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Showing 461 to 467 of 467 Records
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2025 (1) TMI 7
Refund of unutilized Cenvat credit under Section 142(9)(b) of the CGST Act, 2017 - rejection on the ground that there is no enabling provision under the Excise Act, where refund of closing balance of Cenvat credit can be allowed in cash - HELD THAT:- There is no dispute that the refund claim sought by the appellant is in respect of the amount of Cenvat credit which was already accrued as on 30th June, 2017. The only mistake on the part of the appellant is that due to inadvertent mistake that they could not carry forward part of the amount of Cenvat credit and therefore, for the same they claimed the refund. It is found that even if the appellant could not declare the Cenvat credit in the ST-3 return for the period April 2017 To June 2002 but, subsequently they have revised the ST-3 return wherein the differential amount of Cenvat credit was incorporated and due to this reason the Cenvat credit of Rs. 1,11,37,766/- could not be carried forward as form GST TRAN-1 was already filed prior to revision of the ST-3 return. Only for this reason refund claim of admitted Cenvat credit accrued prior to 30.06.2017 cannot be rejected. The appellant is eligible for refund in terms of section 142 (3) of CGST ACT, 2017.
From the plain reading of the above provision of Section 142 it can be seen that those amount of Cenvat credit which could not be transferred under GST after 01.07.2017, the same is refundable under the existing Act. In the present case due to non mention of part amount of Cenvat Credit in ST-3 return for April–June 2017 same could not be transferred to TRTRAN-1 - the refund cannot be rejected because the amount of Cenvat credit could not be transferred to TRAN-1 under GST.
Reliance can be placed in M/S. GIGAMON SOLUTIONS PVT. LTD. VERSUS COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI [2024 (6) TMI 1111 - CESTAT CHENNAI] where it was held that 'the appellant has paid the tax under the erstwhile law. In the present case, the claim is only for refund and not proceedings for assessment or adjudication. In such a scenario, sub-section (3) of section 142 gets attracted. Rejection of the refund claim is not legally valid and merits to be set aside.'
Conclusion - The appellant is eligible for refund in terms of section 142 (3) of CGST ACT, 2017. Procedural lapses should not defeat substantive rights; specific provisions in the CGST Act override general provisions in the Excise Act. Interest is payable on delayed refunds under Section 11BB of the Excise Act.
Appeal allowed.
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2025 (1) TMI 6
Denial of Cenvat credit availed on the strength of invoices which are dated prior to amendment of Rule 4 vide Notification No. 21/2014-CE (NT) dated 11.07.2014 - As per amended rule, whether time limit of six months from the date of issue of the invoice for taking the credit, can be applied retrospectively to invoices issued before the amendment date - HELD THAT:- As per the facts of the present case though the appellant have availed the Cenvat credit belatedly in the month of August/September-2014, however, all the invoices related to such credit were issued before 11.07.2014. Therefore, in respect of those invoices, the amended Rule 4 vide Notification No. 21/2014-CE (NT) dated 11.07.2014 is not applicable and the credit could not have been denied on the ground of time bar.
In the case of Voss Exotech Automotive Pvt. Ltd. [2018 (3) TMI 1048 - CESTAT MUMBAI] the Mumbai Tribunal has held that 'the Notification No. 21/2014-S.T. (N.T.), dated 11-7-2014 should be applicable to those cases wherein the invoices were issued on or after 11-7-2014 for the reason that notification was not applicable to the invoices issued prior to the date of notification therefore at the time of issuance of the invoices no time limit was prescribed. Therefore in respect of those invoices the limitation of six months cannot be made applicable. Moreover for taking credit there is no statutory records prescribed the assessee’s records were considered as account for Cenvat credit. Even though the credit was not entered in so-called RG-23A, Part-II, but it is recorded in the books of accounts, it will be considered as Cenvat credit was recorded. On this ground also it can be said that there is no delay in taking the credit. As per my above discussion, the appellant is entitled for the Cenvat credit hence the impugned order is set aside.'
Conclusion - The time limit prescribed under Notification No. 21/2014-CE (NT) dated 11.07.2014 has no application in respect of the invoices issued prior to date of the said amendment in Rule 4 of Cenvat Credit Rules, 2004.
The impugned order is not sustainable - Appeal allowed.
