|
Advanced Search Options
Case Laws
Showing 61 to 80 of 412 Records
-
2025 (1) TMI 352
Assessment proceedings can be carried on by the EPFO under Section 7A, 14B and 7Q of the EPF & MP Act, 1952 after imposition of moratorium under Section 14 of the IBC - claim on the basis of assessment, subsequent to imposition of moratorium, can be admitted in the CIRP - claims, which were filed by the Appellant(s), subsequent to the approval of Resolution Plan by the CoC, could have been admitted in the CIRP.
Whether after imposition of moratorium under Section 14 of the IBC, assessment proceedings can be carried on by the EPFO under Section 7A, 14B and 7Q of the EPF & MP Act, 1952? - Whether any claim on the basis of assessment, subsequent to imposition of moratorium, can be admitted in the CIRP? - HELD THAT:- The plain reading of Section 14, sub-section (1) indicates that expression ‘suits or proceedings against the corporate debtor’ has been used. The word ‘proceeding’ is not qualified, so as to confine it to proceedings before the Civil Court. The proceedings, which have the effect on the assets of the CD are all covered in the expression ‘proceeding’. The question to be answered is as to whether after moratorium has been imposed, it was open for EPFO to proceed with the assessment proceeding. Learned Counsel for the parties state that during moratorium proceeding, no recovery proceeding can be initiated against the CD. However, submissions of the learned Counsel for the Appellant is that assessment proceedings against the CD may continue. Hence, the orders of assessment passed during moratorium period, were fully permissible and the claim on the basis of the said proceedings had to be admitted in CIRP.
In the case before the Hon’ble Supreme Court in Sundresh Bhatt, Liquidator of ABG Shipyard [2022 (8) TMI 1161 - SUPREME COURT], demand notice was issued subsequent to initiation of CIRP and that was not the case of any assessment carried out by Customs Authorities and the liquidation order was passed on 25.04.1999 and notice under Section 72 was issued on 11.07.2019, i.e. after the liquidation - It is well settled law that a judgment of the Court has to be read in the context of the facts and ratio of judgment has to be read in reference to the facts, which have come for consideration before the Court. It is well settled that ratio of a judgment cannot be read as statute and above judgment of the Hon’ble Supreme Court, does not support the submission of the Appellant that after imposition of moratorium under Section 14, sub-section (1), it was open for the EPFO Authority to proceed with the assessment and conclude the assessment.
In the present case, admittedly assessment has been completed after initiation of the moratorium. We, thus, are of the view that once order of liquidation is passed, moratorium under Section 14 comes to an end and moratorium under Section 33(5), which is differently worded, comes into play. Under Section 33(5), the expression used are “suit or other legal proceeding”, which occurs in Section 446 of sub-section (1) noticed above. Thus, bar is only against suit or legal proceeding and there is no bar against assessment proceeding to be conducted by statutory Authorities, including the EPFO. Thus, after the liquidation, it is open for EPFO to carry on the assessment. Section 33(5), cannot be held to apply on assessment proceedings. However, while looking to the expression used in Section 14(1), assessment proceedings before the EPFO, cannot be continued after initiation of CIRP.
Whether claims filed by the appellants subsequent to the approval of the Resolution Plan by the Committee of Creditors (CoC) could have been admitted in the CIRP? - HELD THAT:- It is an admitted fact that claims were filed by the Appellant subsequent to approval of Resolution Plan by the CoC. The Adjudicating Authority has relied on the judgment of the Hon’ble Supreme Court in RPS Infrastructure Ltd. Vs. Mukul Kumar & Anr. [2023 (9) TMI 516 - SUPREME COURT], which judgment squarely applies to the facts of the present case. More so, when the claim on the basis of assessment, which has been made subsequent to initiation of moratorium is hit by Section 14, sub-section (1) of the IBC, no such claim can be admitted in the CIRP.
Conclusion - After initiation of moratorium under Section 14, sub-section (1), no assessment proceedings can be continued by the EPFO. If after an order of liquidation is passed, Section 33, sub-section(5), does not prohibit initiation or continuation of assessment proceedings. No claim on the basis of assessment carried during the moratorium period, which is prohibited under Section 14(1) can be pressed in the CIRP. When the claim on the basis of assessment, which has been made subsequent to initiation of moratorium is hit by Section 14, sub-section (1) of the IBC, no such claim can be admitted in the CIRP.
