondent has been operating a total of 133 multiplexes in 18 states and dealing with 1650 items while supplying restaurant services after 15.11.2017. It is also revealed from the plain reading of Section 171 (1) of the CGST Act, 2017 that it deals with two situations one relating to the passing on the benefit of reduction in the rate of tax and the second about the passing on the benefit of the ITC. On the issue of reduction in the tax rate, it is apparent from the case record that there has....... + More

Classification - taxability - provision of hostel accommodation along with food facility to the students wherein consolidated amount is charged from the students - composite supply or principal supply - recovery of entire charge from the students - exemption from GST under Sr. No. 14 of the CGST (Rate) Notification No. 12/2017 dated 28.06.2017 as amended if the charges per day is less than ₹ 1000/- - taxability on supply of hostel accommodation along with food facility - CBEC Flyer No. 40 dated 01.01.2018. HELD THAT:- In the instant case the appellant is supplying various services like supply of food, TV in dining hall, Playroom, Gym, Housekeeping of entire hostel premises, Room cleaning and Washing/ dry-cleaning of bed sheets & linen of rooms along with Hostel Accommodation service. The supply of various other services as detai....... + More

Raid - validity of search and seizure proceedings - Section 67 of the CGST Act - simultaneous proceedings of investigation when audit in progress - attachment of Bank Accounts - allegation of harassment and high-handedness - HELD THAT:- We are not inclined to entertain the Special Leave Petition under Article 136 of the Constitution of India. SLP dismissed.

Constitutional validity of the proviso to Section 50 of the Central Goods and Services Tax Act, 2017 - interest on delayed payment of tax - HELD THAT:- Let Notice be issued to the respondents, returnable on 11.02.2021. The respondents shall be served directly through email. In the meantime, Mr. Choksi, the learned counsel appearing for the writ applicants shall furnish one set of entire paperbook to Mr. Devang Vyas, the learned Addl. Solicitor General of India, so that by the next returnable date, Mr. Vyas can seek appropriate instructions in the matter.

Provisional attachment of Bank Account - Section 83 of the CGST Act, 2017 - HELD THAT:- The Bank Account has been ordered to be provisionally attached under Section 83 of the CGST Act, 2017. This Writ Application need not be adjudicated on merits as the impugned order of provisional adjudication has outlived its statutory life. As per Section 83 of the Act, other provisional attachment shall cease to have effect after the expiry of period of one year from the date of order made under sub-Section (1). The impugned order is dated 24.10.2019. The period of one year expired way back in October 2020 - In such circumstances, it can be said that there is no provisional attachment of Bank Account in existence or in operation as on date. This writ application disposed off.

Provisional attachment of the immovable properties - Section 83 of GST Act - It is submitted that, the order of provisional attachment is specifically confined to the cash credit account only and not to the other accounts including the fixed deposits referred to above in the chart. He submits that as the PAN Card number is common, no sooner the authority concerned instructed the bank to provisionally attached the cash credit account, then the Bank, on its own, freezed all other accounts. HELD THAT:- The provisional attachment of the cash credit account maintained with the Kotak Bank is not sustainable in law. The law in this regard is no longer res integra. In such circumstances, we quash and set aside the order of provisional attachment dated 23rd September 2020 passed in the Form GST DRC - 22 annexed at page : 51A of the writ applicatio....... + More

Grant of anticipatory Bail - irregular input tax credit on the basis of invoices generated by the non-existing firms formed by the petitioner himself in the name of his employees - Section 438 of Cr.P.C - HELD THAT:- As per rejection bail order petitioner is proprietor of M/s Allied Enterprises and had purchased the goods amounting to about ₹ 32 Crore and got 4.97 Crore of input tax credit and the department is investigating the matter. If the petitioner is found to be correct, he should have to personally produce all the documents before the department and would also raise his grievance as to why he is not appearing before the department but he failed to clarify all these things. Considering the submissions made by learned counsel for CGST and taking into consideration overall facts and circumstances of the case but without express....... + More

Maintainability of application - alternative remedy of preferring a statutory appeal - Provisional Release of detained goods alongwith Truck - Section 129 and 130 of the GST Act - HELD THAT:- As we are relegating the writ­applicants to avail an alternative remedy of preferring a statutory appeal against the final order of confiscation, the request for provisional release of the goods and the vehicle pending final disposal of the appeal also should made before the appellate authority. In this regard, we may say that the writ­applicants may prefer an application under Section­66(6) of the Act for the provisional release of the goods and the vehicle. If any such application is filed, then the appellate authority shall take it out for hearing and may consider releasing the goods and the vehicle on the writ­applicants depositin....... + More

Maintainability of application - writ applicant has preferred an Appeal under Section 107 of the Act challenging the order of the confiscation - HELD THAT:- As the appeal has already been filed and is pending before the appellate authority, there is no good or valid reason for us to entertain this writ application. Ms. Parikh, would submit that this writ application has been filed redressing the grievance with regard to the arbitrary action taken by the respondents. We may only say that while deciding the Appeal, the Appellate Authority can always go into the question as regards the legality and validity of the action taken by the authorities. We dispose of this writ application without expressing any opinion on the merits of the case, directing the Appellate Authority to immediately take up the appeal for hearing and decide the same in accordance with law.

Classification of goods - threaded metal nuts which function same as standard nuts - whether merit classification under the Tariff item 7318 16 00 and not under Tariff item 8708 99 00? - Challenge to AAR decision - HELD THAT:- The impugned goods can clearly be construed as the ‘parts and accessories” of the vehicles falling under the Chapter Headings from 8701 to 8705 and will merit classification under the Chapter Heading 8708, which covers the parts and accessories of the vehicles. Our observation is primarily attributed to the fact that the impugned products are manufactured by the Respondent as per the specifications/requirements approved by the automobile manufacturer, which is illustrated by the descriptions contained in the sample Purchase Order, placed by M/s. Tata Motors Ltd. to the Respondent, which amongst other thi....... + More

Classification of goods - Shatamrut Chyavan - falling under TSH 2309 90 10 of Customs Tariff Act, 1975 as adopted to GST attracting ‘NIL” rate as per Sr. No. 102 of Notification No. 02/2017 - Central Tax (Rate), dated 28.06.2017 or can be treated as ‘waste of sugar manufacture, whether or not in the form of pellets under heading 2303’ attracting 5% of IGST as per Schedule I (Sr. No. 104) of Notification No. 01/2017 - Central Tax (Rate) dated 28.06.2017 or not? - chalenge to AAR decision. Whether the classification of the impugned product, falling under TSH 2309 90 10 of the Customs Tariff Act, 1975, as adopted to the CGST Act, 2017, attracting ‘NIL’ as per the List of Exempted Goods in terms of SI. No 102 of Notification No. 02/2017 - Central Tax (Rate), dated 28.06.2017, is correct or not? - HELD THAT:....... + More

Fraudulent CENVAT credit - section 174 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- Direction that that till the next date Shri. Ashok G. Rajani and Shri. Amrit Rajani shall not be taken into custody on the basis of the show cause-cum-demand notice dated 30.12.2020 as well as in connection with the ongoing investigation under the CGST Act subject to compliance with the above condition. Status-quo order passed yesterday would stand modified accordingly - Stand over to 04.02.2021.

Maintainability of petition - alternative remedy of appeal - Direction to the Respondents to grant refund - petitioner submits that though there is a remedy for filing further appeal under the CGST Act, however, since the Goods and Services Tax Appellate Tribunal is presently not constituted, he has no other option but to approach this Court - HELD THAT:- It is noticed that the prayer sought in the present petition does not seek any relief in respect of the order passed by the first Appellate Authority and in absence of any such challenge, we are unable to understand as to how the present petition would be maintainable. At this stage, learned counsel for the Petitioner states that though he has urged grounds to challenge the order passed by the first Appellate Authority, however, since there is no specific relief sought to set aside the a....... + More

Service of summons - calling upon to personally remain present before the concerned authority on 19th January 2021 - Section 70 of the C.G.S.T. Act, 2017 - HELD THAT:- The Form DRC-03 may be filled up provided the assessee decides to voluntarily make any payment. Even if there is any lapse on the part of the assessee and the department wants to recover a particular amount, it cannot exert pressure or administer threats for the purpose of filling up of the Form DRC-03. Let Notice be issued to the respondents, returnable on 25th January 2021. The writ applicant No.2 shall appear in person before the authority concerned in response to the summons received by him under Section 70 of the Act. However, we make it clear that no coercive measures or steps shall be taken by the concerned authority against the writ applicant No.2. As serious allega....... + More

Allocation of additional Raw Petroleum Coke (RPC) in favour of M/s Sanvira Industries for production capacity in excess of 2,00,000 Metric Tonnes (MT) - it is the assertion of the petitioners that the decision to consider the Production Capacity of M/s Sanvira Industries as 3.30 lakh MT for purposes of allocation of RPC is contrary to the orders of the Supreme Court - HELD THAT:- Not only was the RPC allocated to industries whose installed capacity had not been taken into account in the EPCA Report dated 06.10.2018, but even for the petitioner-Rain CII Carbon, Production Capacity was taken as 5.11 lakh MT as against 5 lakh MT taken in the Report while determining the quantity of 1.4 million MT for import of RPC. On the issue as to whether on account of the orders dated 28.01.2019 or 08.07.2019 of the Supreme Court, SANVIRA INDUSTRIES LIMI....... + More

Seizure of export goods - overvaluation in exports - fraudulent availment of duty drawback and other export incentives by some exporters including the applicant - HELD THAT:- Even the applicant had conceded that if necessary it would furnish bank guarantee to the extent of 20% of the duty drawback amount which would accrue on export of the goods - That being the position we modify the provisional release order dated 31.12.2020 by directing the respondents to release the goods of the applicant for export subject to submission of bond equivalent to declared value of goods and submission of bank guarantee to the extent of 20% of the duty drawback payable. On such compliance respondents to release the goods of the applicant forthwith within 48 hours from the date of furnishing such bond and bank guarantee. Regarding seizure of computers etc. ....... + More

Seeking debit-freeze of one account of the petitioners - time limitation - whether a provisional attachment of bank account can be continued beyond the period of one year? - HELD THAT:- Section 110 of the Customs Act deals with seizure of goods, documents and things. Sub-section (5) was inserted in the said provision by Finance (No.2) Act, 2019 with effect from 01.08.2019 - Sub-section (5) of section 110 states that provisional attachment of bank account can be for a period of six months but the said period can be extended for a further period not exceeding six months for reasons to be recorded in writing and communicated to the affected person before expiry of the initial period of six months. There are no justification to continue with the provisional attachment of the bank accounts of the petitioner - The initial period of six months h....... + More

Non-fulfilment of export obligation in case of import of goods under EPCG License - HELD THAT:- However, now as per the submission of the learned counsel the EODC issued by DGFT was obtained only after passing of the impugned order. In these circumstances, the entire matter should be reconsidered by the adjudicating authority in the light of the EODC issued by the DGFT. The appeal is allowed by way of remand to the adjudicating authority.

Confiscation of goods - rent / demurrage charged on the goods seized / detained / confiscated by the proper officer of customs - It was pointed out that this was a violation of Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009 which stipulates that Customs Cargo Service Providers including custodians of container freight stations should not charge any rent or demurrage on the goods seized or detained or confiscated by the proper officer - HELD THAT:- It is not in dispute that respondent No. 1 is a Customs Cargo Service Provider as defined in Regulation 2(1) (b) of the Regulations. Being so, it is under a legal obligation to discharge the responsibilities as mandated under Regulation 6, more particularly in clause (l) thereof which clearly says that a Customs Cargo Service Provider shall not charge any rent or ....... + More

Refund of Rubber Cess - Validity of CESTAT order to Remand of the proceedings to the adjudicating authority - neither the Appellant nor the Respondent requested for remand of the proceedings - Appellant was not paid in pursuance of any assessment order and no factual aspect was required to be reexamined by the adjudicating authority - HELD THAT:- The appellate tribunal, on its own, should have looked into the matter on its own merits. For the purpose of considering the case-law referred to in the impugned order, the matter should not have been remanded. The impugned order passed by the appellate tribunal is hereby quashed and set-aside and the matter is remitted to the tribunal for being considered afresh on its own merits in accordance with law - Appeal allowed in part.

Smuggling - Prohibited Goods - Gold - foreign origin goods or not - presumption under section 123 of Customs Act - HELD THAT:- Admittedly the seized gold coins are of Indian origin even the approved valuer have not certified the seized gold coins as of foreign origin. Further, it is found that the inscription on the coins evidently prove that the gold coins are of Indian origin, and were part of the monetary system and were in circulation during the British India period. Admittedly, Kind Edward VII, was the emperor of U.K. and India was under British Rule during the relevant period, and thus there is no anomaly as to the Indian origin of the gold coins. The allegation by Revenue that the gold coins are of foreign origin has got no basis, and is a wild guess work. The inscription on the gold coins ipso fact prove that the gold coins as are....... + More

Revocation of Customs Broker License - forfeiture of security deposit - whether the customs broker has failed to follow the Regulations CBLR, 2013 & CBLR, 2018 and whether the same should entail in the revocation of the license and forfeiture of security deposit in addition to imposition of penalty? - HELD THAT:- In the instant case the employees of the appellant’s firm have accepted the documents on behalf of the seven importers and filed a number of check lists in a short span; the customs broker in his statement before D.R.I has accepted the documents from Shri Santhosh Pandey even when he told them that bank related documents and authority letter could be given before carting the goods; they did not receive any documents in original; they have not cross-verified the documents submitted with any reasonable means; they never s....... + More

Seeking clearance of the imported goods for home consumption - old and reusable MFDs - HELD THAT:- We are not going into the issue as regards the reason for detention of the goods and the rights and liabilities of the writ applicant with regard to the imported of the goods. We are informed that this issue is at large before the Supreme Court in one another litigation. The rights and liabilities of the writ applicant shall be governed accordingly by the final verdict of the Supreme Court. However, the limited question we need to look into, as on date, is with respect to the plea of the writ applicant to provisional release of the goods. It appears from the materials on record that the writ applicant preferred an application dated 3rd October 2019 addressed to the ADG of the Directorate of Revenue Intelligence, Zonal Unit, Ahmedabad for pro....... + More

Smuggling - Baggage Rules - concealment of dutiable/contraband goods - 20 yellow metal discs concealed in 10 lids of Tiger Balm - 4 cartons of Gudang Garam International Cigarettes - Gold - N/N. 12/2012-Cus. dated 17 March, 2012 - HELD THAT:- It is found that the appellant had brought a small quantity of 233.00 gms. of gold in the shape of 20 disc (about 11.66 gm. per disc) for personal use. Further, it is found that there is no commercial quantity either of gold or cigarettes. Further it is found that the appellant is an eligible passenger, as defined in condition No. 35 of the Notification No. 12/2012-Cus and entitled to import gold up to one kilogram, on returning to India on payment of concessional duty. It is further held that the appellant is eligible to pay concessional duty as provided under Notification No. 12/2012-Cus read with ....... + More

Levy of penalty under regulation 5 of Customs (Provisional Duty Assessment) Regulations, 2011 - levy on the ground that the appellants had not submitted all the import documents, timely, as was required to be filed within 30 days in terms of regulation 3(3) of the Regulations - HELD THAT:- This is a case of delay in furnishing of certain documents. There is no revenue implication. The department has not been able to establish any deliberate delay or any malafide intention on the part of the appellant. As and when the appellant could gather the requisite documents they were presented before the assessing officers for finalising the provisional assessments. In fact, out of the 35 Bills of Entry involved, 27 could be finalised even before passing of the adjudication order. Keeping all this in view, the adjudicating authority took a fair deci....... + More

Availability of IGST exemption - aircrafts and parts thereof that are re-imported into India after repairs - serial no. 2 in the General Exemption Notification No. 45/2017 dated June 30, 2017, as amended by Corrigendum Notification dated July 22, 2017 - HELD THAT:- It is in exercise of the power conferred by sub-section (1) of section 25 of the Customs Act that the Exemption Notification has been issued. The Central Government exempted the goods falling within any Chapter of the First Schedule to the Tariff Act and specified in column (2) of the Table when re-imported into India, from so much of the duty of customs leviable thereon which is specified in the First Schedule, and the integrated tax, compensation cess leviable thereon respectively under sub-sections (7) and (9) of section 3 of the Tariff Act, as is in excess of the amount ind....... + More

Seeking grant of extension of two months to enable them to complete the import of “poppy seeds”, for which registration certificates have been issued by the Central Bureau of Narcotics - HELD THAT:- A perusal of the impugned order dated 21st May, 2020, shows that the Union of India has considered merely factual circumstances to decide that in February, 2020, there was no outbreak of COVID-19 pandemic, and, therefore, the plea of extension in light of the Chinese exporter being unable to supply the consignment, is not justified. Further, the impugned order records that there was no obligation under the guidelines to pay any advance for the said consignments and that making advance payment is completely as per the convenience of the importers. Hence, the payment of advances would not constitute a reason for any extension to be g....... + More

Exemption form IGST - aircrafts and parts thereof re-imported into India after repairs - serial no. 2 in the General Exemption Notification No. 45/2017 dated June 30, 2017, as amended by Corrigendum Notification dated July 22, 2017 - HELD THAT:- Though integrated tax is levied under section 5 of the Integrated Tax Act, but it is collected in accordance with the provisions of section 3 of the Tariff Act on the value as determined under the Tariff Act and at the point when duties of customs are levied under section 12 of the Customs Act. Thus, integrated tax is levied under section 5(1) of the Integrated Tax Act and only the procedure for collection has been provided under section 3 of the Tariff Act - It also needs to be noted that the term “integrated tax” has not been defined either under the Customs Act or the Customs Tariff....... + More

Seeking direction to the Respondents to grant copies of Panchnama, Seizure Memo issued under section 110 of the Customs Act, 1962 - HELD THAT:- The grievance ventilated by the Petitioner is redressed. Petitioner may send an Authorized Representative to the concerned officer of the Respondents, to collect the documents as enumerated in this prayer of the writ petition. Direction to respondent to allow provisional release of the subject goods - HELD THAT:- In any case learned counsel for the Petitioner candidly admits that the impugned order dated 14th October, 2020 passed under Section 110A of the Customs Act, 1962 is an appealable order and the Petitioner would be filing an appeal against the said order, before the appropriate Authority, in accordance with law and thus does not press this prayer. Petition disposed off.

