Best judgment assessment - Admission of additional evidence - HELD THAT:- Application for oral hearing in Court is rejected. We have carefully gone through the review petitions and the connected papers. We find no merit in the review petitions and the same are accordingly dismissed.

Disallowance under section 40A(3) - whether fall within the ambit of undisclosed income within the meaning of Section 158B(b) - HELD THAT:- Leave granted.

Presumption u/s 132(4A) raised in the assessment proceeding - Whether apart from from section 132(4A) the burden to explain the documents seized from the possession of the assessee during search is upon him and if it so, then has he discharge the burden ? - HELD THAT:- Section 132(4A) of the Act provides that any books of account, documents, money, bullion, jewellary or other valuable articles or things found in possession or in control of any person in course of search may be presumed to be belonging to such person, and further, contents of such books of account and documents are true. But this presumption is not provided in absolute terms and the word used is “may” and not “shall”, as such the revenue has to corroborate the entries made in the seized documents before presuming that transactions so entered were ma....... + More

Reopening of assessment u/s 147 - HELD THAT:- This Court is inclined to dispose the present writ petition without touching upon the merits of the claim made by the petitioner against reopening only with a direction to the Assessing Officer to pass appropriate orders on merits and in accordance with law on the request made by the petitioner dated 27.08.2019 within a period of three weeks from the date of receipt of a copy of this order. Based on the communication received from the AO, the petitioner shall work out their remedy in the manner known to law. With the above observation, this Writ Petition is disposed of, accordingly. Since this Court has directed the Assessing Officer to dispose of the representation dated 27.08.2019 within a period of three weeks from the date of receipt of a copy of this order, the Assessing Officer is direct....... + More

Reopening of assessment u/s 147 - assessee is not being supplied with information/ documents by the AO - third party confidential information - HELD THAT:- So far as the petitioner’s challenge to the reopening of the proceedings is concerned, this Court has already rejected the same by observing that it shall be open to the petitioner to raise all its pleas before the AO. AO is now carrying on further investigation, for which purpose notices u/s 142(1) have been issued to the petitioner. It is for the petitioner to comply with the said investigation. AO has already given an assurance to the petitioner that the petitioner would be confronted with whatever material is sought to be relied upon during the course of re-assessment, and that the petitioner would be granted ample opportunity in the matter. No reason to assume, at this stage....... + More

Withholding of TDS at the rate of 0.5% - Order u/s 197 - grievance of the Petitioner is that the impugned certificate dated 29.05.2019 has arbitrarily fixed the rate of deduction of tax at source at 0.5% even though under the DTAA, the Petitioner’s income is not liable to be taxed in India - Indo- German DTAA - HELD THAT:- Court quashed the order under Section 197 of the Act allowing deduction of the tax at source @ of 5% from the payments made to the Petitioner by its Indian Customers. We may note that the situation in the present case is, in fact, even better for the Petitioner inasmuch as the total income of the Petitioner has been assessed in the return filed by the Petitioner Assessee as NIL. In this regard, the Petitioner has placed on record the assessment orders for the Assessment Years 2013-14 to 2015-16. A perusal of the f....... + More

Treatment to person as a Principal Officer of the company - Key Management Personnel - HELD THAT:- No person can be treated as a 'Principal Officer' of the company recognising him as the Key Management Personnel of the company. The details of such information on the basis of which the Key Management Personnel tag is made, has to be explicitly expressed in the notice of the intention of treating any person as a Principal Officer by the Assessing Officer. Neither in the show cause notice nor in the order impugned, such connection of the petitioner with the management or administration of the company M/s Kingfisher Airlines Limited is established. The phrase 'Key Management Personnel' of the company has a wide connotation and the same has to be supported with certain material unless such connection is established, no notice s....... + More

Exemption u/s 11 - building fund receipts received on capital account - tribunal restored the registration granted to the assessee under section 12AA - assessee contended that development fund is charged from the students for development of the infrastructure of the society/college/institution for construction of the building and purchase of capital asset and submitted that this fund is part of the corpus fund of the society and has been shown as part of the capital fund of the society - whether the contribution received for construction of building etc. from the student falls under the voluntary contribution for corpus of the trust as per section 11(1)(d) of the Act or not? - HELD THAT:- It is evident from section 11(1)(d) of the Act that there is no condition of prescribed amount of application of the income received in the form of volu....... + More

Unexplained cash credit u/s 68 - violation of the principle of the natural justice - notices u/s 133(6) were issued by the AO at the wrong address to various share subscribers, which had returned back undelivered - HELD THAT:- In the facts of the case, we are of the opinion that whatever may be the reasons, it is evident that those parties could not respond to the notices issued u/s 133(6) and the assessee also failed to produce them before the AO. Now, before us, the assessee has given undertaking that if matter is restored back to the AO, the assessee shall produce all the share applicant parties along with all the required documents to discharge its onus of proving the identity & creditworthiness of the share applicant parties and genuineness of the transaction as required under section 68. In view of the facts and circumstances of....... + More

Revision u/s 263 - applicability of provisions of section 115JB - appellant which is established under Banking (Companies Transfer Of Undertakings) Act, 1970 - the said issue was not in the show cause notice sent to appellant u/s 263 - whether CIT erred in invoking jurisdiction u/s 263 and directing AO to add back amounts in respect of bad and doubtful debts and investments which were written off and staff welfare expenses which were examined by AO and allowed in assessment? - HELD THAT:- If the assessment order was found to be erroneous as well as prejudicial to the interest of the revenue, the same would certainly become subject matter of revision u/s 263 as held by Hon’ble Supreme Court in Malabar Industrial Co. Ltd. [2000 (2) TMI 10 - SUPREME COURT] . The omissions on the part of AO, to carry out certain adjustments, as pointed ....... + More

Addition emanating from the provisions of Sec.50C - difference in agreed sale consideration reflected by the assessee and stamp duty valuation - HELD THAT:- It is undisputed fact the sole project being carried out by the assessee was substantially completed which is evidenced by the inspection carried out by the department at the project site. In fact, the assessee has not even contested the same before us. There would be no quarrel on the point that the income from the project was rightly brought to tax by AO during the year under consideration and no interference, in this regard, would be required from our side. So far as the difference in agreed sale consideration reflected by the assessee and stamp duty valuation is concerned, we find that nothing has been brought on record by Ld. AO that the assessee was in receipt of higher sale con....... + More

Addition u/s 41(1) - utilization of working capital towards capital expenditure in respect of waiver of loans stated to be working capital loan/term loan - HELD THAT:- Upon perusal of impugned order, we find that learned first appellate authority failed to clinch the issue in the correct perspective since it was the observation in the impugned order that discretionary payment on compassionate grounds would be capital in nature and therefore, not taxable in the hands of the assessee, which was not the case of revenue. It was also observed that the purpose of utilization of the funds were not, at all, relevant for the determination of the taxability of the waiver. Rather it is the prime argument of assessee that since working capital loan was utilized for the purpose of capital expansion and therefore, the same would not constitute trading ....... + More

Surplus on sale of property u/s 50 - HELD THAT:- Upon due consideration, we find that the fact that the immovable property,which was sold by the assessee during the year under consideration, was part of block of asset Building remain uncontroverted before us. The assessee during assessment proceedings as well as appellate proceedings could not establish that the said property was not part of block of asset and depreciation against the same was never claimed in earlier years. As rightly noted by learned first appellate authority, the assessee could not brought on record the factual position, in this regard, for the year ending 31/03/2011 as well as for the year ending 31/03/2012. Similar is the position before us since despite being specifically directed, the assessee could not demonstrate this fact and bring on record sufficient material ....... + More

Levying the late fees u/s 234E - processing the statement of tax deducted at source u/s 200A before the amendment was brought in w.e.f. 01.06.2015 in the provisions of section 200A - HELD THAT:- We, therefore, in the given facts and circumstances of the case as well as following the decisions rendered by the Tribunal in the case of State Bank of India, Genda Chowk and others [ 2018 (11) TMI 1714 - ITAT INDORE] , M/s. Madhya Pradesh Power Transmission Ltd. and others Vs. DCIT (TDS) [2018 (12) TMI 1323 - ITAT INDORE] are of the view that Ld. CIT(A) erred in confirming the levy of late fees u/s 234E by the assessing officer. Accordingly findings of Ld. CIT(A) in all these 5 appeals are set aside and revenue is directed to delete the levy of fees u/s 234E - Decided in favour of the assessee.

Addition on account of repairs and maintenance - HELD THAT:- After considering the rival submissions, we do not find any infirmity to interfere with the Orders of the Ld. CIT(A) in deleting the addition. Since the existing unit of assessee have been repaired and no new asset has come into existence, therefore, the Ld. CIT(A) on verification of bills and vouchers, correctly held that same are revenue expenditure in nature. This Ground of appeal of Revenue is dismissed. Capital receipt - Subsidy in the form of excise duty refund - HELD THAT:- The assessee has referred to Notification issued for New Industrial Policy in which the Government of Jammu & Kashmir has requested for special package for development of industries in the State. On the lines the industrial policy of the State Government was also notified by the Central Government........ + More

Non service of notice under section 143(2) - scrutiny assessment - CIT(A) dismissed the appeal on the ground of delay in filing of appeal - HELD THAT:- We observe that the undisputed facts are that the notice under section 143(2) was not served on the assessee as is apparent from the reply of the AO in response to the RTI application dated 05.10.2018, we observe from the perusal of the said application that the notice has not been served on the assessee. In our opinion, the non service of notice is factual and serous defects in the framing of the assessment and renders the assessment proceedings as well as the consequent assessment order as null and void. CIT(A) instead of finding the truth chose to dismiss the appeal even without verifying the facts from assessment records. In the present case before us the AO admitted to have not served....... + More

Validity of reopening of assessment - non-genuine unsecured loans - HELD THAT:- The authorities below have simply brushed aside the documents furnished by the assessee, which inter-alia, includes confirmation from the lending parties, copy of bank statement of the assessee, copy of acknowledgement of return of income of lenders, etc. furnished by the assessee during the assessment proceedings. The authorities below have made addition merely on the basis of statement of Bhanwarilal Jain without there being any corroborative evidence. Even the said statement was retracted by Bhanwarlal Jain. In our considered view, the addition on account of unsecured loans from M/s. Navkar Diamond is unsustainable. As regards unsecured loans from M/s. Surya Diam is concerned, the assessee has filed confirmation from the lender, the same is at page-20 of th....... + More

Undisclosed interest income - ownership of deposits in the hands of Developer of society - Co-operative society had not come into existence - Deduction u/s 80 IB(10) in respect of its residential project - AO disallowed assessee’s entire claim of deduction u/s 80 IB(10) on account of certain violations and further made additions on account of undisclosed interest income - AO while disallowing assessee’s claim of deduction u/s 80 IB (10) observed that the assessee is not eligible for claiming deduction in respect of sale of car parking and also on resale of flat - HELD THAT:- From the reading of meaning of fiduciary relationship as defined in legal dictionaries referred above, it can be safely construed that it is a relationship between the two parties . Thus, existence of two parties whether real or juristic is a pre-condition....... + More

Computing deduction u/s 80HHD - AO concluded that the receipts transferred to other hoteliers should have been included in the total business receipt - HELD THAT:- The relevant observations of the Tribunal on the issue were also brought to the notice of the Bench. Having considered rival submissions, we have noted that deduction u/s 80HHD is calculated as a percentage of profit derived from services provided to foreign tourists. The mode and manner of computing such deduction has also been provided in the said provision. It is the specific case of the assessee that the receipts transferred to other hoteliers and tour operators by issuing certificate in Form no. 10CCAC should not form part of tourist receipts to compute deduction u/s 80HHD as per the formula prescribed under the said provision. While deciding identical issue in A.Y. 2002-0....... + More

Disallowance u/s. 14A r.w. Rule 8D - assessee has claimed before the ld. CIT(A) that he was engaged in the business of trading in shares and securities and the provisions of the section 14A were not applicable to it - HELD THAT:- After considering the decision of the Hon’ble Supreme Court in the Maxopp case [2018 (3) TMI 805 - SUPREME COURT], it is clear that the principle of apportionment of the expenditure was applicable and the expenditure apportioned to the exempt income or income not eligible to tax was not allowable as a deduction. Provision of section 14A is applicable even when the shares are held ‘stock in trade’ though incidentally certain dividend income is earned, therefore, the contention of the ld. counsel about the applicability of ACIT Vs. Punjab National Bank [1764562] is not acceptable. We consider that....... + More

Loan fund amounts raised in assessee's name or in case of the private limited concerns - HELD THAT:- Additions of the so-called embezzled funds added by way of enhancement in the CIT(A)’s order under challenge. He has himself made it clear that the assessee and his private limited companies (supra) had raised the ICICI Bank loans in question. That being the case, it can be very well inferred that the same are not unexplained cash credits. There is also no material on record in the CIT(A)’s corresponding discussion that the said loan liability has been a subject-matter of remission or cessation u/s. 41(1). So is the case with the assessee’s fixed deposits and interest finance charges which prima facie have a nexus with the loan amounts only. Faced with this factual position, we direct the AO to treat the assessee&rsqu....... + More

Fixation of the rate of TDS as sought by the petitioners u/s 197 - @1.5% OR 0.17% - petitioner states that against the said fixation, the petitioner had preferred a Revision under Section 264 of the Act before respondent No.2 but the same has not been decided despite being preferred on 16.05.2019 - HELD THAT:- It is pointed out by the learned counsel for the petitioner that the said information has been already supplied vide letter dated 24.10.2019. In view of aforesaid, we dispose of the writ petition with direction to the Revisional authority to consider the petitioner’s revision and pass a reasoned order thereon within next three weeks. We make it clear that we have not examined the merits of the petitioner’s claim. Accordingly, present writ petition stands disposed of.

Assessment u/s 153A - assessee obtained accommodation purchase bills of high magnitude so as to evade taxes which stood corroborated by the statements of various suppliers / associated persons as recorded u/s 132(4) - HELD THAT:- We are unable to subscribe to approach adopted by first appellate authority in deleting the impugned additions. It is noted that the additions were deleted merely on the basis of remand report that no incriminating material was found during the search operations overlooking the fact that computer back up was seized during the search operation along with incriminating material. Nothing has been brought on record regarding the content of the seized material which would corroborate the findings that no incriminating material was found for the year under consideration. Search proceedings were triggered against the as....... + More

Levying fees under section 234E - A.O. passed the intimation u/s 154 levying the late fees under section 234E - assessee contended before the Ld. CIT(A) that A.O. has erred in making intimation under section 154 without any intimation under sub-section (1) of Section 200A in respect of TDS return - HELD THAT:- No justification to sustain the Orders of the authorities below. Amendment to Section 200A of the I.T. Act in which sub-clause (c) have been inserted in the Section w.e.f. 01.06.2015 which includes that while processing of the statement of tax deducted at source the fee, if any, shall be computed in accordance with the provisions of Section 234E. Further, no order of intimation under section 200A(1) have been brought on record and virtually the A.O. has shown his inability in giving any factual position in this regard. Therefore, co....... + More

Rejection of books of accounts - Estimation of income - HELD THAT:- It is an admitted fact that assessee did not produce books of account, bills and vouchers before the authorities below and even same are also not produced before the Tribunal. Therefore, rejection of books of account is justified in the matter. The A.O. while estimating income of assessee, has applied net profit rate of 12%. Assessee has filed chart of net profit rate for earlier year as well as subsequent years which shows that in subsequent assessment year assessee has declared 8.134% as net profit rate, however, in A.Y. under appeal, net profit rate is 3.014%. Considering the non-cooperation from the side of the assessee and non-production of the books of account and that assessee declared net profit rate of 8.134% in subsequent assessment year, we are of the view that....... + More

Classification of goods - fusible interlining cloth partially coated with plastic which is used for shirt collars, cuffs, pant belts etc. - whether classifiable in Chapters 50 to 55 or under Chapter Note 2(a) to Chapter 59 of the Tariff Act? - CBEC issued Circular No. 24/Coated Fabrics/88-CX.1 dated 02/09/1988 - N/N. 1/2017-CT (Rate) dated 28/06/2017 - HELD THAT:- Chapter Note 2(a)(4) to Chapter 59 says that fabrics partially coated or partially covered with plastics and bearing designs resulting from these treatments are excluded from Heading 5903 and are usually covered in Chapter 50 to 55, 58 or 60, depending on the materials used. At the same time, according to the Explanatory Notes to the HSN Code, textile fabrics which are spattered by spraying with visible particles of thermoplastic material and are capable of providing a bond to o....... + More

Release of confiscated goods alongwith vehicle - the petitioners has submitted that the petitioners are ready and willing to pay the amount of tax and penalty as computed by the respondents - section 130 of the Gujarat GST Act, 2017 - HELD THAT:- Issue Rule returnable on 28th November, 2019. By way of interim relief, the respondents are directed to forthwith release truck together with the goods contained therein, subject to the petitioners depositing an amount of ₹ 1,06,352/- as computed by the respondents towards tax and penalty.

