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Showing 1 to 20 of 333 Records
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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.
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2025 (1) TMI 332
Addition u/s 68 - Assessee argument entries cannot be said to be the income for the previous year as it was wrongfully entered and reversed immediately on the next day - as decided by HC [2024 (5) TMI 1503 - PUNJAB & HARYANA HIGH COURT] assessees may make fictitious entries and return the same on the next day for taking tax benefits. There may be cases where the entries in the books of accounts may not be reflected in the bank account as the entries may be made in cash or in cheque which may not be ultimately encashed.
Also actual income of the assessee which accrues to him during the financial year, if there is an entry of any amount in the books of accounts as on 31st March, the same would be included as income of the assessee, even if he/ she may not have encashed the cheque on that day
HELD THAT:- Having heard the learned Senior counsel appearing for the petitioner and having gone through the materials on record, we see no good reason to interfere with the impugned order passed by the High Court.
Special Leave Petition is, accordingly, dismissed.
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2025 (1) TMI 331
Maintainability of appeal on low tax effect - Delay filling SLP - As decided by HC [2024 (1) TMI 1415 - PUNJAB & HARYANA HIGH COURT] appeal is not maintainable keeping in view Circular No.3 of 2018 dated 11.07.2018 of the Central Board of Direct Taxes since the tax effect is below the limit - HELD THAT:- There is a gross delay of 164 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 of Punjab and Haryana at Chandigarh. Special Leave Petition is, accordingly, dismissed on the ground of delay as well as on merits.
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2025 (1) TMI 330
Addition u/s 69A - addition of amount returned by the assessee as an agricultural income - HELD THAT:- The Inspector of Income Tax deputed by AO for spot enquiry has reported after visiting the land that the same has been marked into plots and is not used for cultivation. The material collected by AO during the course of the enquiry was forwarded to the assessee and his comments were sought for. However, the assessee did not offer any explanation.
CIT(A) has taken into account the letters issued by Executive Officer, Hayathnagar Mandal, Ranga Reddy District and Deputy Collector and Mandal Revenue Officer, Hayathnagar Mandal, Ranga Reddy District respectively, in which it is stated that no crops were grown on the land and the same was shown as plots in the land revenue records. The Income Tax Appellate Tribunal has also found that the assessee has failed to establish that the land in question was under cultivation.
Thus, the authorities under the Act, on the basis of meticulous appreciation of evidence on record have found that the land in question was already plotted and no agricultural operations were carried out by the assessee. Therefore, the claim of agricultural income is not tenable.
It is well settled in law that this Court in exercise of powers u/s 260A of the Act cannot interfere with the finding of fact until and unless the same is demonstrated to be perverse. (see Syeda Rahimunnisa vs. Malan Bi by LRs [2016 (10) TMI 1233 - SUPREME COURT] and Softbrands India Private Limited [2018 (6) TMI 1327 - KARNATAKA HIGH COURT] - Decided against assessee.
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2025 (1) TMI 329
Attachment of Property by the Income Tax Department - Seeking release of property attached by the Income Tax Department for the tax dues of the previous owner/ 2nd respondent - property was purchased by the petitioners in a court auction - HELD THAT:- As per proviso to Section 281 it is evident that, if the transfer is made for an adequate consideration and without notice of the pendency of the proceedings by the Income Tax Department or without notice of such tax due from the assessee, the transfer cannot be deemed to be void.
There is nothing to indicate that the proceedings initiated by the Income Tax Department was known to the petitioners-the purchasers in the court auction. It is also relevant to mention at this juncture that, pursuant to the auction held on 14.01.2009, petitioners had deposited an amount far in excess of the decree amount. They had to deposit Rs. 59,000/- over and above the decree amount with the court to be appropriated to the judgment debtor.
Thus, it is evident that the petitioners had purchased the property in the court auction for adequate consideration and that too, without notice of the pendency of the proceedings initiated by the Income Tax Department. Since, the purchase of the property in a court auction was a bona fide transaction as evident from the sequence of events mentioned above, it is explicit that the proviso to Section 281 (1) will apply in respect of the property purchased by the petitioners.
The attachment effected by the Income Tax Department is in respect of 51 cents of property, while the petitioners had purchased only 6 cents out of the said extent. It is submitted across the Bar that a multi-storied building is even existing on the remaining extent of property and therefore, no prejudice would befall the Income Tax Department, if they proceed against the remaining extent.