Writing off the imported duty-free materials from the books of accounts of the importer - Whether amounts to "disposed of" within the meaning of Customs Notification No.30/97-Cus dated 01.04.1997 under which the goods/materials are imported? - 'write off' the duty free imported material from the books of accounts without paying duty - violation of norms of 'Actual User Condition', 'export obligation' or not - utilization in discharge of export obligation or for replenishment' prescribed under Customs Notification No.30/97-Cus dated 1.4.1997 - writing of the duty free imported material without complying with the condition of 'actual user' imposed in the exemption order by the Department - clause (vii) of Notification No.30/1997-Cus dated 01.04.1997 - HELD THAT:- The tribunal on the basis of adv....... + More

Classification of imported goods - LCD panels and parts of LCD panels - Department contends that both these items would fall under CTH 8529 9090 whereas the appellant contends that LCD panels would fall under CTH 9013 8010 and parts of LCD panels would fall under CTH 9013 9010 - period of dispute is from January 2018 to February 2018 and February 2018 to February 2019 - HELD THAT:- The very same issue came up for consideration before the Tribunal in the case of M/S SAMSUNG INDIA ELECTRONICS PVT LTD, M/S MOSER BAER INDIA LTD VERSUS COMMISSIONER OF CUSTOMS, NOIDA [2015 (10) TMI 2258 - CESTAT NEW DELHI]. The competing classification with regard to Liquid Crystal Devices (LCDs) imported was CTH 9013 8010 as against CTH 8529 9090. The Department was of the view that the goods will fall under CTH 8529 by relying on Section Note 2(b) of Section ....... + More

Levy of IGST on re-import of aircrafts and parts thereof after repairs - Exemption from IGST - Availability of Integrated Goods and Service Tax exemption provided at serial no. 2 in the General Exemption Notification No. 45/2017 dated June 30, 2017, as amended by Corrigendum Notification dated July 22, 2017 - Validity of order that upholds the orders of assessment of Bills of Entry, as a result of which all the appeals have been dismissed by the Commissioner (Appeals) - HELD THAT:- There is no dispute that it is serial no. 2 of the Exemption Notification that is applicable to aircrafts/ parts re-imported into India after repairs. What would, therefore, be payable in terms of serial no. 2 would be the duty of customs on the fair cost of repairs carried out including cost of materials used in repairs, insurance and freight charges, both way....... + More

Recovery of Interest - attachment order - basic grievance raised in the present writ petition is in relation to interest only. May be, on different ground viz. the provisions of Customs Act cannot be invoked for the purpose of calculation of interest - HELD THAT:- Since the petitioners have withdrawn the writ petition filed by them, a fresh writ petition for the same cause, may be with different legal grounds cannot be maintained and the same is barred by principles of res-judicata. Upon petitioners' failure to pay the applicable interest in subsequent notice dated 05.11.2018, the respondents have taken recourse to the provisions of the Customs Act and the Rules framed thereunder, that too for the purpose of ensuring recovery - As a matter of fact, determination of interest has been made in light of the judgment of Hon'ble the Sup....... + More

Interpretation of Statute - whether a Trade Notification can be amended by a Trade Notice in terms of Section 3 of the Foreign Trade (Development and Regulation) Act, 1992? - contention of the learned counsel for the petitioner is that the Trade Notice is not issued under any particular provisions of the FTDR Act - HELD THAT:- There is no source of power for issuing a Trade Notice. As stated in the counter-affidavit, a Trade Notice is procedurally issued for clarifying certain doubts that may arise among the traders. The Notification No.8/2015-20, dated 12.06.2019 is silent about the applicability of restriction imposed on import of cashew kernels broken or whole to the units in SEZs and 100% EOUs. When such is the position, by placing reliance on the Section 3 and 5 of the FTDR Act, it is stated that the Trade Notice is issued stating th....... + More

Seeking restoration of Company's name in the Register maintained by the Registrar of Companies - Section 252 of the Companies Act, 2013 - HELD THAT:- The failure of the Company in filing the statutory returns and statements was due to inadvertence and was not intentional. Report of the RoC has been received. We are satisfied with the reasons shown by the Applicant for restoration of the name of the Company in the register of companies maintained by the Respondent. Admittedly, the relevant documents which are to be filed, are ready with the Company and the Company is willing to file the same, if so permitted - The Company has not deposited heavy cash in its Bank Account during the period of demonetization as noticed from the annexed Affidavit along with the Application. We are satisfied with the reasons shown by the Applicant for resto....... + More

Approval of scheme of amalgamation - section 230-232 of Companies Act - HELD THAT:- It is noticed from the material on record that the Scheme appears to be fair and reasonable and does not violate any provisions of law and is not contrary to public policy or public interest. In the absence of anything inherently abhorrent in the Scheme, there are no reason why the Scheme should not have the imprimatur of this Tribunal. Since all the requisite statutory compliances have been fulfilled, scheme is approved absolutely - application allowed.

Approval of scheme of amalgamation - seeking for dispensation with the meeting of equity shareholders and unsecured creditor - Sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- The meeting of the Equity Shareholders and Unsecured Creditors of the Transferor Company be dispensed with - the Applicant Companies shall serve the notice of Application along with a copy of the Scheme upon - (i) Regional Director (Western Region), Ministry of Corporate Affairs, Mumbai; (ii) Registrar of Companies, Maharashtra, Mumbai; (iii) Income Tax Authority within whose jurisdiction the Applicant Companies' assessments are made in terms to section 230(5) of the Act and as per Rule 8 Rules. If no response is received by the Tribunal from the regulatory authorities within 30 days of the date of receipt of the notice it will be presumed that the A....... + More

Seeking restoration of name of the Company in the Register of Companies, maintained by the Registrar of Companies - Section 252(3) of the Companies Act, 2013 - HELD THAT:- This Tribunal is of the opinion that it would be just and equitable to order restoration of the name of the Company in the Register of Companies. The Registrar of Companies, the respondent herein, is ordered to restore the original status of the Appellant Company, as if the name of the Company has not been struck off from the Register of Companies and take all consequential actions like change of company’s status from ‘Strike off’ to ‘Active’ (for e-filing) and to intimate the bankers about the restoration of the name of the company so as to defreeze its accounts - Application allowed.

Scheme of amalgamation - seeking dispensation of meetings of the Equity Shareholders of the Applicant Companies, meetings of unsecured creditors of Transferor No.3 and Transferee - Applicant Companies - seeking dispensation of secured creditor of the Transferee pursuant to the receipt of the individual consent affidavits consenting to the scheme - seeking waiver of right to attend the meeting of equity shareholders and unsecured creditors and consent of the secured creditor, for the purpose of considering and if thought fit, approving, with or without modification - sections 230 to 232 of the Companies Act, 2013 - HELD THAT:- The Applicant Companies shall in compliance with subsection (5) of section 230 and Rule 8 of the Companies (CAA) Rules, 2016, send a notice of meetings under subsection (3) of section 230 read with Rule 6 of the Comp....... + More

Restoration of the name of the Appellant Company in the register of the Registrar of Companies - Section 252 of the Companies Act, 2013 - HELD THAT:- That the Income Tax Department has filed its Report and has reconfirmed this fact from their records that 'nil' taxes were paid or negative income was shown by the Appellant Company for the Assessment Years from 2012-13 to 2017-18 - That the 'NIL' revenue from operations in Balance Sheets, 'NIL' income shown in the Income Tax Returns and insignificant entries in bank statements - all reflect that the Appellant Company was neither in operation nor doing any significant business at the time when its name was struck off from the register of RoC. It is worthwhile to refer to the Judgement of Hon'ble NCLAT in the matter of Alliance Commodities Private Limited Vs. Offic....... + More

Seeking restoration of name of the Company in the Register of Companies - Section 252 of the Companies Act, 2013 - HELD THAT:- The counsel for applicants has filed provisional balance sheet for the financial years 2017-18 and 2018-19. He has also filed provisional income tax returns for the financial year 2017-18 and 2018-19 along with memo dated 17.08.2020. As seen from the provisional profit and loss statement for the year ended 2017-18 the company is having revenue from operations at ₹ 2,20,000/-. As seen from the provisional profit and loss statement for the year ended 2018-19 the Company is having revenue from operations is shown at ₹ 2,85,000/- This shows the company is ongoing concern. The applicants complied the requirements pointed out by the ROC, in his report. Therefore there are grounds to restore the company - Fur....... + More

Approval of scheme of Amalgamation - seeking directions for convening meetings of equity shareholders and unsecured creditors of Transferor Company - seeking directions to dispense with the meeting of equity shareholders and to order convening meetings of Secured and unsecured creditors of Transferee Company - HELD THAT:- This is the first stage Application seeking convening meetings of Shareholders and Unsecured Creditors of Transferor Company and further requesting for dispensation of meeting of Shareholders and convening meetings of Secured and Unsecured Creditors of Transferee Company as all the shareholders have given their consent in the form of sworn Affidavits. The proposed scheme in question prima facie satisfy fundamental requirements for its sanction, subject to approval of this Tribunal. The Applicant Companies are stated to b....... + More

Contempt petition - guilty of contempt - specific performance of family settlement - oppression and mismanagement - allegation is that the high value contracts were executed by issuing multiple cheques under the value of ₹ 10 lakhs, though, the contract amount was much more - vital information with regard to management of the Company was withheld - unilateral settlement with trade union - appointment and promotion of senior executives - Sections 397, 398 and 403 of the Companies Act, 1956 - HELD THAT:- Perusal of Section 397 would reveal, that a member of a Company is entitled to apply to the CLB complaining that the affairs of the Company were being conducted in a manner prejudicial to the public interest or in a manner oppressive to any member or members including anyone or more of themselves, for an order under the said section. ....... + More

Seeking to dispense with convening a meeting of the Equity Shareholders of the Transferor Company for the purpose of considering the proposed Scheme - Sections 230 to 232 of the Companies Act, 2013, R/w the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Various directions regarding holding and convening of various meetings issued - Various directions regarding issuance of various notices also issued - application disposed off.

Restoration of name of Company in the Register of Companies, maintained by the Registrar of Companies - Section 252 of the Companies Act, 2013 - HELD THAT:- Having gone through the report received on 18.12.2020 from the Registrar of Companies in the instant appeal as also all the annexures appended to the Appeal including the latest Balance Sheets and Financial Statements of the Company for the year ending 31st March 2019 and the Income Tax Return Acknowledgment for the Assessment Year 2019-2020 - Appellant sought leniency while ordering costs, for the reason that the Company is facing financial problems due to COVID-19 pandemic. This Tribunal is of the opinion that it would be just and equitable to order restoration of the name of the Company in the Register of Companies - The Registrar of Companies, the respondent herein, is ordered to ....... + More

Jurisdiction - power to entertain the present suit - approval of dependent cards and Green Cards to the children of UCPs as also upgrading of Green Cards to UCP - interpretation of Article 13 (3) (b) of the Articles of Association - petitioners claim that the way the said article is interpreted gives rise to inequitable classification - HELD THAT:- The suit at the instance of an individual shareholder, alleging the infringement of a right for an action and the majority shareholders being opposed to the memorandum and article of association, cannot be said to be an imperfect suit liable to fail on the parameters of Order 7 Rule 11 of the Code. Mere reference of more than 3100 members does not, ipso facto, raise a presumption that the suit is not maintainable in absence of any leave under Order 1 Rule 8 of the Code. Section 9 of the Code of....... + More

Seeking restoration of the name of the struck off company in the Register of Companies maintained by the ROC - Section 252(3) of the Companies Act, 2013 - HELD THAT:- It is noted that company has failed to file returns since 2010 which prompted ROC, Gwalior, Madhya Pradesh to strike off the name of such company from its Register of Companies. However, from the records produced before us it is noted that Company has filed the Income Tax Returns for A. Y. 2010-11 to 2019-20, which indicate that the Company was in operation. It is further noted that company is neither a shell company nor it has engaged itself into any other illegal activities. It is considered just and proper to restore the name of the company in the Register of Companies, from date of its striking off subject to payment of cost for non-compliance of rules relating to filing the Statutory Returns and Audited Financial Statements. The name is ordered to be restored - application allowed.

Restoration of name of the company in the Register maintained by the Registrar of Companies - Section 252 (1) of the Companies Act, 2013 - HELD THAT:- The bench has directed RoC to submit his report in spite of that RoC has not submitted his report. As per Section 252(1) of the Companies Act, 2013, an opportunity was provided to RoC to submit his report, however RoC failed to submit the same.In the interest of Justice and Equity, to help Employees, Members, Shareholders, Creditors and Other stakeholders and also to improve ease of doing business, the name of Petitioner Company be restored. The prayer sought by the Petitioner company deserves to be allowed because it is now well settled legal position that during the pendency of litigation/Court proceedings by or against the company its name can not to be removed by the RoC - Appeal allowed.

Restoration of name of the company in the Register maintained by the Registrar of Companies, Mumbai - Section 252 (1) of the Companies Act, 2013 - HELD THAT:- The Bench is satisfied that the Company has Revenue from operations is ₹ 7,64,000/-, Fixed assets of ₹ 52,07,691/-, Cash and Cash equivalent is ₹ 15,452/-, Sundry Debtors is ₹ 2,45,654/-, Other Current Assets is ₹ 1,75,258/- and Long-Term borrowings is ₹ 54,40,124/-, and Profit of ₹ 14,206/- for year ended 31.03.2019 and Revenue from operations is ₹ 1,70,440/-, Fixed assets of ₹ 52,07,691/-, Cash and Cash equivalent is ₹ 26,343/-, Sundry Debtors is ₹ 3,42,158/-, Other Current Assets is ₹ 2,58,349/- and LongTerm borrowings is ₹ 55,77,416/-, and Profit of ₹ 32,160/- for year ended 31.03.2018. As observ....... + More

Seeking restoration of its name in the Register of Companies - Section 252 (3) of the Companies Act, 2013 - HELD THAT:- The material available on record indicates that the failure of the Company to furnish the statutory returns with the RoC was not intentional. Apparently the Company has been carrying on its operations as the financial statements would indicate. Unless the Company's name is restored it will prejudicially affect its prospects and adversely influence the Directors in their future endeavours. The promoters of the Company as well as the Appellants are keen to carry on and perform the objects of the Company in right earnest. There have been substantial investments in the project. The Company is continuing its business. Unless the name of the Company is restored in the Register of Companies it would suffer financially and p....... + More

Restoration of the Company's name in the Register of Companies maintained by Registrar of Companies - Section 252 of the Companies Act, 2013 - HELD THAT:- The Appellant has filed documents and records in support of its stand that the company was in operation and pursuing activities during the period of striking off the name of the company and has brought forward the following facts about it being in operation and functional during the period of striking off: i) The copies of Balance Sheet of the company for the financial years from 31.03.2017 to 31.03.2020. The Balance Sheet as on 31.03.2020 reflects Inventories of ₹ 9,83,7,666.00/-, Cash and Cash Equivalent of ₹ 2,76,092.16/- P & L account shows loss of ₹ 11,500.00/- ii) The copy of Bank Statements of the Company for the period 01.04.2019 to 27.11.2020 showing v....... + More

