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Showing 121 to 140 of 1721 Records
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2024 (9) TMI 1603
Seeking withdrawal of SLP - HELD THAT:- The Directorate of Enforcement does not want to press these petitions, and he may be permitted to withdraw the same.
The Special Leave Petitions are, accordingly, dismissed as withdrawn.
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2024 (9) TMI 1602
Money Laundering - proceeds of crime - Legality of petitioner's arrest - illegal mining - HELD THAT:- A bare perusal of the “grounds of arrest” as well as “reasons to believe” reveals that the entire case of E.D is based on “illegal mining” by fabricating e-rawana bills. In first eight FIRs, petitioner was not an accused. In 9th FIR also, he has not been named; rather E.D has tried to implicate him on the premise that he is the Director of DSPL, but there is no material to substantiate that petitioner is either the Director of said company; or a person in-charge of the affairs of the company; rather the information obtained from the website of Ministry of Corporate Affairs clearly indicates that petitioner ceased to be the Director of DSPL w.e.f. 07.11.2013. It is specifically observed that E.D has not placed on record any material to the contrary in this regard.
Although, E.D tried to justify the arrest on the premise that petitioner is a beneficiary of the syndicate running “illegal mining” as well as of G.M. Co., but again there is no material to substantiate that petitioner is having any relationship and/or concern as Director, Promoter or share-holder of the so-called G.M. Co. Even, the E.D has failed to show that such a company is in existence and/or registered with the Registrar of Companies; or there is any such legal entity in operation under any law?
As on today, prima facie, there is no material with the E.D to substantiate that petitioner has directly or indirectly, indulged in any process or activity connected with the proceeds of crime, in any manner whatsoever and/or projected the same as untainted by any means; hence there was/is no reason to believe; nor any ground of arrest is made out against him on the premise that petitioner is guilty of an offence under the PMLA.
The petitioner has not been found involved in any illegal activity, in any manner whatsoever, attracting the offence of money laundering under PMLA - there is no option, except to allow the petition - the petitioner be released forthwith, if not required in any other case - Petition allowed.
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2024 (9) TMI 1601
Levy of service tax - Business Auxiliary Services or not - Software Activation Charges - whole case has been made by the Department on the basis of balance sheet which shows a separate income under head software activation charges - time limitation - low tax effect by bearing in mind Circular dated 06.08.2024 issued by Ministry of Finance, Government of India - it was held by CESTAT that 'the amount collected by the Appellant from their customers against as “activation charges” of equipment/ software features are covered under the activity of sales of goods and not covered under the provisions of “Service” as defined in the Act.'
HELD THAT:- The civil appeal is dismissed owing to low tax effect.
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2024 (9) TMI 1600
Interpretation of N/N. 30/2012-S.T. dated 20.06.2012 and N/N. 45/2012-S.T. dated 07.08.2012 - reverse charge mechanism with regard to the services provided by a director of a company to the body corporate or the said company - service tax on rent paid by a company to its directors who own the leased building - HELD THAT:- As per undisputed facts of the case directors who own the immovable property has given on rent to the appellant company and the appellant company has paid the rent for the rental premises to the director. This activity is nothing to do with the relationship of the directors with the company as director. As per the entry 5A of the notification dated 07.08.2012, it is clear that only those services which are provided by the director to the company in the capacity of directors are covered under service tax liability under reverse charge mechanism on the service recipient. For example the director is paid director fees, seating fees etc. the same will be covered under reverse charge mechanism and the company is liable to pay the service tax whereas in the present case there is no such payment involved. The payment which was sought to be taxed by the Revenue is rent of immovable property which is in individual capacity and not in the capacity of the director.
This issue is no longer res-integra as the same has been decided by this Tribunal in M/S CORDS CABLE INDUSTRIES LIMITED VERSUS COMMISSIONER, CENTRAL EXCISE, JAIPUR (RAJASTHAN) [2023 (4) TMI 441 - CESTAT NEW DELHI] wherein it was held that 'The premises which were let out to the appellant are owned by Naveen Sawhney and D.K. Prashar in their individual capacity and it is not the case of the department that the properties were owned by them as Directors of the appellant. In such a situation, rent was collected by them in their individual capacity and merely because they also happen to be the Directors of the appellant would not mean that they had collected rent as Directors of the appellant.'
From the above decision of the Principal Bench of this Tribunal, the issue and facts involved is absolutely identical to the facts of the present case. Therefore the ratio of the above decision is directly applicable to the present case.
The issue is no longer res-integra - the impugned order is set aside. The appeal is allowed.
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2024 (9) TMI 1599
Confirmation of demand of service tax, interest and imposition of penalties - classification of service under the category of Business Auxiliary Service, Erection Commissioning and Installation service and Management Maintenance or Repair service - services provided during the period 2006-07 to 2010-2011 - Circular No. 12305/2010-ST dated 24.05.2010 - HELD THAT:- The appellants are engaged in providing various services which they claim are in the nature of services which are exempted in terms of Circular No. 12305/2010 dated 24.05.2010 and Notification No. 11/2010 dated 27.10.2010. The benefit of the said circular and Notification as essentially being denied by the Commissioner (Appeals) on the ground that the appellants have failed to produce any evidence that the services provided by them are in the nature of the services covered by the said Circular and the Notification.