There are no error in the order impugned in the present Appeal(s) passed by Adjudicating Authority - appeal dismissed.
-
2025 (1) TMI 351
Condonation of delay of 154 days in filing the appeal - no satisfactory explanation given - Revenue appeal against the various issues involved, e.g.: - outdoor catering services - under-valuation of taxable services - in-flight catering services to International and Domestic airlines - bundled services - HELD THAT:- There is a gross delay of 154 days in filing the appeal which has not been satisfactorily explained.
There are no good reason to interfere with the impugned order - The appeal is, therefore, dismissed on the ground of delay as well as on merits.
-
2025 (1) TMI 350
Refund claim - payment made by the appellant under protest is applicable to subsequent payments for the same issue - applicability of limitation period under Section 11B of the Central Excise Act, 1944 - interest on the refund amount under Section 11BB of the Central Excise Act, 1944.
Refund claim - payment made by the appellant under protest is applicable to subsequent payments for the same issue - HELD THAT:- The issue as to whether Service Tax is payable or not on Construction of Residential Complex service was under litigation for quite some time, right from its inception. In the present case, there is nothing to indicate that the Appellants were paying the Service Tax in the normal course. When the enquiries were made, they made two payments of Rs.17,28,454/- on 30.03.2006 and Rs.8,05,266/- on 05.07.2006, filing their under protest letter dated 28.03.2006. Both the payments have been made after this protest letter. No doubt the letter dated 28.03.2006, specifically mentions the payment of Rs.17,28,454 as being done ‘under protest’. But the fact remains that the subsequent payment was made only on 05.07.2006 - Filing such a letter clarifies that they are not subscribing to the view of the Revenue that Service Tax is payable. Such letter would have to taken as the one which pertains to all the payments made subsequently, unless the Revenue comes out any evidence to the contrary to the effect that subsequent payment has been made voluntary and is not made under protest. Such evidence is not forthcoming in the Revenue’s case here.
In the case of M/S NIPHAD SSK LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, NASHIK [2017 (1) TMI 1024 - CESTAT MUMBAI] Tribunal has held that once the ‘Under Protest’ letter is filed, it would be applicable for the future payments also. Applying the ratio of this case law, it is held that the ‘Under Protest’ letter filed at the time of the first payment also holds good for the subsequent payments made. The first letter clearly shows the view of the appellant that they are not in agreement with the stand taken by the Revenue.
The appellant cannot be denied the refund of the second amount of Rs.8,05,266/-.
Grant of interest on the refund in terms of Section 11BB - HELD THAT:- In the appellant’s own case, in respect of already granted refund of Rs. Rs. 17,28,454, their appeal was before this Bench. Relying on the judgement of the Hon’ble Supreme Court in the case of RANBAXY LABORATORIES LTD. VERSUS UNION OF INDIA AND ORS. [2011 (10) TMI 16 - SUPREME COURT], this Bench has held 'The appellant has filed the refund claim on 22.11.2007. Hence after considering the period of 3 month’s for processing of this application, the interest would be payable from 22.02.2008 till the date on which the refund has been paid to them.'
In the present case, the Revenue has not pointed out any factual difference from the above case. Therefore, the appellant would be eligible for interest from 3 months from the date of their refund claim letter till the refund is granted.
Conclusion - The appellants are eligible for refund of Rs. 8,05,266/-. The appellant would be eligible for interest from 3 months from the date of refund claim till the refund is paid. The interest payable would be @12% per annum.
Appeal allowed.
-
2025 (1) TMI 349
Denial of CENVAT Credit for the reason that the assessee-Appellant herein did not produce the original documents in support of its claim - HELD THAT:- The Appellant has given a plausible reason for non-production of original documents before the Commissioner, which is not suspected. Hence, at the outset, the reasons indicated by the Appellant appears to be bona fide. Further, the denial of Credit has been made only for the reason of non-production of the documents, which was clearly beyond the control of the appellant.
Hence, it would meet the ends of justice if an opportunity is given, by setting aside the order, thereby directing the Appellant to go before the Commissioner/Adjudicating authority before whom the Appellant shall furnish all relevant documents to the satisfaction of the said authority; the said authority shall cause verification of the same and if satisfied, then consider allowing the claim of CENVAT Credit after following the process of law. But in any case, since the issue pertains to the year 2014, it is deemed appropriate to direct the Appellant to co-operate with the Authority without seeking any unnecessary adjournments and thereby enable the said Authority to pass a speaking order after considering the documents that may be furnished before him, within a period of 30 days from the date of the receipt of this Order. All the contentions insofar as the present issue is concerned, are left open.