Recovery of amount on account of tax, cess, interest and penalty from the account maintained by the petitioner - invocation of section 79 of GST Act - It is the specific case of the petitioner that no proceedings whatsoever, was issued against the petitioner for determining either the tax, cess or interest or penalty - principles of natural justice - HELD THAT:- It is evident that the statement said to have been given on 19.06.2019 claims to be so called admission by the petitioner, is not available before the Revenue anymore and on the other hand, it is for them to determine the tax liability by resorting to the procedures in accordance with law, instead of issuing the impugned proceedings straightaway under Section 79 based on the so called admission which is subsequently retracted. The impugned proceedings issued under Section 79 is no....... + More

Provisional attachment of Bank Accounts - period ending January 2019 - HELD THAT:- The learned counsel appearing for the first respondent does not dispute that the entire amount due and payable, for which the provisional attachment under Section 83 of the CGST Act was issued has been paid by the appellant. The impugned communication dated 03rd April 2019 (Annexure-A to the writ petition) is hereby quashed and set aside - Appeal allowed.

Levy of GST - Zero rated supply or not - supply of foreign going vessels stores like paint, rope, spare parts, electronic equipment etc. - HELD THAT:- A foreign going vessel anchored within the territory of India is not a place outside India and taking the stores on board such a vessel does not amount to supply to a location outside India. Section 69 of the 1962 Act cannot, therefore, cover within the ambit of export the case where the warehoused goods are taken on board a foreign going vessel. A special provision needs to be made under section 88(a) of the 1962 Act to extend the facility of exemption from import duty to such imported stores. The Applicant does not claim that its supplies of stores to the foreign going vessels are restricted to warehoused goods. In any case, at the time of supply, both the supplier (the Applicant) and the....... + More

Exemption from GST - Supply of biscuits, soaps etc. earmarked ‘FOR PDS SUPPLY ONLY’ to fair price shops/PDS distributors - N/N. 2/2017 - CT (Rate) dated 28/06/2017 - HELD THAT:- Supply of goods through PDS is not exempt under Notification No. 2/2017 - CT (Rate) dated 28/06/2017, as amended from time to time (reference to which includes reference to State Notification No. 1126 - FT dated 28/06/2017) or any other notification. Activities or transactions of the Applicant are not included in Schedule III either. The Applicant is, therefore, liable to pay GST at the applicable rate on his supplies of goods through PDS.

Extension of time period for filing of GST Tran-1 - transitional credit - transition to GST regime - HELD THAT:- The respondents are directed to reopen the portal within two weeks from today. In the event they do not do so, they will entertain the GST TRAN-1 of the petitioner manually and pass orders on it after due verification of the credits as claimed by the petitioner. They will also ensure that the petitioner is allowed to pay its taxes on the regular electronic system also which is being maintained for use of the credit likely to be considered for the petitioner. List this matter on 16.12.2019.

Prayer for withdrawal of petition - SCN issued by the Joint Commissioner under Section 73(1) of CGST Act - HELD THAT:- Petition is dismissed as withdrawn.

Detention of goods alongwith the vehicle - Section 129 of GST Act - detention on the ground that the transport receipt was a photocopy and the details filled in the transport receipt were handwritten - case of petitioner is that, there being no format prescribed for transport receipt under the GST Acts, there was no question of there being any breach of the provisions of the GST Acts - Circular No.64/38/2018-GST dated 14.9.2018 - whether the second respondent was justified in exercising powers under section 129(1) of the CGST Act? HELD THAT:- The documents which were required to be kept while transporting the goods are prescribed under rule 138A of the CGST Rules, 2017 - On a plain reading of the above rule, it is evident that the documents which are required to be kept by the person in charge of a conveyance while transporting goods are ....... + More

Input tax credit - shifting to GST regime - transitional credit - section 140 of the CGST Act - rectification of mistake in the declaration filed in FORM GST TRAN-1 - case of Revenue is that the petitioner, after the expiry of approximately two months from the last date of filing FORM GST TRAN-1 viz. 27th December, 2017, had requested the department on 19th February, 2018, to correct the mistake in the declaration filed in FORM GST TRAN-1 - non-compliance with the rule 117 of the CGST Rules - HELD THAT:- In terms of rule 117 of the CGST Rules, FORM GST TRAN-1 was required to be filed within the prescribed time limit. Such time limit was extended by the Central Government from time to time and was lastly extended till 27th December, 2017. It is an admitted position that the petitioner had filed the FORM GST TRAN-1 within the time prescribe....... + More

Presence of Lawyer during examination/interrogation of GST officers - fraudulent availment of Input Tax Credit of GST - HELD THAT:- The POOLPANDI VERSUS SUPERINTENDENT, CENTRAL EXCISE [1992 (5) TMI 147 - SUPREME COURT], has categorically stated that presence of a lawyer cannot be allowed during examination/ interrogation by a Customs Officer. It was held that relevant provisions of the Constitution in this regard have to be construed in the spirit in which they were made and benefit thereunder should not be extended to exploiters engaged in Tax Evasion at the cost of public exchequer. High Court of Delhi in SUDHIR GULATI VERSUS UNION OF INDIA [1998 (2) TMI 126 - HIGH COURT OF JUDICATURE AT DELHI] has also categorically held that assistance of lawyer cannot be allowed while examination of a person in the Customs Office. The petitioner in t....... + More

Release of seized goods alongwith vehicle - petitioner states that the petitioner is ready and willing to pay the amount of tax and penalty in terms of the impugned notice issued under section 130 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- Under the circumstances, the respondents are directed to forthwith release the Truck number GJ-02-Y-6566 together with the goods contained therein upon the petitioner paying the tax and penalty as reflected in the column number 4(1) (2)of the impugned notice issued under section 130 of the CGST Act.

Detention of goods - Section 129 of the GST Act - detention was on the ground that the validity period of the e-way bill that accompanied the transportation had already expired at the time of detention - HELD THAT:- As the detention was on the ground that the validity period of the e-way bill that accompanied the transportation had already expired at the time of detention. Under the said circumstances, the detention cannot be said to be unjustified. It is directed that if the petitioner furnishes a bank guarantee for the tax and penalty amount quantified in Ext.P4 order, then the respondents shall release the consignment and the vehicle to the petitioner.

Maintainability of application - scope of Advance Ruling application - first Proviso to Section 98(2) of the GST Act 2017 - Classification of an item - processing of milk and milk products including flavoured milk - Whether flavoured milk is taxable at the rate of 5% under Schedule IV of the GST Act? HELD THAT:- There is no hesitation in concluding that the instant application is not maintainable in as much as it is hit by the provisions contained in first proviso to Section 98(2) of the Act. Accordingly, without going into the merits of the case, the application deserves to be rejected as not admissible in terms of first Proviso to Section 98(2) of the Act.

Rate of GST - transportation services by Goods Transport Agency (GTA) by road under RCM - coal beneficiation and loading charges - Rate of GST. HELD THAT:- Both the services are independent of each other. The price charged by the supplier for both the services are separately mentioned in price bid invited by the company and none of the services can be considered as predominant over the other service. Both the services are important for the company and the company has invited tender for availing both the services. The coal beneficiation services fall under the purview of SAC 9997 and is chargeable at the rate of 18% GST - the Transportation services fall under the SAC 9965 and is chargeable to tax @12% but if supplier does not avail Input tax credit the GST Rate would be 5%.

Exemption from GST - Charitable Activities or not - Activities for Promotion of research in the field of Life Sciences, Physical Sciences etc, Performing & publishing of online research journals on one or more of above-mentioned field/subjects and Organizing Seminars, Symposiums, Conventions, Congress etc. addressing on one or more of various issues - applicability of clause 2(r) of Notification No. 12/2017 - Central Tax (Rate) dated 28.06.2017. HELD THAT:- The definition of Charitable Activity is not an inclusive definition but an exclusive one, meaning that the specific activities which are treated to be falling under Charitable Activity are an exhaustive list and there is no scope of interpretation as to which activities might fall under charitable category - A joint reading of activities covered under the Notification and the acti....... + More

Classification of Works contract - work under e-tender process by MP Power Generating Company Ltd (MPPGCL) for Balance General Civil and Related Electrical And Mechanical Works Package For 2X660 MW Shree Singaji Thermal Power Project (SSTPP) Stage - II Near Village Dongalia. Distt. Khandwa, Madhya Pradesh ,India’ - composite contract or is it separate contract for each work under taken? - Government Entity or not - rate of tax. HELD THAT:- MPPGCL is a Government Entity for the purpose of provisions of CGST Act 2017 and MPGST Act 2017. In the instant case, the applicant have been awarded a consolidated contract for carrying out different specified works at Shri Singaji Thermal Power Project, which includes erection, commissioning, installation etc. - It is also necessary to place on record that there are certain items mentioned in th....... + More

Classification of an item - Utility Van - whether classifiable under chapter Pleading 8703 or Chapter Heading 8704? HELD THAT:- The Customs Tariff, as also the GST Tariff, broadly classifies the vehicles under two categories viz. Vehicles for transport of passengers and vehicles for transport of goods. As per statutory requirements laid down under the provisions of Motor Vehicle Act 1988 and Motor vehicle Rules 1989, each type of vehicle is required to be certified either by the Vehicle Research and Development Establishment of Ministry of Defense or by the Automobile Research Association of India, or certain other authorities. The goods in questions i.e. Utility vehicles, are predominantly designed for transportation of goods and these vehicles also conform to the categorisations and conditions laid down under Automotive Industry Standar....... + More

Activity of transportation of their students and staff under contract carriage by Non-A/c buses - Benefit of exemption from GST - Applicability of serial no. 15(b)(HSN/SAC Code 9964) of exemption Notification No. 12/2017 (Rate) dated 28-06-2017 as amended HELD THAT:- As per the agreement, the vehicles to be provided by the applicant under contract carriage to the said Institute are non-air conditioned and are for transportation of students and staff of the said Institute - As per clause (b) of above SI. No. 15 of Notification No. 12/2017-Central Tax (Rate), dated 28.6.2017, the services of transportation of passengers, with or without accompanied belongings, by non-air-conditioned contract carriage other than radio taxi, for transportation of passengers, excluding tourism, conducted tour, charter or hire is exempt from GST. Considering th....... + More

Freezing of petitioner's Bank Account - no order in terms of Section 83 of the CGST Act, 2017 read with Rule 159 of CGST Rules, 2017 is served upon petitioner - HELD THAT:- We direct the respondents to produce the original record with regard to issuance of the two aforesaid communications, freezing the bank accounts of the petitioner. The order passed in terms of the aforesaid provision should also be produced on the next date. List on 20.11.2019.

Advance Authorization scheme - SION - allegation that the party had mis-declared that the exported product has been manufactured out of LSFO - exemption denied on the ground that the said import had been made in violation of para 4.1.15 of the Foreign Trade Policy - It was alleged that the respondent had not used LSFO as an input in the export goods but has used VGO (Vacuum Gas Oil) generated during the refining of crude oil and had subsequently imported permissible input LSFO without payment of customs duty HELD THAT:- Insofar as the parameter of acidity is concerned, there is no inorganic acid present in the crude oil. There is no addition, use or generation of inorganic acids like HCl, H2SO4, HNO3, etc., during the refining process. Thus, there is no possibility of inorganic acid being present in the stream. Moreover, the FCC feed boil....... + More

Exemption under Rule 26 of the SEZ Rules, 2007 - import of New Garments in the name of "old and used clothing rags" - goods accompanied by Pre-shipment Certificate as per Public Notice no. 12 (RE-2001)/1997-2002 dated 03/05/2001 or not - it is alleged that the unused T-shirts were being sought to be cleared as old and used clothing rags - Confiscation - penalties - HELD THAT:- It is seen that the Bill of Entry describes the goods as old and used clothing rags. In the instant case, the new clothes cannot be called rags and, therefore, there is a mis-declaration to this extent. Nonetheless, the said goods are covered by the letter of permission granted by the Development Commissioner and the appellants are entitled to take the same to the SEZ without payment of duty. The impugned order comes to the conclusion that the T-shirts imp....... + More

Pre-deposit - demand of 50% of pre-deposit - Misdeclaration of imported goods - under-declaration - the case of the respondent-revenue is that the goods imported were under declared and custom duty was paid on declared value - HELD THAT:- There are no justifiable reason to entertain the review petitions. Review Petitions are dismissed.

DEPB fraud -Demand - Limitation - Suppression of facts - Whether extended period of five years is available for the notice dated 3-10-2006 issued under Section 28(1) of the Customs Act, 1962 when the ingredients of "Fraud" and "with intent to evade payment of duty" are absent in the said Section? - HELD THAT:- The order dated 20 February 2009 leaves no manner of doubt that the adjudicating proceedings have not been stayed and the result thereof shall be subject to the final result of this appeal. Application disposed off.

Scope of the Show cause notice (SCN) - Issuance of Circular contrary to Decision of CESTAT - Power of CBIC - Confiscation of imported Gold Coins - freely importable or not - the impugned SCN allege that the gold coins imported by the petitioner and Mink, having been imported in violation of the FTP, were not entitled to the benefit of exemption under S. No. 526 of Notification. 152/2019-Cus - demand of differential duty with interest - imposition of penalty - Circular No. 450/67/2019-Cus. IV, dated 9th September, 2019 - HELD THAT:- When the issue of classification, and entitlement to exemption, of the gold coins, imported by the petitioner, and other similarly situated importers, is at large before competent adjudicating authorities, who are in seisin thereof, the CBEC was completely unjustified in issuing the Office Memorandum dated 16th....... + More

Seizure of import of goods without licence - Refusal to to grant P5 license under Ammonium Nitrate Rules 2012 - special category explosive substance" - Countervailing Duty in terms of N/N.12/2012-CE dated 17.03.2012 - whether this Court while exercising the discretionary jurisdiction under Article 226 of the Constitution of India, needs to interfere with the orders passed by the respondents 1 and 2 in refusing to grant P5 license to the petitioner under the Ammonium Nitrate Rules, 2012? HELD THAT:- Though the petitioner claims that the Ammonium Nitrate is also a fertilizer, it is seen that by virtue of the Notification dated 21.07.2011, issued by the Union of India through its Ministry of Commerce and Industry, Ammonium Nitrate is deemed to be an "explosive" within the meaning of the Explosives Act, 1884, when it has the ch....... + More

Status Holder Incentive Scheme - Import from the port which was not included in the list, later included - capital goods imported against such scrips are exempted from payment of Custom duties subject to the conditions - HELD THAT:- There is no dispute to the fact that at the time of clearing the goods, the customs did not make any objection by contending that ICD - Arakkonam was not a notified port. However, subsequently, the petitioner was called upon to pay the above said duty in cash, only on the reason that ICD - Arakkonam was not a notified port for the purpose of importation of goods taking benefit under the Notification No.104/2009. In this case, it is not the contention of the Revenue that the petitioner is not entitled to get the benefit of Notification had the ICD - Arakkonam been there in the list of ports originally. In other....... + More

Non-service of order - case of petitioner is that order has not been served to this petitioner so far and therefore they are unable to prefer an appeal against the aforesaid order - HELD THAT:- It appears that the respondent has already passed an order-in-original bearing no. 55/2019 dated 5th March, 2019, copy whereof has already been served to the authorized representative of this petitioner namely Sh. Raj Kumar, whose statement has also been recorded under Section 108 of the Customs Act, 1962 before the customs authority. There is no question of issuing any direction to the respondent to serve again order-in-original dated 5th March, 2019 to the petitioner - petition disposed off.

Amendment in shipping bill - time limitation - request for conversion of free shipping bill to advance license shipping bill being rejected on the basis of time limit as prescribed by Circular No. 36/2010-Cus dated 23.09.2010 by the Adjudicating Authority - HELD THAT:- Tribunal was not justified in adopting the approach that it did. Merely because no time limitation is prescribed under Section 149 for the purpose of seeking amendment/ conversion, it does not follow that a request in that regard could be made after passage of any length of time. The same could be made within a reasonable period. The conversion sought by the respondent was from free shipping bill to advance license shipping bill. The petitioner could not have entertained the application for such conversion without examination of the records. It was not fair to expect the De....... + More

Duty Drawback - No notice was given by the Revisional Authority to the petitioner that there was a defective filing - Revision Application was dismissed only on the ground that court fee of ₹1,000/- was not paid on time - HELD THAT:- The petitioner is claiming a drawback claim of ₹31,04,845/-. A Revision Application was dismissed against which an appeal was also preferred, but the same was also dismissed. A Revision Application was preferred on 14th June, 2016. It appears that Revisional Authority has no Registry, which could point out the defect in filing. No defect could be pointed out in the year 2016; whereas the defect was only pointed out in the year 2018. The court fee of ₹1,000/- was paid on 18th April, 2018. Nonetheless, defect was pointed out on 20th March, 2018 and immediately thereafter, on 18th April, 2018 t....... + More

Levy of penalty on CHA - Prohibited goods - The case of the revenue is that, the CHA firm namely M/s R.U. Imports-Exports Pvt. Ltd. has played a crucial role in violation of the provision of the Foods Safety & Standards Act, 2006 as well as violation of provisions of the Customs Act, 1962, however, the Adjudicating Authority has failed to impose penalty on the respondent CHA firm and, therefore, the Adjudicating Authority has erred in not imposing penalty under Section 112A on the CHA firm namely M/s R.U. Imports-Exports Pvt. Ltd. HELD THAT:- There is no doubt that the import consignment was of the prohibited goods as same was not found fit for human consumption. The statement of various persons including the Director of the CHA firm reveals that the Director of the CHA firm was aware that the present import consignment as well as the....... + More

Improper importation - Mis-branded sample or not - prohibited imports - imposition of penalties u/s 112(a) of the Customs Act, 1962 - prohibition from import or not - Section 25 of FSS Act, 2006 - HELD THAT:- In the appeals filed by both the appellants, no evidence has been adduced which contradicts the facts that the import consignment were of the goods which did not confirm to the standards laid down under Food Safety & Standards Act, 2006. The test report of the samples drawn from the import consignment has categorically mentioned that the samples are unsafe and mis-branded as per the provisions of Section 3 (1) of the FSS Act, 2006. The argument made by the appellant is not legally sustainable as the Customs Act under Section 112A provides that penalty under the Section should not exceed the value of the goods. Since, the import c....... + More

Scope of Section 20 of the Foreign Trade (Development and Regulation) Act, 1992 - Prohibited goods or not - powers conferred by Clause 8(1) of the Imports (Control) Order, 1986 - HELD THAT:- The appellants are not in a position to point out as to how the subject order dated 14-11-1986 would be covered by the savings clause under sub-sections (2) or (3) of the Section 20 of the Act. Even the saving provision under the General Clauses Act will be of no avail to the appellants for the reasons mentioned hitherto. For, a quasi judicial order passed in exercise of powers under the Statutory Order which stands repealed along with the repealed Act, is not saved especially when it will be per se repugnant to 1992 Act and defeat the spirit of opening of the import regime for the stated goods - appeal dismissed.