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2025 (1) TMI 5
Reversal of Cenvat credit on inputs and input services used in the manufacture of exempted goods, specifically Di-Ammonium Phosphate (DAP), under Rule 6(3)(i) of the Cenvat Credit Rules, 2004 - by-product in the manufacturing process of copper products - exempt goods or not - HELD THAT:- Di-Ammonium Phosphate (DAP) is being manufactured by the appellant by using phosphoric acid and in-house manufacturing of the sulphuric has been obtained by processing sulphuric acid. It is an accepted fact that sulphuric acid is unintended product which emerges during the process of copper concentrate while manufacturing various types of copper products.
This Tribunal in the appellant’s own case, vide final order No. 12425-12427/2023 dated 02.11.2023 reported under [2023 (11) TMI 1070 - CESTAT AHMEDABAD] has held 'it is clear that any input/input services contained in any by- product/waste/refuse, Cenvat Credit cannot be varied or denied. With this statutory clarification demand under Rule 6 in respect of by-product is not applicable. This issue has been considered in various judgments as cited by Learned Counsel. Once it is established that the product in question is by-product then it is settled that in respect of by-product demand under Rule 6 will not sustain. Accordingly, in the present case also, Sulphuric Acid being a by-product, no demand under Rule 6 shall sustain.'
Thus, sulphuric acid which is an unintended by-product, has further been used by the appellant for manufacture of phosphoric acid and the same has further found use in the manufacturing of Di-Ammonium Phosphate (DAP) which is chargeable to 1% rate of Central Excise duty as provided in Notification No. 12/2012-CE dated 17.03.2012 - Since the Di- Ammonium Phosphate (DAP) has been manufactured by utilizing a product which has emerged as unintended by-product, following the various legal pronouncements including the Hon’ble Supreme Court decision in the case of BIRLA CORPORATION LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE [2005 (7) TMI 104 - SUPREME COURT] and in the case of Commissioner vs. Sterling Gelatin [2015 (10) TMI 557 - SC ORDER], it is held that even after the amendment to Rule 6 by Notification No. 6/2015-CE dated 01.03.2015, so far as demand of Cenvat credit pertaining to use of sulphuric acid/phosphoric acid for manufacturing Di-Ammonium Phosphate (DAP) is not sustainable.
Since the impugned order-in- original has not specifically mentioned the use of any input service on which Cenvat credit has been taken by the appellant while manufacturing and clearing Di-Ammonium Phosphate by the appellant and if so, he has to re- calculate the demand of Cenvat credit giving benefit of the fact that appellant is entitled not to reverse Cenvat credit on the inputs which have been availed on the copper concentrate while manufacturing various copper products.
Conclusion - Sulphuric Acid being a by-product, no demand under Rule 6 shall sustain.
The Adjudicating Authority has to segregate the demand of Cenvat credit into two segments, one which has been demanded on the primary inputs namely copper concentrate etc. and second, the demand on the use of common input and input services which have gone into manufacture of exempted DAP - matter remanded for fresh adjudication on the above terms - The appeals are allowed by way of remand.
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2025 (1) TMI 4
Authority and jurisdiction of respondent to issue show cause notices after entering into a One Time Settlement (OTS) with the petitioner - no allegation of any fraud being committed by the petitioner - HELD THAT:- The fact remains that very purpose of bringing such OTS scheme is to encourage the tax payers to settle their disputes. Interestingly, in the OTS scheme issued by the Government of Telangana, the entire exercise of determination of tax/penalty amount was in the hands of the respondents and for that purpose, a committee consisting of senior officers was constituted. After having undertaken the entire exercise of determination of amount, a proposal was given by the respondents to the petitioner, which was duly accepted. The most important thing is that between the date of acceptance dated 22.06.2022 and actual recording of OTS on 17.08.2022, the Audit Officer by communication dated 11.07.2022 informed the respondents about the alleged short levy of tax/penalty. Despite having full knowledge about it, the respondent entered into OTS. There is no allegation against the petitioner in the show cause notice that petitioner had committed any fraud.
After having entered into OTS, it was not open for the respondents to issue the impugned show cause notice. Curtains were finally drawn by the respondents by entering into OTS. If we permit the respondents to undertake aforesaid exercise of issuance of show cause notices even after entering into settlement, the very purpose of such scheme will vanish in thin air. This practice will certainly discourage the tax payers to enter into settlement. The settlement should draw the curtains for all times to come otherwise the very meaning of OTS will pale into insignificance.
