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2015 (7) TMI 1355 - BOMBAY HIGH COURT
Remuneration and perquisites payable to the original Petitioner before the CLB - HELD THAT:- Appellant submits that his clients would like to seek certain clarifications of the earlier orders passed by the CLB in this behalf, which has a bearing on the subject matter of the present appeals.
The appeals are adjourned to 24 August 2015.
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2015 (7) TMI 1354 - SUPREME COURT
Compensation for acquisition of land - Whether the allottee Company (M/s. Ultra Tech Cement Ltd.) is either a beneficiary or interested person entitled for hearing before determination of the market value to award just and reasonable compensation in respect of the acquired land of the Appellants either before the Deputy Commissioner or Reference Court? - Whether the Writ Petition filed by the allottee Company before the High Court is maintainable in law? - Whether the order of remand allowing the Writ Petition of the allottee Company to the Reference Court is legal and valid? - HELD THAT:- The provisions of the KIAD Act and KIADB Regulations make it abundantly clear that the acquisition of the agricultural land in the notified Industrial Area vide notifications issued Under Section 28(1) and (4) of the KIAD Act, empowers the State Government to acquire the land for the purpose of industrial development by the KIADB after the acquired land possession is transferred in its favour by the State Government - Sections 29 and 30 of the KIAD Act read with Sections 11, 18 and 30 of the L.A. Act would clearly mandate that both the state government and the KIADB are liable, jointly or severally, to pay the compensation to the owners or interested persons of the acquired land. The market value of the acquired land is required to be determined by the Reference Court by applying the provisions of Section 18 of the L.A. Act, after passing an award as provided Under Section 11 and notifying the same to the landowners or interested persons Under Section 12(2) of the L.A. Act if the owners are not satisfied with either the compensation awarded by the Deputy Commissioner or with regard to the area of acquisition of land.
The land acquired shall be disposed off by the KIADB by inviting applications from the eligible applicants, notifying the availability of land, prescribing the manner of such disposal and fixing the last date for submitting applications and giving such particulars as it may consider absolutely necessary by publishing it in the newspapers having wide circulation in and outside the state of Karnataka - From a careful reading of the clauses of the lease agreement along with the provision Section 32(2) of the KIAD Act and Regulation Nos. 4, 7, 10(b), (c) and (d) of the KIADB Regulations, it is clear that the Company is only the lessee by way of allotment of the land as the same has been allotted by the KIADB in its favour and has executed the lease deed in its favour in respect of the allotted land.
Thus, it can be safely concluded by us that the acquisition of the land involved in these proceedings is for the purpose of industrial development by the KIADB in the Sedam Taluk. Therefore, the beneficiary of the acquired land is only the KIADB but not the Company as claimed by it. A reading of Section 28(5) of the KIAD Act makes it clear that the land which is acquired by the State Government statutorily vests absolutely with it - A careful reading of the provisions of the L.A. Act, KIAD Act and the KIADB Regulations would clearly go to show that the Company is neither a beneficiary, nor an interested person in the land as on the date of acquisition of the land, as the land was acquired by the state government in favour of KIADB who is the beneficiary and it has allotted in favour of the Company after the acquired land was transferred in its favour by the State Government and executed the lease agreement.
The acquisition of land under the provisions of the L.A. Act in favour of a Company the mandatory procedure as provided under part VII of the L.A. Act and Rules must be adhered to, that is not the case in the acquisition of land involved in these proceedings as the acquisition of land is under the provisions of KIAD Act and therefore the reliance placed upon the provision of Section 3(f)(viii) of the Karnataka L.A. Amended Act of 17/1961 is not applicable to the facts of the case on hand and therefore, the said provision cannot be made applicable to the case on hand.
Enhancement of Compensation - HELD THAT:- The statutory notifications of acquisition of land would clearly go to show that the land of the Appellants was acquired way back in the year 1981 for the purpose of establishment of industries The land of the Appellants has non-agricultural potentiality, which fact is proved from the notifications published by the State Government Under Sections 28(1) and (4) of the KIAD Act, as the State Government specifically mentioned therein that the acquisition of the land of the Appellants is for the industrial development and establishment of industries which is for non agricultural and commercial purpose - Further, the land which has been covered under notification in 1988 is also adjacent to the residential sites which were formed. The land owners in that case produced the sale deeds of the year 1986 and 1988 respectively, which was 2 years and 2 months earlier respectively to the notification issued in the year 1988 and some of which were two to three years earlier.