Conclusion - The denial of Credit has been made only for the reason of non-production of the documents, which was clearly beyond the control of the appellant. Hence, it would meet the ends of justice if an opportunity is given, by setting aside the order, thereby directing the Appellant to go before the Commissioner/Adjudicating authority.
Appeal disposed off by way of remand.
-
2025 (1) TMI 348
Nature of activity - service or manufacture - Process amounting to manufacture or Business Auxiliary Service? - powder coating of metals and articles of metals - HELD THAT:- The Appellant has inter alia furnished before the Adjudicating Authority permissions letters to send the materials for job work since, admittedly, the principals were SEZ units. Strangely, however, the Adjudicating Authority has not at all given due consideration to the said permission letters granted by the Authorized Officer for outsourcing the job work by the SEZ units to the Appellant herein. The said letters are clear in as much as, they indicate the purpose and also identify the entities to whom the job work was outsourced.
On perusal of Notification No.8/2005 makes it clear that the goods received on job work should be used in the manufacture of goods on which appropriate duty is payable. The appellant has claimed that it had performed the job work as instructed by the SEZ units; the SEZ units did not dispute the job work executed by the Appellant for which both the parties did not dispute the payment / consideration and it is nowhere even disputed by the authorities below that the principals / SEZ units had used the said components that underwent the process of job work in the manufacture of final products which attract appropriate duty.
There may be a doubt which is clearly out of context since, when the appellant had claimed to have delivered and the principals / SEZ units having not disputed the receipt of the same and that there has also been flow of consideration that too in cheque, that itself shows that the delivery is complete. But in any case, this aspect having been accepted by the Adjudicating Authority without any doubt and when there was no appeal by the Revenue, the impugned order to this extent is clearly arbitrary, uncalled for and beyond the appellate proceedings and it is also are in violation of the well settled principles of natural justice.
Conclusion - The job worker / Appellant is entitled to the benefit of exemption Notification No.8/2005 and that the activity of the Appellant was not taxable under BAS.
Appeal allowed.
-
2025 (1) TMI 347
Justification for levying penalty - suppression of facts or not - Whether the demand of/imposition of penalty is correct, especially when admittedly, the payments of tax and interest stand discharged before the issuance of SCN? - HELD THAT:- Section 73(3) casts a serious responsibility on the officer who is issuing or proposing to issue SCN, to arrive at or decide or ascertain that the assessee has remitted the tax along with applicable interest. The allegation regarding suppression should not only be based on the non-filing of returns, but with an intention to evade tax.
Here, in the case on hand, the assessee has pleaded that it could not file the ST-3 returns in time because it had no money or, rather they were under financial constraints due to which, they could also not remit the tax and therefore, they could not fill up the requirements of online filing of the returns, which, according to them was a bona fide reason for on filing of their ST3 returns and pay the tax in time. But, however, the fact remains that even before the issuance of SCN, they had remitted the entire tax demand along with interest - there was a plausible explanation on record, by the appellant, which was not found to be incorrect or that there was any other intention unearthed by the Revenue to disbelieve the said explanation. They only reason adopted in the impugned order is Section 73(4) ibid, which carves out an exception to Section 73(3) ibid. In the SCN, though suppression has been alleged, but however, the same is not connected with ‘intent’ to evade tax, since admittedly, the appellant itself has admitted the non-payment for the reasons of its financial constraints, which is not denied by the revenue.
Conclusion - SCN is issued only to impose penalty by invoking the larger period of limitation. This is clearly forbidden under Section 73(3) ibid and the case on hand therefore not covered under Section 73(4) ibid. The Commissioner has therefore erred in passing an unsustainable order which deserves to be set aside.
Appeal allowed.
-
2025 (1) TMI 346
Failure to obtain service tax registration and failure to deposit due service tax liability thereon in government exchequer - manpower recruitment or supply agency - site formation and clearance excavation and earthmoving and demolition services - Extended perod of limitation.