Conclusion - The finality of settlements under OTS schemes should be respected, and reopening is not permissible without statutory authority or allegations of fraud.
The impugned show cause notices cannot sustain judicial scrutiny - Petition allowed.
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2025 (1) TMI 3
Locus of Respondent organization to approach the National Commission - jurisdiction of National Consumer Disputes Redressal Commission to interfere with banking operations, which is the exclusive statutory domain of the Reserve Bank of India - jurisdiction to fix a maximum ceiling rate of interest to be charged by banks from their credit card holders for their failure to make full payment on the due date - interference with the contract executed between the parties or not - charging rate of interests by banks in the manner as advised by Reserve Bank of India vide its master circulars & notifications being independent of a standard ceiling rate prescribed by the Reserve Bank of India, is unfair trade practice or not.
Whether the Respondent organization has the locus to approach the National Commission? - HELD THAT:- Section 12(1)(b) also permits a “any recognised consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not” to file a complaint, in terms of the procedure prescribed under section 13 of the Act. The Respondent nos. 1 and 2 herein, have taken refuge under this provision claiming themselves to be a voluntary consumer association, to approach the National Commission.
Since, this Court has held that the requirement of Order I Rule 8, prescribed in Section 13(6) is to be read into section 12(1) of the 1986 Act RAMESHWAR PRASAD SHRIVASTAVA ORS. AND AVINASH GAUR AND ORS. VERSUS DWARKADHIS PROJECTS PVT. LTD. AND ORS. [2018 (12) TMI 2007 - SUPREME COURT], the requirement of obtaining prior permission from the Commission, for any consumer to act in a representative capacity, can in no way be dispensed with.
The consumer Complainant fails to disclose any deficiency in service or violation and is in fact a public interest litigation in guise of a purported consumer dispute. We also agree with the contention of the Appellants, that the Respondents had approached the National Commission at the behest of the Respondent no. 3, a credit card holder with Citibank, purportedly claiming an amount of Rs. 90,000/- against excess interest charged by the bank, which is barred by the pecuniary jurisdiction of the Commission.
A direction by the National Commission or any other Court, must be based on material or evidence and not on surmises, and bald averments made by complainants. Any such directions issued otherwise is unsustainable. It is unable to subscribe to the view adopted by the National Commission, that ‘any complaint under the Consumer Protection Act, 1986 to curb unfair trade practice(s) adopted by the banks is maintainable’.
Whether the National Consumer Disputes Redressal Commission, has the jurisdiction to interfere with banking operations, which is the exclusive statutory domain of the Reserve Bank of India? - Whether the National Consumer Disputes Redressal Commission had the jurisdiction to fix a maximum ceiling rate of interest to be charged by banks from their credit card holders for their failure to make full payment on the due date, at the behest of the Reserve Bank of India & unilaterally direct banks/non-banking financial institutions to charge rates of interest not beyond the 30% p.a., in absence of an instruction/directive of the Reserve Bank of India? - HELD THAT:- The National Commission has assumed jurisdiction and expertise over the Reserve Bank of India, whilst observing that a ceiling on the rates of interest, is the purported solution to the alleged exploitation of credit card holders. It has made observations, that are contrary to the legislative intent of Section 21A of the Banking Regulation Act, 1949 that provides for a statutory bar on any court/tribunal to re-open transactions, that the rate of interest charged by the banking company in respect of such transaction is excessive - The decision of the National Commission to unilaterally hold that any interest above 30% p.a. is usurious, is in contrary to the legislative intent of section 21A and is an encroachment upon the domain of the Reserve Bank of India.
In the case of Central Bank of India Vs Ravindra & Ors. [2001 (10) TMI 1065 - SUPREME COURT], this Hon’ble Court had decided on the issue, when banks in India were not following a uniform practice, and other banks charged interest with monthly or quarterly rests while others charged with yearly or six-monthly rests. It was held by this Hon’ble Court, that a distinction was drawn between the court’s power to interfere on the promise that the interest charged is excessive under the general law, and the court’s interference on the premise that the interest charged is in contravention of the circulars and directions issued by the Reserve Bank of India. In the former case, it would not be permissible in view of the bar enacted by Section 21A of the Banking Regulation Act, while in the latter case, it would be permissible because of the Reserve Bank of India’s circulars and directions having statutory force under section 21/35A of the Act, having been violated.