Considering the fact that acquisition of the land was made in the year 1981, it would be just and proper to fix the compensation calculated at ₹ 1,92,000/- per acre, with all statutory benefits such as solatium at 30% as provided Under Section 23(2) and statutorily payable interest Under Sections 23(1-A) and 28 of the L.A. Act, from the date of taking possession of the land till the date of payment. The Appellants are also entitled to costs throughout as provided Under Section 27 of the L.A. Act - The Respondents are directed to pay the compensation to the Appellants-landowners as directed above, within eight weeks from the date of the receipt of the copy of this judgment and award after proper computation in the above terms.
Appeal disposed off.
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2015 (7) TMI 1353 - SC ORDER
Business Auxiliary service - service being rendered by the assessee for the Transport Department under the Motor Vehicle Act - service rendered to public authorities - it was held by the High Court that Work done by the respondent assessee pertains to discharge of statutory function by the Department under the Motor Vehicle Act and the same does not amount to customer care, promotion, marketing of services, incidental or auxillary to the support services - HELD THAT:- Decision by High Court upheld - Appeal dismissed.
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2015 (7) TMI 1352 - MADRAS HIGH COURT
Validity of assessment order - case of petitioner is that the petitioner has not been furnished with some of the details which have been sought for - TNVAT Act - HELD THAT:- Without going into the merits of the matter, while setting aside the impugned orders passed by the respondent dated 29.05.2015, keeping in mind that there was inspection conducted by the Enforcement Wing Officials in the premises of the petitioner on 07.11.2013 for the purpose of VAT Audit, under Section 64 of the TNVAT Act, directs the Assistant Commissioner (CT), Peddunaickenpet Assessment Circle to furnish the names of the sellers given in the respective Annexures II of the respective assessment years to the petitioner. It is needless to mention that if the above said particulars are not available with the Assessing Officer, he is directed to make a request to the Enforcement Wing Officials who conducted surprise inspection on 07.11.2013 to provide all the information and after receiving such information, the same shall be furnished to the petitioner.
The petitioner, on receipt of such information, thereafter within a period of three weeks, shall file a detailed reply for each of the assessment years and after receipt of such replies from the petitioner, it is for the Assessing Officer to pass detailed orders on merits, by applying his mind independently on all issues uninfluenced by the proposal of Enforcement Authority - Petition disposed off.
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2015 (7) TMI 1351 - ITAT MUMBAI
Revision u/s 263 - whether the assessment has been made on an incorrect assumption of facts or an incorrect application of law? - HELD THAT:- AO has taken a view which may be different from the view of the Ld. Commissioner and assuming that the view taken by the AO is a loss to the Revenue but the Hon’ble Supreme Court in Malabar Industrial Co. Ltd. [2000 (2) TMI 10 - SUPREME COURT] has held that “ every loss of revenue as a consequence of an order of the AO cannot be treated as prejudicial to the interest of the Revenue,” for e.g. when an Income Tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue or where two views are possible and the ITO has taken one view with which the Ld. Commissioner does not agree, it cannot be treated as an order which is erroneous or prejudicial to the interest of Revenue unless the view taken by the Income Tax Officer is unsustainable in law.
The assessment order is neither erroneous nor prejudicial to the interest of the revenue. We, therefore, set aside the impugned order passed by the Ld. Commissioner u/s. 263 and restore that of the Assessing Officer passed u/s. 143(3) of the Act. - Decided in favour of assessee.
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2015 (7) TMI 1350 - ITAT JABALPUR
Addition u/s 2(24)(x) and 36(1)(vi) - not depositing the contribution of employees towards provident fund of the employees of the assessee - obligation to make the payment of PF to the Trust within any due date - HELD THAT:- The explanation to section 36(1)(va) defines the due date means the date by which the assessee is required as an employer to credit an employees contribution to the employees account in the relevant fund, under any Act, Rules, order, or notification issued thereunder or under any standing order, award, contract of service or otherwise.