In the decision in S. Mathews v. The Secretary Ambalappuzha North Grama Panchayath and others [2022 (7) TMI 1565 - KERALA HIGH COURT] had, in a similar situation, observed that, in the facts of the said case, since the sale was without notice of the proceedings initiated by the Income Tax Department, the benefit of proviso to Section 281 of the Income Tax Act, 1961 ought to be accorded to the petitioner therein.
Thus, claim petition put forth by the petitioners ought to have been allowed and the Income Tax Department could not have proceeded against the bona fide purchaser of the property covered by Ext. P2 sale certificate issued in favour of the petitioners.
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2025 (1) TMI 328
Revision u/s 263 - scope of inquiry u/s 263 - no verification done by the AO during the assessment proceedings relating to the explanation to be forwarded by the assessee - audit party Opinion -HELD THAT:- Sine-qua non for interference by the CIT u/s 263 of the Act to the assessment order passed by the AO is of satisfaction of certain conditions as noticed above i.e. that the order passed by AO is erroneous and secondly that the order results in prejudice to the revenue.
In the present case, it is an admitted position that after the assessment order was passed, audit objections were raised with regard to inquiry said to have been conducted by the AO and the audit - party recorded several major audit objections with respect to the investment made by the assessee in mutual funds/shares. There was no verification done by the AO during the assessment proceedings relating to the explanation to be forwarded by the assessee.
We, therefore, are satisfied that the order passed by the CIT un/s 263 of the Act in the facts and circumstances of the case cannot be said to be such which was to be interfered with by the ITAT. The view taken by the ITAT based on the judgment passed in B & A Plantation and Industries Ltd. and another.[2006 (12) TMI 101 - GAUHATI HIGH COURT] cannot be said to be correct interpretation of Section 263 of the Act and the record relating to any proceedings under the Act available at the time of examination by the Commissioner would also include the audit objections.
In CIT vs. P.V.S. Beedies Pvt. Ltd. [1997 (10) TMI 5 - SUPREME COURT] held that there can be no dispute that the audit party is entitled to point out a factual error or omission in the assessment. Reopening of the case on the basis of a factual error pointed out by the audit party is permissible under law. Decided in favour of revenue.
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2025 (1) TMI 327
Revision u/s 263 - case of assessee was reopened u/s 147 - bogus purchases - HELD THAT:- We find that it is not a case “lack of enquiry or inadequate enquiry” even if there is inadequate enquiries that could not by itself, the occasion of PCIT to pass order u/s 263 merely because he has different of opinion on the matter as recorded above, AO duly examined the fact and formed opinion that no addition is necessary.
In case of Mukesh Chand Mal Pitti [2023 (10) TMI 1064 - GUJARAT HIGH COURT] held that where cash deposits made by assessee during demonetization period were specifically verified during original assessment proceedings wherein assessee produced all necessary documents as asked for by AO, it was not a case where no enquiry was made by AO during course of assessment proceedings regarding cash deposits, and therefore, impugned revision proceedings u/s 263 was to be quashed.
We further find that in Rajmal Kanwar [2016 (2) TMI 1317 - ITAT JAIPUR] also held that where AO has made sufficient enquiry, considered survey record and surrender made by assessee and after considering submissions of assessee completed assessment proceedings u/s 143(3), assessment order could not be held to be an erroneous order which was prejudicial to interest of revenue.
We also find merit in the contention of assessee that similar assessment order for assessment year 2016-17 wherein similar transaction has been accepted by AO and same is not revised on the ground of same issue.
We find that once the explanation/reply of assessee was found acceptable by AO and no addition was made he has taken a plausible view which is otherwise legally sustainable view supported with various evidence furnished by assessee, which cannot be considered as erroneous. Thus, the twin condition for exercising jurisdiction u/s 263 is not fulfilled in the present case. In our view, when the transaction of assessee with Unique Polypack was examined by the AO in accepting the impugned transaction, PCIT was not justified in invoking the provisions of section 263. Therefore, the order passed by PCIT is not legally sustainable and the same is set aside. Grounds of appeal raised by the assessee are allowed.
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2025 (1) TMI 326
Validity of reassessment proceedings - non-compliance of taking prior approval by the specified authority required u/s. 151 - Scope of “by whom” in procedural compliance for issuance of notice u/s.148 - amended provisions under the Act read with TOLA - notice u/s.148 has been issued beyond three years - HELD THAT:- In the present case, the relevant Assessment Year is 2017-18 and the time limit of three years lapsed on 31.03.2021 which falls between 20.03.2020 and 31.03.2021 during which provisions of Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 (TOLA) would apply. Accordingly, the amended provisions under the Act read with TOLA extended the time limit for granting of approval till 30.06.2021 by the specified authority.
