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Showing 161 to 180 of 467 Records
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2025 (1) TMI 307
Application for rectification of mistake - Classification fo services - service provided to the Governmental authority for distribution/transmission of power to GETCO - HELD THAT:- It is found that though in the impugned order the classification of service was made separately under commercial or industrial construction services as well as under works contract service there is an apparent error in the order which needs to be corrected, accordingly the paragraph starting from ‘From the above decision it is settled law, accordingly the demand in the present case is not sustainable on this ground itself’ is deleted. Having rectified the order as above we agree with the submission of the learned counsel for the assessee that entire service was provided to GETCO and Patan Municipality therefore firstly the service provider is not in the nature of commercial or industrial service accordingly the same is not taxable. Moreover, the service provided to GETCO being in relation to transmission of electricity were exempted in terms of Notification No. 45/2010-ST dated 20.07.2010 for the period of 20.07.2010 and for the period from 20.07.2010 vide Notification No. 11/2010-ST dated 20.07.2010 and the same services are not taxable from 01.07.2012 in view of negative list of services under Section 66(b) of Finance Act, 1994. Therefore for this reason also the services not liable to service tax.
Conclusion - It is settled law that show cause notice has not proposed the demand under the correct category of the service the demand shall not sustain.
The ROM application is disposed of.
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2025 (1) TMI 306
Error in allowing the appeal of the respondent when the respondent has liable to pay the duty under Section 3A of the Central Excise Act, 1944 but paid in terms of Section 3 of the Central Excise Act or not - permission granted by the erstwhile Commissioner to pay duty under Section 3 have any statutory value when admittedly the respondent is liable to pay duty under Section 3 of the said Act - issuance of Show Cause Notice is time barred when the respondent has not disclosed their liability to pay duty under section 3A - HELD THAT:- The issue involved in this appeal is covered by order passed by the Tribunal in assessee’s own case [2023 (4) TMI 708 - CESTAT KOLKATA]. Apart from the Learned Tribunal had rightly noted that the Commissioner had granted permission vide letters dated 29-3-1997 and 20-4-1998. This aspect of the matter is not in dispute as it has been admitted in the order passed by the Commissioner dated 29-12-2017, wherein the Commissioner would observe that permission was granted by the Commissioner in response to the request made by the assessee and in the interest of revenue to eliminate the inconvenience in practical operation with the condition that concession would be reviewed at the end of the final order on the basis of the revenue performance of the assessee. There is nothing on record to indicate that there was a review of the matter and the permissions granted by the department vide letters dated 23-9-1997 and 20-4-1998 remained intact.
The Learned Tribunal granted relief to the assessee taking note of the undisputed facts. With regard to notification of the extended period of limitation, the facts clearly show that the issue with regard to payment of duty under Section 3 of the Act had attained finality after the order of the Learned Tribunal dated 27-2-2023 and in such circumstances, the question of applying the extended period of limitation under the Rules would not arise. Consequently, the penalty is also not imposable.
Conclusion - There is nothing on record to indicate that there was a review of the matter and the permissions granted by the department vide letters dated 23-9-1997 and 20-4-1998 remained intact.
Appeal dismissed.
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2025 (1) TMI 305
Method of valuation - clearance of excisable goods made to related parties - to be governed under Rule 8 of Central Excuse Valuation Rules, 2000 or not - personal penalties imposed under Rule 26 on certain individuals.
Demand of differential duty on the issue of valuation - HELD THAT:- There is no dispute on the fact that the goods are sold to the related as well as un related buyers and the appellant have applied the transaction value which is charged to the un related buyers also in respect of clearances made to the related parties. In this case , the valuation of the goods cleared to the related buyers was correctly made by applying the transaction value at which the goods are sold to unrelated buyers. This issue has been considered by the larger bench of the CESTAT in the case of ISPAT INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX., RAIGAD [2007 (2) TMI 5 - CESTAT, MUMBAI-LB] where it was held that 'the provisions of Rule 4 are in any case to be preferred over the provisions of Rule 8 not only for the reason that they occur first in the sequential order of the Valuation Rules but also for the reason that in a case where both the rules are applicable, the application of Rule 4 will lead to a determination of a value which will be more consistent and in accordance with the parent statutory provisions of Section 4 of the Central Excise Act, 1944.'