Provisional release of gold stock in trade - Advance Authorisation Scheme - Exhibition Export Scheme - no reason given for refusal to release the goods provisionally - principles of natural justice - HELD THAT:- No cogent reason given for refusal to release the goods provisionally. Rather the impugned order is non-speaking and cryptic. This is clearly a case of non exercise of discretion vested in him fairly, by the Revenue Authority, rendering the provision of Sec.110A of the Act, practically otiose. The Department has not adduced any evidence to contradict the fact that the same jewellery has been imported by the appellant which had been exported for exhibition purpose - At this juncture, we are only examining whether the import of the subject seized gold jewellery was in violation of any of the provision of Customs Act, 1962 and Import....... + More

100% EOU - utilisation of input imported for manufacture of finished goods within jurisdiction - demand of anti-dumping duty - Polypropylene (PP) Bags and Twisting Yarn - Section 28(10) of the Customs Act - demand raised on the ground that the Appellant had made DTA sales of its finished goods during the said period - whether the Appellant had utilised the inputs imported from ADD jurisdiction in the manufacture of its finished goods cleared in the DTA? HELD THAT:- The charging section for imposition of ADD is Section 9A(1) of the Customs Tariff Act and the notifications issued thereunder. However, Section 9A(2A) of the Customs Tariff Act which specifically deals with an EOU starts with a non obstante clause and over-rides the charging section 9A(1). The entire demand is based on the laws of averages/proportionate consumption basis and no....... + More

Import of certain capital goods under EPCG Scheme - concessional rate of duty - N/N. 97/2004- Customs - Inclusion of freight charges - extended period of limitation - HELD THAT:- The AMW paid the Freight forwarder an amount of ₹ 4,32,98,915/- where as in the 15 Bills of entries they included freight amounting to ₹ 1,60,69,376/- only. As a result an amount of ₹ 2,92,35,480/- escaped inclusion in the assessable value. The reason given by AMW is that at the time of filing bill of entry in first 10 cases they were aware of the actual freight charged by the freight forwarder whereas in last 5 Bills of entries they were not aware of the actual freight payable to the freight forwarder. The reason cited was that the variable cost based on CAF/BAF was not known. The method of calculating freight agreed by AMW with PLIL was very c....... + More

Revocation of CHA License - forfeiture of security deposit - not obtaining authorization from the importer - violation of Regulation 10(a) of the CBLR, 2018 - not advising the client - violation of Regulation 10(d) of the CBLR, 2018 - non-compliance with due diligence - Regulation 10(e) of the CBLR - non-verification of Regulation 10(n) of the CBLR - HELD THAT:- Out of the 4 violations alleged against the appellant, the Inquiry Officer has exonerated the appellant under Regulation 10(e) and 10(n) and has only found the appellant violating Regulations 10(a) and 10(d) which pertains to not obtaining authorization from the importer and not advising his client properly. As far as verification of the documents are concerned, the appellant has been exonerated and we find that the appellant was approached by one Mr. Alexander Nathan who is alleg....... + More

Permission for withdrawal of SLP - Time limit for issuance of SCN - Seizure/Detention of goods - HELD THAT:- The Special Leave Petition is dismissed as withdrawn.

Valuation of imported goods - whether the impugned order of the tribunal without considering the report of and materials relied upon by the Directorate of Revenue Intelligence regarding the value of the goods and in its interpretation of the Customs Valuation (Determination of Value and Imported Goods) Rules, 2007 was erroneous in law and perverse? HELD THAT:- Considering the submissions made by learned counsel appearing for the appellant and the Directorate of Revenue Intelligence regarding impleadment of the Directorate as a party in the appeal, we are of the view that this prayer cannot be acceded to as the appellant and the directorate are authorities directly under the central government. List the appeal for hearing on 8th January 2020.

Principles of Natural Justice - Cross-examination of two co-noticees of this appellant company, were not allowed - demand of differential duty - HELD THAT:- It appears from the facts of the case that while adjudicating the show cause notice, the Commissioner of Customs might have not relied upon the statements of Shri Vineet Saluja or Shri Pradeep Sharma. The process of adjudication of the show cause notice in question is yet to be completed - As and when the show cause notice is adjudicated upon and final order in original is passed, this appellant can always challenge the said order in original inter alia on the ground that the cross-examination of Shri Vineet Saluja and Shri Pradeep Sharma were not allowed. As and when final order in original is passed, this appellant always have an opportunity to prefer an appeal and to challenge the ....... + More

Handover of possession of the properties belonging to the Company (In Liquidation) - Permission to Official Liquidator to break open the lock put by the ex-management of J.B. Diamonds Limited, the Company (In Liquidation) on the premises namely Bharat Diamond Bourse, Office Space No.8120, Bandra Kurla Complex, Bandra (E), Mumbai-400 051 - takeover of physical possession of the assets of the Company, of which symbolic possession has already been taken by the Official Liquidator, and if necessary, with the assistance of the Police Authorities, by directing the tenants (tenancy rights whereof are disputed by the Official Liquidator) to vacate the premises. HELD THAT:- The record reveals gross collusion between the ex-directors of the Company in liquidation and the directors/partners of the tenants. All the suits have been filed by the tenant....... + More

Disqualification of Directors - defaulting directors - Use of DSC and DIN no by the disqualified director - Interpretation of statute - provisions of Section 164(2) and Section 167(1)(a) of the Companies Act, 2013 - default on the part of concerned companies in filing the annual returns and financial statements for the financial years 2014-2016. Whether the provisions of Section 164(2)(a) are retrospective? - HELD THAT:- A plain reading of Clause (a) of Section 167 (1) of the Act indicates that a Director would demit office if he incurs the disqualification under Section 164 of the Act. The proviso to Clause (a) of Section 167(1) of the Act was introduced with effect from 07.05.2018, by virtue of the Companies (Amendment) Act, 2018 Indisputably, the plain language of Section 164(2) read with Section 167(1)(a) of the Act leads to an absurd....... + More

Grant of anticipatory bail - petitioner has signed forged letter of credits and other documents for availing credit facility from the Bank on behalf of A-1 Company. - the petitioner has prayed for anticipatory bail on the ground that petitioner is 65 years old - offences alleged in the said complaint against the petitioner are under Section 128, 129, 447, 448 of the Companies Act, 2013, Section 209, 211 read with 628 of the Companies Act, 1956, and Section 467, 468, 471 read with Section 120-B IPC - HELD THAT:- The allegations levelled against the petitioner are prima facie serious in nature. The allegations are that petitioner was one of the signatories of the financials of ‘A-1’ company and Director in category ‘C’ Company. The details of the same have been described in the summoning order dated 16.08.2019 of the....... + More

Execution of a sale deed in favour of the Petitioner - revival of winding up proceedings initiated against KOFL - whether a winding up petition can be dismissed solely on the ground of lack of a prosecuting creditor under Rule 101, or whether the Company Court has the power to direct the publication of an advertisement by the Liquidator of the company, especially in cases where other unsatisfied creditors still remain? HELD THAT:- It is important to bear in mind that winding up proceedings are proceedings in rem and have an impact on the rights of people, in general. Thus, it is mandatory to advertise such proceedings, so as to ensure that they receive the widest possible publicity and all relevant stakeholders have adequate notice. This implies that in a situation where the petitioning creditor fails to advertise the petition and no othe....... + More

Winding up of the respondent Company - appointment of Official Liquidator - Sections 541 and 542 of the Companies Act, 1956 - HELD THAT:- The applicant company has been unable to explain the source of funds for acquisition of the land. The applicant has not been able to show bank statements, the statement of accounts, Bank Instruments etc. Despite several opportunities the records which would normally be in the power and possession of the applicants have been deliberately hidden from the court. This clearly raises a strong suspicion about the acts and conduct of the applicants. In the present case, despite directions of this court dated 5.9.2008 and subsequently, the applicants have failed to produce relevant documents to show the details. Clearly, this court would draw an adverse inference against the applicants for having withheld from ....... + More

Winding up petition - appointment of Official Liquidator as the provisional Liquidator - Sections 433(e) and 433(f) of the Companies Act, 1956 - HELD THAT:- The proceedings under IBC are independent and have an object different from the one envisaged under the scheme of liquidation provided in the Company Law. The former aims resolution by way of revival in a manner that benefits all stakeholders, the creditors as well as the company. Thus, the scope of the proceedings before the NCLT is wider - with the object of preserving the company and its business/ commercial activities. When transfer of winding up petition can aid in achieving the aforementioned objective, it ought to be allowed in the interest of justice. Merely because the learned Company Judge had ordered the winding up of the appellant company on 03.08.2004, it does not follow ....... + More

Transfer of the present winding up petitions to National Company Law Tribunal - whether in exercise of powers under the proviso to Section 434 of the Companies Act, 2013, this court should transfer the present proceedings to NCLT? HELD THAT:- It is manifest that two functionaries, namely, OL under the Companies Act, 1956 and Liquidator under IBC cannot concurrently carry out their functions. Such a proposition would create a needless confusion. Once a liquidator is appointed by the company court in saved matters, the process of liquidation commences. Ordinarily, the liquidator takes time and efforts to consolidate the assets of the respondent company, to evaluate the same and put them for auction. He seeks to take other steps to dissolve the company. Once this process has started, no purpose is served by handing over the same to another l....... + More

Oppression and mismanagement - Non-fulfillment of eligibility criteria as fixed under Section 244 of the Companies Act, 2013 - HELD THAT:- Admittedly, the pleadings were incomplete and the parties were yet to lay the relevant material and evidence before the Tribunal in support of the stands they would respectively take in their pleadings. In these circumstances, the Tribunal could not reach a finding in regard to the issues raised in the Company Petition. In so far as making out of a prima facie case for purposes of grant of interim relief in terms of provisions of Section 242(4) is concerned, the observations made by the Tribunal that the Respondents had been removed from the Board and their shareholding had been cancelled without due notice not in consonance with law are not based on application of mind. The proposition of law that the....... + More

Condonation of delay in filing an appeal against the order of Tribunal - Period of limitation - Jurisdiction of Tribunal to register or give effect to conversion of the companies into LLPs - approach to Central Government only for compounding of offence - Section 56 of Limited Liability Partnership Act, 2008 - whether the appeal has been preferred within the prescribed period of limitation and in the event of delay whether the Appellant has carved out a case for Condonation of delay? - HELD THAT:- The appeal is hopelessly time barred. Even if, the period of limitation is computed from 15th October, 2018 i.e. the date on which free certified copy was made available to the Appellant, the appeal has been preferred beyond prescribed 45 days and in absence of even the slightest whisper in the Condonation of delay application about a reasonable....... + More

Constitutional validity of Corporate social responsibility (CSR) - Vires of Section 135 of the Companies Act, 2013 - Rules 2 and 3(2) of the Companies (Corporate Social Responsibility Policy) Rules, 2013 - whether CSR is analogous to the imposition of tax - various type of definitions of the term ‘profit’ - validity of circular dated 18.6.18 and its effect as retrospective or prospective - petitioner had also submitted that other Partnership Firms, Sole Proprietorship, Trusts etc. are not brought under the purview of Section 135 of the Companies Act and only the companies are covered, hence the said Section 135 is discriminatory in nature. HELD THAT:- It appears from the provisions of the Companies Act, especially Section 135 thereof and also looking to Entries No.43 and 44 of List-I to the 7th Schedule to the Constitution of ....... + More

Whether the Tribunal could direct the Transferor Company to make payment of alleged tax despite an express undertaking by the Transferee Company to make such payment on behalf of Transferor Company if found due and payable after adjudication? HELD THAT:- It is well settled by a catena of Rulings that while sanctioning a scheme of arrangement the right of Tax Authorities remains intact to initiate appropriate proceedings regarding recovery of any tax. The Tax Authorities concern is in regard to recovery of the outstanding tax dues and in the event of a scheme of arrangement/merger/amalgamation the Tax Authorities right to recover the outstanding tax dues must remain intact. Once a scheme has been sanctioned by a Tribunal in accordance with law, as admittedly in the instant case it is and the same goes unassailed, nothing precludes the Tax ....... + More

Company under Liquidation process - Withdrawal of amount for making payment to employees - HELD THAT:- Submission made on behalf of the office is to act on precedent of several orders earlier passed coupled with good feeling for approaching festive season. Purely by reason of several orders having been passed earlier, this application is disposed of in terms directed by last order dated 31st August, 2018, in respect of the prayers allowed thereby. Application disposed off.

Resale of old properties - HELD THAT:- The office is directed to resell this property on fresh sale notice. The notice be published in one English and one vernacular daily having wide publication in Pune. Date of sale will be 13th December, 2019. It goes without saying, information regarding sales should be uploaded by the office on its website. Offer documents are returned to Mrs. Sikdar. The offerers want return of respective earnest money tender instruments. The office is directed to return them. List on 13th December, 2019 for disposal.

Contempt of Court / Tribunal - Seeking initiation of contempt proceedings against the Respondents - application u/s 425 of the Companies Act, 2013 - alleged wilful violation of the order dated 23rd October, 2008 passed by the erstwhile Company Law Board, Additional Principal Bench, Chennai - no wilful disobedience of order. Whether an appeal under Section 421 of the Companies Act, 2013 is maintainable against an order passed by the Tribunal in exercise of powers conferred under Section 425 of the Companies Act, 2013 which empowers the Tribunal to initiate contempt proceeding for committing contempt of its own order? HELD THAT:- The Tribunal has been empowered to exercise and discharge such powers and functions as have been conferred on it or under this Act or any other law (‘Insolvency and Bankruptcy Code, 2016’) for the time ....... + More

Oppression and mis-management - various acts of fraud and fabrication of documents in an effort to remove the appellant from the Membership and Board of the 1st respondent divesting him of his entire investment - Section 397, 398 and 111(4) of the Companies Act, 1956 - whether the appellant has paid the amount and is not a defaulter? HELD THAT:- In case the person is a defaulter in payment of subscription to capital or any sum due against him, he will be denied the benefit of this Section. It is also not disputed that the appellant and 2nd respondent are promoter and director of 1st respondent. We note that the appellant is a retired Officer of Income Tax Department, he is very well aware of the law of the land in financial matters - The stand taken by the appellant is that 1st respondent was not having any bank account, therefore, he pai....... + More

Oppression and mismanagement - maintainability of the Company Petition - grant of interim relief- It is urged that the alleged acts of oppression/mismanagement are nothing but ‘operational issues’ arising in day to day management of the Company - Estoppel from denying the factum of seeking time by joint consensus with the Appellant to name the Independent Director - HELD THAT:- It appears that maintainability of the Company Petition in the context of eligibility of Respondent No. 2 (Petitioner) to file petition under Section 241-242 of the Act is not in controversy. The Appellant, however, has vociferously challenged finding as regards limitation at the very threshold stage. It is the settled position of law that limitation is a mixed question of law and fact. Any finding which is not informed of the reasons and does not rest ....... + More

Requirement to hold shareholders' meeting and creditors' meeting for approval of the proposed Scheme of merger - Scheme of Merger by absorption of Amanora Future Towers Private Limited with City Corporation Limited and their respective shareholders under Sections 230 to 232 of the Companies Act, 2013 - applicant/Transferee Company submits that since no reconstruction or arrangement is happening with its shareholders or creditors, there is no requirement to hold shareholders' meeting and creditors' meeting for approval of the proposed Scheme. HELD THAT:- The Applicant Company 1 is directed to serve notices along with copy of scheme upon: - (i) concerned Income Tax Authority with in whose jurisdiction the Applicant Company 1's assessments are made (PAN No.-AAKCA3074H Assistant Commissioner of Income Tax Circle 1(1) Incom....... + More

Restoration of name of the company in the Register of Registrar of Companies - failure to apply for the status of a dormant company - HELD THAT:-It is a matter of record that the factum of fraudulent activities of one of the Directors of the Company involving theft of machineries and raw materials to the extent of ₹ 2 Crores is taken note of by the Tribunal in the impugned order. In the given circumstances, it would be unjust to strike off the name of Company from the Register of Companies merely because it failed to apply for seeking of a Dormant Status. The twin grounds projected at the hearing constitute a valid and just ground for restoring the Company on the Register of Companies - restoration of the name of the Company on the Register of Companies is allowed subject to the Appellants complying with all the statutory requiremen....... + More

Proceedings against the auditors of the company - removal from the statutory audit - proceedings after resignation - Constitutional validity of sub-section (5) of Section 140 of the Companies Act, 2013 - prosecution of the Petitioners and initiation of proceedings under section 140(5) of the Act - HELD THAT:- the word “action” in the second proviso to sub-section (5) of section 140 of the Act, would be required to be read down as “prosecution”. The prosecution can be initiated only after final report, equated with a report under the provisions of section 173 of the Code of Criminal Procedure, 1973, is made - This issue, in our prima facie opinion, also requires to be dealt with elaborately. The matter thus warrants a response from Respondent No. 1 and Respondent No. 2. We defer the hearing on the writ petitions - Stand over to 3rd October 2019.