Non-payment of service tax - HELD THAT:- It is found that the show cause notice dated 01.10.2014 was issued by the department for evasion of service tax on the allegation that the appellant has rendered taxable services under the category of ‘manpower recruitment or supply agency’ and ‘site formation and clearance excavation and earthmoving and demolition’ services and did not obtain service tax registration and also did not deposit the service tax liability in government exchequer - in this case, the services were provided to M/s NTPC which is a governmental authority and were exempted from levy of service tax. M/s NTPC is a public sector undertaking under the ownership of the Ministry of Power and is under control of the Government of India and is engaged in generation of electricity.
Hon’ble Apex Court in the case of COMMISSIONER, CUSTOMS CENTRAL EXCISE AND SERVICE TAX, PATNA VERSUS M/S SHAPOORJI PALLONJI AND COMPANY PVT. LTD. & ORS. AND UNION OF INDIA & ORS. VERSUS M/S SHAPOORJI PALLONJI AND COMPANY PVT. LTD. [2023 (10) TMI 748 - SUPREME COURT] has considered the scope of definition of ‘Governmental Authority’ and as per the settled position of law, a ‘Governmental Authority’ means “an authority or a board or any other body: (i) set up by an Act of Parliament or a State Legislature; or (ii) established by government with 90% or more participation by way of equity or control to carry out any function entrusted to a municipality under Article 243W of the Constitution”.
Extended period of limitation - HELD THAT:- The invocation of extended period in the present case is also not warranted because the appellant had a bona fide belief that no service tax was attracted on the value of services rendered by them to turnkey projects being a minor sub-contractor in projects declared by Government of India as Mega Development Project of National Importance. The appellant even did not get itself registered due to the said bona fide belief and also did not recover any service tax from the main contractor M/s ITD or from M/s NTPC; and there was no intention to evade payment of service tax on the part of the appellant.
Conclusion - Services provided as part of a 'Work Contract' related to dam construction are exempt. The services to a 'governmental authority' are exempt. The invocation of extended period in the present case is also not warranted because the appellant had a bona fide belief that no service tax was attracted.
Appeal allowed.
-
2025 (1) TMI 345
Classification of service - services provided by the Appellant to Canpotex - Business Auxiliary Services (BAS) or fall under Business Support Services (BSS) and Business Promotion Services (BPS)? - place of provision of services - services are used in India in the hands of the Indian farmers - export of services or not - non-application of mind and uncertainty in the mind of the Adjudicating Authority - violation of principles of natural justice - HELD THAT:- Reliance is placed on the decision of the Tribunal in Paul Merchants Limited vs. Commissioner, [2012 (12) TMI 424 - CESTAT, DELHI (LB)], wherein it was held that the person, who is obliged to make payment for the service and whose need is satisfied by the provision of the service, is the recipient of service. On this ground, the Tribunal held that where the person located abroad is under an obligation to pay for the service and thus pays for it, the service is used outside India. The Tribunal has further held that when the person on whose instructions the services in question have been provided is located abroad, the destination of the service has to be treated abroad. The destination has to be decided on the basis of the place of consumption and not the place of performance. The place of provision of such services is outside the taxable territory and thus, these are not taxable for the period from July, 2012.
In the instant case, considering the nature of services, it is found that the place of provision has to be determined under the general rule, i.e. Rule 3. Under Rule 3 of the POPS Rules, the place of provision of service will be Canada, i.e. location of Canpotex. As the place of provision of these services is outside the taxable territory, the same are not chargeable to Service Tax under Section 66B. In the impugned order the place of provision has been determined under Rule 4(b) of the POPS rules. It is evident from the agreement as well as the impugned order that service was not provided to an individual thus, such rule is not applicable. Further, no recipient of service was acting on behalf of the recipient in India as there was no contract between Canpotex and the farmers and Canpotex was also not present in India, therefore, Rule 4 (b) is not applicable to the facts of the case. Further, the recipient of service is the exporter and not the farmers thus, the presence of exporters determines that the service was performed outside India.
The price of goods sold by one party to another is governed by the mutual understanding thereof. The seller may offer discount to the buyer towards the purchase price which will result into reduction of such sale price. The discount can be given in any form. The form of giving the discount cannot modify the nature of such discount being a factor resulting reduction of the price agreed. In this regard reliance is placed on Union of India vs. Bombay Tyres International Private Limited, [1983 (11) TMI 70 - SUPREME COURT], wherein the Hon'ble Supreme Court laid down the principles for determining the deduction on account of discounts - On a perusal of the observations of the Hon'ble Supreme Court, it is clear that irrespective of the nomenclature used to describe discounts, so far as the discounts are established under the agreement or under terms of sale or by established practice and the nature of the discounts is known at or prior to the removal of the goods, they shall be admissible as deduction for arriving at the transaction value. Further, the Court has categorically held that the discounts shall be allowed even if they are not payable at the time of each invoice.