NO SPECIFIC DATE FOR DEPOSIT OF THE P.F. BY BOARD
Thus in the case of the MPSEB the PF is governed by its own Rules. There is no specific date of payment but the internal arrange is such the payments are made regularly on adhoc basis and the amount remaining unpaid, if any, is treated as invested with the MPSEB and carries interest,. The amount is deemed as paid and invested with the Board and carries interest accordingly to Rule 11 as mentioned above - Decided in favour of assessee
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2015 (7) TMI 1349 - ITAT NAGPUR
Assessment u/s 153A - Disallowance of sales tax incentive - capital receipt or revenue receipt - CIT-A held that Sales Tax incentive availed for setting up of industrial undertaking claimed by assessee as capital receipt - HELD THAT:- On identical facts and circumstances we have taken a view in a group of cases of M/s Narendra Vegetable Products Pvt. Ltd. [2015 (7) TMI 1298 - ITAT NAGPUR] as held scheme of the State Government, the assessee is entitled for the exemption of the sales-tax incentive being a capital receipt in the hands of the assessee and that the claim being lawful in nature ought to have been entertained by the Assessing Officer while completing the assessment under section 153A of I.T. Act. - Decided in favour of the assessee.
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2015 (7) TMI 1348 - SC ORDER
Classification of goods - Classification of Gopal Zarda - classifiable under T.H. 24039910 or under T.H. 24039930 - HELD THAT:- Issue notice through Speed Post.
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2015 (7) TMI 1347 - GUJARAT HIGH COURT
Dispensation with the scheme of arrangement - mandatory requirement of Section 101 of the Companies Act - pendency of reference before the BIFR - HELD THAT:- It is clear that when the petitioner has preferred this petition in September, 2008, the reference filed by the petitioner was pending before BIFR. The same was recently disposed off by BIFR by an order dated 16.7.2014 on Miscellaneous Application moved by the petitioner-company. Thus, when the present petition was filed in September, 2008, the petitioner was not entitled to file this petition and it was not maintainable. This Court is required to consider what was the position on the date of filing of this petition. If on the date of filing of this petition, the same is not maintainable, merely because now it is pending since last seven years, the same cannot be considered on merits. Thus, this Court is of the opinion that this petition is required to be dismissed
The petitioner-company has not proceeded with this petition within reasonable time. After a period of eight years, now the proposed scheme cannot be sanctioned in the present format and learned advocate Mr.Maulin Raval appearing for the objector is right in submitting that this scheme can be said to be a stale scheme. Hence, the same is not required to be sanctioned on this ground also.
It is also clear from the record that SEBI has passed an order on 6.6.2008 which is produced by the objector at page 289 of the compilation. The said order was passed giving direction under Sections 11 and 11(B) of the SEBI Act read with Regulation 11 of the SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating to Security Market), Regulations of 2003 against the company and its directors. SEBI, by way of the said order, restrained the petitioner-company from accessing the securities market and prohibiting from buying, selling or dealing in securities directly or indirectly for a period of five years - It appears from the record that this aspect is also not stated by the petitioner-company in this petition nor it was pointed out before the respective shareholders and lenders that such proceedings are pending before the SEBI.
It is clear that though the petitioner-company was not a party to the said proceedings, however, the proceedings were initiated in pursuance to the transactions with the petitioner-company. Therefore, the petitioner-company and its group companies were described as target companies. Thus, from the record it is clear that the petitioner-company has not placed aforesaid important details with regard to pendency of proceedings before SAT in the respective meetings of the shareholders as well as lenders - The petitioner-company has also not disclosed the material fact with regard to the order dated 5.6.2008 passed by SAT in this petition also and, therefore, this petition is not required to be entertained on this ground also.
It is clear from the record that all the material facts were not disclosed before the voters in the respective meetings nor the same was placed before this Court along with the petition and, therefore, this Court is not satisfied with the scheme proposed by the petitioner-company and, therefore, also the present petition is required to be dismissed on this ground also.
Petition dismissed.
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2015 (7) TMI 1346 - BOMBAY HIGH COURT
Dividend income as exempt u/s.10(34) - Whether dividend income is considered as part of income of Life Insurance Business and is included as an 'income' by the actuary? - HELD THAT:- Appeal by the revenue in respect of Assessment Year 2005-06 [2015 (7) TMI 972 - BOMBAY HIGH COURT] was not entertained by us today. Accordingly, Question No.5 is not entertained.