Approval of sale of the shares of Specified Wind SPVs held by IWEL to ORIX, free and clear from all encumbrances, liens, security interest and third party claims upon receipt of the ORIX Revised Bid amount for ORIX, in compliance of the terms of the SPA - price discovery mechanism - penultimate lap - HELD THAT:- The Resolution Framework is based on the principles underlying the Insolvency & Bankruptcy Code, 2016 and is in line with the mandate of the New board ( In terms of the October 1 Order). Under the circumstances, it is in larger public interest and in the interests of justice that this Tribunal approves the sale of 51% of the shareholding of each Specified Wind SPVs to ORIX and passes necessary directions to facilitate/consummate the said resolution on the terms as contemplated under the SPA. It is submitted that the approval o....... + More

Corporate Insolvency resolution process (CIRP) - Role of resolution applicants, resolution professionals, the Committee of Creditors that are constituted under the Insolvency and Bankruptcy Code, 2016 - constitutional validity of Sections 4 and 6 of the Insolvency and Bankruptcy Code (Amendment) Act, 2019. Role of the resolution professional in the revival of Corporate Debtor - HELD THAT:- The resolution professional is a person who is not only to manage the affairs of the corporate debtor as a going concern from the stage of admission of an application under Sections 7, 9 or 10 of the Code till a resolution plan is approved by the Adjudicating Authority, but is also a key person who is to appoint and convene meetings of the Committee of Creditors, so that they may decide upon resolution plans that are submitted in accordance with the det....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor defaulted in repayment of amount - reliefs sought under Section 7(5)(a) and Section 13(l)(a)(b)(c) of the Code - existence of dispute or not - HELD THAT:- The unsecured loan sanctioned by the applicant has been acknowledged by the respondent company from time to time. Record available is the acknowledgement of loan, interest accrued thereon and balance of the loan account, issued by the respondent company from 17.07.2011 to 05.04.2019. In the instant application, from the material placed on record by the Applicant, this Authority is satisfied that the Corporate Debtor committed default in paying the financial debt to the Applicant and the respondent company has acknowledged the debt - In the instant case, the documents produced by the Financial Creditor clearly establi....... + More

Liquidation order - liquidation of Corporate Debtor - section 33 of Insolvency & Bankruptcy Code, 2016 - HELD THAT:- It is seen that the RP has filed an application for 'Liquidation' of the Corporate Debtor as the CoC has rejected the Resolution Plan submitted by Taguda with 77.61% voting share against the above mentioned resolution plan. This decision of CoC is being challenged by (i) Lodha (one of the Financial creditor of the Corporate Debtor having 1.03% share in CoC), (ii) the Promoters of the Corporate Debtor, (iii) the employees of the Corporate Debtor and the (iv) Resolution Applicant itself. The objection raised is regarding the justification of the alleged 'commercial wisdom' claimed to be exercised by the CoC. Canara Bank is supporting the decision of CoC for liquidation as it has given its own reasons for r....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment - loan due and payable to the FC - Section 7 of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- In view of the legislative mandate to dispose of the matters within a period of 14 days, which fact the Petitioner should have been well aware and further all the more, the shareholders/Directors of the Petitioner company are before this Tribunal in relation to inter se disputes and Petitions filed under Sections 241 and 242 of the Companies Act, 2013, this Tribunal is constrained to dismiss this Petition as the Petitioner has not been able to demonstrate on its own the existence of a 'financial debt' of which it is alleged to have been defaulted by the CD to the satisfaction of this Tribunal. There are no prima facie case and we are const....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor defaulted in making repayment of loan amount - existence of debt and dispute or not - Appellant submits that the Corporate Debtor deducted TDS on the interest paid by the Corporate Debtor while returning the loan which is sufficient to show that there was financial debt - HELD THAT:- Merely pointing out that TDS was deducted would not be sufficient to conclude that there was financial debt. TDS can be deducted for various reasons. As regard relying on Section 10 of the Contract Act, 1872, in our view IBC is a complete code in itself. Section 238 of IBC has overriding effect on provisions inconsistent with IBC. The ‘Financial contract’ is defined in “Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016” Rule 3(1)(d) requi....... + More

Whether the finding that the financial creditor was discriminated against, leading the NCLAT to modify the adjudicating authority’s directions, and consequently imposing greater financial burdens on the resolution applicant, is justified? HELD THAT:- Section 30 lays out the duties of the resolution professional and the various steps that she or he has to take, as well as the considerations that are to weigh, in examining a resolution plan. The principle of fairness engrafted in the provision is that the plan should make a provision for repayment of debts of operational creditors having regard to the value, which shall not be less than what is prescribed by the Board (i.e. the Insolvency Board), repayable in the event of liquidation, spelt out in Section 53. Section 30(3) requires the resolution professional to present the resolution....... + More

Jurisdiction - Dispensation of production of certified copy of the Order - petitioner submits that the National Company Law Tribunal has jurisdiction only in respect of debts and can entertain petitions only where debt is admittedly payable - HELD THAT:- Admittedly, the respondent herein filed petition before the National Company Law Tribunal, Bengaluru, for damages and hence it has no jurisdiction to adjudicate the matter. Inspite of the same, the National Company Law Tribunal has admitted the petition and appointed a resolution professional. In pursuance of the said Order, the professional will take charge of the Company and in that event, the very purpose of filing the present writ petition will be frustrated. Relist this matter on 31.10.2019.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make payment of loan - Dates of default are 20.10.2018 and 16.01.2019. The Petition was filed on 03.05.2019 - amount is due and payable by the Corporate Debtor to the Financial Creditor - HELD THAT:- The Hon’ble Supreme Court in the matter of Innoventive Industries Limited V. ICICI Bank &Anr.[2017 (9) TMI 58 - SUPREME COURT], has held that the provisions of section 7 become applicable as soon as financial debt is established and there is an existence of a default. The Hon’ble court hadobserved that the moment the Adjudicating Authority is satisfied that a default inrepayment of debt had occurred, the process of insolvency is to be triggered unless the application is incomplete. This Petition reveals that there is a debt as defined in section 3....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor has defaulted in paying an amount - existence of debt and default or not - Section 9 of I&B Code - HELD THAT:- This Bench is of the view that the Operational Creditor has proved existence of debt and default, therefore, we hereby admit this company application looking at the consent given by Mr. P. Sriram with a direction to the Operational Creditor to pay remuneration to the IRP and his expenses until the constitution of CoC. Application admitted - moratorium declared.

Maintainability of application - initiation of CIRP - Corporate Debtor defaulted in making repayment of loan - Section 7 of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The banks give loans out of the money collected from depositors, share holders etc. The notional loss as pleaded by the Respondent is prima facie not tenable. The Ld. Counsel for the Petitioner has stated that credit facility of ₹ 2 Crore was not disbursed as the Respondent failed to fulfil the Terms of the sanction. Keeping in view the circumstances of the case, the Application of the Petitioner is admitted. Petition admitted - moratorium declared.

Maintainability of application - initiation of CIRP - Corporate Debtor defaulted in making repayment - pre-existing dispute or not - section 9 of the IBC, 2016 R/ w 6 of the (Application to Adjudicating Authority) Rules, 2016 - HELD THAT:- The facts and circumstances of the case, when examined in the light of extant provisions of Code and the law leaves no iota of doubt that the Corporate Debtor has comrnitted Debt and default in question, which is established by the Petitioner. And there is neither pre-existing nor post-existing dispute made out by the Corporate Debtor. The Adjudicating Authority is satisfied that the instant Application/ petition is complete proviso 2 of Section 9 of the Code ; there is no payment of operational debt; the demand notice in question is delivered and no notice of dispute was received by the Petitioner; a q....... + More

Maintainability of application - initiation of CIRP - non-payment of the claim amount made in the petition by the Operational Creditor pointing out to a default as envisaged under the provisions of Section 9 of IBC, 2016 - HELD THAT:- This Tribunal in the circumstances taking into consideration the provisions of law as well as on facts is constrained to order for liquidation of the corporate debtor and in such background the corporate debtor stands liquidated with the incidence of liquidation to follow, on and from the date of this order in terms of the provisions of IBC, 2016 and more particularly as given in Chapter - III of IBC, 2016 and also in terms of Insolvency and Bankruptcy (Liquidation Process) Regulations, 2017 along with the directions imposed. Application admitted - moratorium declared.

Initiation of CIRP - Exclusion of period from 17th September, 2018 till 4th June, 2019 for the purpose of counting 270 days Corporate Resolution Process period - power of the NCLT or NCLAT, as the case may be, to exclude any period from the statutory period in exercise of inherent powers sans any express provision in the I & B Code in that regard - HELD THAT:- The inevitable fall out of accepting the stand taken by the appellants would be to set aside the impugned judgment and relegate the parties to a situation where the only option would be to proceed with the liquidation process concerning JIL under Chapter III of Part II of the I & B Code, on the premise that no resolution plan has been received before the expiry of the Insolvency Resolution Process under Section 12 of the I & B Code or being a case of rejection of the res....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor defaulted in making repayment - existence of debt and default or not - Section 7 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- After having gone through the documentation reflecting the Corporate Debtor availing the credit facilities in respect of loan amounts from the Original Lender, thereafter the Bank declaring this loan as NPA on 14.09.2014, since there being regular correspondence between the Corporate Debtor and the Original Lender reflecting acknowledgement of this debt from time to time, this Bench is satisfied that this claim is within the time prescribed under the Limitation Act - As the applicant has placed material reflecting existence of debt as well as default, it is opined that the Financial Creditor established “existence of debt as well as existence of default”. Petition admitted - moratorium declared.

Admissibility of petition - initiation of CIRP - Failure on part of corporate Debtor to make repayment of loan - Section 7 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- At the stage of admission of Application under Section 7, the requirement is to give limited Notice and the considerations would be to see whether or not satisfaction by Adjudicating Authority could be reflected on the basis of Sub-Section (5) of Section 7. If there is a financial debt, which is more than ₹ 1 Lakh and there is a default and if the Application is complete, the Application would have to be admitted. The Corporate Debtor is entitled to point out that a default has not occurred in the sense that the ‘debt’ which may include a disputed claim is not due. Corporate Debtor may point out that the debt is not due by showing that it is n....... + More

Admissibility of application - initiation of CIRP - Restoration of non-existent Company (Corporate Debtor) - the name of M/s. Elektrans Shipping Private Limited (Corporate Debtor) was struck off by the Registrar of Companies on 12th September, 2018 in exercise of powers conferred by Section 248 of the Companies Act, 2013 - Section 9 of the I&B Code - HELD THAT:- Similar issue decided in the case of MR. HEMANG PHOPHALIA VERSUS THE GREATER BOMBAY CO-OPERATIVE BANK LIMITED AND M/S. PENGUIN UMBRELLA WORKS PRIVATE LIMITED [2019 (9) TMI 893 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI] where it was held that The name of the Company having been struck-off, the Corporate Person cannot file an application under Section 59 for Voluntary Liquidation. In such a case and in view of the provisions of Section 250 (3) read with Section 248 (7)....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to pay the due & payable financial debt - whether the debt falls within the meaning of 'Financial Debt' in terms of Section 5(8) of the Code of 2016? HELD THAT:- As per Section 3(8) of the Code of 2016, a CD means a corporate person who owes a debt to any person, and as per Section 3(7), a corporate person is a company, a LLP or any other person, but shall not include any financial service provider. That is to say that since a financial service provider is excluded from the definition of “corporate person”, it can also not be a CD. Further, since Part 2 of the IBC applies to “Insolvency Resolution and Liquidation for corporate persons”, and since a financial service provider, including an NBFC, is excluded from the definition ....... + More

Maintainability of application - initiation of CIRP - Corporate Debtor failed to repay the debt - Adjudicating Authority dismissed the Application holding that the claim made by the Appellant (Financial Creditor) is not a ‘financial debt’ - Section 7 of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The Appellant, who claims to be a Financial Creditor, however, claims made by it, is not a Financial Debt. It is reiterated that in the marketing agreements and subsequent correspondence exchanged between the Appellant and the Respondent, no way it is mentioned that the amount paid by the Appellant to be repayable along with interest over a period of time in a single or series of payments in future. However, we are of the firm opinion that the Appellant has not disbursed money against the consideration for the time value. The claim of the Appellant is not a Financial Debt within the meaning of Section 5(8) of IBC. Appeal dismissed.

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make payments - Existence of default or not - HELD THAT:- It is clear that the Applicant has provided services for which Corporate Debtor has failed to make payment. The outstanding, operational debt of more than Rupees One Lakh is due and payable against the Corporate Debtor and Corporate Debtor has committed default in making the payment. Further, the Corporate Debtor has not controverted the same even during the hearing. Therefore, the default is also established. The Application under sub-section (2) of Section 9 of I&B Code, 2016 is complete. The existing operational debt of more than rupees one lakh is due and payable against the corporate debtor and its default is also proved - Application admitted - moratorium declared.

Admissibility of application - initiation of CIRP - Section 10 of the ‘Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The impugned order dated 15th March, 2019 is against the provision of law and cannot be sustained. It is not in dispute that the application filed under Section 10 is without approval of the ‘Annual General Meeting’ / ‘Extra-Ordinary General Meeting’. Simultaneously a plan was submitted which is against the provision of Section 65 of the I&B Code as it appears that it is filed with malicious intent for any purpose other than for the resolution of insolvency and liquidation. For this reason, we set aside the impugned order dated 15th March, 2019. The petition under Section 10 of the I&B Code filed in ‘Form 6’ is dismissed.

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

Bail application - Compoundable offences - grant of sanction to prosecute for offences punishable u/s 276C(1) and 277 of the Income Tax Act and section 120B of I.P.C - scheduled offences - HELD THAT:- It is not in dispute that the petitioner was discharged by the Special Court, Bengaluru in 3 out of 4 complaints vide order dated 28.02.2019. however, the application seeking discharge in the 4th complaint was dismissed by the Special Court, Bengaluru, vide order dated 25.06.2019 - The petitioner had challenged the said order in Revision Petition No. 955/2019 filed before the High Court of Karnataka which granted stay of further proceedings vide order dated 20.08.2019 in the said 4th complaint case pending before the Special Court, Bengaluru. It is also not in dispute that the offences under Section 276C, 277 of the Income Tax Act alleged ag....... + More

Condonation of delay in filing appeal - appellant's case is that the reasons for delay in filing the appeals were beyond the control of the appellant - sufficient reasons or not? - Section 42 of the PMLA - Money Laundering - Provisional attachment of properties - proceeds of crime - scheduled offences - HELD THAT:- If any person is aggrieved by any decision or order of the Appellate Tribunal, he may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him. Proviso to this Section provides that if the High Court is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period of sixty days, the High Court may allow it to be filed within a further period not exceeding sixty days. Thus, the proviso clearly man....... + More

Whether the learned Single Judge while passing the judgment and order dated 29th August 2019 exercised the power only under Articles 226 and 227 of the Constitution of India or under Articles 226 and 227 as well as under Section 482 of Cr.P.C.? HELD THAT:- Section 362 of Cr.P.C could not have come in the way of the learned Single Judge in considering the prayer made by the writ petitioners for continuation of the interim relief which was operating in the writ petitions. Even assuming that the learned Single Judge had exercised the power under Section 482 of Cr.P.C as well, what Section 362 of Cr.P.C prohibits is that the alteration of order except to the extent of correcting clerical and arithmetical errors. What was prayed for by the petitioners was the continuation of interim relief which was operative till the disposal of the writ peti....... + More

Money Laundering - attachment of properties - non-filing of charge sheet at the time of passing the confirmation order - proceeds of crime - relationship of proceeds with alleged crime - whether the attachment lapses in the absence of non-filing of the charge-sheet at the time of passing the confirmation order before the Adjudicating Authority? HELD THAT:- It is admitted on behalf of respondent in its written-submission that the amendment dated 19.04.2018 amending section 8(3) of PMLA, 2002 brings into the effect that order confirming the attachment passed under section 8(3) would only subsist during the period of investigation for a period not exceeding 90 days. In other words, the prosecution complaint shall be filed under 45(1) PMLA, 2002 within 90 days of confirmation of provisional attachment order. This amendment is prospective in n....... + More