Conclusion - The said discount, being towards sale of goods, is not covered under any of the categories of services under Section 65(105) and not chargeable to Service Tax under Section 66 of the Act for the period till June, 2012. Similarly, such discount, being towards sale of goods, is excluded from the definition of 'service' under Section 65B(44) of the Act and thus not chargeable to Service Tax under Section 66B of the Act for the period from July 2012.
The confirmation of demand in the impugned order is not sustainable and deserves to be set aside - Appeal allowed.
-
2025 (1) TMI 344
Justification in issuance of SCN - whether SCN was justified when the appellant had already discharged the service tax liability along with applicable interest before the issuance of the SCN? - levy of penalty - HELD THAT:- Once the discrepancies were pointed out by the audit team and accepted by the Appellant Assessee and service tax liability was discharged alongwith interest much before the issuance of the SCN, there was no occasion to issue a SCN, as has been consistently held by the Tribunal and the Superior Courts.
The Tribunal in the case of Gardenia India Ltd., [2018 (11) TMI 305 - CESTAT ALLAHABAD] observed 'there was no need for issue of show cause notice in respect of the demands confirmed in the Order-in-Original. We set aside the penalties imposed under section 77 and 78 of Finance Act, 1994 read with Rule 15 of Cenvat Credit Rules.'
Conclusion - In view of the payment of entire amount before issue of show cause notice there was no need for issue of show cause notice. Penalty also set aside.
Appeal allowed.
-
2025 (1) TMI 343
Levy of service tax - Business Auxiliary Service - act of selling / supplying bought out goods (spares) by the appellant to the buyers, while selling drilling rigs and ancillary equipment produced - HELD THAT:- Reliance placed in the case of LMP PRECISION ENGINEERING CO P LTD VERSUS C.C.E & S.T. -VALSAD [2024 (5) TMI 777 - CESTAT AHMEDABAD], where it was held that 'A simple requisition by the customer of the spare parts as may be required by them and delivering the same by them was as per contractual requirement or warranty obligation by the appellant. It would not tend to bring the transaction within the ambit of ‘Business Auxiliary Service’.'
Conclusion - The act of selling / supplying bought out goods (spares) by the appellant to the buyers, while selling drilling rigs and ancillary equipment produced, does not come within the ambit of Business Auxiliary Service.
Appeal allowed.
-
2025 (1) TMI 342
Levy of service tax - Real Estate Agent service - having sold the land which was intended to be purchased initially for a profit - HELD THAT:- The very same issue in the present appellant company’s case i.e. Rajni Builders Pvt Ltd. the issue in hand has been decided in RAJNI BUILDERS PVT LTD VERSUS C.C.E. & S.T. -VADODARA-I [2024 (8) TMI 1448 - CESTAT AHMEDABAD] whereby this tribunal held that 'in the identical nature of transaction, it was held that assessee cannot be charged with service tax under 'Real Estate Agent'.'
Conclusion - The appellant's activities were not taxable under the "Real Estate Agent" service category.
Appeal of Revenue dismissed.
-
2025 (1) TMI 341
Condonation of gross delay of 3213 days in filing the appeals - no satisfactory explanation provided - HELD THAT:- There are no good reason to interfere with the impugned order dated 15-10-2015 passed by the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench at Ahmedabad in Appeal Nos. E/640/2009-DB, E/1284-1285/2009-DB and E/557/2012-DB respectively.
The appeals are, therefore, dismissed on the ground of delay as well as on merits.
-
2025 (1) TMI 340
Exemption from Duty - Wrongful availment of N/N. 12/2012-CE dated 17.03.2012 - food preparation supplied to Women Industrial Co-Operative Societies intended for free distribution to the economically weaker sections of the society - it was held by CESTAT that 'The demand of Central Excise duty along with interest and penalty confirmed in the impugned order is set aside.'
HELD THAT:- There is no merit in these appeals and the same are accordingly dismissed.