Surplus available in Share Holders Account - to be taxed as income from other sources - HELD THAT:- The impugned order while allowing the assessee's appeal holds that income earned on shareholders' amount has to be considered as arising out of Life Insurance Business. Moreover, in terms of Section 44 of the Act, such income has to be taxed in accordance with First Schedule as provided therein. None of the authorities under the Act nor even before us is it urged that the assessee is carrying on separate business other than life insurance business. Accordingly, the impugned order holding that the income from shareholders' account is also to be taxed as a part of life insurance business cannot be found fault with in view of the clear mandate of Section 44 of the Act. Accordingly Question No.8 also does not raise any substantial question of law. Thus not entertained.
Appeals admitted on Question Nos. 1, 2, 3, 4 and 6.
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2015 (7) TMI 1345 - PATNA HIGH COURT
Refund of deducted amount of service tax from bills of the petitioner - Clause 13(a) of the Notification No. 12/2012-Service Tax dated 17th March, 2012 - HELD THAT:- It is well settled that under Article 265 of the Constitution of India no tax shall be levied or collected except by authority of law. In view of the exemption it is evident that the respondents have no authority to collect service tax which is not at all leviable under the law.
All the writ applications are allowed and the concerned respondents are directed to refund the entire amount of service tax deducted from the bills of the petitioners after the issuance of the aforesaid Notification dated 17.3.2012.
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2015 (7) TMI 1344 - ITAT CHANDIGARH
Addition u/s. 14A r.w. rule 8D (subject to relief on investment in debentures) - whether no satisfaction had been recorded by Assessing Officer for making the disallowance in respect of the submissions made before him - whether no expenditure had been incurred by the appellant to earn the exempt income and also the Assessing Officer has not pointed out any expenditure having been incurred by the appellant? - HELD THAT:- New investments have definitively been made in various mutual funds and some of the funds are designated as dividend plans which itself means that assessee is going to earn dividend which is exempt from tax. Further, wherever no dividend is received from the market fund the sale of funds also may be exempted in the case of long term funds. In some cases there may not be any exempted income. This aspect was examined by Ld. CIT(A) and he has remitted the matter back to the file of Assessing Officer for examination of the issue whether disallowance under Rule 8D(2)(iii) is properly computed with respect to the contention that on certain investments no exempt income would arise.
Once the above aspect has been remanded, we find nothing wrong with the order of Ld. CIT(A). At best, the Assessing Officer can also point out how he is not satisfied with the correctness of the accounts with reference to the disallowance of ₹ 50,000/- made by the assessee in respect of section 14A of the Act. Resultantly the appeal stands dismissed.
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2015 (7) TMI 1343 - SC ORDER
Revision u/s 263 - assessee is not a Co-operative Bank and Section 80P(4) has no application - Tribunal set aside order u/s 263 denying benefit of exemption granted also confirmed by HC - HELD THAT:- Delay condoned. Leave granted.
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2015 (7) TMI 1342 - ITAT MUMBAI
Depreciation on goodwill being intangible assets - HELD THAT:- We find from the record that the assessee has rightly claimed depreciation on goodwill being intangible assets. We also find from the record that similar issue was raised by the assessee in the assessment year 2008-09, which was decided in favour of the assessee and thus, the issue is squarely covered in favour of the assessee by its own case in the earlier years.
FAA for the assessment year 2008-09 decided in favour of the assessee holding that the assessee was entitled to depreciation on goodwill by following the decision of Apex Court in the case of Smifs Securities Ltd [2012 (8) TMI 713 - SUPREME COURT]. We, therefore, are of the considered opinion that the case of the assessee stands covered by the earlier decision by the order of FAA - Decided against revenue.
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2015 (7) TMI 1341 - ITAT JAIPUR
TDS u/s 194C on deductee (RSAMB) as registered u/s 12A - CIT (A) held that the provisions of the section 194J were not applicable in respect of the payments made by the assessee to RSAMB, on account of statutory contribution, against which the assessee received professional and technical services from RSAMB - HELD THAT:- In the instant case, there was no loss to the revenue as the deductee (RSAMB) was not liable to pay tax (the income being loss and RSAMB being registered u/s 12A).