Money Laundering - proceeds of crime - attachment of property - Rule 5 of the Prevention of Money-Laundering (Taking Possession of Attached or Frozen Properties Confirmed by the Adjudicating Authority) Rules, 2013 - HELD THAT:- In the present case, admittedly certain small portion of the immovable property was able portion where the appellant was operating office/Gym in the premises. However, the Respondent has taken the possession even before issuance of notice dated 23.02.2018 under subsection (4) of Section 8 of the Prevention of Money Laundering Act, 2002 (Act No. 15 of 2003) r/w Rule 5(1) of the Prevention of Money-Laundering (Taking Possession of Attached or Frozen Properties Confirmed by the Adjudicating Authority) Rules, 2013 as mentioned in the notice itself The said notice was served only 27.02.2018 after taking the possession. ....... + More

Money Laundering - proceeds of crime - the appellant submits that no prosecution complaint has been filed against the appellant under PMLA, 2002 within the statutory period as prescribed in u/s 8(3)(a) of the PMLA-2002 than existed - HELD THAT:- In the present case, the impugned order was passed on 13.09.2018, the prosecution complaint has been filed on 03.05.2019 - The 90 days period for filing prosecution complaint from the date of impugned order has expired in the month of December, 2018 which is before the amendment of extending the period for filing the prosecution complaint to 365 days. A legal right has accrued to the appellant in view of the section 8(3)(a) of PMLA-2002 when the prosecution complaint was not filed within 90 days. The provision of Section 8(3) read with 8(3)(a) of the PMLA clearly provides that the attachment order....... + More

Money Laundering - Attachment of property - proceeds of crime - separate legal entity - FTIL is charged with the offence of money laundering and also NSEL is fully and wholly owned by FTIL - validity of attachment of properties of FTIL - HELD THAT:- It is difficult to hold that the attachment of assets of 63 Moons Technologies Ltd. (erstwhile Financial Technologies (India) Ltd.) is illegal and ultra vires the statutory definition of “Proceeds of crime”. “Proceeds of Crime” in the hands of NSEL if dissipated can only be substituted by other properties of National Spot Exchange ltd. (NSEL) itself - There is no concept of “equivalent” attachment in the hands of another legal entity. The said legal entity (63 Moons Technologies Ltd.) conducts its own independent business and earns therefrom. Admittedly, the....... + More

Bail plea in a money laundering case - white collar crimes/economic offenders - HELD THAT:- Tentacles of the crime are so widespread and it is not that the investigation can be segregated in respect of one or the other accused, the entire crime committed is indeed interlinked. The economic offences like the one in hand constitute a class part and they are not like other criminal cases and need to be visited with a different approach. Therefore taking note of huge magnitude of conspiracy angle qua petitioner, it would be premature to jump to the conclusion that investigation in this case in respect of the petitioner is complete, rather huge amount of money is still to be trailed. As gone through the diary of proceedings handed over by the ld. ASG during the course of the arguments and the perusal of the same shows that despite being in J.C....... + More

Offence under PMLA - Attachment of property involved in money-laundering - mortgage properties in favour of banks which are not purchased from proceeds of crime - HELD THAT:- In the event of the attachment being lifted, the RP would take steps to get a viable Resolution Plan. A Resolution Plan is a scheme and provides for payment of debts owed to various creditors of the company. The Committee of Creditors (“CoC”) is vested with the power to take a decision to approve, or reject a Resolution Plan. In the event that the CoC approves a particular Resolution Plan, it requires confirmation and approval by the Adjudicating Authority (National Company Law Tribunal). After approval of the Resolution Plan, the enterprise as a going concern would be handed over to the Resolution Applicant, under the supervision of the Monitoring Commit....... + More

Money Laundering - proceeds of crime - immovable property acquired as divorce alimony - whether any proceed of crime has been used by her and or her ex-husband, ShivrajPuri in acquiring the said property? - Attachment of the property. HELD THAT:- From the investigation conducted, it has inter-alia emerged that Shri Shivraj Puri by abusing his official position as the Relationship Manager in Citibank Gurgaon, and in furtherance to a criminal conspiracy hatched and executed by him together with his relatives/associates fraudulently opened and operated Custodian Account No. 5011666247 in the Bank in the names - the appellant was removed from the aforesaid premises by the Gurgaon Police on 9.6.2011 without any notice. The premises was locked. Her belongings including her education and experience certificates, clothes and her personal belongin....... + More

Offence under PMLA - Attachment orders - proceeds of crime - HELD THAT:- As already mentioned that the original cheques are already filed and placed on record of this file. The respondent is at liberty to obtain the same from the Registrar of this Tribunal. As far as the attachment of properties are concerned, the said property will be released after the entire payment against the post dated cheques are encashed in favour of the respondent. Once the said entire alleged proceed of crime is received by the respondent, the impugned order dated 14th March, 2019 as well as provisional attachment order dated 01st October, 2018 shall be modified/quashed. The present appellant who has allegedly bonafide received alleged proceeds of crime in question. It is also not denied by the learned counsel for the respondent that the appellant has not been c....... + More

Offence under PMLA - attachment orders - funds with the bank that are secured for the Bank Guarantee issued by the Appellant bank attached - whether Appellant Bank holding any funds of the Accused/Respondents? - whether the property which has been attached has any nexus whatsoever with that of money laundering or not? - HELD THAT:- Adjudicating Authority failed to appreciate that the fixed deposits have been taken as margin money for the bank guarantee issued by the Appellant Bank and as such bank has exclusive charge on them. The Authority has not recorded any reason as to why funds with the bank that are secured for the Bank Guarantee issued by the Appellant bank could be attached and there is no “reason to believe” placed on record by the ED. The banks cannot be harassed without their fault. Adjudicating Authority failed to....... + More

Money Laundering - attachment of property - Validity of Interim Order passed - Jurisdiction of this Tribunal to pass the interim order - Section 35 of PMLA - HELD THAT:- Mr. AmitMahajan admits that the proceedings of PMLA were initiated by invoking the section proviso of Section 5(1) of the Act - When it was asked to him to produce the reason to belief to satisfy the mandatory conditions of second proviso, it is replied by him that the said issue is the subject matter of appeal which is listed for final hearing and at that time, he would argue the said issue. With regard to query about the undivided share of his mother, no arguments are addressed on behalf of respondent. The interim order passed on 01.08.2019 is liable to be confirmed - The prayer made in the applications are allowed.

Offence under PMLA - attachment made by the Provisional Attachment Order (PAO) - HELD THAT:- It is evident that the PAO, the Original Complaint and the Impugned Order have simply copy pasted the contents of the CBI Chargesheet. In the present, very serious issues are involved, those have to be decided legally. We have examined the chart filed alongwith rejoinder as Annexure-A, which highlights the similarities between the Chargesheet, the PAO, the Original Complaint and the Impugned Order. Shockingly, the contents of these documents are almost identical and which evidences that the Respondent No.1 i.e. the author of the PAO and Original Complaint and the AA i.e. the author of the Impugned Order, has not applied his mind. He who passed the order was not the Judicial Member. The order was passed in very casual manner. In serious and complic....... + More

Money Laundering - sting operation - Reduction in quantum of penalty - Violation of the reporting obligations on part of the respondent banks - issuance of a warning in writing under Section 13(2)(a) of the Act - whether the Appellate Tribunal could modify the order passed by the Director, FIU by reducing the penalty imposed? - HELD THAT:- It is apparent that FIU’s contention that provisions of Section 13(2) of the Act, as in force prior to amendment on 15.02.2013, are applicable, is bereft of any factual foundation. The said contention is premised on the basis that the sting operation had been conducted prior to 15.02.2013 and, therefore, the respondent banks had violated the provisions of the Act, prior to Section 13(2) of the Act being amended. Consequently, the respondent banks are required to be visited with penalty as provided....... + More

Failure to report attempted suspicious transactions - Prevention of Money Laundering (Maintenance of Records) Rules, 2005 - HELD THAT:- There is no doubt that the warning letter dated 18.09.2014 was issued by the FIU in respect of the alleged violation of Section 12 of the PMLA, read with the Rules. The subject matter of the allegations included the internal control systems and failure to submit the STRs in relation to the sting operation conducted by Cobrapost. It is clear from the communications that the sting operation conducted by Cobrapost had set in motion an inquiry by the FIU which was not only limited to non-reporting of the transactions, which were subject matter of the sting operation, but also an extensive examination into the internal control system and anti-money laundering procedures established for compliance of the statut....... + More

Money Laundering - proceeds of crime - commission of the offence of Money Laundering under Section-3, PMLA - guilty of the offences under sections 120B read with 420, IPC; and were acquitted in respect of charges under section 467, 468 and 471, IPC - allocation of the coal block - HELD THAT:- The investors have invested in the shares of the Appellant company due to the coal allocation and coal linkage (allocation). Adjudicating Authority’s reading of the aforesaid Statements has gone behind the said Statements and amounts to disbelieving the same, without any factual basis or material to the contrary. The aforesaid statements recorded under section 50 of the PMLA have been duly signed and affirmed by the persons giving the statement. The proceedings under Section 50 PMLA are deemed to be judicial proceedings within the meaning of Se....... + More

Money laundering - proceeds of crime or not - alleged dishonest and fraudulent availment of credit facilities consisting of Cash Credit limit by using fake documents and accommodative transactions on paper - retention of policies, FDs and other important documents - offence punishable under Sections 120B & 419, 420, 467,471 of Indian Penal Code (IPC) - scheduled offences or not - HELD THAT:- It is an admitted position that the said policies and FDs are in the name of Jiban Kumar Mitra & Mrs. Malobika Mitra, who are the parents of the appellant. The specific submission has been made that her father had been working with I.O.C. for a long period of time and the said policies and FDs are the retirement benefits received from the employers. It is the matter of fact and same is not denied by the ld. counsel for the respondent during th....... + More

Money Laundering - Provisional Attachment of property - order to vacate the property - VAT refund availed on the basis of forged and fabricated documents - It is the contention of the appellants are that they were not a party before the adjudicating authority though they are the owner of portion of the property in question - HELD THAT:- The offences are of the year 2012- 13. Whereas the property in question was acquired in the year 2011 by Smt. Seema Garg. It is the contention of the respondent that the property in question has been attached as value thereof. There is no allegation that the property in question has been acquired out of proceeds of crime. When the case was registered the appellants and others have already purchased the property in question and in actual physical possession of the same. There is no rebuttal from the side of....... + More

Offence under FERA - fraud on the banking system - mens rea is an essential ingredient as the FERA proceedings - As alleged officers responsible for conduct of the company were ‘negligent' - non specified SCN - HELD THAT:- Show Cause Notice must necessarily establish that the concerned officer was incharge of, and responsible for conduct of the company and further, spell out the offence committed by such officer. Only certain junior officers have been namedin the SCNs who can under no circumstances be said to be incharge and responsible for the bank or for conduct of its business. Further, onus to prove that a person was responsible for conduct of business of company is on the Department, which it has failed to discharge. In the impugned Orders Mr. Rajgopalan Ramkumar, Mr. Sunil G. Sawant, Mr. R.B. Dhage, Mr. Allwyn Roche, Mr. P....... + More

Violation of provisions under FCRA, 1976 - foreign contribution received by the respondent-petitioner - HC quashed the FIR - HELD THAT:- The impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 Cr.P.C., the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegtions made by the appellant-C.B.I., and the defence put-forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 Cr.P.C. The assessment made by the High Court at this stage, when the matter has been taken cognizance by the Competent Cou....... + More

Sh. P. Chidambaram seeks bail - proposal for downstream investment - Petitioner, the then Finance Minister, Sh. P. Chidambaram approved the downstream proposal of INX News on 30.10.2008 - FIR alleging commission against Sh. Karti P. Chidambaram [arraigned as accused No. 3 in the said FIR under Section 120-B read with Section 420 of Indian Penal Code, 1860, Section 8 of the Prevention of Corruption Act, 1988 (hereinafter referred to ‘PC Act’) and Section 13(2) read with Section 13(1)(d) of the PC Act.] HELD THAT:- As petitioner instead of joining the investigation approached this Court seeking anticipatory bail and this Court was pleased to pass an interim order protecting the petitioner from arrest. Pursuant thereto, when the petitioner was called for interrogation under the protective umbrella of a pre-arrest bail reducing th....... + More

Canara Bank abetted in the illegal and unauthorized dealing of foreign exchange - penalties against the appellants for the contravention of Sections 6(4), 6(5) r/w Sections 49, 8(1), 9(1)(a) and 9(1)(e) along with Para 10.3 (ii) - HELD THAT:- It is stated that from a conjoint reading of the facts and the definitions that there was neither any commission nor any omission on the part of the Appellant. Cheques issued by BFEA on an account maintained with Canara Bank were presented in the normal course of clearing and these cheques were honoured by Canara Bank. Canara Bank did not know at that point of time that the proceeds of those cheques would be remitted abroad after being credited to a convertible rupee account maintained at the ANZ Grindlays Bank. In any event the Canara Bank had nothing whatsoever to do with the crediting of money to ....... + More

Sum acquired/possessed/held/owned outside India with LGT Bank without any General or Special permission of RBI - contravention alleged by invoking presumption under section 39 of FEMA, 99 - presumption of documents. - Penalty enhanced - Power of special director in the absence of appeal from Revenue side - HELD THAT:- It is stated on behalf of appellants that before the Special Director, the Appellants reiterated their contentions, in addition to submitting that the conclusion of guilt against the appellant is based on no material and that the order passed is perfunctory without application of mind and even contrary to show cause notice where the theory of 1/4th of amount was not even alleged, but the Special Director affirmed the order of the Adjudication Authority on his self-innovated and imaginary reasoning, neither based on any evide....... + More

Contravention of Regulation 7 of Foreign Exchange Management (Acquisition and Transfer of Immovable property in India) Regulations, 2000 - Confiscation of 8 flats and five car parking - penalty under section 13(2) of the FEMA Act - HELD THAT:- National of the countries specified under Regulation 7 of the Regulations can acquire or transfer immovable properties in India, provided that such a person obtains the requisite permission from the Reserve Bank of India. If the national so fails to apply for such a permission, the Reserve Bank of India has the power to accord an ex post facto permission with regards to the said transaction. The transaction in question is not a commercial transaction; as a matter of fact the Appellant still resides in the Flats. The Flats were purchased by Indian Rupees, out of monies earned in India on which Income....... + More

Purchase of property in India - Individual arrived in India on Business Visa - “Person resident in India” as contemplated under Section 2(v) of the Foreign Exchange Management Act, 1999 - THAT:- Appellants residing in India for more than 182 days in the previous financial year at the time of setting up of business and purchase of property in India. Thus, they satisfied the definition of the term “Person resident in India” as contemplated under Section 2(v) of the Foreign Exchange Management Act, 1999 and therefore there was no impediment to purchase and hold property in India nor did they require any permission from the Reserve Bank of India to purchase immovable property or to set up any business in India. The property was purchased on 01.09.2009 more than a year after they entered India under a valid Visa. It is ....... + More

Fastening liability on a director of a company for contravention of the FERA - Offences by companies - ‘Opportunity Notice’ - HELD THAT:- The adjudication proceedings are being pursued by the ED on the basis that each of the present Appellants was at the relevant time, “in charge of”, and “responsible to” NIL for the conduct of its business. There can be no doubt that the above standard for fastening liability on a director of a company for contravention of the FERA, applies to both criminal proceedings that would result following an ‘Opportunity Notice’ as well as the adjudication proceedings that would follow an SCN/MFA issued under Section 51 FERA. The foundational fact that requires to be shown to exist for proceeding against a person under Section 51 of the FERA read with Section 68 (1)....... + More

CBI investigation for violation of provisions of FCRA - Cancellation of registration under FCRA - diversion of the funds for personal benefit of the office bearers or any other individuals - Constitutional validity of Section 43 of the Foreign Contribution (Regulation) Act, 2010 (‘FCRA’) and Rule 22 of Foreign Contribution (Regulation) Rules, 2011 (FCRR) - whether they are arbitrary, unreasonable, ultra vires and violative of Articles 14 and 21 of the Constitution of India? HELD THAT:- It is equally well settled principle of law that laws are not to be declared unconstitutional on the fanciful theory that power would be exercised in an unrealistic fashion or in a vacuum or on the ground that there is a remote possibility of abuse of power. In fact, it must be presumed, unless the contrary is proved, that administration and app....... + More

Guilty of contravention of the provisions of Section 26(7)(i)(ii) of FERA 1973 - Penalty imposed on directors - dealing between a FERA Company and ‘a Person resident in India’ (which could only be an individual) - arrangement between two bodies corporate - whether amount given by LIL to HLL can neither be treated as a ‘loan’ or ‘deposit’? - HELD THAT:- Scope of “person resident in India”, it cannot be held that the amount given by LIL to HLL in the aforesaid circumstances was not ‘bonafide’ and that the Company did not act under an ‘honest and genuine belief’ that it was permissible to do so. Nor can it be said that the company ‘acted deliberately in defiance of law’ or were ‘guilty of conduct contumacious or dishonest’ or ‘acted in consc....... + More

Nature of activity - trading or service? - distribution of electricity - whether the electricity can be considered as goods or not - HELD THAT:- Appeal admitted.