-
2025 (1) TMI 339
Interest on delayed refund - scope and ambit of Section 11 B and 11 BB of the Central Excise Act, 1944 and Section 35 F and 35 FF of the Central Excise Act, 1944 - Violation of principles of natural justice - failure to consider relevant facts - It is submitted that the impugned judgment does not take notice of the relevant facts, including the 6 years’ delay on the part of the respondent which has been condoned, as well as the statutory provisions, in terms of Section 11BB of the Central Excise Act, 1944
HELD THAT:- Issue notice, returnable in the week commencing 24.03.2025.
Stay of the operation of the impugned judgment till the next date of hearing granted in favor revenue
-
2025 (1) TMI 338
Cenvat Credit in respect of the rejected finished goods received back from the buyer - invocation of extended period of limitation - Suppression of facts or not - HELD THAT:- Though the appellant has recorded the factum of return of the defective goods in their RG 23A Part-I alongwith the relevant invoices and subsequent issuance of the production area for manufacture of finished products but has not been able to establish that the same were cleared on payment of duty. Further, the appellant has also not strictly followed the procedure as prescribed in Rule 16 of Central Excise Rules, 2002. In the absence of clear proof of payment of duty after re-processing of defective goods, it will be difficult for me to give a concrete finding on the said issue; but as far as extended period of limitation is concerned, the appellant has shown the defective goods returned in RG 23A Part-I and has been regularly filing monthly returns before the department and the department has not raised any objection and only during the course of audit conducted by AG Audit (H.P.) during 06.09.2003 to 29.10.2003 it has been pointed out that the appellant has wrongly taken the Cenvat Credit; and thereafter the show cause notice was issued purely on the basis of audit objection which is unsustainable.
The appellant has been regularly filing monthly ER-1 returns for the period in dispute declaring the Cenvat Credit admissible to them and therefore, the appellant cannot be accused of suppression of relevant facts when there are series of instructions issued by the CBIC board directing the field officers to scrutinize the ER-1 returns carefully.
When the audit was conducted in year 2003, the entire information was within the knowledge of the department from the date of conclusion of the audit, but in spite of that, the show cause notice was issued after a gap of three years without any further investigation conducted by the department from the date of conclusion of audit. It has been consistently held by various Courts that when the relevant facts are within the knowledge of the department, the extended period for raising the demand cannot be applied.
Conclusion - The show-cause notice was issued purely on the basis of audit objections without the necessary investigation which must precede action under Section 11A of the Act. The demands based solely on audit objections without further investigation are unsustainable and that extended periods cannot be applied when facts are known to the department.
The appeal of the appellant allowed on limitation alone by setting aside the impugned order.
-
2025 (1) TMI 337
Refund of central excise duty under Section 11B of the Central Excise Act, 1944 - Self Assessment - Claim on the ground that excess payment of such duty made due to wrong valuation of goods - rejection on the ground that appellant have failed to justify that the burden of central excise duty paid by them and have not been passed on to the customers - principles of unjust enrichment - HELD THAT:- In the present case appellant have paid the duty of self assessment basis. Whether the issue with regards to applicability of Section 4A or Section 4 for making assessment of duty could not have been raised by the appellant in these proceedings of refund in terms of Section 11B of Central Excise Act, 1944 needs to be considered in the light of decision of Hon’ble Supreme Court in the case of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV [2019 (9) TMI 802 - SUPREME COURT (LB)]. Hon’ble Supreme Court has specifically held that 'The provisions under Section 27 cannot be invoked in the absence of amendment or modification having been made in the bill of entry on the basis of which self- assessment has been made. In other words, the order of self-assessment is required to be followed unless modified before the claim for refund is entertained under Section 27. The refund proceedings are in the nature of execution for refunding amount. It is not assessment or re- assessment proceedings at all. Apart from that, there are other conditions which are to be satisfied for claiming exemption, as provided in the exemption notification. Existence of those exigencies is also to be proved which cannot be adjudicated within the scope of provisions as to refund. While processing a refund application, re- assessment is not permitted nor conditions of exemption can be adjudicated.'
Nothing has been brought on record to show that the self assessment made by the appellant at the time of clearance of these goods was ever appealed against by the appellant before the Commissioner (Appeals) in terms of Section 35 of Central Excise Act, 1944 or the order of self assessment has been modified. In absence of such modification the submissions made by the appellant in these proceedings under Section 11B challenging the self assessment made for claiming this refund cannot be said to be proper. In view of the above referred decision of Hon’ble Supreme Court were in it has been specifically held that refund proceedings under Section 11B are executionary in nature.
