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Showing 181 to 200 of 412 Records
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2025 (1) TMI 232
Violation of conditions of the exemption Notification No. 146/94-Cus by National Rifle Association of India (appellant) - sale of imported arms and ammunition to State Rifle Associations and District Clubs instead of using them directly for national or international competitions - confiscation - interest - penalty.
Violation of conditions of the exemption Notification No. 146/94-Cus by National Rifle Association of India (appellant) - HELD THAT:- A plain reading of the notification nowhere shows that there is any 'Actual User' condition. All that is stated is that the goods should be used for national or international championships or competitions. The notification does not say that the importer itself must use them for the purpose. Evidently, when a National Sports Federation imports goods, it does not itself conduct all the championships and competitions directly. It will work through its constituent State and District bodies. There is nothing in the notification which even remotely suggests that such use is not acceptable. There is no finding in the impugned order that they have not been used for the purpose, but there is only a finding that they were not used by the appellant itself. It would have been a different case if the appellant had sold the imported goods in the market or to individuals. The use of the arms and ammunition in such a case could have been doubted. To accept the Commissioner's reasoning one would have to read in the notification after the words 'use', the words 'by the importer' which cannot be permitted.
Confiscation - HELD THAT:- There is no violation of the exemption Notification No. 146/94-Cus by the appellant. The finding that the imported goods were liable to confiscation needs to be set aside.
Demand of duty and interest - HELD THAT:- The basis of the demand of duty is also that the appellant had violated the conditions of the Notification No. 146/94-Cus which have been found to be not correct. Consequently, the demand of duty and interest need to be set aside.
Penalty under section 114A - HELD THAT:- Penalty under section 114A of the Customs Act can imposed if duty is not paid or short paid by reason of fraud, collusion or wilful misstatement. Since it has been found that the demand of duty is not sustainable, penalty under section 114A also needs to be set aside.
Conclusion - There is no 'Actual User' condition" in the notification, and the goods were used for the intended purpose, thus no violation occurred.
The impugned order set aside - appeal allowed.
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2025 (1) TMI 231
Redemption fine and penalty - compliance with the Legal Metrology (Packaged Commodities) Rules, 2011 - Applicability of Sections 111(d) and 112(a) of the Customs Act, 1962 - HELD THAT:- The appellant has not complied with the labelling requirements of the Legal metrology (Packaged Commodities) Rules, 2011. There was a failure on the part of the appellant in not producing the Registration Certificate from the Legal Metrology Department when the imported goods landed. Thus, appellant contravened the provisions of Foreign Trade Policy 2009--2014. This contravention automatically entails the confiscability of the goods under Section 111 (d) of the Customs Act, 1962 as it is an ‘improper’, hence the appellant is also liable for penal action under Section 112 (a) of the Act. The Ld. Appellate Authority has also observed that it was only a procedural delay on the part of the appellant as the Registration Certificate was able to be obtained and produced later on i.e., after the arrival of the goods.
Having regard to the facts and circumstances of this case as the appellant had applied for registration but could not get the Registration Certificate in time, the ends of justice would meet if redemption fine imposed is further reduced to Rs.30,000/- and also penalty imposed under Section 112 (a) is reduced to Rs.5,000/-.
Conclusion - It was only a procedural delay on the part of the appellant as the Registration Certificate was able to be obtained and produced later on i.e., after the arrival of the goods.
The appeal is partly allowed.
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2025 (1) TMI 230
Jurisdiction of High Court to transfer the Company Petition to the National Company Law Tribunal (NCLT) for initiating the Corporate Insolvency Resolution Process (CIRP) under the Insolvency and Bankruptcy Code (IBC) 2016 - winding-up proceedings makes it appropriate or feasible to transfer the case to the NCLT or not - HELD THAT:- This Court passed the winding up order on 21.09.2015 and the Liquidator was appointed. Since, nothing substantial could be achieved towards liquidation of the available assets of debtor company, this Court on the suggestions of stake holders ordered a meeting of Department of State Excise, official Liquidator and Bank of India (lead bank for consortium of creditors). Eventually, the creditors arrived at consensus and this Court passed an order dated 02.08.2019 authorizing Excise and Taxation Department of the State to conduct sale proceedings on the assets of debtor company.
In ACTION ISPAT AND POWER PVT. LTD. VERSUS SHYAM METALICS AND ENERGY LTD. [2020 (12) TMI 535 - SUPREME COURT], the power of Company Court to transfer the matters before it dealing with winding up of the companies to NCLT under Section 434(1) (c) of Companies Act, 2013.
This Court is having the jurisdiction to transfer Company Petition No.13 of 2014 to NCLT subject, however, to a condition that the winding up proceedings have not reached a stage where it would be irreversible, making it impossible to set the clock back - thus, partial sales of the assets of debtor company have already been made. Noticeably, the third party rights (auction purchaser) have come into being. There are pending issues with respect to confirmation of sales already effected.
Conclusion - An irreversible situation has been created as partial sales of assets have been effected and a substantial amount has already been collected, therefore, it will not be in the interest of justice to exercise discretion in favour of the applicant-SBI.
Application dismissed.