Thus, in the present case, since the notice u/s. 148 and order u/s. 148A(b) have been issued beyond the period of three years from the end of the relevant Assessment Year, case of the assessee falls within the provisions of section 151(ii) of the amended law whereby the specified authority for grant of approval is specified as Principal Chief Commissioner or Principal Director General or Chief Commissioner or Director General. Contrary to this requirement, the approval obtained is by Principal Commissioner of Income Tax-17, Mumbai. Accordingly, since a proper sanction by the specified authority had not been obtained for issue of notice u/s.148 under the applicable provisions of law, said notice is invalid and bad in law.
Referring to judicial precedent in the case of Ashish Agarwal [2022 (5) TMI 240 - SUPREME COURT] and Rajiv Bansal [2024 (10) TMI 264 - SUPREME COURT (LB)] we hold that sanction by specified authority has not been obtained by the Assessing Officer in accordance with the provisions contained in section 151 of the Act under the new regime, since notice u/s.148 has been issued beyond three years from the end of the relevant Assessment Year. Accordingly, the said notice issued is invalid and thus quashed. Decided in favour of assessee.
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2025 (1) TMI 325
TP Adjustment - upholding M/s. ASK Re Ltd., Hong Kong as Associated Enterprises as per Section 92A - HELD THAT:- M/s. ASK Re Ltd., Hong Kong is controlled jointly by relatives of controlling shareholder of the assessee-company and falls u/s. 92A(2)(j) of the Act.
Selection of MAM - rejecting the CUP and applying TNMM as MAM and making adjustment in respect of purchases from the AE - HELD THAT:- TPO has rejected the CUP methods giving the reason that the assessee has neither used internal CUP nor external CUP and questioned the markup of 1.09% but we are not in agreement to TPO and Ld. DRP as the price at which assessee has purchased the goods from AE is comparable to price at which third party have sold goods and if price from independent party is available, CUP is the most appropriate method to bench mark the transaction. CUP method is the MAM and the adjustment made by the TPO/Ld. DRP is uncalled for. Thus, these grounds of appeal of the assessee are allowed.
Disallowance u/s. 14A r/w Rule 8D - assessee has made investment which is capable of earning income exempt from tax - AR has argued that the assessee does not have any exempt income and the A.O has made the disallowance without recording any reason - HELD THAT:- It has been consistently held by the court disallowances u/s 14A cannot exceed the exempt income.
As decided in the case of Era Infrastructure (India) Ltd. [2022 (7) TMI 1093 - DELHI HIGH COURT] that subsequent amendment made by Finance Act, 2022 for Section 14A of the Act by inserting non-obstante clause and explanation cannot be presumed to have a retrospective effects.
Also in the case of M/s Maxivision Eye Hospital Pvt. Ltd. [2022 (7) TMI 1450 - ITAT CHENNAI] since the assessee has not earned any exempt income, no disallowance can be resorted by invoking the provisions of section 14A of the Act read with Rule 8D(2) of the Rules. Decided in favour of assessee.
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2025 (1) TMI 324
Addition u/s 69A r.w.s.115BBE - Assessee qualifies for exemption u/s 10(23AA) - as submitted that in the case of the assessee, assessee has already incurred more than 85% of the income towards the charitable purposes, therefore, no addition is called for - HELD THAT:- Assessee is a charitable institution and had granted for 12A registration by CIT, Delhi-II, New Delhi on 26.07.1975.
No doubt, assessee was granted registration u/s 12A of the Act and it is also a fact on record that assessee has not filed its return of income even though notice u/s 148 was issued by the AO based on the financial informations available with him with regard to various deposits and renewal on time deposits. Assessee has prayed that the case of the assessee falls u/s 10(23AA) of the Act.
As per the provisions of section 139(4)(a) of the Act, it is obligation on the part of the assessee who were claiming the benefit u/s 11 of the Act has to file its return of income u/s 139 to claim the benefits. Even though the assessee who has got registration u/s 12A of the Act, in order to get the benefit it has to file its return of income. Therefore, in the given case, it is fact on record that assessee has not filed its return of income, therefore, assessee loses the benefit of claiming exemption u/s 11 of the Act.