Conclusion - The refund proceedings are in the nature of execution for refunding amount. It is not assessment or re-assessment proceedings at all. The appellant failed to prove entitlement to a refund under Section 11B.
There are no merits in this appeal - appeal dismissed.
-
2025 (1) TMI 336
Central Excise Duty for the period prior to registration - inclusion of clearances made to industrial customers in the assessable value - HELD THAT:- The claim made by the appellant is substantiated with documentary evidence. The clearances made to industrial customers is also included while computing the duty demanded in the impugned order. Since MRP based assessment is not applicable to clearances made to industrial customers, the submission made by the Appellantagreed upon, that the value of clearances amounting to Rs.3,62,038/- needs to be reduced from the value of Rs.1,53,53,283/- worked out by the Department for demanding duty. If this amount is reduced, then the value of clearances made during the Financial Year 2014-15 prior to 31.01.2015 i.e., the date of taking registration, works out to Rs.1,49,91,245/- - There is no demand liability to be paid by the Appellant for the period prior to 31.01.2015. There is no dispute that the Appellant has adopted the MRP based assessment after taking registration with effect from 31.01.2015.
Since the demand itself is not sustainable, the question of demanding interest and imposing penalty does not arise.
Conclusion - MRP-based assessments are not applicable to industrial customer clearances, and demands based on incorrect assessments are unsustainable. No demand liability to be paid by the Appellant for the period prior to registration.
Appeal allowed.
-
2025 (1) TMI 335
Disallowance of claims of branch transfers by CMS Computers under section 6A of the CST Act - inter-state sale or not - levy to tax under the CST Act with interest and penalty - HELD THAT:- It is seen that the Assessing Officer has not provided any specific finding and had given a general finding that there were pre-existing orders for movement of goods. Mere existences of pre-existing purchase orders, prior to movement of goods, does not automatically imply that the entire movement constitutes an inter-state sale, particularly when the goods are stock transferred in the regular course of business. CMS Computers had to maintain ample stock at the branch office to fulfill the orders placed by the different customers. The Assessing Officer was obliged to evaluate each transaction involving the transfer of goods before deciding whether to allow or disallow the branch transfer.
In this connection reference can be made to the judgment of the Supreme Court in Tata Engineering Locomotive [1970 (3) TMI 104 - SUPREME COURT], wherein it was held that 'It has been suggested that all the transactions were of similar nature and the appellant’s representative had himself submitted that a specimen transaction alone need be examined. In our judgment this was a wholly wrong procedure to follow and the Assistant Commissioner, on whom the duty lay of assessing the tax in accordance with law, was bound to examine each individual transaction and then decide whether it constituted an inter-state sale exigible to tax under the provisions of the Act.'
Conclusion - The State Tribunal had meticulously examined the decisions and the factual position and has, therefore, considered it appropriate to remand the matter to the Assessing Officer to verify the lorry receipts/dispatch proof in respect of each of the transactions. There is, therefore, no infirmity in order passed by the State Tribunal.
Appeal dismissed.
-
2025 (1) TMI 334
Dishonour of Cheque - legally enforceable debt or other liability - Nature of Advance Payment - whether the cheque as given by the applicant was in discharge of a legally enforceable debt/liability or not? - Complainant i.e. opposite party no.2 has not disclosed the lawyer and client relationship between him and the applicant - HELD THAT:- It is clear that for commission of an offence under Section 138 N.I. Act, the cheque that is dishonoured must represent a legally enforceable debt not only on the day when it was drawn but also on the date of its maturity/presentation. If the cheque presented for collection of total value of the cheque without endorsing the part payment made by the drawer is dishonoured no offence under Section 138 N.I. Act would be attracted, as being held in the case of DASHRATHBHAI TRIKAMBHAI PATEL VERSUS HITESH MAHENDRABHAI PATEL & ANR. [2022 (10) TMI 424 - SUPREME COURT].