It is apparent that the records of the appellants were taken away by the Revenue and therefore, they do not have access to all the documents. However a copy of the documents (almost 150 pages) has been enclosed along with the statements made by the appellant before Tribunal. In this background, we are inclined to set aside the impugned order and remand the matter back to the original adjudicating authority to re-examine the matter in light of the documents presented by the appellant, (which were probably available with the original adjudicating authority) and decide the matter fresh in terms of the aforementioned Circular and Notification.
The appeal is allowed by way of remand.
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2024 (9) TMI 1598
100% Export Oriented Undertaking - Database Usage Charges - Legal Services - Salary - Reimbursement of Expenditure - Quantification Error - Extended Period of Limitation.
Database Usage Charges - main argument of the appellant in this case is that though they have made the provision towards the payment to be made towards the Database Usage charges to the overseas service provider, in view of the prevailing global financial crisis, based on a mutual agreement, the service provider waived the consideration to be paid to them - HELD THAT:- In this case, mere submission by the appellant that Data Usage charges have not been paid, would not be sufficient to take it on the face value. It is to be seen as to whether enough evidence has been produced / adduced or not. The documentary evidence brought in by the appellant, clearly proves beyond doubt that the appellant never paid the Data Usage Charges to the overseas service provider. The Department is in error in taking the Service value of USD 2490000 [Rs.11,17,88,550] towards the Data Usage charges to confirm the Service Taxdemand of Rs.1,15,14,221. Therefore, the demand to this extent set aside on merits, and the appeal is allowed.
Demand of Rs.5,65,983 on account of the Legal Services utilized by the appellants - HELD THAT:- The Legal Services have been brought under Service Tax bracket vide Notification No.30/2012 ST dated 20.6.2012 [effective from 1.7.2012], wherein as per Sl No.5 of the Table, the Service Tax in respect of the Services rendered by individual advocate or firm of advocates, the Service Tax is required to be paid by the recipient of service.Thus this service became taxable for the first time with effect from 1.7.2012. Though the Service Tax to be paid on Reverse Charge basis in respect of import of services was already been place with effect from 18.04.2006 in view of Section 66A, the service in question has to be first of all be taxable service per se so as to attract the provisions of Section 66A. In this case since Legal services were not under Service Tax bracket till 1.7.2012, Section 66A provisions cannot be directly applied to demand Service Tax payment. Therefore, the confirmed demand on account of Legal services amounting to Rs.5,65,983, is legally not sustainable and set aside the same. The appeal is allowed to this extent.
Demand of Rs.2,14,085 being the Service Tax element towards the outflow of foreign exchange on account of Salary, as has been certified by State Bank of India - HELD THAT:- It is found that this would not call of any Service Tax payment. Hence, the confirmed demand of Rs.2,14,085 is set aside and the appeal allowed to this extent.
Reimbursement of Expenditure - appellant claims that the foreign exchange outflow is on account of expenses incurred by the overseas parties and the same has been reimbursed to them - HELD THAT:- Appellant have submitted the Certificate issued by SBI to this effect. They have also enclosed more than 160 documents like the main invoice, the connected expenses details like hotel bills, travel bills etc., to fortify their arguments. It would not be possible for the Tribunal to go through these documents to come to a conclusion as to whether they are in the nature of reimbursement or not. However, this demand of Rs.4,49,629 set aside.
Quantification Error - HELD THAT:- As has been seen, non-bifurcation of the demand under the individual heads has resulted in making and confirming the demand for Legal Services and Salaries which did not attract the Service Tax at that point of time. The demand of Rs.4,49,629 in respect of reimbursement is being set aside, on the ground that this was not part of classification mentioned in the Show Cause Notice - In respect of the small confirmed amount of Rs.2784, on the same ground that no specific classification has been brought in, the same is set aside and the appeal is allowed to this extent.
Time Limitation - HELD THAT:- The Revenue has not brought in any cogent sustainable evidence to effect that the appellant has suppressed any facts with a wilful intent to evade payment of Service Tax on Reverse Charge basis. Therefore, the confirmed demand for the extended period is set aside on the ground of time bar also.
The impugned order is set aside - appeal allowed.
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2024 (9) TMI 1597
Irregular Availment of Composition scheme - short payment of tax due to discharge of tax at the rate prevailing on the date of provision of service and raising of invoice as against the rate prevailing on the date of receipt of the taxable value - short payment of tax by following realization basis as against the accrual basis prescribed under the POT Rules - short-payment of tax based on an improper comparison of select GL Codes - nonmaintenance of separate records with respect to input services user for dutiable and exempt output services - Irregular availment of pro-rata cenvat credit attributable to bad debts written off.