Thus, valuation of goods cleared to related parties which is based on the transaction value at which the goods are sold applied to unrelated buyers is absolutely correct. Therefore, in this regard demand is not sustainable. Hence, duty demand of Rs. 5,36,540/- is set aside.
Personal penalties imposed on various persons - HELD THAT:- Since the major demand which is on the issue of valuation has been set aside, the personal penalty under Rule 26 is not sustainable considering the over all facts of the case. Therefore, the penalties imposed under Rule 26 are set aside.
Conclusion - Rule 8 applies only when the entire production is captively consumed and not sold. Rule 4 is preferred for valuation when goods are sold to both related and unrelated parties. Penalties imposed under Rule 26 are set aside.
Appeal allowed in part.
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2025 (1) TMI 304
CENVAT Credit - duty paying documents - whether the availment of Cenvat Credit by the appellant on the supplementary invoice in respect of the duty paid on the stock transfer can be denied invoking Rule 9(1)(b) of Cenvat Credit Rules, 2004? - suppression of facts or not - HELD THAT:- From the plain reading of the above Rule 9(1)(b) it is clear that the restriction for Cenvat Credit provided in the Rule 9(1)(b) is applicable only in such cases where the transaction of input is of sale. In the present case admittedly the good were received by the appellant from their own unit therefore the transaction is not for sale but only stock transfer. It is also observed from the invoice copy that invoices for stock transfer and no VAT tax has been paid therefore in the present case transaction being of stock transfer and not of sale, Rule 9(1)(b) is not applicable and on that basis denial of Cenvat Credit is without authority of law.
Similar issue has considered by this tribunal in the case of M/S ESSAR OIL LTD. VERSUS CCE RAJKOT [2014 (2) TMI 766 - CESTAT AHMEDABAD] wherein it was held that 'The word ‘Challan’ and ‘any other similar document’ evidencing payment of additional CVD, mentioned in Explanation to Rule 9 (1)(B), will thus mean those situations where duty is paid under a ‘challan’ by an importer/dealer of imported goods who has sold the cenvatable goods.'
Conclusion - In the present case transaction being of stock transfer and not of sale, Rule 9(1)(b) is not applicable and on that basis denial of Cenvat Credit is without authority of law.
Appeal allowed.
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2025 (1) TMI 303
Challenge to Assessment Orders - despite earlier writ petitions were filed and the petitioner had secured orders quashing the Assessment Orders that were passed earlier, now the present Impugned Orders have been passed - tax demanded and the penalty imposed together with interest recovered from the petitioner - lack of consideration of the petitioner's submissions and evidence - violation of principles of natural justice - HELD THAT:- It is noticed that the orders passed are stereotype orders. They have merely recorded that having considered the submissions of the petitioner, the submissions of the petitioner were not acceptable and therefore the demands have been confined in the Impugned Assessment Orders.
Conclusion - Since the reply of the petitioner has not been considered properly and there is no discussion in the order, the Impugned Assessment Orders are liable to be quashed as arbitrary.
The Impugned Assessment Orders are quashed. The respective cases are remitted back to the respondent to pass a fresh orders on merits and in accordance with law within a period of 6 months from the date of receipt of a copy of this Order - Petition allowed by way of remand.
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2025 (1) TMI 302
Requirement to implead a Foreign Registration Officer appointed under Rule 3 of the Registration of Foreigners Rules, 1992 in the bail application filed by a foreigner within the meaning of the Foreigners Act, 1946 - HELD THAT:- Under clause (b) of Section 3(2) of the Act, there is a power vested in the Central Government to issue an order generally or with respect to any particular foreigner or class of foreigners that they shall not depart from India or shall depart subject to observance of such conditions on departure as may be prescribed. The Rules do not impose any such restriction on departure from India. However, according to clause 5(1)(b) of the Order, no foreigner shall leave India without the leave of the Civil Authority having jurisdiction. When a foreigner’s presence is required in India to answer a criminal charge, permission to leave India must be refused. Under the Order, the Civil Authority can impose restrictions on the movements of a foreigner. Therefore, once a foreigner is released on bail, he cannot leave India without the permission of the Civil Authority, as provided in clause 5 of the Order. Under clause 11 and other clauses of the Order, various restrictions can be imposed on a foreigner while he is in India. The said power is wholly independent of the power to grant bail.