In the present case, the opposite party no.2 has mentioned that he had given Rs.12,25,000/- in cash to the applicant for purposes of purchasing property. Although, in the complaint as well as notice, the complainant has spoken about returning of Rs.11,00,000/- by giving a cheque in this regard but there is no whisper about Rs.1,25,000/-. In case it is taken that Rs.1,25,000/- has already been paid, therefore, as part payment was already made, the complaint under Section 138 N.I. Act could not have been entertained - Be that as it may, once the complainant i.e. opposite party no.2 has not disclosed the lawyer and client relationship between him and the applicant and as for the first time admitted the aforesaid fact in his counter affidavit, the story in the complaint of giving advance in cash without disclosing as to how and from where such an arrangement was made also gives benefit to the applicant who under such relationship as admitted by the opposite party no.2 in his counter affidavit has mentioned about an agreement which cannot be disbelieved by this Court.
As per the provision of Section 202 Cr.P.C. as amended with effect from 23.6.2006, the requirement is that in those cases where the accused is residing at a place beyond the area in which the concerned Magistrate exercises his jurisdiction, it is mandatory on the part of Magistrate to conduct an enquiry or investigation before issuing the process. That means, in case, if such an enquiry is not conducted in cases where the accused resides at a place beyond the area in which the Magistrate exercises his jurisdiction, the purpose of amendment in Section 202 Cr.P.C. would frustrate.
Further the Apex Court in BHARAT BARREL & DRUM MANUFACTURING COMPANY VERSUS AMIN CHAND PAYRELAL [1999 (2) TMI 627 - SUPREME COURT], had considered Section 118(a) of the Act and held that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable and defendant can prove the non-existence of a consideration by raising a probable defence.
The present case appears to be a case of malicious prosecution wherein the opposite party no.2 has concealed the real fact of lawyer-client relationship and has wrongly disclosed about Dilip Kumar Singh who is related to the applicant being Manager of the Institution where opposite party no.2 was working at the relevant point of time to which the Court cannot close its eyes as at the instance of relative of the applicant, the present complaint has been filed concealing the real relationship of lawyer & client.
It is also relevant to point out the fact that scope and ambit of Section 482 Cr.P.C. is a very agitated and debatable issue. Nevertheless, there are some cases which have got wide acceptance in the legal fraternity and hence, are used as the minor guidelines/principles governing the cases of quashing criminal proceedings.
Conclusion - In the facts of the present case, where it has been established that opposite party no.2 has not approached the Court with clean hand, noticing his conduct as is clear from the records, this Court finds it to be a fit case for exercising powers under Section 482 Cr.P.C. Keeping in mind that criminal prosecution is a serious matter, it effects the liberty of a person, no greater damage can be done to the reputation of a person than dragging him in a criminal case, continuance of prosecution would be nothing but an abuse of the process of law and will be a mental trauma to the applicants, it becomes necessary for this Court to invoke inherent powers under Section 482 Cr.P.C. in present facts and circumstances of his case.
This Court finds a good ground for quashing the impugned summoning order as well as entire proceedings - The present application under Section 482 Cr.P.C. is, accordingly, allowed.
-
2025 (1) TMI 333
Challenge to orders imposing penalty, appellate orders, as also the Marketing Discipline Guidelines, 2018 (MDG) under which the penalty is imposed - non-attendance of a leakage complaint - HELD THAT:- So as to demand GST, it is to be proved that there is “supply of goods/services” by the person collecting the tax to the person from whom the tax is sought to be recovered. In the case at hand, it is the respondent Corporation who is claiming that there is “supply” of services to the petitioners herein. However, a perusal of the documents would show that no “supply of service” is effected by the respondent Corporation to the petitioners herein while imposing penalty by the impugned orders. Unless and until there is any such supply of goods/services, the question of demanding GST does not arise at all.
There is no dispute that there is no such agreement between the petitioners and the respondent Corporation. There is no case for the respondent Corporation that the petitioners and the respondent Corporation have entered into such an agreement/contract for a “consideration”. Such an agreement cannot be presumed to exist between the parties also. Here, the amounts sought to be collected from the petitioners towards penalty are not towards tolerating an act/situation. Instead, the amounts sought to be recovered are for not following the terms of the agreement/MDG framed by the respondent corporation. In fact, the amounts are sought to be recovered as a deterrent against future breach of contract between the petitioners and the respondent Corporation. The amounts sought to be recovered are under no stretch of imagination being collected towards tolerating the violation of the terms of the MDG.
The respondents are not entitled to collect GST from the petitioners herein.
Conclusion - Unless and until there is any such supply of goods/services, the question of demanding GST does not arise at all.
Petition dismissed.
........
|
9911796707