Irregular Availment of Composition scheme - HELD THAT:- There is no dispute regarding the eligibility of the appellant to avail the composition scheme. It is observed that there is no specific procedure prescribed Rule 3(3) of the Composition Rule for exercising the option to avail the scheme. In the absence of such formal requirement in wring to avail the scheme, the payment made by the appellant under the scheme is construed as deemed exercise of the option under the Scheme. This issue has been settled by the decision of the Hon’ble Calcutta High Court in M/S. LARSEN & TOUBRO LIMITED VERSUS ASSISTANT COMMISSIONER, SERVICE TAX COMMISSIONERATE, DIVISION-III, KOLKATA & OTHERS [2022 (12) TMI 523 - CALCUTTA HIGH COURT] where it was held that 'no format has been prescribed for making/exercising an option nor has it been specified as to whom the option must be addressed, the fact of the paying service at composition rate in the return filed by the service provider is enough indication to show that they have opted for payment under the works contract composition scheme.' - The appellant has rightly paid service tax under the Works Contract Composition Scheme and hence the demand confirmed under this category is not sustainable.
Demand of service tax of Rs.56,172/- confirmed in the impugned order on the allegation that the Appellant should have discharged service tax @4.12% prevalent on the date of receipt of the taxable value as against the rate of 2.06% prevalent at the time of rendering of the service - HELD THAT:- The taxable event in this case is the rendition of service. Hence, service tax is payable at the rate applicable at the time of rendition of the services. It is observed that this view has been held by the Hon’ble High Court, Delhi in the case of VISTAR CONSTRUCTION (P) LTD/PIYARE LAL HARI SINGH BUILDERS PVT LTD VERSUS UNION OF INDIA AND ORS [2013 (2) TMI 52 - DELHI HIGH COURT] where it was held that 'the rate of tax applicable on the date on which the services were rendered would be the one that would be relevant and not the rate of tax on the date on which payments were received. The instruction dated 28-4-2006 which is contrary to the law declared by the Supreme Court is clearly invalid.'
Demand of Rs.18,95,028/- confirmed in the impugned order based on the difference between ‘gross amount billed’ vis-à-vis ‘gross amount realised’ as reflected in the returns filed - HELD THAT:- The adjudicating authority has not given any finding to the contrary of the reconciliation report submitted by the appellant. As the department has not produced any other evidence to substantiate short payment of further demand on this count, it is held that only this amount of Rs.18,128/- needs to be confirmed on this count. Accordingly, the demand of service tax of Rs.18,128/- along with interest, confirmed under the category of 'Business Auxiliary Service' and the remaining demand confirmed under this category in the impugned order set aside. Since this amount has already been paid by the appellant from their Cenvat account on 31 May 2013 along with interest, the payment of service tax and interest is appropriated against the demand confirmed in this order. As the demand occurred only due to the reconciliation report submitted by the Chartered Accountant, there is no suppression of fact established in this case. Accordingly, no penalty imposable on the appellant on this demand confirmed.
Short-payment of service tax of Rs.3,53,30,714/- based on the comparison of select GL Codes appearing in the Trial Balance of the Appellant vis-à-vis the income reflected in the ST 3 returns - HELD THAT:- It is observed that the appellant submitted a detailed reconciliation report duly certified by a Chartered Accountant, along with the reply to the show cause notice. As per this report, there was no differences in the income reflected in the trial balance and the income reflected in the ST 3 returns. However, it is observed that the adjudicating authority has not given any finding on this report in the impugned order - the demand confirmed on this count in the impugned order is not sustainable and accordingly, the same is set aside.
Violation of Rule 6 of the CCR on account of non-maintenance of separate records with respect to input services user for dutiable and exempt output services - HELD THAT:- The appellant have maintained Contract-wise/project-wise separate records in its accounting software (SAP). In this method of accounting, each contract/project was shown as a separate profit centre. Therefore, separate records with respect to exempt and taxable outward supply were maintained by the Appellant in compliance with Rule 6 of the Cenvat Credit Rules. Thus, the appellant is not liable to pay an amount equivalent to 5/8% of the value of exempted goods, as demanded in the impugned order - reliance placed on the judgement of the Tribunal in the case of Essar Projects India Limited Vs. CCE [2011 (2) TMI 187 - CESTAT, AHMEDABAD] whereby it was held that the provision of Rule 6(3) does not apply if the Cenvat records are maintained project-wise/contract-wise - the demand of reversal of Cenvat credit confirmed in the impugned order on this count is not sustainable.
Irregular availment of pro-rata cenvat credit attributable to bad debts written off - HELD THAT:- There is no provision under the Cenvat Credit Rules, 2004 or in the Finance Act, 1994 which requires for reversal of Cenvat credit for the services provided for which no consideration has been received by an assessee - the demand confirmed on this count is not sustainable.
Invocation of extended period to demand service tax - Penalty - HELD THAT:- There is no suppression of facts with intention to evade payment of tax established in this case. The appellant has been filing returns regularly disclosing all information to the department. There were multiple audit conducted on the appellant's records. Also, it is observed that the entire demand has been raised based on their profit and loss account and balance sheet. Thus, the demands confirmed in the impugned order by invoking extended period of limitation is not sustainable on the ground of limitation. For the same reason, the penalty imposed on the appellant is not sustainable.
Appeal disposed off.