In view of the above, it is held that the assessee cannot be treated as an assessee in default. The A.O. is directed to delete the demand raised u/s 201(1) & 201(1A).
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2015 (7) TMI 1340 - ITAT HYDERABAD
Claim of deduction u/s 35(2AB) - HELD THAT:- DR as well as ld. AR of assessee agreed before us the issue in dispute is squarely covered by the decision of ITAT in assessee’s own case for AY 2009-10. On perusal of the order of the coordinate bench [2014 (10) TMI 171 - ITAT HYDERABAD] the operative portion of which has been reproduced by ld. CIT(A) in her order, it is very much clear that the issue in dispute has been decided in favour of assessee by holding that assessee is entitled for deduction u/s 35(2AB ). Therefore, ld. CIT(A) having decided the issue by following the aforesaid order of Tribunal, we do not find any infirmity in the impugned order of ld. CIT(A). Accordingly, we uphold the same by dismissing the grounds raised by the department.
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2015 (7) TMI 1339 - SUPREME COURT
Demand of Bribe - Sections 7 and 13 read with Section 13(2) of the Prevention of Corruption Act, 1988 - prosecution case is that the complainant who was examined at the trial as PW-1, appeared before the Lokayukta Police to allege that the Appellant had demanded a bribe of ₹ 500/- from him for issue of a copy of a certain resolution dated 13th March, 1998 passed by the Sabbanakruppe Grama Panchayath - HELD THAT:- This appeal must, in our opinion, succeed on the short ground that in the absence of a valid previous sanction required Under Section 19 of the Prevention of Corruption Act, the trial Court was not competent to take cognizance of the offence alleged against the Appellant.
The legal position regarding the importance of sanction Under Section 19 of the Prevention of Corruption is thus much too clear to admit equivocation. The statute forbids taking of cognizance by the Court against a public servant except with the previous sanction of an authority competent to grant such sanction in terms of Clauses (a), (b) and (c) to Section 19(1). The question regarding validity of such sanction can be raised at any stage of the proceedings. The competence of the court trying the accused so much depends upon the existence of a valid sanction. In case the sanction is found to be invalid the court can discharge the accused relegating the parties to a stage where the competent authority may grant a fresh sanction for prosecution in accordance with law. If the trial Court proceeds, despite the invalidity attached to the sanction order, the same shall be deemed to be non-est in the eyes of law and shall not forbid a second trial for the same offences, upon grant of a valid sanction for such prosecution.
A careful reading of Sub-section (3) to Section 19 would show that the same interdicts reversal or alteration of any finding, sentence or order passed by a Special Judge, on the ground that the sanction order suffers from an error, omission or irregularity, unless of course the court before whom such finding, sentence or order is challenged in appeal or revision is of the opinion that a failure of justice has occurred by reason of such error, omission or irregularity - The rationale underlying the provision obviously is that if the trial has proceeded to conclusion and resulted in a finding or sentence, the same should not be lightly interfered with by the appellate or the revisional court simply because there was some omission, error or irregularity in the order sanctioning prosecution Under Section 19(1). Failure of justice is, what the appellate or revisional Court would in such cases look for. And while examining whether any such failure had indeed taken place, the Court concerned would also keep in mind whether the objection touching the error, omission or irregularity in the sanction could or should have been raised at an earlier stage of the proceedings meaning thereby whether the same could and should have been raised at the trial stage instead of being urged in appeal or revision.
In the case at hand, the Special Court not only entertained the contention urged on behalf of the accused about the invalidity of the order of sanction but found that the authority issuing the said order was incompetent to grant sanction. The trial Court held that the authority who had issued the sanction was not competent to do so, a fact which has not been disputed before the High Court or before us - The only error which the trial Court, in our opinion, committed was that, having held the sanction to be invalid, it should have discharged the accused rather than recording an order of acquittal on the merit of the case.
The High Court has not, in our opinion, correctly appreciated the legal position regarding the need for sanction or the effect of its invalidity. It has simply glossed over the subject, by holding that the question should have been raised at an earlier stage. The High Court did not, it appears, realise that the issue was not being raised before it for the first time but had been successfully urged before the trial Court.