Permission to withdraw appeal - appellant intends to pursue Sabka Vishwas (Legacy Dispute Resolution) Scheme - HELD THAT:- Permission granted.

Application for withdrawal of appeal - HELD THAT:- The application for withdrawal of civil appeals is allowed - appeals are dismissed as withdrawn.

Taxability -Transfer of of Land Development Rights - Tri-partite agreement - HELD THAT:- The appeal is admitted.

Demand of service tax - amounts received as consideration i.e. on the deployment charges - period April 2009 to June 2012 - demand of interest as well - HELD THAT:- The appellants are providing security services to various Central Government organizations. The service recipient gives various facilities to the staff of the appellant like Accommodation, Medical facility, Vehicle, POL and Petrol, Telephone, Stationary, Newspaper, Transportation, the value of which was not included in the cost of deployment charges and the Department entertained a view that cost of all these facilities should be included and service tax is required to be paid on that - Further the appellant is a service unit of the Union of India to protect the sovereign property i.e. the property belonging to the Union which includes its undertakings - the activity of the ap....... + More

Levy of service tax - Steamer Agent Service - appellant is engaged in providing services in the nature of clearing and forwarding, business auxiliary and logistics management pertaining to import and export of cargo - Business Auxiliary services - HELD THAT:- Revenue has failed to bring any evidence on record while issuing the SCN and while passing the impugned order which justifies the categorization of appellant in the definition of ‘Steamer Agent’. Further, the impugned order is contradictory because Learned Commissioner (A) in the impugned order has, in fact, admitted that the appellant has not provided any ‘Steamer Agent Service’ but still confirms the demand on the ground that the appellants are carrying out ancillary activity, that of a steamer agent - Also, with regard to the same nature of service, the Dep....... + More

Construction services - Construction of Complex Service - appellant had a strong belief that they are not liable to pay service tax but still they calculated the service tax liability and interest for the period from 16.6.2005 to 31.3.2006 after applying the abatement provided under Notification No.1/2006-ST for ‘Construction of Complex Service’ - demand of service tax - Health Club and Fitness Centre Service - Real Estate Agent Service - Interior Decoration Service - Maintenance or Repair Service - CENVAT credit - credit utilization in excess of 20% or not. HELD THAT:- It is not in dispute that the entire activity of the appellant is construction of residential apartments and such activity is in the nature of indivisible works contract involving transfer of property in goods along with provision of service. The appellants are....... + More

Classification of services - Construction Services or Works Contract Services? - Valuation - Benefit of abatement claim - N/N. 15/2004-ST dated 10.09.2004 and Notification No. 01/2006-ST dated 01.03.2006 - It was observed that the appellant did not pay service tax on TDS deducted from the payments released by various parties, amount adjusted on account of electricity charges, water expenses and ESI expenses, retention money and mobilisation advance for the period 10.09.2004 to February 2006 - denial of abatement on the ground that the appellant has availed cenvat credit on Telecom Services. Classification of services - Whether the activities of construction of complex developed by Nagar Panchayat, building of private college and boundary wall of different parties undertaken by the appellant and are liable to be taxed under Construction Se....... + More

CENVAT Credit - common input services utilised for taxable as well as exempt activity - reversal of proportionate credit - non-maintence of separate records - common input service tax credit availed by them in respect of Telephone and Renting of Immovable Property Service, since the consumables sold by the appellant while rendering service was alleged to be a trading activity - Rule 6 (3) of the CENVAT Credit Rules, 2004 - C.B.E.C. Circular No. 699/15/2003-CX - extended period of limitation. HELD THAT:- The C.B.E.C. Circular No. 699/15/2003-CX has clarified the issue regarding Service Tax on Authorized Service Station during the course of providing service, wherein such ASS replaces engine oil, gear oil, coolants, etc., as per the request of the customer that the sale of consumable during the course of providing service is akin to sale of....... + More

Valuation - Commercial and Industrial Construction Service - benefit of N/N. 1/2006-ST (Abatement) - It appeared to Revenue that appellant have wrongly availed benefit of Notification No. 1/2006-ST (Abatement) and that they have undervalued the gross value of service. Revenue was of the view that appellant should pay service tax on the gross value (including the material components) - extended period of limitation. HELD THAT:- The admitted fact is that the contracts executed by the appellant, the copies of which were scrutinised by the Department, are composite, or to be performed alongwith supply of material. No separate cost of material to be supplied was shown. The invoices raised, also contained classification of the material as “sales-tax free”, “sales against D-Form” etc. Further in para 9 of the SCN, it is r....... + More

Erection, Commissioning or Installation Service - Composite works contract or not - Demand of service tax - project which they have undertaken for construction of floodlighting along the Indo-Bangladesh Border - Benefit of N/N. 45/2010-ST, dt. 20.07.2010 and 11/2010-ST, dt. 27.02.2010 - demand of mobilization advance which they have received from their clients which was subsequently adjusted in the final bill - service tax under reverse charge mechanism on the freight paid to the vendors under GTA services - extended period of limitation - penalties. Project for construction of floodlighting around Indo Bangladesh Border in the State of Tripura - demand of service tax - HELD THAT:- It is evident from the records before us that the project was awarded by Ministry of Home Affairs to M/s Coastal Projects Private Limited, A Government of Indi....... + More

Refund of service tax - time limitation - export of services - commission paid to overseas agents - claim was rejected on the ground that the claim pertaining to the period October 2008 to December 2008 was filed on 28.05.2009 i.e. within the period of six months as prescribed in notification however, without the duty paying challans which was dated 11.08.2009 - HELD THAT:- In the appellant’s own case, the issue has been decided by the Tribunal in M/S SOPARIWALA EXPORTS PVT LTD VERSUS CCE & ST- VADODARA-I [2018 (5) TMI 1460 - CESTAT AHMEDABAD] where it was held that the refund claim cannot be rejected on the ground of time bar, since, they have complied with the condition of filing the refund claim within 6 months from the date of export of goods for the relevant quarter i.e. from July, 2008 to Sept., 2008. Refund allowed - appeal allowed - decided in favor of appellant.

Refund of service tax - unjust enrichment - section 11B of CEA - SCN was issued detailing unjust enrichment provisions in Section 11B as well as on the ground that sub-contractors are liable to pay service tax as well as main contractor - HELD THAT:- The Commissioner (Appeals) should have decided the matter only on the aspect of unjust enrichment as all other issues were either not raised at the first stage of SCN or settled in favour of the appellant. Though the appellant claimed that they have submitted various records however there is no particular records which show that incidence of service tax initially borne by the appellant was not passed on any other person. The fact remains that the sub contractor has charged the service tax and the same was reimbursed by the appellant to the sub contractor. The provision of the service tax was ....... + More

Nature of activity - service or not - Levy of service tax - service of erection and installation are provided by the foreign party to the appellant - reverse charge mechanism - N/N. 19/2003-ST dated 21/03/2003 - HELD THAT:- The entire transaction is of purchase of imported bubble wrap machines. The appellants have discharged custom duty considering the total value of machine shown in the invoice. There is no separate charge for service such are erection and installation of such machinery. On the total value of the invoice, Custom duty was paid. The erection and installation is incidental to the sale/supply of the machine. Therefore, the entire transaction is of sale and purchase of the machine and, hence, no service is involved. Therefore, no Service Tax can be demanded. Appeal allowed - decided in favor of appellant.

Recovery of the service tax amount collected from the customer - Invocation of Section 73A of the Finance Act, 1994 - recovery sought on the ground that the appellant had claimed the benefit of N/N. 24/2007-ST dated 22.05.2007 and the benefit of the said notification was availed by the appellant, was not passed on to the customer - HELD THAT:- It is an admitted fact on record that the disputed amount in question was paid back by the appellant to its customer subsequent to issuance of the show cause notice. Thus, under such circumstances, it cannot be said that the provisions of Section 73A ibid should be applicable for recovery of such amount, considering the same as a collection of excess service tax from the customer. Under an identical situation, this Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE, JAIPUR VERSUS VINAYAK AGROTEC....... + More

Exemption from service tax - Works Contract Services or Commercial or Industrial Construction Services? - construction of railway lines for private parties and construction of private roads - case of the revenue is that both CICS and WCS exclude railways or roads - Demand of interest and penalty as well - HELD THAT:- In respect of one of the appeals herein viz., M/S UNITED RAIL ROAD CONSULTANTS PVT LTD VERSUS COMMISSIONER OF CUSTOMS CENTRAL EXCISE & SERVICE TAX, HYDERABAD-III [2019 (6) TMI 1409 - CESTAT HYDERABAD] has decided that the charging section of works contract under section 65(105)(zzzza) of the Finance Act, 1994 excludes railways. Since it does not qualify the term by saying “railways for public carriage or railways by the Government”, it was held that the term “railways” includes any form of railways....... + More

Refund of service tax - time limitation - refund claims has been rejected as time barred filed under N/N. 27/2012-CE N.T dated 18.06.2012 - period April 2016 to June 2016 and January 2016 to March 201 - refund rejected on the ground that the foreign remittances were received prior to one year from the date of filing the refund claims are barred by limitation in terms of the Notification - HELD THAT:- In the cases, in hand, the refund claim required to be filed on quarterly basis in terms of Rule 5 of CCR, 2004. Therefore, the appellant were required to file refund claims within one year from the date when the quarter ends and the same view was taken by this Tribunal in the case of M/S. NEO GROUP SERVICES INDIA PVT LTD VERSUS COMMISSIONER OF CENTRAL TAX, BENGALURU EAST [2018 (11) TMI 978 - CESTAT BANGALORE]. The refund claims filed by the appellant are in time - Appeal allowed - decided in favor of appellant.

Refund of service tax - benefit of N/N. 41/2007-ST dated 06.10.07 - rejection of refund on the ground that the appellant has not exported the goods, the services for which the refund claim has been filed i.e. transportation of goods from their factory premises to the port of export and terminal handling charges at port are not port services and the documents produced by the appellant are not in their name for availment of Cenvat credit. Denial of refund on the ground that the appellant has not produced the proof of export - HELD THAT:- As it is a case of revenue that appellant has not exported the goods, in that case, the adjudicating authority was not required to go into the issue no. 2 & 3 and straight way could have rejected the refund claim as they have not exported the goods, but it is evidence on record that the appellant has fi....... + More

Condonation of delay in filing appeal - an appeal was filed by the Managing Director of the petitioner-firm with a delay of 272 days, due to reasons, beyond his control, like death of his mother, hospitalization and recovery of his illness - power of Commissioner (Appeals) to condone delay - HELD THAT:- This Court is not inclined to interfere with the order of the Tribunal, on the ground that in a similar case in M/S. FALCON TYPES LTD. VERSUS THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, THE COMMISSIONER OF CUSTOMS (SEAPORT-IMPORT) [2016 (7) TMI 40 - MADRAS HIGH COURT], we have considered the power of the appellate authority to condone the delay beyond the extendable period and it was held that It is well settled law that When the appeal itself is time barred and when the appellate authority or the CESTAT, Chennai, cannot condone the delay, in terms of the statutory provisions, prescribing a specific period of limitation. Petition dismissed - decided against petitioner.

Rectification of mistake - error apparent on the face of record or not - reopening of the case - HELD THAT:- Para-13 of the impugned final order which, in fact, has been quoted in the impugned application is itself sufficient to reflect that all the contentions as were raised by the appellant have duly been dealt with in the said final order. As far as the arbitrary/vagueness of a show-cause notice is concerned, the same is held to be correct in principle. The decision cannot be re-opened under the guise of rectification of mistake. Reliance placed in the case of M/S. SRF LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE-CHENNAI-I [2019 (4) TMI 750 - CESTAT NEW DELHI] which clarifies that a decision on debatable point of law or fact cannot be corrected by way of rectification. Otherwise also the impugned final order has remanded the matter to....... + More

Permission to withdrawal of appeal - monetary amount involved in the appeal - HELD THAT:- The civil appeals are dismissed as withdrawn, along with pending application(s), if any.

Application for early hearing - HELD THAT:- The prayer for early hearing is allowed and it is directed that the appeal be listed before the appropriate Bench in the month of January, 2020. The interlocutory application stands disposed of.

SSI Exemption - Clubbing of clearances of six units - benefit of N/N. 08/03-CE dt.1.3.2003 - Dummy units - whether M/s. Premier Castings (M/s.PC), M/s. Castech Industries (M/s.CTI) and M/s.Dynocast Industries (M/s.DCI) are non existing and are dummy units of M/s. MWF? - HELD THAT:- The claim of the appellants is that the Revenue has relied upon the inculpatory statements which were retracted. The claim of the revenue is that retraction have not reached to the office of Commissioner, therefore the retraction cannot be acceptable. But we find that some of the witnesses were called for cross examination, during the course of investigation and while drawing panchnama at the time of visit, these firms were found non existing as they were closed earlier and no sale were effected in the name of firms which itself shows that the firms were alread....... + More

Scope of SCN - Manufacturing activity taking place or not - Respondent manufactured Foots Oil, Pressed Wax, Pressed Paraffin Wax without observing the mandatory procedure and clearing Excise Duty - demand of Central Excise duty under the extended proviso to Section 11A of the said Act - interest under Section 11 AB of the said Act - recovery of duty - scope of SCN. HELD THAT:- Section 11A deals with various facets including non-levy and non-payment of excise duty and contemplates issuance of a show cause notice by the Central Excise Officer requiring the “person chargeable with duty” to show cause why “he should not pay the amount specified in the notice.” In terms of sub-section 10 of said Section 11A, the concerned person has to be afforded opportunity of being heard and after considering his representation, if a....... + More

Levy of penalty - Whether learned Commissioner, in the facts and circumstances of the case, was right in exercising his discretion, which otherwise is not contemplated, for not imposing penalty as stipulated under section 11AC of the Central Excise Act despite he has held liability under section 11A of the Act? - reasons for upholding the order of the learned Commissioner not assigned - Principles of natural justice. HELD THAT:- On a plain reading of the provisions of section 11AC of the Act, it is evident that the condition precedent for invoking the said provision is that there should be fraud, collusion or any mis-statement or suppression of facts or contravention of any of the provisions of the Act or the rules made thereunder with intent to evade payment of duty - In the facts of the present case, in the light of the concurrent findi....... + More

Benefit of exemption under N/N. 6/2003 - Procedural lapse - relevant date for calculation of benefit of notification - from which date KPCL is entitled to the exemption notification? - principles of unjust enrichment - HELD THAT:- KPCL filed an application for availing the benefit of Notification on 04/03/2003 itself but the Department wanted certain clarification as to whether the validity of the certificate issued as per Section 44 of the Indian Electricity Act, 1948 is still valid and the same was also verified vide letter dt. 24/04/2003 and 09/05/2003 - also except for this clarification, there is no dispute regarding the eligibility and other conditions to be satisfied by the appellant. Once the clarification was given by KPCL and finally edibility certificate was issued, the said certificate relates to the date of application i.e. 0....... + More

Interest on delayed refund - Section 11BB of the Central Excise Act - relevant time for calculation of interest - HELD THAT:- In the impugned order, no reasons have been given for not granting interest on the delayed refund. Further, it is found that admittedly, there is a delay in disbursal of the refund amount in the present case. Further, notwithstanding the fact that the sanctioned refund is merely belatedly paid but instead, first adjusted against some other demand and then later on disbursed to the assessee. Further, even the Board has clarified vide various circulars that the interest becomes payable after the expiry of a period of three months from the date of receipt of the application under sub-section 1 of Section 11BB of the Act. The original authority is directed to quantify the interest for the period after the expiry of 3 months from the date of filing the refund application till the amount is paid - appeal allowed - decided in favor of appellant.