Therefore, the case of the assessee has to be assessed on the basis of commercial terms as in AOP. We observed that the AO has assessed the income after considering gross receipts and relevant expenditure.
In our considered view, CIT (A) has given the relief without considering this aspect on record. We observed that since there was no representation on the part of the assessee before the AO and CIT (A) has granted the relief based on various documents submitted before him without giving opportunity to the AO.
Therefore, considering the nature of charitable institution which serves the widows and dependants of army soldiers, we deem it fit and proper to remit this issue back to the file of AO to consider various documents and redo the assessment as per law and consider various submissions made by the assessee before the CIT (A) with regard to term deposits and renewal of the same and also cash deposits which has generated by the assessee out of schools and other activities. We also direct the AO to redo the assessment as per above direction after giving proper opportunity of being heard to the assessee. Appeal filed by the Revenue is allowed for statistical purposes.
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2025 (1) TMI 323
Capital gain computation - Disallowance towards the cost of indexation claimed by the assessee - no documentary evidence was filed in support of the claim of expenses incurred on construction/ renovation expenses in respect of the property on which indexation was claimed - HELD THAT:- Denial of the entire expenditure incurred towards as cost of construction by the AO cannot be held to be justified even if the assessee did not submit satisfactory bills/vouchers in support of her claim towards the cost of construction.
It is also a fact that the AO in his remand report stated that an amount for the FY 2009-10 was paid for Stamp Duty, MCD Map fee and MCD Development charges and this amount was allowable as these expenditures were paid to the Government department. This further reinforces the fact that the building that was sold was constructed on which expenses were definitely incurred.
We hereby direct the AO to allow 50% of the indexation claimed. We also clarify that there will be no further allowance of indexation of Rs. 3,94,860/- as allowed by the CIT(A) as the same in our estimation is also included in the 50% of the indexation amounting to Rs. 24,42,262/- allowed by us. The balance disallowance of Rs. 24,42,262/- claimed towards indexation by the assessee by the AO is confirmed. Ground no.5 & 6 of the appeal are partly allowed.
Disallowance of deduction claimed u/s 80C towards payment of LIC premium - Above claim was stated to be allowable by the AO in his remand report, addition is deleted.
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2025 (1) TMI 322
Addition u/s 69A - cash payment towards credit card purchases unexplained - HELD THAT:- Where the assessee is found be the owner of any money, bullion, jewellery or other valuable articles and such money etc. are not recorded in the books of account, if any, maintained by him of any source of income and the assessee offers no explanation about the nature and source of acquisition of the money etc., or the explanation offered by him, is not satisfactory, in the opinion of AO, the money and the value of bullion, jewellery or other valuable articles may be deemed to be the income of the assessee for such year.
In the present case, assessee has purchased the credit cards by making cash payments. It is, therefore, clear that assessee was owner of money (cash) which was used to make credit card purchases. However, he has not explained the nature and source of acquisition of such money, being cash - AO has added the same u/s 69A of the Act due to non-compliance by assessee to the statutory notices as well as the show cause notice.
CIT(A) has rightly confirmed the addition because assessee did not attend before him or filed any written submission in support of the grounds raised before him. Before us also, the assessee has not filed any written submission in support of the grounds raised by him. Provisions of section 69A of the Act are clearly attracted to the facts of the instant appeal - Decided against assessee.
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2025 (1) TMI 321
Cash deposits during demonetization period - AO has made the addition u/s 69A r/w section 115BBE - HELD THAT:- Addition made by the AO is merely on surmises and conjunctures because the assessee has duly recorded the cash sales in its books and the alleged cash deposit is from the available cash in hand in the regular books of accounts. Assessee is regularly making cash sales from past many years.
Books of accounts are not rejected Quantitative details are maintained, because, as being an authorized dealer of TVS Motor Co. Pvt. Ltd., the purchases are duly recorded and the sales if any made in cash are also recorded in the quantitative details and VAT returns.
Therefore, in absence of any evidence of any unrecorded sales placed by the Revenue authorities and considering the fact that the assessee is a dealer of a reputed company i.e. TVS Motor Company Ltd., we fail to find any merit in the finding of both the lower authorities and are inclined to hold that the assessee has successively explained the source of cash deposits in the bank account during 9th November, 2016 to 31st December, 2016, which are from regular cash sales and therefore, impugned addition u/s 69A read with section 115BBE is uncalled for. The finding of the ld. CIT (A) is set aside and the impugned addition stands deleted. Effective ground raised by the assessee is allowed.