Appeal allowed.
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2015 (7) TMI 1338 - KARNATAKA HIGH COURT
Winding up petition - Cancellation of a lease deed - A lease deed was said to have been entered into between the parties on 22.1.2000, which is 1 month and 22 days before the presentation of the winding up petition and therefore in terms of Section 531A of the Act, it was clearly void and hence, the present application - HELD THAT:- The question whether the official liquidator is in a position to claim avoidance of a transfer on the ground that the transfer is void in terms of Section 531-A can also plead that the period of limitation in seeking such adjudication or seeking recovery of possession pursuant to that transfer of the property in question can plead exemption from the application of the law of limitation. This would necessarily have to be answered in the negative.
Incidentally, it is on record that the applicant is receiving rent from the respondent in terms of the lease deed. Therefore, to characterize the lease deed as being void is akin to approbating and reprobating, which is not permissible. This is one other aspect that is ignored by the Official Liquidator in making the claim that the lease deed was void.
Insofar as the contention of the learned Counsel for the Official Liquidator that this court has come down heavily on the respondent in observing that the lease deed is tainted with dishonesty and the lease deed is contrary to Section 531A of the Act and the transaction between the lessor and the lessee is tainted with dishonesty is concerned, that order having been challenged in appeal, the appellate bench has, insofar as the above said observations of the company judge are concerned, has observed that the learned Company Judge was not justified in making certain observations especially when the present application was pending and therefore any such observations cannot be held as precluding the respondent from contesting the claim of the Official Liquidator.
Application dismissed.
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2015 (7) TMI 1337 - SC ORDER
Business Auxiliary Services - nature of subsequent sale - Benefit of section 6(2) of CST Act - it was held in the case that benefit of section 6(2) of CST Act cannot be denied for subsequent sale made to predetermined buyer - HELD THAT:- There are no good ground to interfere with the judgment and order passed by the Tribunal - appeal dismissed.
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2015 (7) TMI 1336 - MADRAS HIGH COURT
Maintainability of petition - jurisdiction of Settlement Commission - prime stand of the Appellants is that the Writ Petition filed by the Respondent/Petitioner is not perse maintainable because of the reason that as against the Impugned Order revoking license granted to the Customs House Agent, Appeal is provided under Section 129A (1) of the Customs Act, 1962, which lies to the Customs, Excise and Service Tax Appellate Tribunal within 90 days from the date of receipt of copy of the Order.
HELD THAT:- It is to be borne in mind that Section 127-H of the Customs Act, 1962 confers power on the Settlement Commission to grant immunity from prosecution - for any offence under this Act or the Indian Penal Code (45 of 1860) or under any other Central Act for the time being in force and such immunity may be either in whole or in part from the imposition of a penalty, fine and interest under the Customs act, 1962, in regard to the case covered by the Settlement.
The offence discussed in Section 127-H of the Act means an offence pertaining to the case, covered by the Settlement. Even the power 'Waiver' is expressly conferred by Legislative to the Settlement Commission - Furthermore, as per Section 127-J of the Customs Act, 1962, 'every order' of settlement passed under Sub-Section 5 of Section 127-C shall be conclusive as to the matters stated therein and no matter covered by such order shall save as otherwise provided in this chapter (Chapter, 14-A) be reopened in any proceeding under this Act or under any other law for the time being in force - Also it cannot be forgotten that as per Section 127-M of the Customs Act, 1962 the proceedings before the Settlement Commission shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 and for the purposes of Section 196 of Indian Penal Code (45 of 1860).
In the instant case, there is no two opinion of the fact that the importer was guilty of under valuation etc., and he was let out with the nominal fine, but the punishment of revocation its license and the forfeiture of security deposit of the Respondent/Petitioner, in the considered opinion of this Court is the excessive, arbitrary and capricious one - When the importer had escaped liability and when its case was concluded by the Settlement Commissioner, the Respondent/Petitioner is also to reap similar benefits in the considered opinion of this Court.
This Court comes to an inescapable and resultant conclusion that the Learned Single Judge had rightly allowed the Writ Petition filed by the Respondent / Petitioner - Appeal dismissed.
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