Validity of de-activation of the Director Identification Number - invocation of Section 164(2) of the Companies Act, 2013 - seeking direction to activate the Director Identification Number allotted to the petitioner - HELD THAT:- Similar controversy was raised in other High Courts and after considering the issue at length, the Gujarat High Court in GAURANG BALVANTLAL SHAH S/O BALVANTLAL SHAH VERSUS UNION OF INDIA [2019 (1) TMI 27 - GUJARAT HIGH COURT]. The Special Civil Application has been allowed. Therein also, the name of the petitioner was struck off from the list of Director of various companies. The publication of which was made under Section 248 of the Act of 2013. A direction to activate the Director Identification Number of the petitioner forthwith has been given, if not activated so far. It was however with the liberty to take l....... + More

Seeking modification and/or clarification and also for further direction in support of the interim orders earlier passed - Seeking direction that the voting in relation to resolution no. 5 and 6 of the notice dated 1st July, 2019 for convening the Annual General Meeting of Birla Corporation Ltd. be stayed - HELD THAT:- From Section 247 it appears that a probate Court also takes the responsibility to administer the properties as left by the deceased and to preserve the status quo of such properties left by the Will through Administrator Pendente lite and such Administrator Pendente Lite shall be subject to the immediate control of the Court and shall always act under the Court's direction by which it has been appointed. In the present case such Administrator Pendenti Lite was appointed consisting of three members. Two nominated by plai....... + More

Oppression and Mismanagement - Legality of notice - holding of EGM within 3 months of date of requisition - holding of EGM - dissenting members - difference of opinion - HELD THAT:- The orders were reserved on 20.11.2020 by this bench, the order was pronounced today, the lead judgement was rendered by Shri Chandra Bhan Singh, Member, Technical and the dissenting judgement is passed by Member Judicial. The members are divided on the following legal issues: a) Whether the notice dated 06.01.2020 and 05.02.2020 amounts to valid requisition as defined under section 100 of the Companies Act, 2013? b) Whether the law mandates holding of EGM within 3 months of date of requisition as prescribed under section 100(4) of the Companies Act, 2013? c) Whether issuing of notice on 13.07.2020 can be considered as requisition under section 100(2) of the C....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - outstanding sum has been claimed at ₹ 11,30,146/- and date of default has been claimed as Financial Year 2018 - HELD THAT:- In case of proceedings under Section 9 of IBC, 2016 or section 8 of IBC 2016 of significant nature. It has been observed by higher judicial forums that requirement of service of notice under Section 8(1) of IBC, 2016 is crucial so that any entity is not put into CIRP in a light manner. Rule 5 (Application to Adjudicating Authority) Rules, 2016 provides that Operational Creditor "shall" deliver to the Corporate Debtor. Demand notice in form-3 or copy of invoice attached with the notice in Form-4. Form No.3 and Form No.4 have been prescribed which provide f....... + More

Seeking direction to the Respondent, i.e. Bank of India, to release an amount of ₹ 100 Lacs held in the "No Lien Account", for the purpose of Insolvency Resolution Process - Section 60(5) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- It is noted that the Corporate Debtor, to show their commitment and bonafide towards resolution plan (i.e. one time settlement proposal) has furnished a Cheque for ₹ 1 crore to the respondent/ bank on 12.07.2017 along with a letter with a request to keep the proceeds in "No Lien Account" and instructed that the said amount may be adjusted / utilized upon approval of resolution plan (i.e. one time settlement), however, in any case, it should not be adjusted towards interest/ other charges/ principal till then. The company is committed to bring the balance amount to t....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of debt or not - existence of debt and default or not - Time Limitation - HELD THAT:- The date of default is 06.03.2019 and the present application is filed on 16.03.2020. Hence the application is not time barred and filed within the period of limitation - The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application - present application is filed on the Performa prescribed under Rule 6 of the Insolvency and Bankruptcy Code, 2016 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 r/w Section 9 of the code and is complete. It is clear that the default has occurred and the debt is due and payable. Further, the present application ....... + More

Seeking relief asking for closure of the liquidation process without dissolving the Corporate Debtor as long as Section 54 of the Code passed by the Parliament is in force - Can such a relief be passed by this Authority by looking at the liquidation Regulations issued with the power conferred upon IBBI under section 240 (Regulation making power) and Section 196 (Powers and Functions of IBBI) of the Code? - HELD THAT:- If the Code is carefully read, it could be ascertained that wherever the Code felt that IBBI assistance is required, it has been specifically stated "as specified by the Board or in such manner as may be specified or prescribed" we must at the cost of repetition reiterate, this clause is indicative of the fact that beyond the procedure inbuilt in the Code, if additional mechanism or paraphernalia is required to acc....... + More

Seeking stay on the process of finalization of the Approval of the Resolution Plan - seeking direction to Mr. B.C. Ganesh (RIO), who is common witness in all agreements should submit all Bank Statements and Income Tax Returns for last five Financial Years and disclose true identity - HELD THAT:- Since the Applicant has not brought on record any fact or evidence to show that the successful Resolution Applicant falls within any of the categories of the ineligibile persons under Section 29A of the Code, the prayer made for declaring the successful Resolution Applicant as ineligible cannot be acceded to and is therefore negated.The Applicant's prayer for passing an order to consider its Resolution Plan with the consideration for ₹ 27.00 Crores when it was the H1, is against the one of the prembled objectives of the IBC 2016, namely ....... + More

Approval of Resolution Plan - sections 30(6) and 31 of the I&B Code, 2016 r/w Regulation 39(4) of CIRP Regulations, 2016 - HELD THAT:- It appears that the Resolution Plan dated 26th February, 2020 as duly approved by the Committee of Creditors on 28th February, 2020 for Badami Sugars Limited, submitted by M/s. Sri Sai Priya Sugars Limited, satisfies all the requisite conditions for its approval under section 31(1) of the Code. Details of the fund infusion, and the sources from which the Resolution Applicant shall arrange the same have been provided in the Resolution Plan. The same provides for the creditors in the distribution table filed with the Plan, and provides adequate details of the infusion of funds required as working capital as well as for payment of the debts. Details of projected profits and cash flows have also been provi....... + More

Suit for recovery of price of goods sold and delivered - the claim of the plaintiff does not survive the approval of the Resolution Plan - Chapter XIIIA of the Original Side Rules - HELD THAT:- The Adjudicating Authority had accepted the Resolution Plan of the corporate debtor, that is the predecessor-in-interest of the defendant herein. The Resolution Plan has tabulated the liability of such corporate debtor. The plaintiff has not produced any document to establish that, the Resolution Plan approved in respect of the corporate debtor had the claim of the plaintiffs therein. The contentions of the plaintiffs that, the plaintiffs, subsequent to the death of the original plaintiff, was not aware of the insolvency proceedings in respect of the corporate debtor is of no consequence. In view of the ratio laid down in Committee of Creditors of ....... + More

Fraudulent or wrongful trading with an intent to defraud the creditors of the Corporate Debtor - Section 66 of IBC Code - conduct and liability of Respondent No.1 to repay the assets and benefits of the Corporate Debtor which has wrongfully been received by Respondent - HELD THAT:- Reference is made to the decision of Hon'ble NCLAT in the case of Vijay Pal Garg & Ors vs Pooja Bahry (Liquidator of Gee Ispat Private Limited) [2020 (4) TMI 420 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] wherein the Hon'ble NCLAT was dealing with identical facts of an Application filed by R Punder section 66 and it was found that the records and accounts of the Corporate Debtor have been falsified and eventually proceeded to trigger an investigation under section 213 of the Companies Act 2013. Thus in view of the judgement, it becomes cl....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Respondent has failed to comply with the order passed by the Hon'ble K-RERA and are in default of financial debt - HELD THAT:- It is a settled position of law that the provisions of Code cannot be invoked for recovery of outstanding amount but it can be invoked to initiate CIRP for justified reasons as per the Code. The Hon'ble Supreme Court in the case of Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited [2017 (9) TMI 1270 - SUPREME COURT], has inter alia, held that I&B Code, 2016 is not intended to be substitute to a recovery forum. In the instant case, it is seen that the Petitioners have already obtained an order from the relevant forum under the RERA Act and the same can be executed before an....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - time limitation - debt, limited by time or not - Financial Creditors or not - debt due is a Financial Debt or not - HELD THAT:- In view of the law laid down by the Hon'ble Supreme Court in ITC LIMITED VERSUS BLUE COAST HOTELS LTD. & ORS. [2018 (3) TMI 932 - SUPREME COURT], we hold that the WhatsApp communication dated 23-5-2019 annexed by the Financial Creditor along with the rejoinder constitutes an acknowledgement of liability, where the debtor who sent such a message has no intention of paying so long as he can avoid payment, and nothing before his mind but a desire, somehow or other, to gain time and avert pressure and falls within the meaning of Section 18 of the Limitation Act, ....... + More

Seeking directions to dismiss the proceedings in the instant matter since no quorum has been reached in accordance with Section 408 and 410 of Companies Act, 2013 - HELD THAT:- A bare reading of the provisions of Section 419(3) of the Companies Act as well as the order of the NCLT, Principal Bench, which has been issued with the approval of Hon'ble President, makes it clear that even though the Bench of NCLT consists of two members, it shall be competent for the Members of the Tribunal authorised in this behalf to function as a Bench, by a Single Judicial Member and exercise the powers of the Tribunal in respect of such class of cases or such matters pertaining to such class of cases, as the President may by general or special order specify. In regard to constitution of special Bench for NCLT, Kochi the Hon'ble President has issue....... + More

Permission for withdrawal of petition - Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- Since the Company Petition is not yet admitted, and the Petitioner has itself filed the above joint memo praying for withdrawal of the the instant Company Petition, we are inclined to permit the Petitioner to withdraw the instant Company Petition. Petition is hereby disposed of as withdrawn by granting liberty to the Petitioner to file a fresh petition in case of non-adherence to the agreed terms of payment by the Corporate Debtor.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor or not - pre-existing dispute or not - HELD THAT:- After the reply of Corporate Debtor, Operational Creditor has filed its rejoinder, in its rejoinder the Operational Creditor states that, on 27-10-2018, the Operational Creditor issued a Demand Notice against the Corporate Debtor which the Corporate Debtor responded to vide its response letter dated 6-11-2018. The Corporate Debtor issued a show cause notice dated 29-10-2018 after almost 3 months of termination of the Consultancy Agreement of the Operational Creditor w.e.f 4-8-2018 and also replied to the Demand Notice on 6-11-2018 creating a false/moonshine dispute to avoid the payment of the operational debt due to the Operational Creditors. The Operational C....... + More

Seeking to direct the Resolution Professional to accept the claim of the Applicant under the category of Financial Creditor and reconstitute the Committee of Creditors by including the name of Applicant - nature of the debt - Financial Debt or Financial debt - HELD THAT:- In the instant case, the amount in claim is arising out of the judgment of XIII Additional District and Sessions Judge cum Commercial Court, Ranga Reddy District, Hyderabad and the said judgment arose out of the issue regarding payment of entire amount as advance by the Applicant towards the purchase orders placed with the Corporate Debtor and further on account of non-supply of goods. The transaction entered into between the Applicant and Respondent squarely falls within clause 2(c)(xviii) supra and therefore the Commercial Court had jurisdiction over disputes arising o....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- The Adjudicating Authority who was required to pass the order of admission or rejection of the application being satisfied about the completion of the application and proof of debt and default as mandated under Section 9(5) has failed to provide opportunity of rectifying the defect as noticed and allowing the applicant to bring it in conformity with the requirements of law. Dismissal of application as being non-maintainable for such technical defect is not warranted. The impugned order is set aside and matter remanded back to the Adjudicating Authority to allow the Appellant/Applicant opportunity of rectifying the defect, if any, in the application and thereafter pass order of admission or rejection in regard to initiation of Corporate Insolvency Resolution Process on merit. Appeal disposed off.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - pre-existing dispute or not - time limitation - Whether there is an operational debt exceeding ₹ 1 lac as defined under Section 4 of the I&B Code? - HELD THAT:- In the application under Section 9 of the I&B Code, it is mentioned that appellant has supplied ready-mix concrete material to respondent for their various construction sites from 30/09/2012 to 20/10/2014 for which various invoices were issued from time to time as against the total outstanding payment of ₹ 02,29,94,288/-. The respondent (Corporate Debtor) has paid a sum of ₹ 02,09,30,948/- and balance of ₹ 20,63,340/- is outstanding as on 11/11/2015 - The respondent denied this fact and according to him as per the ledger, the outstanding amo....... + More

Seeking extension of time period of Corporate Insolvency Resolution Process - seeking Audit and close the Accounts of the Corporate Debtor for the Financial Year 2015-2016 to 2019-2020 with the available records - avoiding examination of transactions covered under Sections 43, 45, 50 and 66 of I&B Code, 2016 - approval of eligibility of Resolution Applicant [Celestial Garden Owners Association] and participation of Resolution Applicant in voting of Resolution Plan - HELD THAT:- Considering Section 30(4) of the I&B Code, instead of going for liquidation of the Corporate Debtor, accepting the Resolution submitted by the Resolution Applicant is more viable. Section 31 of the IBC only bestowed the NCLT with the power to reject a Resolution Plan when the conditions in Section 30(2) have not been adequately met. Hence this Tribunal is o....... + More

Seeking declaration that the letter issued by Collector of Usmanabad and the withdrawal of ₹ 76,75,000/- done by Respondent as illegal / non-est in law - seeking direction to Respondent (GST Department, Nashik) to forthwith refund the amount of ₹ 76,75000/- along with an interest @18% p.a. to the Bank Account of the Corporate Debtor - HELD THAT:- This bench is of the view that the liability towards Sales Tax due is not towards the Corporate Debtor but it is the due payable by M/s Sheelaatul Sugar Tech Private Limited. Even assuming that the Corporate Debtor is liable to pay that amount, the collection of due by the Respondent during CIRP is prohibited by moratorium under Section 14 of the Code. The Judgments referred by the Respondents is not relating to the issue involved in this Application and will not come to the aid of th....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute - HELD THAT:- It is noticed that the Petitioner Corporate Applicant has submitted all relevant particulars and information, supported by document, to meet the requirement of the I B Code. Hence the present Petition is found complete and its filing is found in order in all respect. Application admitted.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditor - no information regarding Financial Creditor who has classified the account of the Corporate Debtor as NPA - existence of debt and dispute or not - HELD THAT:- It is noted that Corporate Debtor has not participated in this proceeding and, therefore, we proceed to decide this application after hearing the learned counsel Mr. Tirth Nayak for the Operational Creditor and material on record. From the perusal of MCA data, it is noted that there are open charges on the assets of the Corporate Debtor which are of significant value. Thus, non participation of Corporate Debtor leads to an inference that Corporate Debtor in fact wishes to be admitted into CIRP. We, as Adjudicating Authority, have got limited options in s....... + More

Provisional attachment of immovable properties - Validity of summons issued under PMLA - Jurisdiction of Director/Deputy Director to attach the immovable properties which were acquired prior to coming into force of the PML Act - properties in possession of the petitioner, proceeds of the predicate crime or not - HELD THAT:- The petitioner does not dispute the authority of the Deputy Director to pass the impugned provisional order of attachment. The constitutional validity of section 5 of PML Act is also not under challenge. The said order as well as the records indicate that a report has been forwarded to the Magistrate under section 173 of Cr.P.C. in relation to the scheduled offences i.e., under section 13(1)(e) read with 13(2) of the PC Act on 28.02.2013. The order reflects the application of mind and also the elaborate reasons to arri....... + More

Seeking extension of the period of interim bail granted - Sections 3/4 of Prevention of Money Laundering Act, 2002 - HELD THAT:- As it is evident that the order dated 09.12.2020 passed in Bail Application No.5974 of 2020 of applicant is not appended with the present application and it is well settled as per the doctrine of merger that the interim order is automatically merged in the final order, and in the present case, the order of interim bail dated 14.10.2020 passed in Bail Application No.5974 of 2020 is merged in the final order dated 09.12.2020 passed in Bail Application No.5974 of 2020, therefore, it is open to the applicant either to move his second bail application under Section 439 Cr.P.C. or challenge the rejection order dated 09.12.2020, but in place of doing so, the present application under Section 482 Cr.P.C. has been moved ....... + More

Money Laundering - seeking a copy of order dated 1st January, 2021 passed under Section 8(3) of the Prevention of Money Laundering Act, 2002 be supplied to the Petitioner - further seeking that the period of at least 45 days in order to enable the Petitioner to approach the Appellate Tribunal under Section 26 of the PMLA, should not be affected. HELD THAT:- Considering the facts and circumstances of the present case, 20 days’ time is granted to the Petitioner to avail of its appellate remedies and physical possession of the immovable property shall not be taken for a period of 20 days from today. The question of law raised is left open. Further, in order to avoid such a dispute in future and to ensure fairness and non-arbitrariness, the Registrar of the Adjudicating Authority under the PMLA shall ensure that in future, all orders pa....... + More