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2025 (1) TMI 320
Revocation of Customs Broker license - forfeiture of security deposit - levy of penalty - violation of Regulations 10 (b), 10 (d), and 10 (n) of the Customs Brokers Licensing Regulations, 2018.
Partial violation of Rule 10 (b) - allowing Sh Babu Ithape to approach the Docks officer for examination of goods - HELD THAT:- A plain reading of the said Regulation, it is apparent that the Customs Broker is required to transact the business at the Customs Station either personally or through his authorized employer. That requirement stands fulfilled as Sh Dilip Shelar, who handled the documents was an employer of the appellant. Further, it has been submitted that his responsibility ended with filing of documents which stands corroborated by the statement of Imran Sheikh. Hence, the conclusion arrived at by the adjudicating authority that the appellant has unintentionally or intentionally violated 10 (b) is not correct. Consequently, there is no violation of Regulation 10 (b).
Violation of Regulation 10 (n) - HELD THAT:- The impugned order has concluded that the appellant was not clear whether the B/E had been filed under Section 69 or Section 59 of the Customs Act. This cannot be the reason for revoking the CB license. The appellant filed the B/E as per procedure and same has been subsequently cleared by the Customs Department. It is noted that as per section 146 of the Customs Act, the role of a Customs Broker is related to the business of import or export of the goods. The obligation of the appellant was only to facilitate clearance of goods for warehousing at the Customs port. Admittedly, the appellant was not responsible for the deposition of the goods to the warehouse. It is also noted that the persons controlling the importer firm had acted on their own accord to defraud the revenue, and there is no allegation or evidence that the appellant had advised or aided their nefarious activity. In this context, support taken from the Supreme Court’s judgment in Collector of Customs, Cochin vs Trivandrum Rubber Works Ltd., [1998 (11) TMI 127 - SUPREME COURT] wherein the Hon’ble Court held that the Customs Broker is an agent for only limited purpose of arranging release of goods and once the goods are cleared, he has no further function and he is not liable for any action of the importer. Accordingly, there was no violation of Regulation 10 (n) of CBLR, 2018.
In the instant case, the KYC documents submitted by the appellant are all valid documents. There is no other requirement under Regulation 10 (n) which remains to be fulfilled by the appellant.
Conclusion - The role of a Customs Broker is limited to facilitating the clearance of goods, and they are not responsible for subsequent actions by the importer. Verification of documents through official sources fulfills the regulatory requirements. The appellant did not violate Regulations 10 (b), 10 (d), or 10 (n) of the CBLR, 2018. Consequently, the revocation of the Customs Broker's license was not justified.
The impugned order is set aside - appeal allowed.
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2025 (1) TMI 319
Rejection of request of the petitioner for amending the respective Bill of Entries under which the goods were cleared from the petitioner for clearing the goods from SEZ units - petitioner had by mistake paid 20% of the Customs duty - HELD THAT:- Not only a Bill of Entry can be modified by way of an Appeal before the Appellate Authority but also other relevant provisions of the Act. This Court has considered the same in the case of M/S. NEYVELI LIGNITE CORPORATION INDIA LIMITED VERSUS THE COMMISSIONER OF CUSTOMS, THE ASSISTANT COMMISSIONER OF CUSTOMS (IMPORT) [2022 (4) TMI 1374 - MADRAS HIGH COURT]. In para 16, the Madurai Bench of this Court has taken note of the decision of the Hon'ble Supreme Court referred to supra and has ultimately concluded 'As long as the petitioner is able to satisfy the requirements for amendment of the document namely, the subject Bill of Entry with the documents, which were in existence at the time of import, the benefit of amendments cannot be denied.'
Conclusion - There is no doubt that an importer or a person filing a bill of entry can amend the bill of entry by any of the three methods prescribed under the Customs Act, 1962 namely by way of an appeal or by filing an application under section 149 or Section 154 of the Customs Act, 1962.
These Writ Petitions are allowed by directing the respondents to re-do the exercise under Section 149 of the Customs Act, 1962, within a period of three months from the date of receipt of a copy of this order.
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2025 (1) TMI 318
Waiver of mandatory pre-deposit of 7.5% of the disputed amount for maintaining an appeal - amendment to Section 129-E of the Customs Act, 1962 - Jurisdiction of High Court to waive the mandatory pre-deposit requirement under Article 226 of the Constitution of India.