Conclusion - There are no propriety in issuing a direction that either the Civil Authority or the Registration Officer should be made a party to a bail application filed by a foreigner or a notice of the bail application be issued to the said authorities. The reason is that the authorities under the Act and the Order have no locus to oppose bail application filed by a foreigner unless bail is sought where the allegation is of the offence punishable under Section 14 of the Act. The impleadment of the Civil Authority or Registration Officer in all bail applications filed by foreigners may result in unnecessary delay in deciding the bail applications.
Appeal disposed off.
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2025 (1) TMI 301
Requirement of registration of the document - Determination of stamp duty under Article 22A of Schedule 1A of the Indian Stamp Act, 1899 - collusion between the appellant and Respondent No.2 and the Civil Suit was instituted only with an intent to evade the payment of stamp duty.
Requirement of registration of the document - Section 17 of the Registration Act, 1908 - HELD THAT:- Section 17(1) of the Act, 1908 specifies the documents for which Registration is compulsory. Sub-section (2) of Section 17 carves out the exceptions. The documents/instruments enumerated in sub-section (2) of section 17 are not compulsorily registerable. The exemption for decree or order of the Court is covered under section 17(2)(vi) of the Act, 1908 with a rider. Under the said provision, any decree or order of a Court (except the decree or order expressed to be made on compromise and comprising immovable property other than that which is the subject-matter of the suit or proceedings) would not require compulsory registration - To avail the exemption from the mandate of compulsory registration of documents conveying immovable property of a value of more that Rs 100/-, the compromise decree arrived must be only in respect of the property that is the subject-matter of the suit. The compromise arrived at before the Lok Adalat and the award passed by the Lok Adalat thereto assume the character of a decree passed under Order XXIII Rule 3 and would also come within the ambit and purview of sub-section (2) of section 17 of the Act, 1908.
The appellant is entitled to possession of the subject land and the Respondent No.2 shall not interfere with the same; and the appellant is entitled to get his name recorded in the revenue records in respect of the subject land in the place of the Respondent No.2. Pertinently, it is to be pointed out that the said compromise decree has not been challenged by the Respondent No.1 before any Court of law and hence, the same attained finality and is binding on the parties.
Though the Respondent No.1 alleged that the suit was filed by the appellant in collusion with the Respondent No.2 and within a short time from the date of initiation of the suit, the parties compromised the matter in order to evade payment of stamp duty, no concrete evidence was placed before this court to substantiate that the same. That apart, it is not the case of the Respondent No.1 - State that the suit itself was collusive as the property was not in possession of the appellant and that it belongs to any other third party - There is no finding of collusion between the parties in entering into the compromise by any Court as on date. Indisputably, the property is the subject matter of the suit. Thus, the appellant has satisfied the conditions enumerated in section 17(2)(vi) of the Act, 1908 and hence, the subject land acquired by him by way of compromise decree, requires no registration.
Payment of stamp duty for mutation of the subject land - it is the specific plea of the appellant that “consent decrees” / “decrees” are not chargeable with “stamp duty” under the Indian Stamp Act, 1899 as applicable to the State of Madhya Pradesh - HELD THAT:- The stamp duty is not chargeable on an order/decree of the Court as the same do not fall within the documents mentioned in Schedule I or I-A read with Section 3 of the Indian Stamp Act, 1899. Though the Collector of Stamps determined the stamp duty for the subject land as per Article 22 of Schedule IA of the Indian Stamp Act, 1899, which states about conveyance, in this case, we have already held that the compromise decree does not fall under the instruments mentioned in the Schedule and that it only asserts the pre-existing rights. Therefore, in the facts of the case, the consent decree will not operate as conveyance as no right is transferred and the same does not require any payment of stamp duty. Since the appellant has only asserted the pre-existing right and no new right was created through the consent decree, the document pertaining to mutation of the subject land is not liable for stamp duty.
Conclusion - i) The appellant has satisfied the conditions enumerated in section 17(2)(vi) of the Act, 1908 and hence, the subject land acquired by him by way of compromise decree, requires no registration. ii) Since the appellant has only asserted the pre-existing right and no new right was created through the consent decree, the document pertaining to mutation of the subject land is not liable for stamp duty.
Appeal allowed.