Valuation - related party transaction - applicability of section 4 (1) (b) of Central Excise Act, 1944 read with Central Excise Valuation Rules, 2000 - short payment of duty - Scope of SCN - HELD THAT:- The show cause notice has been issued to the appellant on the basis of cost data that the appellant is selling the goods below the cost price, therefore, the selling price cannot be the assessable value of the goods in question. The appellant is located in the State of Jammu and Kashmir taking self credit/ refund of duty paid in cash. The duty paid in cash is an incentive to the appellant and if the same is taken into account then the appellant has earned the profit on the goods sold. In fact, cash incentive was given by way of duty paid in cash has been shared with their buyers. Therefore, the appellant earned profit on the goods sold by ....... + More

Rate of Interest on Refund of duty paid - Section 11B (1) of Central Excise Act, 1944 - Revenue has taken a stand that there has already been a notification No. 67/2003 dated 12.09.2003 by which the rate of interest has been fixed at 6% - however, the section records the range for rate of interest i.e. from 5% to 30% but section itself specifies that the rate within such range as for the time being fixed by the Central Government by notification in the official gadget - HELD THAT:- In section 11BB, to clarify the rate of interest in the range of 5% to 30%, the statute itself has empowered the Central Government to fix any rate of interest for the time being by way of a notification. This clarifies that once there is a notification of Central Government fixing 6% as the rate of interest same has to be followed as having power of statute. T....... + More

Rejection of part refund claim - refund claim in respect of two different periods - While in one case, the second respondent has chosen to partly accept and partly reject the claim, in the other case, he totally rejected the claim - opportunity of personal hearing - principles of Natural Justice - HELD THAT:- It is an admitted fact that in both the cases, the second respondent, before passing the impugned orders, not heard the petitioner. As rightly pointed out by the learned counsel for the petitioner, if the authority chooses to reject the refund claim either in part or whole, he should put the petitioner on notice and seek for explanation and decide the matter thereafter on providing an opportunity of personal hearing as well. The scope of affording an opportunity of personal hearing was considered in similar refund claim matter in the....... + More

Reversal of CENVAT Credit - writing off the value of inputs - Rule 3(5B) of Cenvat Credit Rules - HELD THAT:- Rule 3(5B) of CCR observe that the said Rule has come into existence vide Notification No. 16/2009 dated 07.07.2009 which stands substituted w.e.f. 01.03.2011 by virtue of N/N. 3/11. This perusal makes it clear that the inputs/capital goods as were produced in or before the year 2002 when the production activity of the appellant came to an end there was no provision to writing off the value of such inputs and capital goods or the reversal of cenvat credit could not be taken on such goods prior 01.03.2011. Apparently and admittedly the written off qua stores and spares was made in the year 2012 with the reversal of cenvat credit, thereof, i.e. prior the aforesaid Notification of March, 2013. Hence, it becomes clear that Department ....... + More

Captive Consumption - the appellant was using cement within their factory without payment of duty - Denial of exemption under Notification No. 67/95-CE dated 16th March 1995 - Demand for the reasons given therein the appellant’s claim that exemption in terms of Notification No. 67/95-CE was incorrect and therefore sought to recover the same along with applicable interest and penalty - HELD THAT:- The ‘capital goods’ or ‘goods’ as the case may be, are granted exemption from duty if the same are manufactured in a factory and used “within the factory of production in or in relation to manufacture of final products”. It is therefore clear that it is not necessary that cement in the case on hand is required to be necessarily used in the manufacture, it is also sufficient if cement is used ‘in relation’ to the manufacture of final product. The denial is incorrect and cannot be sustained - Appeal allowed - decided in favor of appellant.

CENVAT Credit - credit denied on the ground that the appellants have received only invoices and not the goods as per the statement of one Sh. Amit Gupta who was investigated by DGCEI - HELD THAT:- Revenue has failed to prove that if the said inputs have not been received in their factory, then from where the inputs have been replaced by the appellants against those invoices - also M/s Prime Metalloys Pvt Ltd have specifically mentioned that they have supplied the goods to the appellant. In the absence of any contrary evidence to the above facts, the Cenvat credit cannot be denied to the appellant - the investigation conducted by the DGCEI in this case is not proper and having various infirmities, the benefit of doubt goes to the favour of the appellants - Cenvat credit cannot be denied to the appellant. Penalty - HELD THAT:- As Cenvat cre....... + More

Method of Valuation - applicability of Rule 4 of the Central Excise Valuation Rules, 2004 or Section 4(1)(a) of the Central Excise Act, 1944? - Valuation - physician samples cleared by the appellant - sale of such samples on principal to principal basis to customers - clearance of physician samples manufactured on job work basis (loan licensee) to the principal manufacturer - appellants are determining the value of the medicaments sold to their customers by adopting the transaction value under Section 4(1)(a) of the Central Excise Act, 1944 when the goods were sold, but when it was manufactured on job work basis (loan licensee) valued the same by taking the cost of production + 10% as provided in Rule 8 of the Central Excise Valuation Rules, 2000. Revenue disputed the method of valuation and alleging that the physician samples cleared by ....... + More

CENVAT Credit - input services - Guest House - period October 2009 to March 2015 - denial on the ground that the guest house maintained by the appellant which has been taken on rent is not an input service - HELD THAT:- As contended by the appellant, the guest house has been used by the foreign technicians who used to visit their factory for technical assistance which ultimately resulted in production of their final goods, in that circumstances, the stay of technicians is used for manufacturing activity and the same is eligible as input service in terms of Rule 2(l) of CCR, 2004. Credit allowed - appeal allowed - decided in favor of appellant.

CENVAT Credit - duty paying documents - Registration of units - whether the appellant is entitled to the Cenvat credit in the Visakhapatnam unit in respect of the services rendered in their Visakhapatnam unit on which the service tax was paid by their Hyderabad unit and the challan mentioned the name and details of Hyderabad unit only? - Goods Transport Agency (GTA) services - reverse charge mechanism. HELD THAT:- During the relevant period, although the service recipient was their Visakhapatnam unit, the service tax was paid by their unit in Hyderabad and therefore, the challan also indicates the details of registration of Hyderabad unit. In this factual matrix, despite Hyderabad unit of appellant, instead of Visakhapatnam unit, paying service tax on the GTA services and the challan also giving details of Hyderabad unit, there is no disp....... + More

CENVAT credit - electricity generated and sold by the appellant sugar manufacturing company from its waste product called bagasse - addition of Explanation 1 to Rule 6(1) of CENVAT Credit Rules, 2004 w.e.f. 01.03.2015 - HELD THAT:- Admittedly electricity, though not found in tangible form, is classifiable under Tariff item no. 27160000 of Central Excise Tariff Act, 1985. But it is a non-excisable goods and the process of generation of electricity though a manufacturing process is dutiable if it is generated from mineral oils, bitumen substance, mineral waxes etc. and electricity generated from bagasse is not covered under Chapter 27 like electricity generated through solar power, hydro power, wind power etc. As has been held by Hon'ble Allahabad High Court in GULARIA CHINI MILLS AND OTHERS VERSUS UNION OF INDIA AND OTHERS [2013 (7) TM....... + More

Refund of excess duty paid - rejection of refund on the ground of time limitation - original refund application was filed within time but it was returned for deficiencies and is resubmitted by the assessee after rectifying the defects - whether the original date should be considered or the date of the final submission for purpose of reckoning limitation under Section 11B? - HELD THAT:- This issue is no longer res integra and it has been decided by the Hon’ble High Court of Delhi in the case of COMMISSIONER OF C. EX., DELHI-I VERSUS ARYA EXPORTS AND INDUSTRIES [2005 (4) TMI 90 - HIGH COURT OF DELHI] as well as by the Hon’ble High Court of Gujarat in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS AIA ENGINEERING LTD. [2010 (9) TMI 555 - GUJARAT HIGH COURT] that the date of the original application should be considered. Thus, ....... + More

CENVAT Credit - credit of capital goods on TG-2 denied - Rule 6(4) of CCR 2004 - HELD THAT:- Rule 6(4) of CCR 2004 prohibits availment of Cenvat credit on capital goods used exclusively for manufacture of exempted goods. In other words, if they are used for both manufacture of dutiable products and exempted products, the Cenvat credit on capital goods can be availed - In the present case, TG-2 has been installed in an island mode exclusively for supply of power to the grid as per the PPA. In fact, the clauses in the PPA indicate that there will be two TG sets and TG-2 has to run in an island mode and is meant only for supply of power to the grid. There is nothing on record to show that PPA entered into has been modified and the clause requiring TG-2 to be in an island (isolated) mode has been modified to enable it to be interconnected wit....... + More

Cenvat CREDIT - closing stock of inputs and inputs contained in the final/finished goods as on 31.03.2005 - reversal of CENVAT Credit sought on the ground that the appellant had moved out of CENVAT scheme and opted for exemption under N/N. 08/2003-C.E. dated 01.03.2003 - HELD THAT:- The issue is no more res integra, as submitted by the Ld. Consultant for the appellant, since the very jurisdictional High Court in the case of M/s. Tansi Fabrication Works [2018 (7) TMI 1371 - MADRAS HIGH COURT] after considering the decision of the Hon’ble Apex Court in M/s. COLLECTOR OF CENTRAL EXCISE, PUNE VERSUS DAI ICHI KARKARIA LTD. [1999 (8) TMI 920 - SUPREME COURT] and also the decision of the Hon’ble Punjab and Haryana High Court in the case of Commissioner of C.Ex., Chandigarh Vs. M/s. C.N.C. Commercial Ltd. [2007 (10) TMI 203 - HIGH COU....... + More

Refund claim - Delhi VAT Act - principles of unjust enrichment - HELD THAT: The respondents are directed to decide the representation or claim of this petitioner for refund of the aforesaid amount under the Delhi Value Added Tax Act, 2004 as early as possible and practicable in accordance with law, rules, regulations, Government policy including principles of unjust enrichment and on the basis of evidences available on record. Petition disposed off.

Time limitation - scope of the term "assessment" - whether the impugned notices are liable to be interfered with on the ground that they are barred by limitation as provided under Section 24(5) of the PVAT Act, 2007? - HELD THAT:- A careful perusal of provision under Section 24(5) would show that the term "assessment" alone is used and not an "order of assessment". The term "assessment" is defined under Section 2(e) as extracted supra. It means determination of business turnover of a dealer in prescribed manner to ascertain the tax liability under the said Act by self assessment, re-assessment and assessment by scrutiny and best judgment assessment. Therefore, the term "assessment" cannot be construed only as an order of assessment and on the other hand, the said term "assessment"....... + More

Levy of entry tax - validity of insertion of new entry as “unmanufactured tobacco in sealed container” - agriculture product or not - power to levy - whether it was covered in the residual entry earlier - Karnataka Value Added Tax Act, 2003 - Central Sales Tax Act, 1956 - and Karnataka Tax on Entry of Goods Act, 1979. HELD THAT:- Section 3[1] of the KTEG Act provides that the tax on entry of goods specified in the First schedule into a local area for consumption, use or sale therein shall be levied at such rates not exceeding 5% of the value of the goods as may be specified retrospectively or prospectively by the State Government by Notification, with different dates and different rates specified in respect of different goods or different classes of goods or different local areas. Thus, the charging Section shall be effective ....... + More

Imposition of penalty on the assessee under Section 54(1)(14) of the U.P. Value Added Tax Act, 2008 - Whether authorities are justified in imposing penalty under Section 54 (1) (14) of the U.P. Value Added Tax Act, 2008 without assigning reasons to support the finding of intention to evade payment of tax? - principles of natural justice - HELD THAT:- The finding of intention to evade tax had been recorded by the assessing authority on account of various fields of Import Declaration Form being found blank and the vehicle description being overwritten on that Form. The assessing authority also disbelieved the explanation furnished by the assessee on the strength of the excise documents and the fact that the assessee was a manufacturer. It is material to note that, in the present case, undisputedly, the assessee is a manufacturer who is foun....... + More

Revision of assessment - levy of purchase tax - challenge to the revision notices was on the ground that the goods dealt with by the appellants were classified under 4th schedule and therefore, exempted from levying tax under Section 15 of the Act - section 27 of TNVAT Act - whether Section 15 of the Act exempts from tax both on sale and purchase of pulses and grams covered by Entry 68 of 4th schedule by specifying the turnover limit of ₹ 500/- crores in a year? HELD THAT:- The matter pertains to rate of tax and particularly on the classification of goods and these are the issues to be decided by the Assessing Officer at the first instance. The appellants/petitioners should not be permitted to by-pass the normal procedure and the writ Court cannot exercise its jurisdiction against the proposal to revise the turnover. It is true that....... + More

Withdrawal of charge and attachment on property - alleged dues of the erstwhile owners of the property - Gujarat VAT Act - HELD THAT:- In this case no charge was created prior to the subject property being transferred in favour of the petitioners. Section 48 of the GVAT Act bears the heading “Tax to be first charge on property” and which lays down that notwithstanding anything to the contrary contained in any law for the time being in force, any amount payable by a dealer or any other person on account of tax, interest or penalty for which he is liable to pay to the Government shall be a first charge on the property of such dealer, or as the case may be, such person, would not come into play. Thus, the section envisages a first charge on the property of the dealer on account of tax, interest or penalty which he is liable to pa....... + More

Recovery of outstanding tax arrears - Dues related to the property which the petitioner has purchased - encumbrance on the property or not - whether the petitioner is liable to discharge the tax dues of the third respondent on account of having purchased the subject property which belonged to the third respondent, in the auction sale held by the second respondent bank? - HELD THAT:- On the date when the impugned notice dated 18.7.2018 came to be issued directing the petitioner to pay a sum of ₹ 17,67,45,934/- with interest at the rate of 18% per annum, being the outstanding tax arrears of the third respondent, the petitioner should have been a debtor of the third respondent, namely that a sum of money should have been payable or would become payable by the petitioner in future to the third respondent by reason of an existing obligat....... + More

Demand of penalty u/s 10-A of the Central Sales Tax Act, 1956 - Form-C - allegation against assessee of false declaration by making use of statutory Form-C issued under the Act to import packing material which item was first recorded in the registration certificate of the assessee on 09.07.2001 - Whether applicant is entitled to make purchase of packing material against Form-C in view of the provisions of Section 8(3)(d) of the Central Sales Tax Act? - HELD THAT:- Though it may not be denied that there existed an entitlement in law for the assessee to obtain registration with respect to packing material as the assessee was engaged in manufacture of 'beedi' - However, it is a fact that the assessee was granted inclusion of packing material in its registration certificate w.e.f. 09.07.2001. No penalty may have been levied for the pe....... + More

Compliance with the pre-deposit - adjustment of duty paid under protest during investigation - MVAT Act - whether the amount of duty (which was paid under protest) should be considered for the purpose of computing the 10% mandatory pre-deposit required for filing the appeal in accordance with the Section 26(6A) of the MVAT Act? HELD THAT:- In the present case, the appeal is against an order. That order is an order passed under section 23. If it is that order which is appealable, then, all the sub-sections of section 23 and the assessment proceedings cannot be lost sight of. If already some amounts are paid, albeit under protest, they would be adjusted against the total tax liability and the demand to follow. The order, therefore, is a composite one - In the instant case, that order, copy of which is annexed to the petition, is passed by t....... + More

Validity of pre-assessment notices - It is the case the of the petitioner that even before Ext.P6 assessment order was passed he had preferred a request for revising the returns filed for the said years so as to correct certain discrepancies that had occurred while filing the returns. HELD THAT:- Inasmuch as for the assessment year 2012-2013 Ext.P6 assessment order has been passed completing the assessment in relation to the petitioner for the said year, permitting the petitioner to now revise his returns for the said year would not be possible. For the said year, the petitioner has to be relegated to his alternate remedy of filing an appeal before the appellate authority for urging his contentions on the merits of the case. If the petitioner prefers an appeal against Ext.P6 order within three weeks from the date of receipt of a copy of t....... + More

Levy of VAT - Transfer of right to use of telephone instruments provided by the assessee to its subscribers/customers - sale of SIM cards for mobile network service - HELD THAT:- Once the assessee had raised specific challenge as to absence of any transfer of right to use, it was for the Tribunal to have applied its mind and offered reasoning to meet such challenge. Second, had such exercise been gone into, it would have become necessary for the Tribunal to call for and examine evidence including the agreements entered into by the assessee with its subscribers; the bills raised by the assessee on its subscribers and other materials as may have also been relevant to determine the true nature of the contract entered into between the assessee and its subscribers which gave rise to the disputed receipts at the hands of the assessee. If upon e....... + More

Condonation of delay of 97 days in filing appeal - Recovery of the amounts confirmed by Ext.P1 and P1(a) assessment orders - KGST Act - assessment years 2014-2015 and 2015-2016 - HELD THAT:- Taking note of the fact that the delay is only 97 days, I deem it appropriate to condone the same and direct the 2nd respondent to consider and pass orders on Ext.P4 and P4(a) stay petitions within a period of one month from the date of receipt of a copy of this judgment, after hearing the petitioner.

Special scheme of assessment - transitional period between the phasing out of the TNGST Act and the coming into force of the Tamil Nadu Value Added Tax Act, 2006 - Section 12C and Rule 15(5-E) of the Tamil Nadu General Sales Tax Act 1959 - service of SCN - Notice dated 02.03.2007 had been issued though served on the assessee/petitioner on 11.05.2007 - petitioner objected to the preassessment process on 21.05.2007 relying both on the expedited process of assessment set out under Section 12 C and seeking a personal hearing prior to conclusion of assessment proceedings - principles of natural justice. HELD THAT:- The question of suppression does not merely mean a difference in the interpretation of law vis-a-vis the petitioner and the respondent. In the present case, it is a legal dispute as to whether the transaction in question constitutes....... + More

Enhancement of turnover tax - suppression of turnover - Best judgement assessment - power to do re-assessment - HELD THAT:- Section 39(1) of the Act empowers the Prescribed Authority to do the re-assessment where the Prescribed Authority has grounds to believe that any return furnished which is deemed as assessed or any assessment issued under Section 38 of the Act understates the correct tax liability of the dealer - It may, based on any information available, re-assess, to the best of its judgment, the additional tax payable and also impose any penalty under sub-section (2) or sub-sections (4) and (5) of Section 72 of the Act and demand payment of any interest and shall issue a notice of re-assessment to the dealer demanding that the tax shall be paid within 30 days of the date of service of the notice after giving the dealer the opport....... + More

Deduction under Section 3F (2)(b)(i) of U.P. Trade Tax Act, 1948 - goods brought inside the State of U.P. by way of inter-State purchase for execution of works contract - Whether the reasoning and findings given by the Tribunal for confirming rejection of claim of deduction under Section 3F (2)(b)(i) of U.P. Trade Tax Act, 1948 in respect of goods brought inside the State of U.P. by way of inter-State purchase for execution of works contract, is sustainable in law? HELD THAT:- Insofar as the applicability of Sections 3, 4 and 5 of the Central Act to such contracts is concerned, the issue has been dealt with and decided by an earlier decision of this Court in M/s Comfort Systems Vs. Commissioner Commercial Tax, U.P. [2019 (2) TMI 924 - ALLAHABAD HIGH COURT] where it was held that - The order of the Tribunal cannot be sustained, inasmuch as....... + More

Refund along with interest - Delhi Vat Act - HELD THAT:- We direct the concerned respondent authority to decide the claims of the petitioner for refund with interest in accordance with law, rules, regulations, Government policy and keeping in mind the evidences on record, as early as possible and practicable preferably within a period of eight weeks from today. Petition disposed off.