HELD THAT:- It appears that the issue was also considered in the context of the provisions of the Finance Act, 1994 by a learned Single Judge of this court in SANTHOSH KUMAR K, PROPRIETOR, M/S. SWATHI CONSTRUCTIONS VERSUS THE COMMISSIONER CENTRAL GST AND CENTRAL EXCISE, THE CHIEF COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE, CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL [2022 (4) TMI 134 - KERALA HIGH COURT], where this court held 'When the Statute does not provide for waiver of a predeposit, it is impermissible for this Court to act contrary to the legislative intention merely on the plea of financial hardships. If such pleas are entertained, and directions are issued for waiving the pre-deposit, there will be no end to such demands. Further if orders are issued, contrary to the Statute the same will destroy the very scheme of the Statute including the consequent amendment.'
The petitioner in these cases cannot be granted any relief in exercise of jurisdiction vested in this court under Article 226 of the Constitution of India - Petition dismissed.
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2025 (1) TMI 317
Evasion of Customs Duty - failure to declare MRP before the Customs and sold the goods at higher MRP - scope of its jurisdiction of Adjudicating Authority in terms of the remand order - sufficient opportunity of hearing not granted to appellant - violation of principles of natural justice.
Scope of its jurisdiction of Adjudicating Authority in terms of the remand order - HELD THAT:- There are no hesitation in saying that the Adjudicating Authority has exceeded its jurisdiction in considering the issue in respect of the live consignment and the goods lying in the godown of the appellant as they have already been decided by the Tribunal and the same were binding on the Adjudicating Authority being a subordinate authority.
Reference made to the decision of the Apex Court in UNION OF INDIA VERSUS KAMLAKSHI FINANCE CORPORATION LTD. [1991 (9) TMI 72 - SUPREME COURT] laying down that the principles of judicial discipline require that, “the orders of the higher Appellate Authorities should be followed unreservedly by the subordinate authorities unless its operation has been suspended by competent court. The order of the Appellate Collector is binding on the Assistant Collector working within his jurisdiction and the order of the Tribunal is binding on the Assistant Collectors and the Appellate Collectors, who function under the jurisdiction of the Tribunal”.
Sale of goods on much higher MRP after changing the MRP label - HELD THAT:- The Tribunal has categorically observed that there is clear violation of the provisions of the Customs Act, which calls for demand of differential duty as well as penal action. Since the quantification of the differential duty was made in a summary manner based on certain illustrative evidences, the Tribunal had remanded the limited issue for quantification of differential duty by detailed verification.
Whether sufficient opportunity has been granted to the appellant during the remand proceedings? - HELD THAT:- Personal hearing was given for 24.09.2018 but nobody appeared, and accordingly the case was taken up for adjudication on the basis of the available records and the invoices submitted by the appellant. Hence, it cannot be said that the principles of natural justice has not been followed and sufficient opportunity has not been granted to the appellant, however, it is the appellant who failed to co- operate and deliberately avoided the hearing.
As per the Revenue, on examination it was revealed that MRP/RSP were neither affixed on individual packs nor on cardboard cartons and later, it was found that these goods were sold at much higher price than the MRP declared for assessment purposes thereby evading the payment of appropriate CVD - There are no merits in the submissions at this stage as the Revenue had not challenged these findings of the Tribunal in the earlier round of litigation.
Quantification and its consideration by the Adjudicating Authority - HELD THAT:- Even during the course of arguments, the learned counsel for the appellant had no further documents to substantiate the contention that the sale price higher than the declared MRP comprised only a small percentage and therefore there are no reason to differ from the findings of the Adjudicating Authority.
Conclusion - i) Selling goods at higher MRPs than declared constitutes a customs violation warranting differential duty and penalties. ii) The duty demand on the live consignment was set aside. The duty demand on goods in the godown was set aside. The need for quantification of differential duty on goods sold at higher MRPs was upheld. iii) The Adjudicating Authority's jurisdictional overreach was rectified by setting aside its contrary findings. iv) The quantification of differential duty was affirmed based on available evidence.
Appeal allowed in part.
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2025 (1) TMI 316
Classification of goods intended to be imported - Provisionally Preserved Areca Nut (Whole) and Provisionally Preserved Areca Nut (Split) - to be classified under Chapter Heading 0812 90 90? - HELD THAT:- The provisionally preserved betel nuts are not fit for immediate human consumption and they are more specifically covered under Chapter Heading 0812 due to following Chapter Note.