Money Laundering - proceeds of crime - assets disproportionate to known source of income - existence of predicate offence or not - scheduled offence or not - direct allegations are leveled against the accused attracting the ingredients of the offence under section 3 of the PML Act - HELD THAT:- From the plain reading of section 3 read with section 2(1)(u) of the PML Act, it is clear that what is made punishable under section 3 is the activity connected with the proceeds of crime either by getting oneself involved in the process or activity connected thereto or directly or indirectly attempting to indulge or knowingly assist or knowingly be a party to the alleged activities and projecting it as untainted property. The prosecution under section 3 of the PML Act cannot be equated with the prosecution under section 13 of the PC Act. Both are ....... + More

Money Laundering - provisional attachment order - proceeds of crime - existence of predicate offence or not - petitioner as well as the original accused filed their objections to the provisional attachment interalia contending that the properties acquired by the petitioner and her husband were not the "proceeds of crime" - It is the submission of learned counsel for the petitioner that prior to amendment of section 5 of PML Act, the provision postulated a charge for the schedule offence. But this requirement was done away with after the amendment Act 2 of 2013 w.e.f. 15.02.2013 - HELD THAT:- The prosecution under section 3 of the PML Act cannot be equated with the prosecution under section 13 of the PC Act or other offences specified in the Schedule namely IPC or other laws. They are distinct and separate offences. Prosecution u....... + More

Levy of penalty - allegation is that the Petitioner has been held to be a “reporting entity” and a “payment system operator”, under Section 2(1)(wa) and Section 2(1)(rc) of the Prevention of Money Laundering Act, 2002 - case of the Petitioner is that it merely facilitates transactions and does not actually enter into any transactions with either of the parties conducting the same - HELD THAT:- This court is of the opinion that the question as to whether a business like the Petitioner’s, which is of recent origin in India. ought to fall within the ambit of a `payment system’ and whether the Petitioner would be a `payment system operator’ and a `reporting entity’, requires consideration. A perusal of the RBI’s affidavit filed in another writ petition, shows that the stand of the RBI is t....... + More

Petition filed challenging the summon issued - anticipation of threat and coercion during appearance - seeking direction to respondents to abstain from harassing, threatening or coercing the petitioners during questioning - seeking permission of presence of a legal practitioner - seeking to to limit the questioning time between 9.30 a.m and 4.30 p.m - seeking direction to respondents to provide copies of the statements taken from them. HELD THAT:- The question regarding maintainability of writ petition against a summons under Section 50 and the entitlement to have the presence of a legal practitioner during questioning was considered and negated by this Court in C.M. RAVEENDRAN VERSUS UNION OF INDIA ASST. DIRECTOR, ENFORCEMENT DIRECTORATE [2020 (12) TMI 703 - KERALA HIGH COURT]. Therein, reliance was placed on the judgments of the Apex Co....... + More

Maintainability of appeal - competency of Assistant Director to file the appeal - scope of Deputy Director - section 2(1)(c),2(1)(j) & 2(1)(k) of PMLA Act - It is submitted by respondent that no other person or authorities other than authorized authority under the Act can prefer an appeal and that reference has made to the title of the appeal and the affidavit thereto - HELD THAT:- Section 2(1)(c) has defined the word ‘the Assistant Director’ whereas section 2(1)(j) defined the word ‘Deputy Director’ and section 2(1)(k) has defined the words ‘Director, Additional Director and Joint Director. They are being defined as the authorities appointed under sub-section 1 of 49 of the said Act. Section 48 of the said Act specified the classes of authorities for the purpose of the PMLA, 2002(the said Act.). The Dire....... + More

Money laundering - seeking release of provisionally attached mortgaged properties (flats) - proceeds of crime - assignment of debts due and payable by borrowers including the loan in favour of the appellant - case of appellant is that the mortgaged properties were purchased by the borrowers when no such alleged scheduled offence were in the picture and that the title deeds have duly been registered and stamped which makes it further clear that the properties were not acquired from the proceed of crime - HELD THAT:- As per the submission of appellant it appears that no order on appellant’s application for substitution has been passed nor the contention raised in the reply, oral arguments advanced and the written submissions filed by the appellant is found placed in the impugned order. The Adjudicating Authority in the internal page 3....... + More

Grant of pre-arrest bail - petitioner submitted that the relief of anticipatory bail sought by the petitioner is not premature and that the petitioner's reliance on a news article of a reputed news agency for apprehension of arrest by the respondent cannot tantamount to being speculative - whether the petition filed under Section 438 of the Cr.P.C. before the High Court without exhausting remedy before the Court of Sessions Court is maintainable or not? - HELD THAT:- It is trite law that in case of economic offences, which is having an impact on the society, the Court must be very slow in exercising the discretion under Section 438 of Cr.P.C. But on perusal of the factual matrix of the case on hand, prima facie, there is no material to come to the conclusion that the act of the petitioner is having impact on the financial status of th....... + More

Grant of Bail - Money laundering - fraud with home/flat buyers - siphoning off/diversion of funds - conspiracy and huge loss of public funds - HELD THAT:- But for the Supreme Court's intervention and undertaking painful and strenuous exercise to secure and protect the interest of innocent home/flat buyers, the fraud played by the accused-applicant and other accused in cheating and defrauding thousands innocent home/flat buyers of their hard earned money, could not have been unearthed - The Supreme Court is monitoring the investigation. The Supreme Court had been in pain to note the conduct of the accused-applicant and other accused. They had even violated the Supreme Court orders and did not comply the directions issued on several occasions. The forensic auditors appointed by the Supreme Court had meticulously flagged the fraud and ch....... + More

Grant of Anticipatory Bail - Money Laundering - proceeds of crime - complainant/ officials of ED has made specific allegation that petitioner and his family members has acquired movable and immovable properties worth ₹ 80 lacs from the proceeds of crime of his father-in-law - HELD THAT:- The petitioner was married with Pooja Kumari in the month of June, 2014. Prior to the year 2014 the petitioner and his father have not produced any documentary evidence to show the acquisition of movable and immovable properties save and except ancestral property standing in the name of ancestor of the petitioner but after marriage of the petitioner with Pooja Kumari, daughter of Binay Yadav and Srimati Devi, the petitioner and his family acquired many buses, vehicles and immovable property. The petitioner also made attempt to file income tax return....... + More

Grant of Bail - allegation that some loan was given by the Bank officials on the basis of forged and fictitious documents - it is evident that the applicant never misused the liberty given by the Directorate of Enforcement - HELD THAT:- Investigation was conducted by the investigating officer of Directorate of Enforcement for a period of about 8 years and it was obligatory on his part to discover all the facts and the evidence against the accused persons. In such circumstances, it is a fit case for bail. Let applicant -Rajendra Kumar Mishra be released on bail in the aforesaid Case Crime, on his furnishing personal bond of ₹ 10 lakh and two sureties each of the said amount to the court concerned subject to conditions imposed. Application allowed.

Offence under PMLA - seeking bail - accused-applicant, who is Managing Director of Amrapali Group of Companies - investigation has been going on qua other accused and matter involves huge amount of ₹ 6,000/- Crores - HELD THAT:- The object of PMLA is to prevent money-laundering and to provide for confiscation of property derived from, or involved in, money-laundering. Money laundering is a serious economic offence and serious threat to the national economy and national interest and, these offences are committed with cool calculation with the motive of personal gain regardless of the consequences on the society. Considering the order [2019 (7) TMI 1233 - SUPREME COURT] in which involvement of the accused in offence has been meticulously flagged, his conduct before the Supreme Court and, the fact that the investigation is still on and....... + More

Seeking Interim restoration of the attached property for using the same for the purpose of marriage - Whether the property attached under Section 5 of PMLA and as confirmed under Section 8 of PMLA can be de-sealed/released on interim basis by the Appellate Tribunal during pendency of the proceedings? HELD THAT:- A perusal of Section 3 of PMLA as well as explanation thereof shows that in case any person, directly or indirectly, has enjoyed the proceeds of crime by way of concealment or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner, said person is prohibited from enjoying the proceeds of the crime. As per the provisions of Section 5 of PMLA, the Director or any other officer not below the rank of Deputy Director, so authorised by him, is competent to provisionally attach the pro....... + More

Jurisdiction - power of the Appellate Tribunal to pass an order, allowing the application for interim relief during the pendency of the appeal, such as restoration of the property for a specific purpose for a short period of time- Interim restoration of the attached property - residential house - Prayer was made for interim restoration of the property attached between 15.11.2020 to 30.11.2020 with additional 15 days time to prepare to be used and vacate the property before and after the function. HELD THAT:- The only bar, if any, which has been projected by counsel for the respondent with reference to Section 8 of the Act, would step in only where the trial has commenced before the Special Court, which, in the present case, admittedly is not the position as till date no charges have been framed against the respondent. The said power of th....... + More

Grant of Anticipatory Bail - Money Laundering - proceeds of crime - allegation that the persons named Sarith, Swapna and Sundeep along with several other accused smuggled primary gold from abroad through diplomatic channel of UAE consulate - HELD THAT:- There is no specific provision in the Money Laundering Act dealing with granting of anticipatory bail. The act of money laundering has both civil and criminal repercussions which the offender may have to face. Apart from adjudication, the perpetrator of the crime will also have to face penal consequences. The provisions would indicate that authorities for the purpose of the Act who can take action for violation of the provisions in the Act are the Director, Additional Director, Deputy Director, Joint Director, Assistant Director and such other classes of officers as may be appointed for th....... + More

Money Laundering - Attachment of properties - Agricultural Land - right of the appellants to the properties in question - SCN not issued to appellant - whether there is any violation of the provisions of law as enunciated in Prevention of Money Laundering Act (PMLA), 2002? - HELD THAT:- On perusal of the plain copies of the chain of documents, copy of the impugned order, reply made by the respondent it is prima facie that the appellants are the owners having interest in the properties in question as they had only made-over agreements to different persons for cultivation. A decision cannot be made on assumption & presumption that as the appellants have leased out the aforesaid properties for cultivation purposes for a long period amounts to lose of the ownership. It can only be decided by Competent Civil Court. Nothing has been submitt....... + More

Money Laundering - continuation of attachment order passed under PMLA Act - section 32A(2) of the IBC - HELD THAT:- Since in the present case there was no resolution plan covering the assets of the Corporate Debtor as attached by the ED vide Provisional Attachment Order ED cannot be precluded from proceeding against the assets of the Corporate Debtor in accordance with law, merely because the CIRP has been initiated against the accused/Corporate Debtor. That, it is well settled law that the Legislature is presumed to know all existing laws as well as the needs of the society, while enacting a legislation. Therefore, it will be presumed that after considering all possible scenarios when the Ordinance has dealt with only one situation where the powers of ED under PMLA are being curtailed then it will be presumed in law that the powers of ED....... + More

Direction to the 2nd respondent to refrain from detaining the petitioner beyond reasonable time and to permit the presence of a legal practitioner during questioning - Summon order - Section 50 of the Prevention of Money Laundering Act, 2002 - HELD THAT:- There are substantial force in the preliminary objection regarding maintainability raised by the learned ASG. Exhibit P11 summons is issued under Section 50(2) of the Act. A person issued with summons is bound to attend in person or through authorised agents, as the officer issuing the summons directs, and is bound to state the truth upon any subject respecting which he is examined or makes statements and to produce such documents as may be required. As held by the Apex Court in KIRIT SHRIMANKAR VERSUS UNION OF INDIA AND OTHERS [2014 (12) TMI 150 - SUPREME COURT], no cause of action aris....... + More

Levy of penalty for Non disclosures as required under the LODR Regulations - appellant had issued non-convertible debenture securities - CIRP proceedings were ongoing - penalty imposed for violating Regulations 52(4) and 54(2) of Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015 ( 'LODR Regulations, 2015' - whether the impugned order imposing penalty upon the appellant for alleged contravention during the period prior to the approval of the resolution plan could be passed by the adjudicating officer? - HELD THAT:- In clear terms of the resolution plan, the show cause notice could not be issued to the appellant for the alleged contravention relating to the period prior to the acquisition and, consequently, the impugned order could not be passed against the appellant. What cou....... + More

Violator indulging in serous act of misusing client's securities - appellant was expelled from the membership of the respondent exchange and also declared as a defaulter - HELD THAT:- All the violations are admitted by him. No reply was submitted to the show cause notice issued regaring violation noted in the inspection for the year 2017-18. Considering the request of the appellant that he wanted to surrender his license afer redressing the complaints the investors, the Committee of respondent no. 1 time and again granted him time in hearing of the proceedings.Ultimately finding that the complaints were not resolved completely the impugned order was passed. As seen that after declaration of the appellant as a defaulter more complaints of the investors are pouring in with the respondent nos.1 and 2. The appellant was earlier penalized ....... + More

Fraud by the company - Liability of directors - Concealing and suppressing the material facts as in violation of the provisions of Section 12A of SEBI Act - Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market - WTM directing the company to take steps for refund of the money from Banco and also debarred the appellant from accessing the securities market for a period of 5 years - HELD THAT:- The submissions so made are beyond the pleadings and cannot be taken into consideration. The respondent cannot be allowed to better their case and rely upon such documents which are not part of the record. There is no finding that the appellant, being a director for more than 10 years, was deemed to be involved in the day-to-day affairs and management of the Company nor there is any finding that the appellant was chairman ....... + More

Violation of Equity Listing Agreement clauses - whether the information relating to signing of a Binding Implementation Agreement ('Binding Agreement' for short) by an Authorized Executive Director of the appellant with the dominant Shareholders of the Bank of Rajasthan was liable to be disclosed on an immediate basis under clause 36 of the Listing Agreement and Regulation 12(2) of the PIT Regulations, 1992? - Penalty imposed of ₹ 5 lakh each on the appellant - contentions of the appellant on the inordinate delay in issuing the show cause notice and in passing the impugned order by respondent SEBI - HELD THAT:- The signed Binding Agreement in question was price sensitive and admittedly material to the performance of the appellant and needed to be disclosed on an immediate basis which was not done. On the basis of interpretat....... + More

Determination of the ownership of the securities - As stressed that the appellant is holding securities worth more than ₹ 90 crores given by Respondent No. 2 and the impugned direction is relating to only securities worth ₹ 34 crores - HELD THAT:- After perusing certain documents placed before us, without going into the detailed legalities and merit of the matter, we pass the following interim directions:- (a) The parties shall appear before NSE, either physically or through Video Conference, on June 24, 2020. NSE shall give the contact details and arrangements for the said meeting to the parties at least one day in advance. (b) Based on the database of NSE and other parties rights in respect of the securities in question shall be reconciled/determined within one week thereafter. (c) This Tribunal will hear the matter further ....... + More

Whole Time Member restraining the appellant from accessing the securities market - securities of the appellant in its demat account has also been frozen for the same period - appellant is a trader and investor in the capital market - HELD THAT:- Appellant had only executed one trade out of 983 trades, we are of the opinion that the penalty of debarring the appellant for six months is wholly unwarranted and cannot be sustained. Finding that 13 entities were acting as a homogenous group and were connected to each other and had executed the trades in a premeditated manner with a sole purpose of manipulating the price is not applicable in so far as the appellant is concerned. The finding that other notices were taking turns on different trading days with a premeditated motive to raise the LTP of the scrip is not applicable in the appellant....... + More

Violation of provision of SEBI Act v/s IPC - Bail application - offence punishable under other Act such as IPC - Whether amount taken from the clients was 'deposit' or fees - invoking the principles of M.P. Nikshepakon Ke Hiton Ka Sanrakshan Adhiniyam, 2000 - HELD THAT:- Section 26 of SEBI Act only prohibits cognizance of offence which is punishable under SEBI Act, but does not prevent cognizance in respect of offence punishable under other Act such as IPC. It is true that the police has come to know about the complainants after communicating with SEBI and after obtaining particulars from the same agency and in the FIR the names of the complainants have been given, but under Section 154 of Cr.P.C, it is not imperative that the aggrieved person is only authorized to lodge FIR. FIR has been lodged by SHO on the directions of ASP who....... + More

Fraudulent use of the mutual funds units of the complainant - Applicant seeking the grant of regular bail - applicant herein malafidely facilitated the accused director Awanish Kumar Mishra and AFSPL in using the said fraudulently transferred mutual fund units for margin - applicant seeking interim bail on the account of his wife’s illness - HELD THAT:- Applicant was in a fiduciary capacity and has allegedly committed gross breach of trust in relation thereto in alleged connivance with other co-accused persons of an alleged amount of INR 344.07 crores, and it has to be taken into account the factum that the complainant is a public limited company, and that the members of the public have also consequently been allegedly defrauded of the amount of INR 344.07 crores by alleged fraudulent use of the mutual funds units of the complainant....... + More

Power of SEBI to pass an ex parte interim order - allegation against the respondent was that being in possession of price sensitive information and being a connected person, he had sold the shares and had, thus, made a notional gain or averted a notional loss - appellant alleged that the reason for passing an ex-parte order was that there was a possibility of a diversion of the notional gain made by the respondent - HELD THAT:- Tribunal, in our view, was correct in coming to the conclusion that since the investigation was pending since 2017 and information had been supplied on 28 November 2019, there was no urgency for passing an ex-parte interim order of the nature that was issued by the Whole Time Member. It was, in this background, that the Tribunal, while affirming the power of SEBI to pass an ex parte interim order in appropriate cas....... + More