The RBI is the prime regulator and the decision-making authority for the economic/financial decisions of the Indian economy, any endeavor by the National Commission or any other Court/Tribunal to decide at the behest of the RBI cannot be termed to be just, fair and equitable - There is also merit in the submission made by the Appellants, that a direction cannot be issued to the Reserve Bank of India, to enact a particular legislation. It is a settled cannon of law that “when an executive authority, exercises a legislative power by way of subordinate legislation pursuant to the delegated authority of a legislature, such executive authority, cannot be asked to enact a law, which he has been empowered to do under the delegated legislative authority.
Whether the Impugned Judgment interferes with the contract executed between the parties? - Whether charging rate of interests by banks in the manner as advised by Reserve Bank of India vide its master circulars & notifications being independent of a standard ceiling rate prescribed by the Reserve Bank of India, constitute an unfair trade practice? - HELD THAT:- It is a well-settled principle that the terms of a contract executed between two parties, are not open to judicial scrutiny unless the same is arbitrary, discriminatory, mala fide or actuated by bias. The courts cannot strike down the terms of a contract, because it feels that some other terms would have been fair, wiser or logical.
In the present context, the pre-conditions of ‘deceptive practice’ and unfair method’ are manifestly absent. The Banks have in no manner made any misrepresentation, to deceive the credit card holders. Upon availing the facility of the credit cards, the customers, are made aware of ‘the most important terms and conditions’, including the rate of interest, that shall be charged by the Banks. Even on merits, the Reserve Bank of India, has made it clear that there exists no material on record, to establish that any bank has acted contrary to the policy directives issued by the RBI - The mere inflation in the rates of interest cannot be construed as a practice, intended to cause loss or injury.
It is correct to say that the National Commission has been duly empowered under the statute to set aside unfair contracts, which may symbolise a single will or are unilaterally dominant or incorporate terms which are unfair and unconscionable. However, the rate of interest, charged by the banks, determined by the financial wisdom & directives issued by the Reserve Bank of India, and is duly communicated to the credit card holders from time to time, cannot be in any manner unconscionable or unilateral. The credit card holders are duly educated and made aware of their privileges and obligations, including timely payment & levying of penalty on delay - the question of directing the RBI to act against any bank does not arise, in the facts and circumstances of the present case and that there is no question of the RBI being directed to impose any cap on the rate of interest, either on the banking sector as a whole, or in respect of any one particular bank, contrary to the provisions contained in the Banking Regulation Act, and the circulars/directions issued thereunder.
Conclusion - The Court emphasized that the RBI is the primary regulator of banking practices, and the National Commission overstepped its jurisdiction by interfering with banking operations and contractual terms. The decision reinforced the RBI's authority in regulating interest rates and banking policies - the National Commission's judgment was set aside - appeal allowed.
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2025 (1) TMI 2
Seeking quashing of Criminal Complaint - Dishonour of Cheque - continuation of legal proceedings commenced by the company in its former name by its new name - inherent jurisdiction under Section 482 of the CrPC for quashing the proceedings.
Continuation of legal proceedings commenced by the company in its former name by its new name - HELD THAT:- It is relevant to note that the inherent jurisdiction of the Court under Section 482 of the CrPC ought to be exercised sparingly especially when the matter is at the stage of issuance of summons as the same has the effect of scuttling the proceedings without the parties having an opportunity to adduce the relevant evidence. The Hon’ble Apex Court, in the case of Rathish Babu Unnikrishnan v. State (NCT of Delhi) [2022 (4) TMI 1434 - SUPREME COURT], adverting to a catena of judgments, had underscored the parameters for exercising inherent jurisdiction to quash the proceedings at the stage of the summoning order.
In the present case, apart from raising an argument in relation to the cheques in dispute being given as security, the petitioners have sought to challenge the complaints essentially on the ground that the same are not maintainable by virtue of the same being filed in the old name of the complainant company - It is argued that even though the name of the complainant company was changed on 28.05.2018, however, the complaints were subsequently filed in the erstwhile name in June, 2018.