The Heading 0812 applies to fruit and nuts (whether or not blanched or scalded) which have been treated solely to ensure their provisional preservation during transport or storage prior to use (for example, by sulphur dioxide gas, in brine, in sulphur water or in other preservative solutions) provided they remain unsuitable for immediate consumption in that state. Though areca nuts are separately mentioned under 0802, nuts provisionally preserved but unsuitable in that state for immediate consumption, as the areca nuts in the present case, will get covered under Heading 0812 which occurs later in the schedule and accordingly, the nuts that are provisionally preserved and not fit for immediate consumption need to be classified more specifically under the CTH 0812 90 90.
Conclusion - The Provisionally Preserved Areca Nut (whole) and Provisionally preserved Areca nut (split) merit classification under Custom Tariff Heading 0812 specifically under sub-heading 0812 90 90 of the First Schedule of the Customs Tariff Act, 1975.
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2025 (1) TMI 315
Challenge to Impugned Order - failure to consider the changed circumstances - failure to appreciate that the OTS offer stood to benefit the stakeholders more than the approved Resolution Plan - HELD THAT:- It is to be kept in mind that the submission of the one-time settlement proposal as prayed for in the Interlocutory Application being IA (IBC) No. 1862/2024, could not be considered by the Learned Adjudicating Authority for the reason being that, on earlier three occasions, the OTS proposals had already stood rejected and also because of the fact that Resolution Plan as of now has already been approved on 07.12.2023. Therefore, with regard to the instant OTS proposal submitted on 03.09.2024, by virtue of IA No. 1862/2024, there was no scope open for the said proposal to be considered to be accepted and consequentially the Impugned Order that was passed thereon, holding that the OTS proposal as prayed for in IA (IBC) No. 1862/2024, could not be considered and is not maintainable as the Resolution Plan has already been approved, cannot be faulted.
The view expressed by the Learned Adjudicating Authority in the Impugned Order of 12.09.2024, holding OTS proposal to be not maintainable due to the fact of the Resolution Plan already having been approved cannot be faulted of in any manner whatsoever, as new chapter cannot be permitted to be opened, when the Appellant himself has failed on three earlier occasions to get his OTS proposals approved and because of the fact that the Resolution Plan as of now has already been approved. In these circumstances, the application being IA (IBC) No. 1862/2024, could not have been considered by the Learned Adjudicating Authority and the same has been rightly rejected by the Impugned Order, which does not call for any interference in the exercise of the Appellate jurisdiction by this Appellate Tribunal under Section 61 of I & B Code, 2016.
Conclusion - The view expressed by the Learned Adjudicating Authority in the Impugned Order of 12.09.2024, holding OTS proposal to be not maintainable due to the fact of the Resolution Plan already having been approved cannot be faulted. The finality of an approved Resolution Plan in insolvency proceedings is paramount, and subsequent settlement proposals cannot be entertained unless there are compelling reasons.
Appeal dismissed.
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2025 (1) TMI 314
Levy of service tax - expenses incurred by the petitioner as a "pure agent" for its customers - mandatory requirements of pre-consultation hearing / pre-notice consultation before the issuance of the Show Cause Notice complied with or not - violation of principles of natural justice - HELD THAT:- Since the reply of the petitioner is in adequate and is bereft of factual details to explicate that the petitioner had indeed incurred expenses as pure agent on behalf of the customers / clients, the decision of the 2nd respondent in the Impugned Order-in-Original 16-21/2021 vide DIN No.20211059TK0000555CB8 dated 26.10.2021 will not warrant any interference.
However, the fact remains that the petitioner is providing Clearing and Forwarding Services and that of a Goods Transport Agent (GTA) / Goods Transport Operator (GTO).
Therefore, to balance the interest of the petitioner and the respondents and considering the fact that the disputes pertains to the period starting from April 2008 ending with 2017 i.e., 30.06.2017, this Court is inclined to quash the Impugned Order and remits the case back to the respondents to pass a fresh order on merits. However, the petitioner shall deposit a sum of Rs. 50,00,000/- to secure the interest of the revenue.
Conclusion - The Impugned Order is quashed and the case remanded back, allowing the petitioner to address procedural and time-bar issues comprehensively.
Petition disposed off by way of remand.
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