Expulsion against the appellant, from the membership of the National Stock Exchange of India Limited - Validity of respondents’ decision of withdrawal of trading facility and subsequent action of closing out of open transactions - appellant has contended that since the trading facility itself was interdicted, it could not have been expected to keep up with various margins and deposits prescribed by the respondents as no trading was being permitted. Whether prior approval of SEBI/Central Government was essential for enforcing the circular dated 19.05.1997 against trading/clearing members? - HELD THAT:- Clause (5) of Chapter IX of the Byelaws uses the phrase “the relevant authority may determine and announce” the operational parameters. Both “determination” and “announcement” of such parameters is t....... + More

Forward trade in commodities - Trading Irregularities - Piercing of corporate veil - abuse of position by the MD / Chairman of the Commodity Exchange - Plea of lack of adequate opportunity - principles of natural justice - Issuing show cause notice to the second respondent and not to the first respondent - multiple proceedings have been initiated but have resulted in no culmination over a period just short of a decade. HELD THAT:- We do feel that there was an endeavour to some extent by Respondent No.2 herein to prolong the proceedings but then looking into the enormity of the contents of the show cause notice running into 150 pages with documents spanning 4,000 pages supporting it, a reasonable time had to be given to respond to the same. We may note that the whole enquiry was at the behest of “independent enterprising journalist.&....... + More

Validity of Downgrading petitioner's bank loans' rating to 'IND BB+' from 'IND BBB - Covid-19 pandemic outbreak - Reserve Bank of India has announced moratorium for the period upto 31st May, 2020 vide Circular dated 27.03.2020 - objection regarding territorial jurisdiction - whether third respondent cannot be characterised as “State” within the meaning of Article 12 of the Constitution of India? - HELD THAT:- Even though the third respondent may be located in Mumbai, in as much as part of the cause of action arose within the territorial limits of this Court, this writ petition cannot be dismissed on the ground of lack of territorial jurisdiction. Likewise, reliance on the ouster clauses in the rating agreement is equally misplaced. As third respondent is a private body and not a “State” within t....... + More

Whether the Board obliged to grant a personal hearing to the petitioner while considering an exemption application under the Securities and Exchange Board of India (Share Based Employee Benefits) Regulations, 2014 - HELD THAT:- It is a settled position that the requirement of compliance with the principle of natural justice can vary in different situations and conditions. Even where situations where principles of natural justice require an opportunity of hearing, it does not in all circumstances mean a personal hearing. A “reasonable opportunity of being heard” to the applicant before deciding exemption application. Therefore whenever it is found necessary to provide for an opportunity, SEBI has expressly incorporated it in such provisions. No such stipulation is found in the Regulation at hand. Apprehension expressed by the S....... + More

Credit Rating Rationales - factors required to be considered by ICRA while deciding the rating - praying for a decree of declaration, declaring the Credit Rating Rationales dated 24th April, 2020 and 30th April, 2020 passed by the defendant or any other similar credit rating rationale downgrading the plaintiff’s credit rating from BBB+ (stable outlook) to BBB (negative outlook) as null, void, unenforceable and ineffective - also seeks decree of mandatory injunction directing the defendant to withdraw the said credit rating rationales from the physical as well as electronic records of the defendant including on the world wide web - charge of Violation of rating methodologies or the CRA Regulations or the Master Circular - Whether the defendant-ICRA has a right to publish the rating despite being objected to by the plaintiff/JPL? HELD....... + More

Failure to close the trading window - provisions of Clause 4 of Minimum Standards for Code of Conduct to Regulate, Monitor and Report Trading by Insiders mentioned in Schedule B read with Regulation 9(1) of PIT Regulations, 2015 - As alleged that the acquisition of AIMIN by Ecap was a price sensitive information which had come into existence on January 25, 2017 upon signing of Term Sheet - HELD THAT:- Price movement of the scrip of EFSL at the relevant point of time. Corporate announcement was made on the platform of BSE at 18:56:48 hours on April 05, 2017 i.e. after the market had closed on the said day. The scrip of EFSL had closed at ₹ 167.90 on the said day. However, I note that the scrip had opened at ₹ 175.95 the next day. This shows that the price of the scrip of EFSL had registered a spike of 4.79% on April 06, 2017. E....... + More

Insider trading - circumstantial evidence as to whether a person is guilty of insider trading - HELD THAT:- Appellant had passed on the price sensitive information regarding the open offer to the Tippees. Such inference taken from the immediate and proximate facts and circumstances surrounding the events is reasonable and logical which any prudent man would arrive at such a conclusion. The Supreme Court in Kanhaiyalal Patel 2017 (9) TMI 1269 - SUPREME COURT held that an inferential conclusion from proved and admitted facts would be permissible and legally justified so long as the same is reasonable. In the light of the aforesaid, the decisions cited by the learned counsel for the appellant on the issue that a person cannot be held guilty only on the strength of proximity of relationship with the Tippee are distinguishable on facts and are....... + More

Orders for release of securities - learned senior counsel sought intervention of this Tribunal to stay such orders as well as to allow the appellant to dispose of the securities worth ₹ 21.62 crores and thereafter releasing the remaining securities given by Respondent No. 2 to the appellant - HELD THAT:- We pass the following interim directions - The parties shall appear before NSE, either physically or through Video Conference, on June 24, 2020. NSE shall give the contact details and arrangements for the said meeting to the parties at least one day in advance. (b) Based on the database of NSE and other parties rights in respect of the securities in question shall be reconciled/determined within one week thereafter. (c) This Tribunal will hear the matter further on Friday, July 03, 2020. In the interim status quo shall be maintained....... + More

Withhold of money by SEBI - penalty for violation of Regulations 3 and 4 of Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003 - During the pendency of the appeal, the Recovery Officer of SEBI recovered an amount - HELD THAT:- Once the order of the AO imposing a penalty was set aside, there was no justification for SEBI to withhold any amount which was recovered pursuant to the order of the AO. Such retention of the amount after the order of the AO has been set aside, is without any authority of law. The fact that no direction for refund of the amount was issued by the Tribunal is immaterial. Once the order has been set aside, there is no amount to be recovered and consequently any amount so recovered has to be refunded immediately. Respondent has a....... + More

Maintainability of the Writ Petition - whether IGRP of the First Respondent has jurisdiction to re-examine the complaint of the Third Respondent pursuant to the direction issued by the Second Respondent after having arrived at the conclusion that the admissible claim of the Third Respondent against the Petitioner was 'NIL' and relegated the parties to take further course of action under the Exchange Regulations in the earlier order dated 18.10.2016, which has attained finality having remained unchallenged in the manner recognized by law - HELD THAT:- There cannot be any doubt that the attempt to re-examine the complaint of the Third Respondent against the Petitioner by IGRP of the First Respondent without any specific provision to that effect in IGRM devised by the Second Respondent in Circular No. CIR/MRD/ICC/30/2013 dated 26.09........ + More

Interest liability u/s 42(3) of FERA - main ground on which the Petitioner claims interest is that Section 42(3) of FERA stipulates that interest is payable at 6% p.a. in all cases other than cases relating to confiscation either under Section 63 of FERA or under the Customs Act, 1962 - HELD THAT:- In present writ petition claiming interest was filed on or about 28.08.2009. It is clear that the writ petition was filed more than 9 years after receiving the rupee equivalent of UK Pounds 1800. Upon perusal of the affidavit, find that the Petitioner stated that she and her counsel visited the office of the 1st Respondent to request for the payment of interest and that she was constrained to file the writ petition on account of non-payment thereof. Apart from this statement, no explanation is offered for the delay and no written reminders are ....... + More

Holding of inquiry against the petitioner in the manner provided in Rule 4 of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000 - HELD THAT:- Impugned Show Cause Notice is at the first stage wherein the Adjudicating Authority on receiving a reply to the Impugned Show Cause Notice is to form an opinion whether an inquiry at all should be held against the petitioner. At this stage we do not deem it appropriate to entertain this present petition. The petitioner shall be at liberty to raise all its contentions before the Adjudicating Authority. Needless to say, if the petitioner is aggrieved of the decision taken by the Adjudicating Authority, it shall always be open to the petitioner to challenge the same in accordance with law.

Permission for Direct Investment in certain cases - Remittance of equity subscription/loan/corporate guarantee/bank guarantee or through other permitted mode - additional financial commitment in JSPML by way of equity subscription/loan/corporate guarantee/bank guarantee, etc. - Denial of grant permission to the petitioner to make additional commitment/payment - respondent have rejected the application of the petitioner and have not granted permission for making the additional financial commitment/payment of USD 300 million on account of the objection raised by the Enforcement Directorate - HELD THAT:- Respondent RBI by a cryptic non-speaking order has rejected the application of the petitioner without giving any reasons whatsoever. The said order fails to give any reasons as to why the application of the petitioner is being rejected. The ....... + More

Restrictions on dealing in foreign exchange - diversion of exported goods, non-realisation of export proceeds, non-clearance of imported bills and write off/ set off - HELD THAT:- Trend Setters Group of Companies had failed to submit Bill of Entry as evidence for actual import of the goods. Trend Setters Group of Companies did not realised the substantial portion of export proceeds and it is also established that except filing a Suit before a Sub-Court in Ernakulam, Kerala and writing to the RBI for write off/ set off, no other steps have been taken. In other words, no sufficient and visible efforts have been by/ on behalf of the Trend Setters Group of Companies to realise the export proceeds. Who was/were the person/persons responsible for the diversion of export goods / non-realisation of export proceeds and remittances of payment towar....... + More

Extension of the usance period of the Letter of Credit Facility sanctioned to the writ petitioners from 180 days to 270 days - distinction between the usance period of a Letter of Credit and the period of a Trade Credit - HELD THAT:- The argument that the 2018 Regulations brought about a change in policy regarding the usance period for credit does not hold water, since the said Regulations and the Master Direction on External Commercial Borrowings and Trade Credits dated July 1, 2015, updated up to October 6, 2015, relate to loans extended by overseas banks. The germane consideration in the present case is, rather, the Master Direction - Import of Goods and Services dated January 1, 2016 (updated lastly on April 1, 2019). Trade Credit Policy - Revised Framework formulated by the RBI on March 13, 2019 does not alter the position as far as ....... + More

Detention Orders at the pre-execution stage - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) - HELD THAT:- Proposals for invoking the provisions of the COFEPOSA Act were mooted in the second week of October 2019 - overseas evidence was received from SPA Dubai in the first week of November 2019. The proposal to detain the petitioners was further analysed keeping in view the strong tendency to indulge in smuggling activities in future. The proposal for preventive detention of the petitioners was sent to the Detaining Authority on 02.01.2020. The proposal was placed before the Central Screening Committee on 13.01.2020, and the recommendations of the Central Screening Committee (CSC) were submitted to the Detaining Authority on 14.01.2020. The proposals were examined by the Detaining Authority....... + More

Seizure and attachment of the bank account of the petitioner's father - grievance of the petitioner before this Court is that the bank account mentioned in the writ petition is not allowed to be operated by the petitioner under the guise of investigating the matter under FEMA and no order of attachment was passed by the first respondent at any point of time in respect of the said bank account and therefore, the petitioner cannot be prevented from operating the bank account - HELD THAT:- Investigation under FEMA is pending and the investigation conducted so far reveals that the amount inter alia lying in the subject matter bank account appears to have been involved in violation of provisions of FEMA. Though such counter affidavit is filed, when a specific question is put to the leaned counsel for the first respondent by this Court as t....... + More

Proceeding against a Director of a company for contravention of provisions of FERA, 1973 - Non-executive Director responsibility for the conduct of business of the Company - notice dated 19.02.2001 was issued by the Deputy Director, Enforcement Directorate to decide as to whether the adjudication proceedings as contemplated in Section 51 should be held against the Directors for contravention - HELD THAT:- The appellant had not submitted any reply to show cause notice dated 19.02.2001 which though was addressed to the Company and all Directors and the reply was sent only by the Company Secretary on 26.03.2001. The representation dated 29.10.2003 was the first representation submitted by the appellant before the adjudicating officer during course of personal hearing. What is said by a person who is called for personal hearing even though gi....... + More

Permission for Direct Investment in certain cases - direct investment in joint venture or wholly owned subsidiary outside India - application the petitioner seeks permission for remission of USD 54.99 Million on or before 31st July, 2020 - HELD THAT:- What prima facie appears is that based on a communication written by Directorate of Enforcement containing cryptic information the RBI/respondent has chosen to withhold permission to the petitioner. The discretion under clause 9 of the abovenoted Regulations has to be exercised by RBI the respondent based on cogent facts and materials and not at the mere directions of Directorate of Enforcement. It was for the respondent/RBI to exercise its discretion in the facts and circumstances of the case keeping in view its own permissions given and subsequent facts and events that may have taken place....... + More

Permission for Direct Investment in certain cases - on the saying of the concerned Enforcement Directorate, permission is being refused to the petitioner - HELD THAT:- In case an Indian party does not satisfy the eligibility norms of Regulation 6 then it may apply for RBI for approval. It is Regulation 6 which states that permission cannot be given in case the investigations are pending by the Law Enforcement agencies. Regulation 9 does not provide any such stipulation. Hence, prima facie the petitioner was correct in having approached RBI under Regulation 9. Counsel for RBI has pointed out to some inquiry initiated recently as mentioned in communication dated 14.08.2019 by Enforcement Directorate. The petitioner refutes this. We cannot help noticing that the corporate guarantee and the loans have prima facie been taken with the prior per....... + More

Stay of pre-deposit - seeking direction to the 1st respondent to entertain the appeal filed by the petitioner without insisting on further pre-deposit of amount - delay in filing of appeal before the Commissioner (appeals) - HELD THAT:- Though there is appear to be a deficit in pre-deposit of amount in so as far as the Order in Original No.14/2017 is concerned as the report filed, it is noticed that the petitioner has paid amounts in excess in their appeal against the order in Original Nos.15 & 16/2017 for a sum of ₹ 74,825/- and ₹ 85,479/-. Thus, there is excess payment of ₹ 1,60,304/- by the petitioner which amount can be allowed to be adjusted against the amount of pre-deposit in the petitioner's appeal against Order in Original No.14/2017 dated 10.2.2017 - The impugned communication dated 03.05.2017 also stat....... + More

Maintainability of petition - availability of alternative and most efficacious remedy of filing an appeal - appealable order and statutory appeal - Section 86(1) of the Finance Act, 1994 - Violation of principles of natural justice - HELD THAT:- There cannot be any doubt that the impugned order is an appealable order and statutory appeal under Section 86(1) of the Finance Act, 1994 lies before the Customs Excise and Service Tax Appellate Tribunal, Bangalore. In the wake of availability of alternate remedy, this Court can entertain the writ petition in a very limited arena. For entertaining writ petition in the wake of alternate remedy, the petitioner has to demonstrate that the order impugned in the writ petition was passed in defiance of the fundamental principles of judicial procedure or in utter violation of principles of judicial just....... + More

Violation of principles of natural justice - impugned order has been challenged primarily on the ground that no opportunity of personal hearing was given to the petitioner before the impugned order was passed - HELD THAT:- Since the dispute pertains to the years 2009 to 2014, the respondent Commissioner of Central Excise is requested to dispose the proceedings within a period of three months from the date of receipt of a copy of this order. Petition disposed off.