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2024 (9) TMI 1596
Interpretation of N/N. 33/2012-ST for exemption of Service Tax on rent of immovable property - whether rent amount for the entire year is Rs. 6,57,000/- which is much below the threshold limit of Rs. 10,00,000/- per annum the same is exempted under N/N. 33/2012-ST dated 20.06.2012? - HELD THAT:- In the present case the appellant are not output Service provider however, they have paid Service Tax on Reverse Charge basis in respect of certain service such as GTA, security Service, insurance service transportation of goods by road and security/detective agency service. This Service Tax was paid under Section 68 (2) of the Finance Act, 1994 read with Service Tax Rules, 1994 therefore the value of these services cannot be clubbed with the Service of renting of immovable property service. As regard the condition specified under proviso Clause (ii) of the notification the appellant have not availed any Cenvat Credit for providing service of renting of immovable property service. Even though they have taken the credit on the Service Tax paid on Reverse Charge basis that is not attributed to the provisions of service under renting. As per the plain reading of Clause (ii) Cenvat Credit is barred in order to avail to exemption notification only in respect of the output service on which the exemption notification is availed.
In the present case there is no service on which the Cenvat Credit was availed in providing the renting of immovable property service therefore the condition mentioned at clause (ii) of the notification is not relevant. Therefore the total amount of rent that is Rs. 6,57,000/- being less than the threshold exemption limit of 10,00,000 / - P. A. is covered under exemption Notification No. 33 / 2012 - ST dated 20. 06. 2012.
The demand is not sustainable - The impugned order is set aside - appeal is allowed.
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2024 (9) TMI 1595
Levy of service tax on the commission received from the airlines under the category of “air travel agent services” - rendering of air travel agent services to the airlines or to the sub-agents/customers? - recovery of amount of service tax collected by the appellant from the sub-agents under section 73A(2) of the Finance Act.
Whether the commission received by the appellant from the airlines was inclusive of service tax? - HELD THAT:- The PSA Agreement was signed by the appellant in the year 1994, whereas “air travel agent” services became taxable w.e.f. 01.07.1997. Thus, the PSA Agreement could not have conceived of any service tax on “air travel agent” service. This apart, unless an amount has been specifically recovered as tax, the phrases such as “full compensation” or “inclusive of all taxes” would not automatically mean that tax has been recovered. “Full compensation” can only mean that the appellant would not claim any amount over and above the amount of commission paid by the airlines for sale of air ticket and other allied services. The appellant has also produced a certificate issued by airlines stating that no service tax was included in the commission paid by them to the appellant. It is, therefore, not possible to accept the contention of the department that the Agreement included service tax also under the remuneration clause of the Agreement.
Whether the appellant rendered air travel agent services to the airlines as contended by the department or the appellant rendered this service to the subagents or customers as contended by the appellant? - HELD THAT:- The commission that was received by the appellant from the airlines was for the services that the appellant was providing to the sub-agents or to the customers and not because the appellant rendered any service to the airlines. In fact, the commission received by the appellant had a direct nexus with the services rendered by the appellant to the sub-agents.
It can be seen from the provision of section 67 of the Finance Act that in respect of air travel agent services, the taxable value is the gross amount charged form the customer excluding airfare, but includes the commission received from the airlines. Hence, in addition to the amount charged from the recipient of service (customer), the provision created a specific inclusion to the extent of airline commission. The requirement of the inclusion clause existed only because the airline was not considered as the service recipient of air travel agent services. If air travel agent services were rendered to airlines, then the commission from airlines would have been taxable as “gross amount charged from the customer” itself.
The travel agent services have been rendered by the appellant to the sub-agents, and not to the airlines and once services are provided by the appellant to subagents, the sub-agents cannot be said to be providing any services to the appellant.
Whether the department is justified in recovering the amount of service tax collected by the appellant from the sub-agents under section 73A(2) of the Finance Act? - HELD THAT:- Section 73A of the Finance Act has carved out two situations which are distinct from each other. Section 73A(1) applies to cases where a person, who is liable to pay tax, has rendered a taxable service to a service recipient, but has collected service tax in excess, which has not been deposited with the government. This means that section 73A(1) mandates the existence of a service provider and a service recipient relationship and tax has been collected in excess of the applicable levy. On the other hand, section 73A(2) deals with a situation where any person, not being a service provider, has collected an amount from another person representing as service tax. This provision applies only to those cases where there is no service provider and service recipient relationship between the person collecting an amount as service tax and the person paying such amount. It is for this reason that sub-section (2) of section 73A has been invoked by the department.
The contention of the appellant is that it rendered services to the sub-agents and not to the member airlines of IATA and so the appellant was entitled to collect service tax from the sub-agents, who were the service recipients. The burden of tax is borne by the service recipient. Once it is established that the sub-agents are the recipient of services rendered by the appellant, there can be no illegality in recovering service tax from the sub-agents. Section 73A(2) of the Finance Act would, therefore, not be applicable.
The impugned order dated 30.05.2018 passed by the adjudicating authority deserves to be set aside and is set aside - Appeal allowed.