Entry tax - Adjustment of entry tax not paid with the VAT paid - sale of motor vehicles - Entry tax not paid - "C" declaration form under the provisions of Section 8(4) of the Central Sales Tax Act, 1956 - whether the petitioner, though not paid the entry tax, is entitled to adjust the same on the VAT paid by them at the rate of 14.5%? - HELD THAT:- There is no dispute to the fact that the VAT liability is 14.5% and the entry tax liability is 12.5%. The question as to whether the adjustment can be made even though such entry tax was not paid, has already been considered by this Court in KASI AND SETHU VERSUS DEPUTY COMMERCIAL TAX OFFICER (DG-CTO), KUMBAKONAM AND ANOTHER [2002 (12) TMI 573 - MADRAS HIGH COURT], wherein the learned Single Judge after allowing the writ petition and quashing the impugned proceedings therein, granted....... + More

Validity of assessment order - Re-assessment/revision of assessment - benefit of concessional rate of tax - the petitioner received pre-assessment notices dated 06.12.2006 proposing to bring to tax the very same transactions at regular rate, thus denying the petitioner the benefit of concessional rate of tax - change of opinion - whether the authorities of the State Commercial Taxes Department are empowered to initiate proceedings for re-assessment/revision of assessment - scope and width of such powers. HELD THAT:- The issue is covered within the scope of Section 16 of U.P. Trade Act, 1948 where it has been stated the provisions for assessmnet of escaped turnover. In the present case, it is the provisions of sub-Section 1(b) that would be attracted, insofar as we are concerned with re-assessment of turnover at a higher rate than what was....... + More

Classification of goods - spent malt - Tribunal has treated the same to be unclassified goods and subjected them at a highest rate - rejection of books of accounts - Whether the Tribunal was justified in holding that spent malt is not cattle fodder and therefore not exempt from trade tax under Notification KA.NI.-3129/XI-9(40)/92 U.P. Act 15/48- Order-(38)2000, dated 30.9.2000 w.e.f. 1.10.2000? - HELD THAT:- In absence of any ground of appeal having been raised by the revenue before the Tribunal seeking such enhancement on the ground of classification of the goods, the Tribunal has clearly erred in subjecting the goods spent malt treating them to be unclassified goods - In so far as the Tribunal has dismissed the assessee's appeal on that count and drawn a third conclusion that order is found to be lacking as noted above. It is, accor....... + More

Refund of sum under VAT - Delhi VAT - financial year 2006-07, 2007-08, 2010-11 and 2014-15 - Claim of the petitioner is to get refund of the amount along with interest @ 6% as per Section 42 of the DVAT - HELD THAT:- The respondent no. 3 are directed to decide the claim of the petitioner under the DVAT in accordance with law, rules, regulations and Government policies applicable to the facts of the present case as early as possible and practicable, preferably within eight weeks from the receipt of copy of the order of this Court. If any refund is to be paid, claim of interest will also be appreciated by the respondent no. 3 in accordance with law. Petition disposed off.

Arbitration Petition - appointment as a sole arbitrator - Section 11(6) of the Arbitration and Conciliation Act, 1996 - whether on the date of presentation of Arbitration Petition, purportedly by SDJV through SSPPL on 15.12.2016, the arbitration agreement posited in Contract Agreement dated 09.03.2006 was in existence or subsisting and in force? - HELD THAT:- In the present case, however, in due course, because of fortuitous situation, the parties had to agree to amend certain terms and conditions of the Contract Agreement and to provide for revised contract rates. That was done after due negotiations, as is evinced from the correspondence exchanged between SDJV and WAPCOSL vide letters dated 15.09.2011 and 17.09.2012 and the recitals of the AoA itself. Finally, the parties (SDJV and WAPCOSL in particular) executed a formal Amendment of A....... + More

Constitutional spirit of judicial independence - appointments to the Debt Recovery Tribunals - constitutionality of the Finance Act, 2017 - satisfaction of test of a ‘money bill’ under Article 110 of the Constitution. - Competence of selection committee - validity of section 184 of the Finance Act, 2017 Held That:- RANJAN GOGOI, CJI (i) The issue and question of Money Bill, as defined under Article 110(1) of the Constitution, and certification accorded by the Speaker of the Lok Sabha in respect of Part-XIV of the Finance Act, 2017 is referred to a larger Bench. (ii) Section 184 of the Finance Act, 2017 does not suffer from excessive delegation of legislative functions as there are adequate principles to guide framing of delegated legislation, which would include the binding dictums of this Court. (iii) The Tribunal, Appellate ....... + More

Appointment of an independent arbitrator for adjudication of disputes between the parties, instead of directing appointment of arbitrator as per Clause 64 of General Conditions of Contract (GCC) which stipulates that Railways’ Officers should be appointed as Arbitrator - HELD THAT:- Admittedly, the request for referring the dispute was made much prior to the Amendment Act, 2015 which came into force w.e.f. 23.10.2015. Since the request for appointment of arbitrator was made much prior to the Amendment Act, 2015 (w.e.f. 23.10.2015), the provision of the Amended Act, 2015 shall not apply to the arbitral proceedings in terms of Section 21 of the Act unless the parties otherwise agree. As rightly pointed out by the learned counsel for the appellant, the request by the respondent(s)- contractors is to be examined in accordance with the P....... + More

Rejection of Arbitration application - Section 11(6) of the Arbitration and Conciliation Act, 1996 - The insurer’s objection about maintainability of the application on the ground that the respondent (Dicitex) had signed the discharge voucher and accepted the amount offered, thus, signifying accord and satisfaction, which in turn meant that there was no arbitrable dispute, was rejected - main theme of the appellant’s argument in this case is that Dicitex could not have invoked the arbitration clause, since it had fully and finally accepted the amount offered (i.e..) and withdrawn its protests and reservations, by the letter dated 06.06.2014. HELD THAT:- A close look at the facts in the present case would show that though the pleadings in the initial application under Section 11(6) are weak, nevertheless, the materials on the r....... + More

Grant of Anticipatory Bail - Allegations against Chartered Accountant - misconduct on the part of Chartered Accountant or not - It is alleged that the petitioner-accused No.1 has prepared the audit report by making use of counterfeit seal of audit firm by name KKP and Company. On registering the case, the Police are making attempts to arrest the petitioner - offences punishable u/s 419, 420, 465, 468, 470 and 471 of IPC - the petitioner strenuously contended that the petitioner has been falsely implicated in this case with vindictive motive - HELD THAT:- The complaint averments disclose that the petitioner was involved in preparing audit report, project report by making use of counterfeit seal of the firm KKP and Company. But, it is pertinent to note that the records produced by the petitioner reveals that the petitioner is a Chartered Ac....... + More

Dishonor of Cheque - section 138 of Negotiable Instruments Act - cheque cannot be drawn towards discharge of whole or in part of any debt, due to short cheque amount than the dues existing - presumption as to negotiable instruments - Section 118(a) and Section 139 of the Act - HELD THAT:- The respondent has not rebutted the presumption of consideration in issuing the cheque on 2.10.2011 - Once the agent of the respondent has admitted the settlement of due amount and in absence of any other evidence the Trial Court or the High Court could not dismiss the complaint only on account of discrepancies in the determination of the amount due or oral evidence in the amount due when the written document crystalizes the amount due for which the cheque was issued. The accused has failed to lead any evidence to rebut the statutory presumption, a findi....... + More

Bail application - offence punishable Section 23(b) and Section 28 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Smuggling - Ganja - contraband item - section 67 of the NDPS Act - HELD THAT:- Though the allegations are extremely grave, fact remains that the quantity seized from the possession of the applicant is just above the upper limit of the smaller quantity. There is no case for the prosecution that the applicant is involved in any other crimes. Furthermore, the case records reveal that the investigation has made much headway. In the facts and circumstances, by imposing stringent conditions the applicant can now be enlarged on bail - applicant shall be released on bail on his executing a bond for ₹ 50,000/- with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction - Application allowed.

Reference of matter to arbitrator - Levy of Liquidated damages - Interpretation of terms of contract - Clause 2 of the contract regarding liquidated damages/compensation levied by the Superintending Engineer - price escalation clause - Whether the levy of pre-estimated liquidated damages and reasonable compensation by the Superintending Engineer in terms of Clause 2 of the contract between the parties is “arbitrable”? - Whether the respondent-ONGC is right in contending that the levy of liquidated damages in terms of Clause 2 of the contract is final and an “excepted matter” not falling within the jurisdiction of the Arbitrator and whether the learned Arbitrator has travelled beyond the terms of the contract? HELD THAT:- A reading of Clause 2 makes it clear that the Superintending Engineer has been conferred with n....... + More

Appointment of an arbitrator - illegal detention of container - termination of contract - Section 34 of the Arbitration and Conciliation Act - HELD THAT:- The learned Arbitrator and the Courts below have recorded the concurrent findings that the appellant Contractor has failed in carrying out the work as per the terms and conditions of the contract and the learned Arbitrator has rightly allowed the detention and forfeiture of the equipments of the contractor and disallowed the counter claim No.4 of the appellant. Similarly, the counter claim No.5 which was for the damages for the alleged detention and use of hand trolleys has been rejected and thus, the counter claim Nos.4 and 5 have been rightly disallowed by the learned Arbitrator. There are no reason warranting interference with the award passed by the Arbitrator and the impugned judgment and this appeal is liable to be dismissed. Appeal dismissed.

Appointment of an Arbitrator on behalf of Respondent No. 1, Doordarshan, in an international commercial arbitration - Section 11 of the Arbitration & Conciliation Act, 1996 - HELD THAT:- Disputes arose between the parties, which led to the invocation of the arbitration clause on 14.01.2019 by the Petitioner - Company. The Petitioner - Company nominated its arbitrator on 28.02.2019 in terms of the agreement. However, Respondent No. 1 - Doordarshan failed to nominate an arbitrator. Consequently, the Petitioner - Company has filed the present Application under Section 11 of the Arbitration & Conciliation Act, 1996 seeking appointment of an Arbitrator by the Court on behalf of Respondent No. 1 - Doordarshan. Even though the arbitration agreement provides for a Three member arbitral tribunal, the Counsel for all the parties at the time....... + More

Dishonor of cheque - alleged procurement of cheque by coercion - offence punishable under Section 138 of Negotiable Instruments Act - rebuttal of Statutory presumption - HELD THAT:- In the case at hand, probable defence with regard to procurement of cheque by creating Police pressure appears to have been taken very casually because, if statement of the accused recorded under S.313 CrPC is read in its entirety, it is/was none of the case of the accused that he issued cheque under Police pressure, but even if such defence is tested on the touchstone of the evidence led on record by respective parties, same deserves outright rejection. In the case at hand, careful perusal of the complaint filed by complainant under S.138 clearly suggests that she set up a case that she paid ₹ 2.00 Lakh to Brahmi Devi in lieu of agreement to sell but wh....... + More

Jurisdiction to handle Road traffic offences - Whether the Gauhati High Court was justified in issuing directions that road traffic offences shall be dealt with only under the provisions of the Motor Vehicles Act, 1988 (MV Act), and in holding that in cases of road traffic or motor vehicle offences, prosecution under the provisions of Indian Penal Code,1860 (IPC) is without sanction of law, and recourse to the provisions of the IPC would be unsustainable in law? HELD THAT:- There is no conflict between the provisions of the IPC and the MV Act. Both the statutes operate in entirely different spheres. The offences provided under both the statutes are separate and distinct from each other. The penal consequences provided under both the statutes are also independent and distinct from each other - The ingredients of offences under the both sta....... + More

Contempt application - power of levy advertisement tax post GST - learned counsel for the respondent Nos.2, 3 and 4-Municipal Corporation seeks time for further instructions in the matter - HELD THAT:- Put up on Tuesday, i.e., on 05.11.2019.

Anticipatory bail - siphoning of funds - it is alleged that alleged that the funds from Bhushan Steel Ltd. and Bhushan Energy Ltd. were siphoned off through a complex web of companies - HELD THAT:- This Court finds no reason why the petitioner’s application would not be given the consideration it deserves. However, given the peculiar facts and circumstances of this case; considering that the petitioner (Shri Brij Bhushan) is 82 years of age and was not been arrested during the span of investigation and considering that Smt. Ritu Singal is aged 47 years and is woman and a part of the family, which allegedly control the companies, this Court is of the view that it would be apposite that the petitioners not be arrested immediately. The petitioners shall appear before the trial court on the date fixed, that is. 14.10.2019 and are libert....... + More

Grant of Bail - Smuggling - Ketamine Hydrochloride - Drug or not - section 50 of NDPS Act - petitioner is alleged of offences punishable under Sections 8, 22, 23, 27A, 28, 29 and32B(a) of the Act. HELD THAT:- In order to grant bail, Court must record satisfaction on two aspects. Firstly that there are reasonable grounds to believe that petitioner is not guilty of alleged offence and secondly that he is not likely to commit any offence while on bail. Admittedly, ‘Ketamine’ finds its place at Sl. No.110A of the Schedule. Salts and preparations find place at Sl. No.111. Hence, ‘Ketamine Hydrochloride’ will have to be treated as a preparation of Ketamine. - the contention urged by Shri. Hasmath Pasha that petitioner is required to be tried only for violation of Drugs and Cosmetics Act, is also untenable. A careful anal....... + More

Service of notice - interpretation of statute - Dishonor of cheque - Whether non-framing of formal notice under Section 251 Cr.P.C. would vitiate entire proceedings requiring a fresh trial? HELD THAT:- In terms of Section 143 NI Act, subject to the proviso, as per normal rule, the proceedings under Section 138 of Negotiable Instrument Act are summary in nature. On appearance of the accused, the Magistrate is required to explain the substance of accusation to the accused and ask him whether he would plead guilty or has any defence to make, however in terms of the mandate of the Section, it would not be necessary to frame a formal notice. Looking at the issue from another angle as to whether any failure of justice has occurred on account of non framing of formal Notice under Section 251 CrPC by the trial court on 20.12.2016. In this regard,....... + More

Interpretation of statute - definition of gross revenue as defined in clause 19.1 of the licence agreement granted by the Government of India to the Telecom Service Providers - shifting of 'revenue sharing regime' - benefit of migration package - It was a case of the telecom operators that the department was supposed to determine the quantum based on the recommendations of the TRAI. According to the telecom operators, the department had illegally included various elements of income in the definition of the term “AGR” which do not accrue from the operations under the license viz., dividend income, interest income on short term investment, discounts on calls, revenues from other activities separately licensed, reimbursements under the Universal Service Fund (USF) etc. HELD THAT:- It cannot be said that DOT has taken inco....... + More

Termination of liquidation proceedings - Recovery of dues - time limitation - whether under the provisions of Section 109 of the Maharashtra Cooperative Societies Act, 1960 on expiry of the period fixed for liquidation, the proceedings for recovery of dues instituted/pending as against the members, shall stand closed? HELD THAT:- The winding up of the Society has been ordered and liquidator has been appointed as the Society has utterly failed to achieve its avowed objectives in disbursement of loans to proper persons and in its recovery. No doubt about it that the liquidation of the Society has come to an end after a particular period of time as fixed under section 109. However, on lapse of time as fixed under sub-section (1) of section 109 of the Act, proceedings have to be terminated by the Registrar on receipt of final report from the ....... + More

Summon of order - section 138 read with section 142 of the Negotiable Instrument Act - cognizable offences or not - HELD THAT:- Fact remains that the case in hand is not a warrants case, therefore, Section 468 (2)(C) under which cognizance should be taken within the time mentioned therein based upon the offences committed by the accused. In view of Indra Kumar Patodia And Another [ 2012 (12) TMI 154 - SUPREME COURT ], the limitation provided under Section 468 is not applicable. Moreover, the cognizance of the complaint was taken by the concerned CMM, who thereafter marked the case to the concerned Trial Court. The Trial Court after going through the contents of the complaint and evidence on record, issued summons. However, nowhere it is provided in Section 138 & 142 of N.I. Act that the summons shall be issued within the prescribed time. There is no merits in the petition - petition dismissed.

Maintainability of application - lack of availability of the regular appellate forum - principle of ubi jus ibi remedium - whether separate notices under Section 13(4) of the SARFAESI Act, pertaining to different secured assets for a single debt, can be challenged in a single application under Section 17 of the said Act? HELD THAT:- Section 17(1) of the SARFAESI Act provides that any person, including the borrower, aggrieved by any of the measures referred to in Section 13(4), may make an application along with such fee, as may be prescribed, “to the Debts Recovery Tribunal having jurisdiction in the matter” within the time as specified therein - The Debts Recovery Tribunal, upon an examination of the facts and circumstances and evidence produced by the parties, has the power to set at naught such measures under Section 13(4)........ + More