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - allegation that no return had been filed by the Petitioner for the period from 1st April, 2016 to 30th September, 2016 - Petitioner contends that the decision of the Respondent to reject the Petitioner’s application is completely baseless, inasmuch as the Petitioner had indeed filed its return for the relevant period on 12th July, 2017 - HELD THAT:- There is no surviving factual controversy, as indeed the returns filed by the Petitioner are available with the Respondents. Certainly, the technical infraction at the end of the Respondent cannot be a ground to deprive the Petitioner the benefit of the Scheme. Thus, clearly, the ground on the basis of which the Petitioner’s application has been rejected does not survive, and is liable to be set-aside. There is no impediment ....... + More

CENVAT Credit - input services - services provided by the Insurance Corporation for insuring the deposits of public with the banks - HELD THAT:- This very same issue was referred to Larger Bench and vide order in the case of M/s. South Indian Bank (supra) dated 20.03.2020[2020 (6) TMI 278 - CESTAT BANGALORE], the Larger Bench of the Tribunal had held that credit is eligible on the service tax paid on such premiums. The learned AR has relied upon the decision of CESTAT Bench at Mumbai in the case of M/s. Bank of America [2020 (11) TMI 582 - CESTAT MUMBAI]. The very same issue has again been referred to the Hon’ble President to resolve the issue by constituting a Larger Bench. The reason for such reference and doubting of the order rendered by the Larger Bench is that the decision rendered by the Hon’ble Apex Court in Dilip Kuma....... + More

Manpower Recruitment and Supply of Manpower Agency Service or not - secondment charge - amount reimbursed or reimbursable by the applicant to Target Corporation, USA under the terms of the secondment agreement - whether in the nature of income accruing to Target USA in respect of which, tax is liable to be deducted at source by the applicant under the provisions of Income Tax Act, 1961? - payroll processing charges - payment proposed to be made by the applicant towards payroll processing charges - applicability of provisions of Double Taxation Avoidance Agreement (DTAA) entered into between India and USA. HELD THAT:- It is found from the definition of “Manpower Recruitment or Supply Agency” seeks to bring under its ambit, two types of activities i.e. recruitment of manpower and supply of manpower and further the service become....... + More

Levy of Service tax - Business Auxiliary Services - Cargo Handling Services - handling and processing of slag mixture generated by steel companies (clients) during the manufacturing process undertaken by them - period prior to 16.06.2005 - extended period of limitation - HELD THAT:- For the period prior to 16.06.2005, the definition of BAS under Section 65(19)(v) of the Act, inter-alia, mean any service in relation to production of goods on behalf of the client. The Principal Bench in assessee’s own case, M/S FERRO SCRAP NIGAM LIMITED VERSUS CCE, RAIPUR [2014 (1) TMI 1049 - CESTAT NEW DELHI] as relied by the assessee, has already observed in identical set of facts that there is no third person in the instant case, whereas the tax can be levied under BAS only in case the service is provided on behalf of the client i.e. there would be....... + More

Maintainability of writ application - alternative remedy of filing a statutory appeal is available - service tax on education related services - Gujarat Technological University Act, 2007 - HELD THAT:- This writ application should not be entertained as the writ applicant has an alternative remedy of filing a statutory appeal against the impugned order-in-original under Section 86 of the Finance Act, 1994. This writ application is disposed off without expressing any opinion on the merits of this case by relegating the writ applicant to avail the statutory remedy of appeal before the Appellate Authority under Section 86 of the Finance Act, 1994.

Maintainability of appeal - non-submission of pre-deposit - Section 35 F of the Finance Act, 1994 - HELD THAT:- Considering the fact that the appeal is a statutory appeal and the same is only rejected because of non-deposit of the amount required for entertaining the appeal per provisions of Section 35 F of the Finance Act, 1994, it is considered appropriate that one more opportunity needs to be granted to the petitioner for depositing the amount as required by Section 35 F of the Finance Act for entertaining the statutory appeal on merits. The petitioner is permitted to deposit the amount as envisaged by Section 35 F of the Finance Act, 1994 towards pre-deposit for entertaining his statutory appeal. Said amount be deposited within a period of one month from today - petition disposed off.

Rectification of mistake - error apparent on the face of record - case of Revenue is that in the impugned order different judgments which were submitted by other Authorised Representative at the time of Early Hearing Application were cited. Therefore, it is his submission that all the judgments cited in the submission have not been considered. Therefore, the order needs to be corrected and effect of the written submission dated 14/09/2020 and the judgments cited therein may be given and, accordingly, the order may be corrected. HELD THAT:- All the judgments are not relevant on the line of discussion and finding given in the final order dated 22.092020. Therefore, it cannot be said that submission of the learned Authorised Representative made at the time of hearing was not considered. The judgments cited in the order at para 5 may be replaced with the aforesaid judgments. With this the mistake apparent on record in the order dated 22/09/2020 stands corrected - Application allowed.

Selling of surplus power in Domestic Tariff Area and installing dedicated transmission lines into Domestic Tariff Area - surplus electricity supplied in the Domestic Tariff Area as per rule 47 of the Special Economic Zone Rules - to be treated as other business or not - reliance on permission dated 19.12.2006 and the Notifications dated 10.5.2007 and 19.6.2007 along with the provisions of the SEZ Act, 2005 - supply of the electricity to Domestic Tariff Area is beyond the Authorized Operations approved under the Act or not? - services received by the assessee was not shared between authorised operation in Special Economic Zone Unit and Domestic Tariff Area - whether expression “wholly consumed” referred to in Explanation (iii) of the proviso to para 2(a) of the Notification No. 17/2011-ST would be applicable to sharing business....... + More

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - Eligibility of the petitioner or maintainability of its declaration to avail the benefits of the scheme under the category of investigation, enquiry or audit - quantification of the service tax dues of the petitioner for the related period was not quantified on or before 30th June, 2019 - HELD THAT:- All that would be required for being eligible under the above category is a written communication which will mean a written communication of the amount of duty payable including a letter intimating duty demand or duty liability admitted by the person concerned during inquiry, investigation or audit. It is evident hat petitioner had given details of its outstanding service tax liability upto June, 2018 vide its intimation dated 14th September, 2018 addressed to respondent No.5. The notic....... + More

Non-payment of service tax - service rendered to foreign customers - tax not paid under the belief that it amounted to export of services - Video Tape Production Service - HELD THAT:- Issue decided in the case of PRASAD CORPORATION LTD. VERSUS COMMISSIONER OF SERVICE TAX, CHENNAI [2017 (11) TMI 435 - CESTAT CHENNAI] where it was held that we are not able to fathom how the adjudicating authority, having stated that the appellants are not engaged in the recording of any programme etc. has concluded that services or restoration, giving special effects etc. on the old films would be a "Video Tape Production". Appeal allowed - decided in favor of appellant.

Refund of Service Tax - rejection of refund claim holding that the appellant has not contested the service tax liability, therefore, the refund claim of service tax paid is not admissible - HELD THAT:- The fact which is admitted by both the sides that in the earlier round of litigation, this Tribunal passed the order and dropping the demand of service tax for extended period of limitation alongwith interest and the said order is final. In that circumstances, the refund claim filed consequent that order is admissible in the eyes of law. The refund claim alongwith interest to be paid by the department within one month from the date of receipt of this order is allowed - appeal allowed - decided in favor of appellant.

Principles of Natural Justice - principal argument of the writ applicant is that without giving any opportunity to even file reply to the show cause notice, and that no opportunity of hearing was given even before passing the impugned order in original - HELD THAT:- The writ applicant has been able to make out a strong prima facie case to have an ad­interim order in his favour in terms of para 29(c) of the writ application. Let Notice be issued to the respondents, returnable on 8th February 2021.

Benefit under the SVLDRS - writ applicant would submit that, the issue involved is very limited and if this Court takes the view that his client is entitled to claim the benefit under the SVLDRS, the order in original passed by the Commissioner, CGST, Vadodara would pale into insignificance - HELD THAT:- As the other side is not ready with the matter, it is not possible for this Court to proceed today with the hearing of the main matter. As a last chance, post this matter on 20.01.2021. We are adjourning this matter with a distinct understanding that on the next date of hearing, if none appears for the respondent, this Court shall proceed to hear Mr. Sujit Ghosh, the learned Senior Counsel appearing for the writ applicant on merits and pass an appropriate order.

Principles of Natural Justice - Validity of Clause (m) of Section 121 and Section 125 of the Sabka Vishwas (Legacy Dispute Resolution Scheme), 2019 - the clause the assesseee ineligible based on an inquiry or summons has been given up - whether the Designated Committee should have given an opportunity of hearing to the writ applicant before passing the impugned order dated 17.06.2020? - HELD THAT:- In the case on hand, the Designated Committee took the view that as an inquiry has been initiated pursuant to the summons under Section 14 of the Central Excise Act, 1944, the declaration of self assessment cannot be accepted. Let Notice for final disposal be issued to the respondents, returnable on 19.01.2021.

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - Determination of amount of pre-deposit before filing an appeal or Total amount as deposited earlier to be adjusted with Declaration of tax - whether in the facts and circumstances of the case could there be a dispute on the Service Tax deposited by the petitioner, and if there cannot be any dispute in this regard, would the petitioner upon reading the provisions of Sections 123(a)(i) and 124(2) of SVLDR Scheme, be entitled to Tax Relief thereunder which would absolve the petitioner from paying further amounts? - HELD THAT:- The SVLDR Scheme contemplates “Tax Relief” as detailed in Section 124: Section 124(2) stipulates that the ‘Tax Relief’ shall be calculated subject to the condition that any deposit during enquiry or investigation or audit shall be deducted....... + More

Levy of service tax - managing car and two wheeler parking in a public place while serving public - N/N. 25/2012-Service Tax dated 20.06.2012 - HELD THAT:- Reading of the clause Paragraph 24 of the notification 25/2012 vide Annexure-R2 read with the statement of objections filed by the second respondent cited supra, the petitioner is not entitled to exemption in payment of service tax, for the reasons that petitioner is rendering service to general public in permitting them to park the vehicles for a certain period of time and collecting fee. In other words, petitioner is rendering public services, therefore, service tax is payable. Petition dismissed.

CENVAT Credit - input services - deposit insurance service provided by the Deposit Insurance and Credit Guarantee Corporation (DICGC) - HELD THAT:- In the decision of the Larger Bench of the Tribunal in South Indian Bank vs. The Commissioner of Customs, Central Excise & Service Tax-Calicut [2020 (6) TMI 278 - CESTAT BANGALORE] it has been held that insurance service provided by the DICGC to the Banks for insuring the deposits of the public with the Banks is an “Input Service” in terms of Rule 2(l) of CCR and Cenvat credit for the service tax paid by the banks for this service can be availed by the banks for rendering output service. In view of the decision of the Larger Bench of the Tribunal in the matter of South Indian Bank, it can be concluded that the issue involved in the instant Appeal is no longer res integra. Credit is allowed - appeal allowed - decided in favor of appellant.

Validity of order passed by the Tribunal - Whether the order of the Tribunal is vitiated inasmuch as it fails to take into account relevant aspects viz. a. mode of annexation b. object of annexation c. beneficial enjoyment and thus stands vitiated? - Whether the first respondent ought to have allowed credit under the Capital Goods Scheme if not under the Inputs Scheme? HELD THAT:- In the light of the recent decision of the Hon'ble Division Bench of this Court in the case of M/S. INDIA CEMENTS LTD. VERSUS THE CUSTOM, EXCISE AND SERVICE TAX & THE COMMISSIONER OF CENTRAL EXCISE, [2015 (3) TMI 661 - MADRAS HIGH COURT] wherein an identical question was considered and the only difference being that the case arose under the CENVAT Credit Rules, which subsequently stood substituted by the MODVAT Rules. The substantial questions of law are answered in favour of the appellant/assessee.

Actual export taken place or not - It is the case of the Revenue that when the goods liable to excise duty came to be exported by the appellant, the appellant was required to follow the procedure for export without payment of duty as prescribed under the Notification No.42/2001-CE (N.T.) dated 26th June 2001, as amended, issued under Rule 19 of the Central Excise Rules, 2002 - HELD THAT:- There was no good reason for the appellate tribunal to remand the matter to the adjudicating authority. We take notice of the fact that during the pendency of the adjudication proceedings certain information was called for by the Deputy Commissioner from the Superintendent, Central Excise Range-I, Navsari - The Superintendent has, in no uncertain terms, stated in his report that the goods were actually exported and the same is evidenced by the documents ....... + More

Recovery of erroneous refund - Section 11A of the Central Excise Act, 1944 along with interest - Education and Higher Education cess were interpreted as exempt by petitioners in view of available exemption under notification dated 25.04.2000 - petitioner has questioned the very jurisdiction of the Assistant Commissioner to raise a demand for recovery of the refund already released - HELD THAT:- Section 11A makes a distinction between the cases of duty of excise not having been levied, paid or short levied or short paid or erroneously refunded for the reason of fraud, collusion or any misstatement or suppression of facts or contravention of the provisions of the Act or the rules with intent to evade payment of duty and in cases where none of these elements is present. Under sub-section 1 of Section 11A when any such duty of excise has not ....... + More

Violation of principles of Natural Justice - Clandestine removal - relied upon documents were not supplied within 30 days in violation of Rule 24A of Central Excise Rules, 2002 - whether the impugned order needs to be set aside on the premise that there has been gross violation of the principles of natural justice or if such violations or defects in the impugned order are curable?. Violation of principles of Natural Justice or not - HELD THAT:- The very fact that personal hearing was fixed 4 times, in a span of about 2 months, even when the adjudicating authority was aware that the appellants did not receive all the documents, is itself a proof that principles of natural justice were not followed - A huge case of evasion of 64 Cr by 4-5 units, involving a number of searches, number of statements recorded and humungous number of documents ....... + More

CENVAT Credit - capital goods - certain items viz. HR coils, MS angles, MS channels, MS plates, etc. - HELD THAT:- The Assistant Commissioner passed the Order-in-Original on 18/03/2019 but the same was not actually delivered to the appellant. The appellant only came to know on 12/03/2020 when they received a letter from the Superintendent informing them about the passing of the Order-in-Original and ordered to recover the credit of ₹ 15,52,986/- along with interest and penalties. Thereafter the appellant vide their letter dt. 16/03/2020 informed the Superintendent that they have not received the Order-in-Original and requested him to provide the certified copy of the said Order-in-Original and the appellant also requested the Department to provide the proof of service of the said order on them; but the Superintendent vide his email ....... + More

Seeking reversal of CENVAT Credit - demand of interest and penalty as well - exempt goods or not - removal of byproducts (i.e spent sulphuric Acid) under serial No 32 of Notification No. 04/2006 -CE dated 1st March, 2006 to fertilizer manufacturing units following the procedure laid down under Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods)Rule 2001 - applicability of Rule 6 (3)(b) and Rule 6 (3)(i)(ii) of Cenvat Credit Rules, 2004 - HELD THAT:- The appellant are engaged in manufacture of Chemicals namely Dichloro Nitro Benzene, etc. The appellants are availing Cenvat Credit in respect of certain inputs and inputs services during the process of manufacture Sulphuric Acid also comes into existence. The appellants were clearing such Sulphuric acid to manufacturers of fertilizers by availing ....... + More

Valuation - exclusion of freight amount from arriving at the assessable value for the purpose of payment of central excise duty - ‘transaction value’ or not - place of removal - Section 4(1)(a) of the Central Excise Act, 1944 - time limitation - HELD THAT:- The facts in that instant case, in essence, were that the assessee had paid the duty by including freight amount. Considering the judgment of the Hon’ble Supreme Court in COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, NAGPUR VERSUS M/S ISPAT INDUSTRIES LTD. [2015 (10) TMI 613 - SUPREME COURT], the duty paid on freight was legally not payable. So the duty amount paid legally as well as the amount legally not payable but paid, both were entitled for refund if the refund claim was filed as per law. The issue whether or not place of removal can be manufacturer’s premis....... + More

Clandestine manufacture and clearance - under valuation - laminated spring leaves - Mismatch in the books of accounts and invoices - case of the department in the ‘SCN’ is that the difference in the sales value as appearing in the alleged Sales Ledger obtained from the seized Pen drives vis-à-vis the available Central Excise Invoices for the relevant period represents clandestine clearances - Existence of corroborative evidences or not - HELD THAT:- The manner in which the Pen drives were seized and the retrieval of data (printouts) from the Pen drives along with its evidentiary value has been strongly agitated by the Appellants. We find that the seized Pen drives were not sealed with paper seal or otherwise as evident from the Panchnama dated 3 August 2012 drawn at the residence of the Appellant No. 1. Such sealing sho....... + More

CENVAT Credit - levy of penalty - allegation is that the vehicle in question is not capable of transportation of the goods - HELD THAT:- It is a fact on record that during the course of investigation, shortage of inputs was found. Further, duty free goods were also been unloaded which creates doubt that the appellant is procuring duty free goods and procuring invoices to avail the cenvat credit without receiving the goods; therefore, investigation took place. In the annexure to the show cause notice at Sr.No.1 & 2, the vehicles were found to be auto cycles and transportation of goods has been arranged by the appellant themselves. In these circumstances, the cenvat credit is not admissible to the appellant on the invoices issued by Kanhya Lal Jai Narain at S No. 1&2 of the SCN. Further, with regard to the invoice issued by Ram Park....... + More

100% EOU - Clandestine/illicit removal - Polyster Twister Yarn and Polyster Grey Fabrics - recovery of Central Excise duty equal to aggregate to custom duties - HELD THAT:- Issue Notice and Notice as to the interim relief, returnable on 27.01.2021. Service of Notice through regular mode as well as through e-mode is permitted.