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2024 (9) TMI 1594
Levy of service tax - activity of transmission of electricity, erection of towers, etc. - N/N. 11/2010-S.T. dated 27.02.2010 read with N/N. 45/2010-S.T. dated 20.07.2010 - HELD THAT:- As the appellant have already paid the entire amount of Service Tax, along with interest, and 25% of the penalty imposed under Section 78 of the Finance Act, 1994, in these circumstances, the proceedings against the appellants are to be closed. Accordingly, the penalties imposed on the appellant under Section 77 of the Finance Act, 1994 and the co-appellant under Section 78(1) of the Finance Act, 1994 are set aside.
The appeals are allowed.
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2024 (9) TMI 1593
100% EOU - Classification of spent solvent as waste or by-product - basic contention of the department was that the spent solvent emerging during the manufacturing process of bulk drugs is a by-product and not a waste and scrap and therefore, the appellant has wrongly availed the benefit of exemption N/N. 23/2003-CE dated 31.03.2003 - HELD THAT:- The matter is no longer res-integra as the issue has already been decided by Hon’ble Andhra Pradesh High Court in the case of COMMISSIONER OF C. EX., HYDERABAD-I VERSUS AUROBINDO PHARMA LTD. [2010 (10) TMI 175 - ANDHRA PRADESH HIGH COURT] which has also been upheld by the Hon’ble Supreme Court in COMMISSIONER VERSUS AUROBINDO PHARMA LTD. [2011 (5) TMI 925 - SC ORDER], where it was held that 'It has been clearly brought out that the spent solvents had already been utilized in the factory and latter it had undergone further purification for reuse. The excess spent solvents were sold to the outsiders, as it had lost its value and therefore, what was sold was not new goods but only spent solvents which had undergone certain purification process. Such purification process of chemicals has been held to be not a process of manufacture.'
The impugned order-in-appeal is not sustainable in law and therefore set aside - appeal allowed.
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2024 (9) TMI 1592
CENAVT Credit - refund of of accumulated Cenvat Credit - it is alleged that appellant has not received the inputs and has taken the Cenvat Credit as well as the refund on the basis of fake invoices - extended period of limitation - Penalties on the partner and the Manager.
HELD THAT:- On going through the various decisions arising out of the same investigation conducted by the Commissionerate, C.E., Meerut-II, on the basis of which, SCN was issued. Further, it is found that the issuance of SCN is based on assumptions and presumptions and no investigation was made at the end the consigners who have issued the invoices on the basis of which, the appellant had taken the Cenvat Credit.
It is also found that the appellant had produced a number of evidences in respect of all 53 consignments such as copies of toll-receipts evidencing crossing of J&K border and the report of Excise & Taxation Authority, Patiala (Punjab) evidencing the entry of all vehicles carrying consignments at Madhopur Check Post etc., but the same were completely ignored by the Adjudicating Authority to confirm the demand.
This issue is no more res integra and the Tribunal has already decided a number of cases arising out of the same investigation and evidence put forth by Meerut-II, Commissionerate and all the appeals have been allowed by the Tribunal in favour of the assessees.
Extended period of limitation - HELD THAT:- It is found that substantial demand is barred by limitation because the appellants have not concealed any facts from the department and have been regularly filing ER-2 Returns. The copies of all the returns have also been produced on record. The appellants have also produced a number of documentary evidences to show that they had exercised due diligence in following all the prescribed procedures and also declared all requisite information in their ER-2 Returns.
Penalties on the partner and the Manager - HELD THAT:- There is nothing on record to show that they have violated the provisions of Rule 26 of the Central Excise Rules, 2002 because the said rule does not talk about any offending goods, instead it talks about dealing etc with goods which are liable to confiscation; therefore, we hold that penalties under Rule 26 ibid on the partner and manager are incorrect in law.
The impugned order is not sustainable in law and is liable to be set aside - Appeal allowed.
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2024 (9) TMI 1591
Classification of corrugated board - whether corrugated board cleared by the respondent independently without corrugated box is classified under Tariff Item 48191090 and accordingly not eligible for exemption Notification No.04/2006-CE dated 01.03.2006 as claimed by the appellant treating the classification under 48191010 as corrugated cartons, boxes and cases? - HELD THAT:- It can be seen that 481910 covers cartons, boxes and cases, of corrugated paper and paperboard, 48191010 covers boxes, 48191090 is other. However even 48191090 mentioned other but on reading entry under 481910 except boxes all other items such as cartons and cases of corrugated paper and paperboard falls under 48191090. When this be so then even though goods of 48191090are clearly covered under the exemption Notification No.04/2006-CE under entry No.96E. Therefore, firstly it is opined that even if classification suggested by the Revenue under 48191090 is accepted then also the goods covered under that sub heading is covered under exemption.
Even if the corrugated sheet as in the appellant case cleared without having boxes, the same is appropriately classifiable under 48081000. The rate of duty on the goods under 48081000 as well as under 48191010 read with Notification No.04/2006-CE are same during the relevant period and for this reason the adjudicating authority has rightly dropped the demand raised in the show cause notice. The adjudicating authority is agreed to classify the goods in question i.e. corrugated sheet, platecleared without corrugated boxes under 48081000.
There are no infirmity in impugned order. Hence, the impugned order is upheld - Revenue’s appeal is dismissed.