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2025 (1) TMI 300
Relaxation of the eligibility criteria for the appointment of a Technical Member (State) in the State Bench of the Goods and Services Tax Appellate Tribunal (GSTAT) in Himachal Pradesh - HELD THAT:- Interim order to continue till the next date.
List on 27.02.2025.
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2025 (1) TMI 299
Legality, validity and propriety of notification Nos. 13/2022, dated 05.07.2022, 9 and 56/2023, dated 31.03.2023 and 28.12.2023, respectively - Extension of maximum period of limitation prescribed under Section 73 (10) of the GST Act - repeated extensions given in purported exercise of Section 168A of the GST Act are arbitrary and violative of Article 14 of the Constitution or not - HELD THAT:- A plain reading of Section 168A makes it clear that it gives power to the Government to the extend time limit in ‘special circumstances’. The provision begins with a non-obstante clause and provides that on the recommendation of the Council, the time limit ‘specified in’ or ‘prescribed’ or ‘notified’ under this Act can be extended. It is noteworthy that the time limit can be extended ‘in respect of actions’ which cannot be completed or complied with due to ‘force majeure’. Sub-section (2) of Section 168A enables the Government to issue notification with retrospective effect. The ‘explanation’ defines the expression ‘force majeure’. In the instant case, it is not in dispute that COVID-19 Pandemic falls within the ambit of ‘force majeure’.
The contention of the petitioners is that the letter of the Home Department to Chief Secretaries issued on 22.03.2022 shows that COVID-19 Pandemic came to an end on 23.02.2022 and therefore restrictions imposed under the Disaster Management Act, 2005 were decided to be lifted. Thus, when impugned notifications were issued, the Pandemic was no more there and therefore ‘force majeure’ conditions are not satisfied. The argument on the first blush appears to be attractive, but, lost much of its shine when minutely examined in the light of language employed in Section 168A of the GST Act. Section 168A in no uncertain terms makes it clear that the time limit can be extended ‘in respect of actions’ which could not be completed or complied with, due to force majeure.
The purpose behind using the phrase ‘on the recommendation of Council’ is to equip the Government with the expert opinion of an expert constitutional body i.e., GST Council. This enables the Government to take an informed decision based on such opinion of Council. Since all the States have participation in the Council, the recommendation of Council will certainly be in consonance with doctrine of cooperative federalism. The decision of Government on such recommendation in the shape of notification will certainly has serious impact on taxpayers. Section 73 (10) prescribes period of three years from due date for issuing order and Section 75 (10) is pregnant with a deeming clause that if order is not passed within three years as per Section 73 (10) the proceeding shall be deemed to be concluded. Hence, notification extending time limit issued under Section 168A can impact the tax payer for the purpose of conclusion of proceedings as per conjoint reading of Section 73 (10) and 75 (10) of the GST Act.
Conclusion - The validity of most notifications extending limitation periods under Section 168A upheld. The words 'in respect of actions' are very wide and bring within its ambit the previous actions of COVID-19 period, which could not be completed or complied with, due to force majeure.
These Writ Petitions are accordingly disposed of by reserving liberty to the petitioners to avail the remedy of statutory appeal.
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2025 (1) TMI 298
Direction to respondents to hear the petitioner and allow him to tender his explanation or in the alternative to permit the petitioner to file appeal by extending 15 days time over and above the period granted in amnesty for filing of the appeal after providing correct credentials to the petitioner - HELD THAT:- The respondents have filed the response. The respondents, in the response, though denying the allegations, however, have submitted that the petitioner has liberty to claim new login and password on the GST Portal provided he is willing to file the appeal.
Taking into consideration the averments made in Para 12 of the response filed by the respondents that the petitioner can claim new login and password on the GST Portal, provided he is willing to file the appeal, the present writ petition is disposed off by permitting the petitioner to apply afresh with the respondents within the period of 15 days from today for issuance of login ID and password and after the same is granted, the petitioner shall be at liberty to prefer an appeal within 15 days and in the event, such appeal is filed, the respondents shall consider the same in accordance within law.
Petition disposed off.
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2025 (1) TMI 297
Rejection of application of the petitioner (co-owner) for cancellation of the GST registration granted to the respondent no.5 (another co-owner) - petitioner argues that in terms of clause(c) of the requirement extracted above, apart from the consent letter, other documents such as Municipal Khata or Electricity Bill was required and in the absence of the consent letter, sole reliance on the electricity bill, was wrongly admitted to be the sufficient requirement of the Rules.