SSE Exemption - Clubbing of clearance - use of brand name of others - Job work - the case of the department is that the electrodes manufactured by M/S Orion Wire Manufacturing Company bear the brand name of the appellant’s company - inclusion of such welding electrodes have to be included in the aggregate clearances of the appellant for the purpose of N/N. 8/2003 -CE - HELD THAT:- The appellant is the owner of the brand name “ Sun Arc”. They are getting electrodes manufactured by the M/s Orion Wire Manufacturing Company on job work basis by supplying materials to them. The electrodes manufactured by the job worker are cleared from the job worker premises directly. Raw materials for the manufacture of the electrodes are supplied by the appellant. The duty on the electrodes is paid by the job worker on the price at which t....... + More

Rectification of Mistake - mistake apparent on the face of record - Section 35FF of Central Excise Act, 1944 - HELD THAT:- The Revenue wants to challenge the merits of the order by way of rectification of mistake. The said act of the Revenue is not appreciable as the same shall amounts the review of own order which is not permissible in law. The issue whether the application of rectification of mistake is maintainable or not has been discussed by this Tribunal in the case of JK CARD BOARD INDUSTRY, JAMMU & KASHMIR VERSUS COMMISSIONER OF CE, JAMMU & KASHMIR JAMMU & KASHMIR [2021 (1) TMI 337 - CESTAT CHANDIGARH] where it was held that the distinction between the appeal and application for rectification of mistake is quite obvious and even a wrong finding of fact or in law needs to be challenged in an appeal before the appellate ....... + More

CENVAT Credit - applicability of N/N. 02/14-CE (N.T.) dt.20.1.2014 - denial of credit on the ground that appellant was not entitled to credit prior to the Notification No.01/10-CE dt.6.2.2010 - extended period of limitation - HELD THAT:- It is found that similarly placed assessee in DHARMPAL SATYAPAL LTD. VERSUS COMMISSIONER OF C. EX., NOIDA [2016 (9) TMI 1389 - CESTAT ALLAHABAD] was allowed the credit although against those orders, the appeals have been filed by the Revenue before the Commissioner (Appeals), in that circumstance, when the Revenue is having divergent views on the issue, the extended period of limitation is not applicable - Admittedly, in this case, the show cause notice has been issued by invoking the extended period of limitation, therefore, the denial of credit is barred by limitation. Appeal allowed - decided in favor of appellant.

Clandestine removal - allegation of clandestine use of one extra Pouch Packing Machine for manufacture and clearance by evading excise duty - period from 01-11-2013 to 30-09-2014 - Interpretation of “Compounded Levy scheme” under section 3A of Central Excise Act 1944 and Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules 2010 - Determining rate of duty and Quantification of duty under Notification No. 16/2010-CE dated 27.02.2010 - seized machine found excess - Operating Machine or not - evidentiary value of statements in term of section 9D of Central Excise Act 1944 with & without examining witnesses - Confiscation of PPM is sustainable when it is not manufactured and removed by M/s Hasmukh Tobacco Products - absence of seizure of goods manufactured or cleared ....... + More

Rectification of Mistake - mistake apparent on the face of record - review of order - Section 35C (2) of the Central Excise Act, 1944. As per Ashok Jindal, HELD THAT:- There are no merit in the applications for rectification of mistake filed by the Revenue. If any consideration is given to the same, the same shall be amount to review of our own order which is not permissible in law - the applications for rectification of mistake filed by the Revenue is dismissed. As per Sanjiv Srivastava: The present applications are undoubtedly and undisputedly the applications filed under Section 35C (2) of the Central Excise Act, 1944 for rectification of the mistake apparent from the record. It is settled law as to what can be the scope of the application made under this section and what is the mistake apparent from the records which can be rectified ....... + More

CENVAT Credit - input services - Advisory services - Activities relating to business - Legal service - whether the services availed by the appellants from M/s. Singhi Advisors Pvt. Ltd. Mumbai would amount to input services to be eligible for credit? - HELD THAT:- Rule 2(l) of Cenvat Credit Rules, 2004 has two parts, one the substantive part and the other the inclusive part. Commissioner finds that the services covered under the inclusive part of the definition of input service or services are which are rendered prior to the commencement of the manufacturing activity (such as, services for modernization, renovation or repairs of the factory) as well as services rendered after the manufacture of final products (such as advertisement, sales promotion, market research etc.) and includes services received such as accounting, auditing, financi....... + More

CENVAT Credit - input services - Warranty Services - whether warranty services are part of the manufacturing and sale activity as they are required for the purpose of ensuring sale of the goods or not? - HELD THAT:- It is the Warranty Service which implies that the value is already included in the sale price of the goods. Moreover, there is no requirement in the definition of Input Service that the value is to be included in the assessable value for the purpose of Central Excise before the credit can be allowed. There is no such restriction in the definition of input service. Appeal allowed - decided in favor of appellant.

CENVAT Credit - common input services for taxable as well as exempt goods - maintaining separate accountal of input and input services used in or in relation to manufacture of exempted and dutiable final products - alteration of option exercised under Rule 6(3) of the Cenvat Credit Rules in mid 2012-13 - time limitation - equivalent penalty under Rule 15(2) of the Cenvat Credit Rules read with Section 11AC of the Act. Whether for the purposes of Rule 6(2) and Rule 6(3) of the Cenvat Credit Rules it was obligatory on the part of the appellant to maintain separate accountal of input and input services used in or in relation to manufacture of exempted and dutiable final products prior to manufacture of the final products or reversal of the cenvat credit of the duty and tax involved in respect of exempted inputs and input services on proporti....... + More

Classification - Scope of the term Textile - Demand based on CBIC circular and Trade Notice issued by the Commissioner - Maintainability of petition - alternative remedy of preferring an appeal - Section 35B of the Central Excise Act - non-compliance of the mandatory provisions of Section 37C of the Central Excise Act, 1944 - HELD THAT:- When the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. It has been hitherto uncontroverted legal position that where a statute is required to do something in a certain way, the thing must be done in that way or not at all. The other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal position is based on a legal maxim “expressio unius est exclusio atlerius&....... + More

Valuation - inclusion of Freight charges in the assessable value - place of removal - premises of the buyers - appellant paid duty on the assessable value without including the value of freight, as according to the appellant, freight was incurred beyond the place of removal which is the factory gate of the appellant - HELD THAT:- The sale invoices raised by the appellant clearly mentioned at serial number 4 that "our responsibility ceases when goods leave factory". Rule 5 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 also provides that the cost of transportation from the place of removal to the place of delivery is not includable in the assessable value. The cost of transportation has also been separately mentioned in invoices and this cost is paid by the buyer. It is, therefore, evident....... + More

Principles of Natural Justice - Validity of assessment order - petitioner contends that the Assessment Orders were passed for the said periods on different dates, but none of those orders were served on the petitioner - HELD THAT:- It is not in dispute that notices as well as orders passed are required to be served on the assessee in accordance with Rule 64(1)(b) of the TVAT Rules, which does not contemplate service of either notices or orders through the mode of e-mail. In Soa Software Engineering India Private Limited Vs. Commercial Tax Officer [2013 (3) TMI 850 - ANDHRA PRADESH HIGH COURT], a Division Bench of this Court held that as per Rule 64(1)(b) of the Telangana State Value Added Tax Rules, 2005 read with Section 9(2) of the Central Sales Tax Act, 1956, show-cause notice should be served on the nominated person or left at the reg....... + More

Maintainability of application - HELD THAT:- No explanation has been offered for inaction between 17.08.2017 until 10.02.2020 despite the tax amount involved is over ₹ 24 crores. List the matter after two weeks.

Levy of Entry Tax - petroleum based lubricating oil - Entry 67 of 3rd Schedule of Karnataka Tax on Entry of Goods Act, 1979 read with Entry 1(viii)(a) Notification bearing No. FD/11/CET/2002 dated 30.03.2002 - HELD THAT:- Section 3 of the 1979 Act is the charging Section, which mandates that there shall be levy and collection of tax on entry of any goods specified in First schedule into a local area for consumption, use or sale therein at such rates not exceeding 5% of the value of goods as may be specified retrospectively or prospectively by the State Government by a Notification. The aforesaid Section further provides that different dates on different rates may be specified in respect of different goods or different classes of goods or different local areas. First Schedule to the Act specifies the items or goods, on which tax is levied ....... + More

Refund-set off - allegation of false claim for set-off (refund of sales tax) admissible to dealers, engaged in the business of extracting oil from power oil ghanas, whose sales were exempted under Entry No.39, Schedule ‘A’ appended to the Bombay Sales Tax Act - offences punishable under Sections 120-B, 409, 420, 468, 471, 477-A read with Section 109 of the Indian Penal Code and under Sections 5(2) read with Section 5(1) (d) and 5(1)(c)of the Prevention of Corruption Act, 1947 - HELD THAT:- The prosecution had examined the officers of the Sales Tax Department. The tenor of the evidence of Assistant Commissioner is not suggesting that the assessment orders passed by Mr. Kagane, which resulted in refund-set-off, were illmotivated; but were incorrect and illegal orders due to procedural irregularity committed by him. Therefore, it....... + More

Direction to the Respondent No.1 to issue “Form C” - Central Sales Tax Act, 1956 - year 2016-17 - Respondent contends that this Court has recently in similar matters been either adjourning matters or is allowing the petition but suspending the relief till the civil appeals pending in the Supreme Court are decided - HELD THAT:- This Court is of the view that no useful purpose would be served by keeping the petition pending. Consequently, it directs Respondent No. 1 to allow the Petitioner to amend in its return of Third Quarter for the Financial Year 2016-17 (01.10.2016 to 31.12.2016) and issue segregated and separate Form C in terms of the prayer Clause-(i) to the writ petition (subject to verification of entitlement on merits and not on the ground of limitation). However, this direction shall remain suspended till the Civil A....... + More

Concessional benefit of tax - purchase of High Speed Diesel from suppliers in other States - difficulty in obtaining C-Form - respondent fairly submits that the issue involved in this Writ Petition is squarely covered by a decision of this Court in the case of M/s. Dhandapani Cement Private Limited Vs. The State of Tamil Nadu, [2019 (2) TMI 1850 - MADRAS HIGH COURT] wherein on identical issue it was held that Petitioner in these Writ Petitions has stated on affidavit that it is unable to download the ‘C’ forms from the websites as the same stand blocked from use. Upon enquiry with the Assessing Authorities, they have been informed that the benefit of the decision in M/S. THE RAMCO CEMENTS LTD. VERSUS THE COMMISSIONER OF COMMERCIAL TAXES, THE ADDITIONAL COMMISSIONER (CT) [2018 (10) TMI 1529 - MADRAS HIGH COURT] Ltd can be exten....... + More

Recovery of VAT from the purchaser of property in Auction - Attachment of mortgaged properties - first charge of the Bank over the properties mortgaged with the Petitioners - recovery of sales tax dues from the assets of the defaulter by State Government - SARFAESI Act - HELD THAT:- The issue raised in this writ application is no longer res integra in view of the judgement of this Court in the case of Kalupur Commercial Cooperative Bank Limited vs. State of Gujarat [2019 (9) TMI 1018 - GUJARAT HIGH COURT]. It is now well settled that in view of Section 26E of the SARFAESI Act, 2002, the State cannot claim any first priority or precedence over the property in question on the strength of Section 48 of the Gujarat Value Added Tax Act, 2003. The security interest over the property was created in favour of the Bank much before the dues of M/s........ + More

Maintainability of appeal - appeal dismissed on the ground of non-payment of 20 % of the total dues towards pre-deposit as provided under Section 74 of the Act, 2003 - HELD THAT:- No error not to speak of any error of law could be said to have been committed by the Tribunal in passing the impugned order. No case is made out to interfere on any of the grounds raised in this writ application. With a view to give one chance to the writ applicants, we inquired with Mr. Gandhi, the learned counsel appearing for the writ applicants, whether his clients would be in a position to furnish some tangible security in lieu of deposit of 20 % of the total tax dues. However, Mr. Gandhi submitted that his clients are not in a position to offer any tangible security of any nature. Application dismissed.

Validity of assessment order - rate of tax - restaurant where ready to eat unbranded foods including sweets, savories, unbranded, non-alcoholic drinks and beverages are served - respondent pointed out that though the petitioner was liable to pay tax at 12.5% as per Section 7(1)(a) of the Act, they had paid tax only at 2% - interest on short paid tax - Section 27(1)(b) of TNVAT Act - HELD THAT:- The petitioner who was not eligible to invoke Section 8 of the Act cannot advance the contention that re-assessment is without jurisdiction. Mere filing of the return in Form-L cannot be determinative of the issue. Section 27(1)(b) of the Act can be invoked when it is noticed within the limitation period that the whole or any part of the turn over of business of a dealer has been assessed at a rate lower than the rate at which it is assessable. The....... + More

Principles of Natural Justice - allegation that the impugned orders have been issued even without affording an opportunity of being heard to his client, but recording that the applicable returns have not been filed - HELD THAT:- The petitioner has not been heard and it is so recorded in the said orders. Thus, they require to be given the opportunity of being heard before an assessment of the nature as Exs.P12 and P13 can be allowed to operate. In the afore circumstances, I order this writ petition and set aside Exts.P12 and P13, not because it is found against it affirmatively, but so as to pave way for a fresh consideration at the hands of the 2nd respondent. The petitioner is directed to mark appearance in the office of the 2nd respondent at 11.00 a.m. on 19/01/2021; on which day, they will either be heard or a suitable date fixed for such purpose - application disposed off.

Validity of assessment order - Form C filed belatedly - case of Revenue is that having slept over the matter for three years for submission of ‘C’ forms, it is absolutely not open for the petitioner herein to insist on consideration of the representation, said to have been made on 23.07.2016 - HELD THAT:- The declaration in form ‘C’ is required to be furnished to the prescribed authority within three months after the end of the period to which the declaration or the certificate relates. In the instant case, the assessment pertains to the period 2012-2013. Three months period, according to the said provision of law, came to an end by the end of June, 2013. As per the proviso to Rule 12 (7) of the Rules, the prescribed authority is empowered to receive form ‘C’ if the authority is satisfied that the asses....... + More

Maintainability of petition- availability of alternate remedy - non-speaking order - HELD THAT:- Learned Assistant Government Pleader Shri Chintan Dave could not justify in any manner that the impugned order is a reasoned order or that it was not a non­speaking order. Law is well settled that a non­ speaking order suffers from arbitrariness which goes to the root of the matter and as such, alternative remedy may not come in the way of this Court in entertaining this petition. Petition allowed.

Levy of CST - Benefit of Concessional rate of tax - sales in the course of import or inter-State sales - grant of time to the appellant to produce the prescribed C-Forms to the assessing authority - whether the sales in question took place in the course of the import of the goods into the territory of India and qualify for exemption under Section 5(2) of the CST Act? HELD THAT:- The basic principles for determining as to when a sale or purchase of goods takes place in the course of import or export are contained in Section 5 of the CST Act. As per sub-section (1) of Section 5, a sale or purchase of goods shall be deemed to take place in the course of the export of the goods out of the territory of India only if the sale or purchase either occasions such export or is effected by a transfer of documents of title to the goods after the goods....... + More

Imposition of penalty under Income Tax Act - KVAT Act, 2003 - HELD THAT:- The appeals, delay condonation petitions and the stay petitions preferred by the petitioner is liable to be considered and disposed of on merits before proceeding with the recovery of amounts in terms of the orders passed by the assessment authority. There will be a direction to the 2nd respondent appellate authority to take up consider and pass appropriate orders on Exhibits P2, P2(a) and P2(b) appeals, Exts.P3, P3(a) and P3(b) delay condonation petitions and Exts.P4, P4(a) and P4(b) stay petitions preferred by the petitioner and to dispose of the same in accordance with law at the earliest, at any rate, within six weeks from the date of receipt of a copy of this judgment. Till orders are passed, coercive proceedings on the basis of the original order shall be kept in abeyance.

Validity of assessment order - 'C' Forms - petitioner contends that the 3rd respondent had issued notices on 26.08.2019 and 19.11.2019, and a Final Notice dt.07.03.2020 through e-mail to petitioner; and that such a mode of service is not contemplated in Rule 64(1)(b) of the Telangana VAT Rules, 2005 - HELD THAT:- Respondents, does not dispute that Rule 64(1) (b) of the Telangana VAT, 2005 which is applicable does not contemplate service of notices through e-mail on an assessee. He also does not dispute the proposition that it is open to an assessee to submit 'C' Forms even after the finalization of the assessment. There has been a violation of principles of natural justice causing grave prejudice to petitioner - the matter is remitted to 3rd respondent for fresh consideration; the 3rd respondent shall serve on petitioner p....... + More

Evasion of tax u/s 54(1)(14) of U.P. Value Added Tax Act - inadvertent mistake on his own part/the foreman of the firm under whom supervision the stickers containing the MRP of Premium Grade Tiles pasted in all boxes/cartoons even boxes/cartoons containing to Silver Grade Tiles and Gold Grade Tiles boxes loaded in the vehicle - purchasing dealer liable for mistakes and actions by the consignee - Whether there was an intention on the part of revisionist and under Section 54(1)(14) VAT Act it is mandatory to examine the material on record and discuses the merit of matter and record the clear finding with regard to intention whereas, there is no material on record in the order of assessing authority regarding the physical verification of each boxes/cartoons? HELD THAT:- This Court finds from a perusal of the explanation given by the revision....... + More

Demand of differential amount of tax due with interest and penalty - validity of procedure adopted under the Maharastra VAT Act - Reversal of ITC - reopening of assessments - HELD THAT:- Reliance placed in M/S. JKM GRAPHICS SOLUTIONS PRIVATE LIMITED VERSUS THE COMMERCIAL TAX OFFICER [2017 (3) TMI 536 - MADRAS HIGH COURT] and after analyzing in detail the rival contentions raised by parties and referring to the earlier decisions governing the issue, it has been held that this Court is fully convinced that the procedure adopted by the respondent, Assessing Officers in all these cases are half baked attempts, which have not yielded results and these cases are before this Court or before the Appellate Authorities and all that the Assessing Officers can record is that they have issued show cause notices or passed orders reversing the Input Tax....... + More

Attachment of Bank Accounts - non-consideration of the interim relief - consequential Section 45 Notice issued by the respondent/Revenue to its Bankers - HELD THAT:- We hope that wiser counsel would prevail and the respondents will not take any coercive action pending the hearing on 07.01.2021. Counsel for the appellant submits that on 07.01.2021 they will not seek any adjournment and the learned Additional Advocate General also submits that the matter lies in a short compass and that they would assist the Court in disposal of the matter itself. The writ appeal is disposed of with a request to the learned Single Judge to expedite the hearing and disposal, as the writ petition involves revenue to the State.