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2024 (9) TMI 1590
Classification of goods - Zero Air - whether the ‘Zero Air’ cleared by the appellant during the period December 2002 to June 2007 is classifiable under Chapter heading 2851 as compressed air attracting NIL rate of duty or classifiable under Chapter heading 2804 attracting 16% duty as confirmed in the impugned order? - HELD THAT:- The process of manufacture of Synthetic Air and Compressed Air are different; however, from the evidences collected by the Department viz. statement of Mr. M. Dhananjay, Manager of M/s. Somu Solvents (P) Ltd. who are engaged in the manufacture of Glycol ether acetates and other solvents. It is stated that they purchased Zero Air from the appellant and categorically stated that the said Zero Air contains 78% of Nitrogen, 20.8% of Oxygen and 1.2% of Argon and they do not use the same as Compressed Air in or in relation testing their manufacture of their finished products, since Compressed Air cannot be used in Gas Chromatograph test; besides, composition of Compressed Air is not of required standard for Gas Chromatograph test. Further it is stated by him that there is no difference between Synthetic Air and Zero Air as both are one and the same. In his statement dated 07.11.2007, Mr. Devendra Kumar, Scientist of M/s. EID Parry (India) Limited, Bangalore has also categorically disclosed that they purchased Zero Air from the appellant and the same is used for Gas Chromatograph test by them, to which Compressed Air cannot be a substitute.
It is found that the clearance of Zero Air classifying the same under Chapter Heading 2851 as Compressed Air itself involved suppression of facts. Therefore, invocation of extended period, in our view, is justified. Besides that, from July 2007, accepting the classification as pointed out by the Revenue subsequent to visit of their factory, the appellant discharged duty for clearance of the said Zero Air classifying the same under Chapter Heading 2804.
There are no merit in the appeal. consequently, the impugned order is upheld and the appeal is rejected.
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2024 (9) TMI 1589
CENVAT Credit - input service - whether post manufacture and clearance from the factory at Limda, Vadodara and enroute to the premises of the OEM, when the tyres are required to be stored in godowns during transit, whether service tax on godown rent as well as security personnel etc. is an eligible input service? - HELD THAT:- From the terms and conditions of the supply and the observations of the Adjudicating Authority, it is absolutely clear that there is no dispute that the sale of goods gets completed only at the buyer’s premises therefore, since the appellant is under obligation to deliver the goods at the customer’s premises, the sale gets completed only after delivery of the goods. In this fact, all the expenses till the delivery of the goods deemed to have been included in the sale value of the excisable goods.
Therefore, for the purpose of Cenvat credit, since the expenses upto the delivery of goods is includible in the excisable goods and excise duty was paid thereon, such services are eligible input service and credit is admissible, as held by this Tribunal in the case of M/S SANGHI INDUSTRIES LTD. VERSUS C.C.E. KUTCH (GANDHIDHAM) [2019 (2) TMI 1488 - CESTAT AHMEDABAD] and ULTRATECH CEMENT LTD. VERSUS COMMISSIONER OF C. EX., BHAVNAGAR [2007 (3) TMI 738 - CESTAT AHMEDABAD].
The impugned orders set aside - appeal allowed.
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2024 (9) TMI 1588
Seeking a decree for specific performance of an agreement to sell - alternative relief of recovery of earnest money and damages - relief of permanent injunction - cause of action arisen to the plaintiff for filing of present suit or not - suit is bad for non-joinder of necessary parties or not - estoppel by own act and conduct from filing the present suit - HELD THAT:- It is trite law that jurisdiction under Article 136 of the Constitution of India should not be exercised unless the findings on facts recorded by the Courts below suffer from perversity or are based on omission to consider vital evidence available on record.
The respondent-plaintiff filed the subject suit with a pertinent assertion that the disputed agreement was executed by the appellant-defendant for sale of his agricultural land admeasuring 30 Kanals and 8 Marlas at the rate of Rs.5,00,000/- per Killa. As per the recital in the agreement, the respondent-plaintiff paid a sum of Rs.16,00,000/- in cash to the appellant-defendant at the time of the execution of the disputed agreement.
It is not in dispute that the stamp papers were not purchased by the appellantdefendant and rather Amarjeet Singh was the person who purchased the same. The document was typed out in Gurmukhi language and the photostat copy thereof is available on record. A visual overview of the disputed agreement would show that it runs into three pages. The signature of the respondent-plaintiff, and the thumb impression of the appellant-defendant are marked only on the last page thereof. The first and second pages of the agreement, do not bear the signature of the respondent-plaintiff or the thumb impression of the appellant-defendant. There exist significant blank spaces at the foot of the first two pages below the transcription typed out on these two pages.