In the case of MUNISH KUMAR GUPTA VERSUS M/S MITTAL TRADING COMPANY [2024 (4) TMI 1212 - SC ORDER], the Hon’ble Apex Court had set aside the order whereby the concerned High Court had permitted the complainant to amend the date in the complaint by observing that if such amendment was not permitted, the same will be fatal to the case of the complainant. In the said case, the complainant therein had claimed that the error in the date of the cheque in dispute in the evidence as well as the complaint was merely typographical in nature. The Hon’ble Apex Court observed that the date of the cheque is a relevant aspect as the same was instrumental in determining whether the issue of notice was within the time frame as provided under the NI Act and as to whether there was sufficient balance in the account of the issuer on the date. In view of the same, it was held that the amendment as sought for was not justified.
While a bald averment is made that grave prejudice would be caused to the petitioners if the substitution of the new name of the complainant company is allowed, however, in the opinion of this Court, mere use of the old name of the complainant company is not a relevant aspect as the same is not likely to have any effect on the merits of the case. No cogent argument is made in relation to how the change in name will affect the case against the petitioners or as to how their defence would be hampered by such a change - It is also relevant to note that the mere change in name does not alter or affect the rights of the company. Furthermore, the agreement between the complainant company and the accused company is not disputed. The change of the name of the complainant company is merely formal in nature and the same can be easily cured. The same also has no effect on the original nature of the complaint.
Application of inherent jurisdiction under Section 482 of the CrPC for quashing the proceedings - HELD THAT:- It is incumbent on this Court to exercise its inherent jurisdiction to ensure substantial justice. In light of the same, considering that the petitioners have failed to show as to how they will be gravely prejudiced by a mere correction in the name of the company, quashing of the criminal proceedings merely on account of a technical error at this junction, when the signatures on the cheques in dispute have not been disputed and the claim of the complainant company has not been adjudicated on merits, would be unmerited and it will frustrate the ends of justice - considering that the complaints have been pending since the year 2018, this Court considers it apposite to request the learned Trial Court to expedite the proceedings.
The present petitions are dismissed.
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2025 (1) TMI 1
Dishonour of Cheque - compounding of offence after the judgment of conviction and order of sentence have been passed - petitioner compromised the matter with the respondent (complainant) - HELD THAT:- Having taken note of the fact that the petitioner - accused and the complainant-respondent have settled the matter and the complainant has no objection in compounding the offence, therefore, this Court sees no impediment in accepting the prayer made on behalf of the accusedpetitioner for compounding of offence while exercising power under Section 147 of the Act as well as in terms of guidelines issued by the Hon’ble Apex Court in Damodar S. Prabhu V. Sayed Babalal H. [2010 (5) TMI 380 - SUPREME COURT], wherein the Hon’ble Apex Court has held 'since Section 147 was inserted by way of an amendment to a special law, the same will override the effect of Section 320(9) of the CrPC, especially keeping in mind that Section 147 carries a non obstante clause.'
In K. Subramanian Vs. R. Rajathi [2009 (11) TMI 1013 - SUPREME COURT], it has been held by the Hon’ble Apex Court that in view of the provisions contained in Section 147 of the Act read with Section 320 of Cr.P.C., compromise arrived at can be accepted even after recording of the judgment of conviction.
Since, in the instant case, the petitioner-accused after being convicted under Section 138 of the Act, has compromised the matter with the complainant, prayer for compounding the offence can be accepted in terms of the aforesaid judgments passed by the Hon’ble Apex Court.
Conclusion - In view of the compromise arrived at between the parties, the petitioner should be permitted to compound the offence committed by him under Section 138 of the Code.
The present matter is ordered to be compounded and the impugned judgment of conviction and order of sentence passed by learned Chief Judicial Magistrate, Shimla, District Shimla, H.P, which was affirmed in appeal by learned Additional Sessions Judge (CBI Court), Shimla, District Shimla, H.P., are quashed and set-aside and the petitioner-accused is acquitted of the charge framed against him under Section 138 of the Act - Undisputedly, the total amount of the cheques is Rs.15,000/-, however, the learned counsel for the petitioner submitted that the petitioner is a poor person and the imposition of compounding fee may be reduced.
Petition disposed off.
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9911796707