HELD THAT:- The said contention of the counsel for the petitioner deserves to be rejected for the sole reason that the issue would be governed by clause (a), which prescribes that a document in support of the ownership of the premises is required in case of the owner, there is no mention of the resident being sole owner.
Petition dismissed.
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2025 (1) TMI 296
Rejection of request of the petitioner to allow re-credit of the amount of tax paid by the petitioner on reversed charged basis as recipient of royalty services from the Government - Section 142 (3) of the Central Goods and Sales Tax (CGST) Act, 2017 would not come to the rescue of the petitioner or not - HELD THAT:- Although the petitioner was not entitled to cash refund under Section 142 (3) of CGST Act, 2017, the petitioner is entitled to recredit by virtue of the aforesaid Order.
The respondent is directed to allow the petitioner to take recredit of the amount paid by the petitioner on reverse charge basis belatedly on 30.12.2017 as the Input Tax Credit in its Electronic Credit Ledger.
Petition allowed.
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2025 (1) TMI 295
Challenge to Notice dated 11.08.2022 - SCN without jurisdiction - ultra vires the provisions of Sections 66B read with 65B(44) of the Finance Act, 1994 or not - violation of fundamental rights and protections secured to the Petitioners under Article 14, 265 and 300A of the Constitution of India - HELD THAT:- From a perusal of the recital which appears therein, it would appear that the respondents had taken the position that the compensation which had come to be awarded by the Arbitral Tribunal in favour of the writ petitioner would be exigible to tax under the 1994 Act.
The arbitral proceedings culminated in an Award dated 11 May 2017 which came to be rendered in favour of the writ petitioner and against the Delhi Metro Rail Corporation. The validity of that Award came to be assailed in a petition under Section 34 of the Arbitration and Conciliation Act, 1996 and which came to be dismissed by a learned Single Judge of this Court on 06 March 2018. However, the appeal under Section 37, which came to be preferred by DMRC, thereafter came to be partly allowed by a Division Bench of this Court in DELHI METRO RAIL CORPORATION LTD. VERSUS DELHI AIRPORT METRO EXPRESS PRIVATE LIMITED [2019 (1) TMI 2058 - DELHI HIGH COURT].
Conclusion - The very foundation of the SCN and which had proceeded on the basis of the compensation which had come to be awarded to the writ petitioner under that Award, no longer survives.
Petition allowed.
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2025 (1) TMI 294
Condonation of delay of eight days in filing the appeal - Seeking quashing of order dated 06.08.2024 passed by the Appellate Authority dismissing the appeal as time barred - Appellate Authority has dismissed the appeal without providing an opportunity of hearing - violation of principles of natural justice - HELD THAT:- From perusal of the Appellate order it is forthcoming that the limitation was counted from the date of the order. There is no finding recorded with regard to the date of communication of order to the petitioner. As per Section 107(1) of the CGST Act the limitation shall start running from communication of the order. The impugned orders are set aside and the matter is remitted back to the Appellate Authority to decide the appeal in accordance with law after providing an opportunity of hearing.
Petition allowed by way of remand.
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2025 (1) TMI 293
Direction upon the respondents to forthwith disburse the remaining amount of sanctioned refund along with applicable rate of interest for delayed disbursement of claim of refund - HELD THAT:- The CGST authorities cannot be permitted to retain or hold back the amount which has been directed to be refunded in terms of the refund sanction order dated 25th September, 2019 - the respondent no.2 directed to forthwith take steps for issuance of payment advice in favour of the petitioner.
Petition disposed off.
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2025 (1) TMI 292
Challenge to SCN - Cancellation of GST registration of petitioner - client is ready and willing to pay the tax, interest, late fee, penalty and any other sum required to be paid - HELD THAT:- Reliance placed in the case of M/s. Mohanty Enterprises [2022 (11) TMI 1521 - ORISSA HIGH COURT] where it was held that 'In that view of the matter, the delay in Petitioner’s invoking the proviso to Rule 23 of the Odisha Goods and Services Tax Rules (OGST Rules) is condoned and it is directed that subject to the Petitioner depositing all the taxes, interest, late fee, penalty etc., due and complying with other formalities, the Petitioner’s application for revocation will be considered in accordance with law.'.