As per the disputed agreement, the appellant-defendant agreed to sell the suit land to the respondent-plaintiff @ Rs. 5,00,000/- per Killa, which was just about half of the market rate of the land at the relevant point of time, as admitted by the respondent-plaintiff. Going by the rate as fixed in the disputed agreement, the total sale consideration would have amounted to approximately, Rs.18,87,000/-. The disputed agreement recites that the appellant-defendant had received earnest money to the tune of Rs.16,00,000/- for the purpose of doing agriculture and to buy cheaper and better land nearby. Thus, a lion’s share of the sale consideration was already paid to the appellant-defendant at the time of the execution of the disputed agreement and the remaining amount was hardly 15% of the total value of the suit land as agreed upon between the parties. Therefore, it does not stand to reason that the respondent-plaintiff being a Police Constable would part with a huge sum of Rs.16,00,000/- towards a transaction to purchase land and thereafter, agree to defer the execution of the sale deed to a date almost 16 months later with the balance amount being a fraction of the total sale consideration.
The circumstances, the evidence of the respondent-plaintiff; the disputed agreement and the plaint clearly indicates that the disputed agreement seems to have been prepared on a blank stamp paper on which, the thumb impressions of the illiterate appellantdefendant had been taken prior to its transcription. The large blank spaces on the first and second pages of the disputed agreement and the absence of thumb impression/signatures of the parties and the attesting witnesses on these two pages, fortifies the conclusion that the disputed agreement was transcribed on one of the blank stamp papers on which the thumb impression of the appellant-defendant had been taken beforehand.
The respondent-plaintiff admitted that he did not seek permission from his department before entering into the agreement for purchase of property having high value. It is not the case of the respondent-plaintiff that he and the appellantdefendant were on such close terms that he would readily agree to give cash loan to the appellant-defendant without any security.
The factors are sufficient for this Court to conclude that the entire case of the respondent-plaintiff regarding the execution of the disputed agreement; the alleged payment of Rs. 16,00,000/- in cash to the appellant-defendant on 7th May, 2007 and the alleged appearance of the respondent-plaintiff in the office of the Sub-Registrar in the purported exercise of getting the sale deed executed in terms of the disputed agreement is nothing but a sheer piece of fraud and concoction - there cannot be any escape from the conclusion that the judgment and decree dated 18th February, 2013 rendered by the trial Court, judgment dated 20th March, 2017 passed by the First Appellate Court and the judgment dated 25th April, 2018 rendered by the High Court suffer from perversity on the face of the record and hence, the same cannot be sustained.
Appeal allowed.
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2024 (9) TMI 1587
Auction sale pertaining to the immovable property - valuation of the property of the society (under liquidation) and the upset price were fixed on the lower side - three bidders had not participated in the auction sale - mala fide could be attributed in respect of the questioned auction sale or not - whether auction purchaser was not a private individual but a body established under the statute, i.e., the Agricultural Produce Market Committee, Rahuri? - HELD THAT:- The appellant was seized of the report of a Government approved valuer who valued the property of the society in excess of ₹4 crore in the year 2013. Since prices of immovable properties seldom decline with passage of time, what was expected of the appellant was to seek interference of the High Court as soon as the auction sale notice dated 12th February, 2016 was published. In its letter dated 2nd March, 2016, the appellant did not object to the valuation. The auction sale notice dated 12th February, 2016 was duly published in the newspapers and did bear reflection of the valuation of the property put up for sale with the upset price, yet, the appellant remained in slumber. It has never been the case of the appellant that it had no notice/knowledge of such notice - It is failed to comprehend as to what prevented the appellant, if at all it was aggrieved by the undervaluation of the property as shown in the notice, to take immediate recourse to available legal remedies to stall the process. The explanation that the appellant was busy in obtaining information after the auction sale was conducted for launching an attack on the process of sale could be correct on facts but by that, precious time was lost.
Law is well-settled that a writ court does not encourage petitions from indolent, tardy and lethargic litigants; the writ court comes to the aid of a litigant who approaches it with promptitude and before accrual of third-party rights - That possession of the property had not been taken by the appellant or that its name was not entered in the revenue records are of no significance having regard to the discernible conduct of the appellant in allowing things to drift to its detriment. Thus, the matters which have settled for long ought not to be unsettled.
The escalation of price, demonstrated by the appellant, is not surprising. The respondent no. 6 did not contest such facts and figures, probably because the High Court was not inclined to interfere and did not call for a sur-rejoinder. But merely because the respondent no.6 is a creature of a statute, that would not clothe it with any immunity and to have a property transferred to it at a throw away price. After all, the appellant’s status has also to be borne in mind. It is not a private bank but a Co-operative Bank, which has been brought into existence with specific objects and purposes in mind. The interest of the appellant, when its outstanding dues recoverable from the society runs into crores of rupees, cannot be brushed aside and deserves due consideration in order to keep the appellant survive in the banking sector.
Thus, it would only be just and fair to invoke powers conferred by Article 142 of the Constitution of India. Invoking such power and with a view to do complete justice between the parties, the respondent no.6 is directed to pay to the appellant a sum of ₹1,05,98,710/- (without interest) towards full and final settlement of the dues of the appellant from the society - appeal disposed off.