Validity of Recovery Notice issued after the Best Judgment Assessment order - Defreezing of Bank Accounts - Section 9(2) of the Central Sales Tax Act, 1956 - HELD THAT:- After the impugned Recovery Notice is issued, pursuant thereto approximately 10% of the demand has been recovered. Therefore, it would be just and reasonable to quash the impugned Recovery Notice with liberty to the authorities to initiate appropriate action for refund of the amount recovered once the petitioner’s appeal is decided on merits by the appellate authority. This Court is of the view that the petition could be disposed of directing the respondents not to take any precipitous action for the next ten working days and to issue appropriate Communication to the petitioner’s banker to de-freeze the account subject to further orders that could be made in the event the petitioner does not file an appeal within the next ten working days. Petition disposed off.

Validity of Recovery Notice issued after the Best Judgment Assessment order - Defreezing of Bank Accounts - Section 9(2) of the Central Sales Tax Act, 1956 - HELD THAT:- After the impugned Recovery Notice is issued, pursuant thereto approximately 10% of the demand has been recovered. Therefore, it would be just and reasonable to quash the impugned Recovery Notice with liberty to the authorities to initiate appropriate action for refund of the amount recovered once the petitioner’s appeal is decided on merits by the appellate authority. This Court is of the view that the petition could be disposed of directing the respondents not to take any precipitous action for the next ten working days and to issue appropriate Communication to the petitioner’s banker to de-freeze the account subject to further orders that could be made in the event the petitioner does not file an appeal within the next ten working days. Petition disposed off.

Grant of Bail - offences under Sections 406, 409, 420, 467, 468, 471, 477-A, 201, 120-B of IPC and Section 5 of the Prize Chits Money Circulation Scheme (Banning Act), 1978 and Section 65 of the IT Act - High Court ruled in his favour by holding that the appellant is entitled to bail under Section 167 as a complete charge sheet was not filed within the prescribed period - HELD THAT:- It is clear from the judgment of this Court in Bashir’s case [1977 (10) TMI 125 - SUPREME COURT] that filing of charge sheet by itself cannot be a ground for cancellation of bail. Bail granted under Section 167 Cr.P.C. can be cancelled on other grounds available in law to the prosecution. Appeal disposed off.

Benefit of grant of regularization and other service benefits - non-fulfilment of conditions as per the Recruitment Rules of MTS that is with regard to the age - HELD THAT:- In order to attract the contempt of the courts, the order should be very specific and clear in terms as we have noted above, the CAT has not directed the regularization of the respondent herein, but only directed for consideration of the representation of respondent herein. The said direction has been strictly complied and the application of the respondent has been considered and a considered order has been passed as noted supra. Therefore, if at all the respondent is aggrieved by the order passed by the petitioner No.1 herein dated 31.08.2018 as per Annexure-G, he ought to have challenged the said order and in that context the Tribunal may get an opportunity to exami....... + More

Dishonor of cheque - pre-trial before the actual trial begins - rebuttal of presumption - Sections 118, 138 and 139 of the Negotiable Instrument Act - HELD THAT:- It is manifestly clear that a dishonour would constitute an offence only if the cheque is returned by the bank ''unpaid' either because the amount of money standing to the credit of the drawer's account is insufficient to honour the cheque or that the amount exceeds the amount arranged to be paid from that account by an agreement with that bank. Now, for an offence under Section 138 NI Act, it is essential that the cheque must have been issued in discharge of legal debt or liability by accused on an account maintained by him with a bank and on presentation of such cheque for encashment within its period of validity, the cheque must have been returned unpaid. The ....... + More

Scope of the bar of cognizance imposed under Section 439(2) of the Act of 2013 - Section 439(2) of Act of 2013 and Section 19(1) of Prevention of Corruption Act are in pari materia with each other or not - proceedings against the directors of a company and/or the company under Section 439(2) of the Act of 2013. Whether the application in IA No.2/2020 under Order VI Rule 16 of CPC is required to be allowed? - HELD THAT:- The averments made and the documents produced therein cannot be said to prejudice or delay the matter inasmuch as the above petition having been filed on 4.08.2020, the respondent having entered appearance and filed its objections on 3.10.2020, the above matter was taken up on 20.11.2020, 2.12.2020, 14.12.2020, 17.12.2020, 18.12.2020, when it did not reach on account of paucity of time, it was however taken up for hearing ....... + More

Dishonor of Cheque - error apparent on the face of record or not - offence punishable under Section 138 of the N.I. Act - HELD THAT:- This Court did not notice any error apparent on record with the well reasoned orders of the learned Magistrate and the learned First Appellate Court. Suffice to say that, though under Section 138 of the N.I. Act, the Court is entitled to order for double the cheque amount as fine and imprisonment for two years, having regard to the facts and circumstances of the case on hand, the learned Magistrate awarded fine of ₹ 39,000/-, out of which, ₹ 37,000/- was ordered to be paid as compensation to the complainant along with imprisonment of six months. In the considered opinion of the Court, awarding simple imprisonment for a period of six months is not supported by valid reasons. Therefore, to that ex....... + More

Dishonor of Cheque - seeking permission to compound the offence under Section 147 of the N.I Act and also reporting the settlement of the matter between the parties - HELD THAT:- The parties have settled the matter out of their own volition with free consent and keeping their mutual interest under consideration, as such, they may be permitted to compound the offence under Section 147 of the N.I. Act. Section 147 of N.I. Act has made every offence punishable under the N.I. Act as compoundable. As such, there is no bar for the parties in the proceeding to compound the offence - However, at the same time the guidelines laid down by Hon'ble Apex Court in Damodar S. Prabhu v. Sayed Babalal H [2010 (5) TMI 380 - SUPREME COURT] regarding imposing graded cost on litigant also to be borne in mind - According to the said Judgment in Damodar S. ....... + More

Dishonor of Cheque - defence taken by the accused is that while he was proceeding in a Car, he met with an accident, wherein he lost the cheques and one of those cheques have been mis-used by the complainant - Section 138 of the Negotiable Instruments Act. Whether the finding recorded by the learned Magistrate that accused has committed an offence under Section 138 of the Negotiable Instruments Act confirmed by the first Appellate Court is erroneous? - HELD THAT:- It is the accused who has taken the contention that there is a material alteration in Ex.P-1. It was required for the accused to make an application seeking necessary orders to refer the Ex.P-1 for hand-writing expert. No such application is filed by the accused before the learned Magistrate or atleast before the first Appellate Court. All along, the accused tried to impress upo....... + More

Condonation of delay in filing statements - Booked flats not delivered in time - Section 38(2)(a) of the Consumer Protection Act, 2019 - HELD THAT:- In the present matter, it is an admitted fact that the period of limitation of 30 days to file the written statement had expired on 12.08.2020 and the extended period of 15 days expired on 27.08.2020. This period expired when the order dated 23.03.2020 passed by this Court in SMW(C) No.3 of 2020 was continuing - the limitation for filing the written statement in the present proceedings before the National Commission would be deemed to have been extended as it is clear from the order dated 23.03.2020 that the extended period of limitation was applicable to all petitions/ applications/suits/appeals and all other proceedings. As such, the delay of four days in filing the written statements in th....... + More

Dishonor of Cheque - insufficiency of funds - Respondent had not repaid the amount despite receipt of notice and neither did he reply to the said legal notice - acquittal of accused - Rebuttal of presumption - Whether the appellant has proved the guilt of accused thereby warranting a conviction of the respondent? - HELD THAT:- This Court will have to adjudicate on the theory putforth by the respondent as to a theory which is probable in defence and whether the same has been accepted and admitted by the appellant. When respondent tries to disprove the version of appellant he cannot merely make a statement of denial or posing certain suggestions that he does not owe any money to the appellant. The burden cast on the respondent is so heavy in view of the presumption under section 139 of the Act that while raising the probable defence it has ....... + More

Seeking grant of regular bail - recovery of contraband from a vehicle in transit - tablets of Clovidol-100-SR (Tramadol) - tablets of Clovidol-100-SR (Tramadol) - Wincerex - HELD THAT:- It is a case where pursuant to receipt of secret information, the police intercepted a car in which the petitioner and one Sanju Singh were found travelling and search of which led to recovery of 23,500 tablets of Clovidol-100-SR (Tramadol) and another 17,000 tablets of Clovidol-100-SR (Tramadol) apart from 200 vials 100 ml each of Wincerex. Section 42 of the Act pertaining to power of entry, search, seizure and arrest without warrant or authorisation. The material question would be as to whether it is the procedure mandated under Section 42 of the Act which would be applicable or as to whether Section 43 of the Act alone will apply in such cases of recove....... + More

Dishonor of Cheque - service of notice - Refusal of notice - endorsement of refusal by the postal peon was dated 10.04.07 while notice refused on 2.4.07 - case of petitioner is is that the Complaint itself was premature and not maintainable, inasmuch as, the statutory period for filing the Complaint under Section 138 of the Negotiable Instruments Act, 1881 had not expired - HELD THAT:- This court finds that there is nothing on record, neither documentary or oral evidence, as to what happened on 02.04.2007 when the postal peon went to deliver the notice and as to whether he met the accused and whether on the same day the accused refused to accept the notice. Admittedly, the postal peon has not been examined as a witness and the postal envelope has a specific endorsement of refusal with a date as 10.04.2007. Thus, finding of the learned low....... + More

Maintainability of petition - right to prefer an appeal - condonation of delay application under Section 5 of the Limitation Act - Dishonor of cheque - Section 148 of the Negotiable Instruments Act - HELD THAT:- As per section 148 of NI Act, A minimum of 20% of the compensation amount may be directed to be paid at the time of hearing of the appeal. Thus, fixing 50% of the compensation amount as a pre-condition for hearing of the application and the appeal was not an absolute imperative. It has to be remembered that the right of appeal of a convict is too precious to be thwarted by technical embargoes, that too discretionary ones. As such, so far as the direction to pay 50% of the compensation amount is concerned, the same ought to be suitably modified. In the present case, during pendency of this revision, the Learned Appellate Court has ....... + More

Dishonor of Cheque - acquittal of accused - offence under Section 138 of the Negotiable Instruments Act, 1881 - the trial Court came to the conclusion that the complainant failed to establish the ingredients of Section 138 of the N.I. Act and the trial Court held that in view of material alterations of cheque-Ex. P1, Section 87 of the N.I. Act renders the same instrument as void and Ex. P1-cheque is materially altered - HELD THAT:- It is not in dispute that complainant is seeking to recover an amount of ₹ 4,00,000/- from society namely Sasya Shyamala Souharda Credit Co-operative Limited. Complainant has not made society as party, accused in the complaint. Though trial Court has dismissed the case and discharged accused No. 2, no challenge is made to such dismissal of case against accused No. 2. Nevertheless, accused No. 1/respondent....... + More

Dishonor of Cheque - insufficiency of funds - Rebuttal of presumption - trial Court came to the conclusion that appellant utterly failed to prove the guilt of accused beyond all reasonable doubt to the satisfaction of the Court - offence punishable under section 138 of Negotiable Instruments Act and section 139 of NI Act - HELD THAT:- The primary requirement is the existence of any debt or liability and that the said debt has to be legally enforceable debt. Therefore, it is stated that when any cheque is drawn by a person on account maintained by him with Bank for payment of any amount of money to another person from out of that account for discharge in whole in part, of any debt or other liability is returned by the Bank unpaid, in such situations, the provision under this section will come into play. Therefore, the primary requirement w....... + More

Dishonor of Cheque - acquittal of accused - appellant submitted that the Trial Court after appreciating the evidence on record had convicted respondent no.2­accused for the alleged offence under the said Act, which has been reversed by the Appellate Court by misinterpreting the evidence and solely on the ground that the respondent no.2­accused had deposited ₹ 2,00,000/­ towards compensation, interest and cost - HELD THAT:- It would be beneficial to refer to the decision of the Supreme Court in the case of M/S. METERS AND INSTRUMENTS PRIVATE LIMITED & ANR. VERSUS KANCHAN MEHTA [2017 (10) TMI 218 - SUPREME COURT], whereby it has been observed by the Supreme Court that though the compounding of offence requires consent of both the parties, even in absence of such consent, the Court, in the interest of justice, on being ....... + More

Dishonor of cheque - acquittal of accused - only defence taken is that the accused has given the said cheque in favour of one Krishnappa while availing loan of ₹ 30,000/- for him and the same has been misused - HELD THAT:-It is the specific case of the complainant that notice was sent through UCP was served and through out the cross- examination of PW.1, nothing is elicited with regard to non-service of notice sent through UCP. Though he denies the address, claiming that till 2004, he was residing in the address mentioned in the complaint but in the cross-examination, he categorically admits that his wife residing in the said address and any notice sent to that address his wife would intimate the same. The first contention that no notice was served on him cannot be accepted for the answer elicited from the mouth of DW.1 and notice s....... + More

Dishonor of Cheque - funds insufficient - post dated cheque - legally enforceable debt or not - acquittal of the accused - the accused in this case has contended that cheque in question was a post dated cheque issued for security purposes only - Whether the complainant has made out all the ingredients of Sec.138 of N.I.Act to prove the guilt of the accused person? - HELD THAT:- accused admitted his signature on cheque and its issuance to complainant. Consequently presumption under Section 118 and 139 of N.I. Act would be available to complainant - In this case, accused has not led his evidence. The reasons assigned by the trial Court that complainant failed to prove the particulars of seizure of vehicle of accused, its sale to third party, the amount received from such sale coupled with the contention that cheque issued was a post dated c....... + More

Dishonor of Cheque - acquittal of the accused - rebuttal of presumption - burden to prove - it is contended that the Trial Judge has committed an error in coming to the conclusion that the burden is on the complainant to establish the case against the accused beyond doubt - HELD THAT:- It is settled law that once the cheque is admitted and there is no dispute with regard to the signature and so also notice was issued, the Court has to draw mandatory presumption under Section 139 of the N.I. Act. No doubt, in the case on hand, the accused has given reply denying the issuance of the cheque. But in the cross-examination of D.W.1, he categorically admits that he issued the cheques and the contents of Ex.P1 cheques in both the cases are also written by him. It has to be noted that P.W.1 in the cross-examination admits that he filled up the con....... + More

Dishonor of Cheque - insufficiency of funds - expert opinion for cross-examination of cheques, sought - It is contended that the expert opinion would have aided the petitioner in setting up rebuttal evidence - HELD THAT:- A perusal of the impugned order reveals that the petitioner had executed Exhibit P14 agreement acknowledging the liability and had entered the particulars of the cheques issued towards discharge of the liability in that document. The petitioner has not disputed his signature in the agreement. Further, the petitioner has not disputed his signature in the cheques or the amount entered in words. Therefore, as rightly found by the learned Magistrate, no purpose would be served by sending the cheques for expert opinion, other than delaying the trial unnecessarily. Application dismissed.

Grant of Bail - Dishonor of Cheque - Cheating - According to complainant, as and when she had been visiting for training at Gurgaon, petitioner, who was posted at Gurgaon at that time, had been booking Hotel for her, but at the time of issuance of bill, on advise of the petitioner, she had been taking bill in the name of one person only whereas petitioner had been keeping bills having details of two persons with him and later on petitioner had made a complaint in the Company for claiming amount on the basis of wrong bills and petitioner had started to threaten her - HELD THAT:- At this stage, petitioner is entitled for bail. The petition is allowed and petitioner is ordered to be released on bail under Sections 376, 506 and 417 IPC, on his furnishing personal bond in the sum of ₹ 1,00,000/- with two sureties, one of which shall be l....... + More