Petition disposed off.
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2025 (1) TMI 291
Seeking to issue a direction and declare section 16 (4) of the Central Goods and Services Act, 2017 as ultra vires - Imposition of time limit for the availment of Input Tax Credit being violative of Article 14, Article 19(1) (g) and Article 300 A of the Constitution of India and also being violative of the basic structure of the Central Goods and Services Tax Act, 2017 - direction to declare the amendment carried under Rule 61 (5) of the Central Goods and Services Rules, 2017 inserted vide Notification 49/2019-CT dated 09.10.2019 as ultra vires under which GSTR-3B - HELD THAT:- The questions which were involved in the present writ applications has been considered by the G.S.T. Council Meeting and there is a recommendation made by 53rd G.S.T. Council Meeting on 22nd of June, 2024, wherein the G.S.T. Council has taken note of the claim made in the present writ applications. Consequent thereon, the recommendation of the G.S.T. Council has to be given due weightage in accordance with law, as a result of which, these writ applications stand disposed of in view of the recommendations of 53rd G.S.T. Council Meeting and, if any, other matter remaining for consideration, it is open to the petitioners to pursue the remedy in accordance with law before the appropriate Forum.
Application disposed off.
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2025 (1) TMI 290
Dismissal of appeal filed against a penalty imposed, on detention under Section 129 of the Bihar Goods and Services Tax Act, 2017 and the finding of attempt to evade tax - HELD THAT:- In the present case, admittedly, the petitioner has paid the entire penalty. In such circumstances, though there is a procedural irregularity in Annexure-9/A having not shown the amount under dispute, it is opined that the appeal has to be entertained.
Annexure-9 set aside only on the technical reasons - the appeal will stand restored before the first Appellate Authority which shall consider the same on merits after affording an opportunity of hearing to the petitioner.
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2025 (1) TMI 289
Validity of Reopening of assessment - case of the petitioner is not selected for scrutiny for the year under consideration - scope of amended provisions of the Income Tax Act - delay filling SLP - As decided by HC [2024 (4) TMI 1214 - GUJARAT HIGH COURT] on same material only because the year under consideration being A.Y. 2018-19 no scrutiny assessment is undertaken by AO and this being a new regime of reassessment after 1st April, 2021, no different treatment can be given for reopening only because the scope is enlarged by the amended provisions for reopening - when the earlier assessment years which are subjected to reopening for which the notice is already quashed on the same material, there cannot be a reopening for the year under consideration - HELD THAT:- There is a gross delay of 123 days in filing the Special Leave Petition which has not been satisfactorily explained by the petitioner.
Even otherwise, we see no reason to interfere with the impugned order passed by the High Court. Special Leave Petition is, accordingly, dismissed on the ground of delay as well as merits.
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2025 (1) TMI 288
Jurisdiction of Income Tax Officer, Barotiwala road, Baddi to issue notice u/s 143(2) r/w Section 142 (1) and finalize the assessment of the appellant/petitioner without transferring his case file u/s 127 - transfer of jurisdiction from the Income Tax Officer at New Delhi to the Income Tax Officer at Baddi - Validity of best judgment assessments made u/s 144 in the absence of compliance with Section 127 - HELD THAT:- The twin conditions to be complied with by the respondents for transferring the case of the appellant/petitioner from respondent No.4 to respondent No.5 are: (i) the assessee should have been given a reasonable opportunity of being heard and (ii) the reasons for transfer should have been recorded.
Admittedly, the above procedure has not at all been complied with and the only explanation offered for the same is that Section 127 was not attracted to the instant case as it was respondent No.5 alone, who had the authority to issue notices u/s 143(2) r/w Section 142 (1) of the Act.
A valuable right of assessee is clearly involved in the matter, when he objected to jurisdiction of the assessing officer and transfer of his case, which obviously could not have been adjudicated upon without affording an opportunity of hearing and disclosing to him the reasons for not accepting his point of view.
Accordingly, we find merit in both the appeal as well as writ petition. Consequently, the impugned order(s) framing the best judgment assessment for the respective assessment years are quashed and set aside. However, this judgment shall not prevent the respondents for initiating proceedings afresh by either resorting to Section 127 of the Act or by initiating or continuing the proceedings through respondent No.4.
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