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2024 (9) TMI 1586
Scope of powers of the Appellate Court under Section 37 of Arbitration and Conciliation Act, 1996 - whether the Appellate Court was justified in setting aside the award dated 08.11.2012 which had already been confirmed under Section 34 of the Act? - HELD THAT:- Recently a three-Judge Bench in Konkan Railway Corporation Limited v. Chenab Bridge Project Undertaking [2023 (8) TMI 1227 - SUPREME COURT] referring to MMTC Limited [2019 (2) TMI 1085 - SUPREME COURT] held that the scope of jurisdiction under Section 34 and Section 37 of the Act is not like a normal appellate jurisdiction and the courts should not interfere with the arbitral award lightly in a casual and a cavalier manner. The mere possibility of an alternative view on facts or interpretation of the contract does not entitle the courts to reverse the findings of the arbitral tribunal.
The scope of the intervention of the court in arbitral matters is virtually prohibited, if not absolutely barred and that the interference is confined only to the extent envisaged under Section 34 of the Act. The appellate power of Section 37 of the Act is limited within the domain of Section 34 of the Act. It is exercisable only to find out if the court, exercising power under Section 34 of the Act, has acted within its limits as prescribed thereunder or has exceeded or failed to exercise the power so conferred. The Appellate Court has no authority of law to consider the matter in dispute before the arbitral tribunal on merits so as to find out as to whether the decision of the arbitral tribunal is right or wrong upon reappraisal of evidence as if it is sitting in an ordinary court of appeal - The arbitral award is not liable to be interfered unless a case for interference as set out in the earlier part of the decision, is made out. It cannot be disturbed only for the reason that instead of the view taken by the arbitral tribunal, the other view which is also a possible view is a better view according to the appellate court.
In the case at hand, the arbitral award dated 08.11.2012 is based upon evidence and is reasonable. It has not been found to be against public policy of India or the fundamental policy of Indian law or in conflict with the most basic notions of morality and justice. It is not held to be against any substantive provision of law or the Act. Therefore, the award was rightly upheld by the court exercising the powers under Section 34 of the Act. The Appellate Court, as such, could not have set aside the award without recording any finding that the award suffers from any illegality as contained in Section 34 of the Act or that the court had committed error in upholding the same. Merely for the reason that the view of the Appellate Court is a better view than the one taken by the arbitral tribunal, is no ground to set aside the award.
The Appellate Court committed manifest error of law in setting aside the order passed under Section 34 of the Act and consequently the arbitral award dated 08.11.2012 - the impugned judgment and order dated 10.01.2017 passed under Section 37 is hereby set aside and the arbitral award dated 08.11.2012 is restored to be implemented in accordance with law - Appeal allowed.
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2024 (9) TMI 1585
Requirement of GST registration for a bidder in respect of the concerned NIT - Cancellation of bids of petitioner - While, as per the petitioners, such registration is not required and could not be insisted upon, the stand of the Corporation is that such registration is mandatory - HELD THAT:- Law is well settled that in matters of tender, the role of the Court should be restricted and unless the impugned action is palpably unreasonable or vitiated by mala fide, interference is to be avoided as it causes delay which has cascading effect on the public interest.
From the documents annexed to the petition, the registered offices of the petitioners appear to be in various locations in the State of West Bengal. It is not understood as to why all the 9 (nine) petitioners could have a particular address in the State of Assam. The address is also apparently wholly vague.
This Court has noticed that even the affidavit accompanying the writ petition is not in accordance with law. The deponent claims to be the Director of the petitioner no. 1 and the authorized signatory of the petitioner’s Company. However, there is no statement that the deponent has been authorized by the other petitioners. Though certain certificates have been annexed regarding such authorization, in absence of a statement in the affidavit, the same would not be sufficient. It is needles to state that in a writ petition, the affidavit is of paramount importance as there is no further scope of adducing evidence or cross-examination.
Apart from the aspect of lacking in merits in the instant writ petition, the conduct of the petitioners in approaching a Court of Equity is not above board.
The writ petition stands dismissed.
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2024 (9) TMI 1584
Seeking grant of bail - creation of fake firms for availing and utilizing the ITC - offence u/s 132(1)(b), 132(1)(c), and 132(5) of the CGST Act, 2017 - HELD THAT:- From perusal of the complaint and also the prosecution report filed in this case, it is found that the allegations made against the petitioner are based on the statement of witnesses. In regard to creating the fake firms, availing and utilizing the ITC to the tune of Rs.54.33 crore, no documentary evidence has been adduced on behalf of the prosecution in support of the allegations made in the complaint and prosecution report as well against the petitioner. Although, on behalf of the prosecution in Annexure-B of counter affidavit in list of documents/ RUD is given, wherein at Sr. No.37 i.e. RUD-37, details summaries of GSTR-3B of fake firms is mentioned; yet any document relied upon has not been made annexure in proof of same. The petitioner has been languishing in jail since 25.06.2024 and the offence alleged against the petitioner is punishable for five years.
Taking into consideration that the trial of this case is not likely to be concluded in near future and also the fact that the prosecution has not shown any apprehension of tampering the evidence or any flight risk of the petitioner - the bail application is allowed.
Let the petitioner be released on bail on furnishing bail bond of Rs.1,00,000/-(Rupees One Lakh) with two sureties of the like amount to the satisfaction of the court concerned in aforesaid case with fulfilment of conditions imposed - bail application allowed.
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