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2025 (1) TMI 229
Rejection of claim filed by the Appellant - whether the RP had committed any irregularity in rejecting the claim of the Appellant for being belated and for being claim of such nature that it required adjudication which was beyond the jurisdiction of the RP? - HELD THAT:- In the present case, it is noticed that after the Corporate Debtor was admitted into the rigours of CIRP on 13.12.2021. The Interim Resolution Professional had undisputedly made a Public Announcement on 17.12.2021 in compliance with Sections 13 and 15 of the IBC read with Regulation 6 of CIRP Regulations. The Public Announcement had set 27.12.2021 as the deadline for claim submissions. The Appellant never filed their claim within the time stipulated by the Public Announcement or within the extended timeline of 90 days as provided by the Regulation 12 of CIRP Regulations. The Appellant had filed their claim on 12.09.2023 which was much beyond the extended period of 90 days. From material on record, it is therefore abundantly clear that a lot of time elapsed since the date of issue of public announcement inviting claim and the actual filing of claim by the Appellant.
Despite having filed their claim belatedly, the Appellant has put the blame on the RP for having dealt with the claims and rejected the same within 3 days - There is no material to either believe that the RP acted in a manner hurriedly pushing the plans for consideration of the CoC or having deliberately orchestrated to stall the claim of the Appellant.
It is a well settled precept that there is a catena of judgements of the Hon’ble Apex Court wherein it has been held that no surprise claims should be flung on the resolution applicant. The logic behind this precept is that all necessary details should find place in the Information Memorandum so that the potential resolution applicants are fully aware of the liabilities that they may have to provide for in their resolution plan towards satisfying whole or part of such liabilities and to also revive the corporate debtor. In the present case too, when the claims have been filed belatedly after 548 days and that too the claims arise from damages and breach of contract which according to the Appellant is admittedly contingent, the RP’s action to reject the claim by way of a reasoned reply to the Appellant cannot be put to fault - there are no justifiable reason to doubt the bonafide of the RP in not admitting the claim of the Appellant. The Adjudicating Authority had not committed any error in the given facts and circumstances in not acceding to the request of the Appellant for admission of their claims.
Conclusion - The RP does not possess adjudicatory powers and must adhere to statutory timelines for claim submission to ensure a timely resolution process.
Appeal dismissed.
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2025 (1) TMI 228
Direction for fresh valuation of intangible assets after the approval of a Resolution Plan - seeking direction to permit the revised Resolution Plan to be reconsidered which has been rightly rejected by the Adjudicating Authority noticing the submissions of the Resolution Professional that it is open for the Appellant to submit Resolution Plan in pursuance of fresh Form G - HELD THAT:- There is no dispute between the parties that initially Resolution Plan filed by the Appellant was approved on 30.12.2019 and Resolution Professional has also filed IA No.102 of 2020 for approval of the Resolution Plan. Unsecured financial creditor filed an IA No.1434 of 2020 seeking direction for valuation of intangible assets of the corporate debtor. It was also prayed that the Resolution Plan be sent back to the CoC for reconsideration. IA No.1434 of 2020 was allowed by the Adjudicating Authority on 04.08.2023 copy of which has been filed as Annexure A-6. Adjudicating Authority issued direction for valuation of intangible assets.
It is relevant to notice that the order dated 11.03.2024 was not challenged by any stakeholders including the Appellant. The order dated 11.03.2024 dismissing IA No.102 of 2020 for approval of the Resolution Plan as infructuous and the Adjudicating Authority having directed for issuance of Form G and the said order having not been challenged, the order dated 11.03.2024 has become final and it is not open for the Appellant to now claim any right on the basis of its earlier Resolution Plan.
The order impugned noticing the statement of Resolution Professional that Appellant can very well participate in the process has rightly observed that the grievance of the Appellant stands addressed and the IA has become meaningless. As noted above, the orders passed by the Adjudicating Authority dated 04.08.2023 directing for revaluation and placing the plan of the Appellant for voting was never challenged. After the order dated 04.08.2023, Appellant has submitted its revised Resolution Plan which was considered and was not approved by the CoC which is clear from 22nd CoC meeting. Direction to issue fresh Form G was in consequence of non-approval of the Resolution Plan of the Appellant - Appellant was free to participate in the fresh process initiated by issuance of Form G on 11.04.2024.
Conclusion - i) The Intangible Assets of the Corporate Debtor shall be valued and categorized separately. ii) The CoC's commercial wisdom in rejecting the revised offer was upheld as a legitimate exercise of its discretion.
Appeal dismissed.
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2025 (1) TMI 227
Invocation of personal guarantee - Section 95 application was filed on behalf of Respondent No.1 Bank by a person having valid authority or not.
Invocation of personal guarantee - HELD THAT:- It is an admitted fact that the Corporate Debtor had not performed its obligation of debt repayment and its account was declared NPA and was later admitted into CIRP. It is a settled position in law that under Section 128 of the Indian Contract Act, 1872 the liability of the surety is coextensive with that of principal debtor unless it is otherwise provided by the contract. The same coextensive liability applies in the case of the personal guarantors. Once the principal borrower fails to discharge the debt, the liability of the personal guarantor gets triggered on the invocation of guarantee.
In the present factual matrix, in terms of the PGA, the Appellant as personal guarantor was mandatorily obliged to honour its guarantee keeping in view that PGA provided for an unconditional, irrevocable and continuing guarantee to the COR Security Trustee/COR Lenders in respect of the COR Secured Obligations and credit facilities secured by the principal borrower - It is clear from the reading of the terms of the PGA at Clause 26 that if the Borrower failed to perform its obligations under the COR Finance Documents, it was incumbent on the Personal Guarantor to forthwith pay on demand to the COR Security Trustee/COR Lenders the whole of such outstanding sum. Hence there is no merit in the plea taken by the Appellant that since no request was made by them as guarantor for release of loan in favour of the borrower, the personal guarantee could not have been invoked.
The invocation of the personal guarantee and signing of the invocation in the capacity of “COR Lenders Agent” by Respondent No. 1 Bank has been questioned by the Appellant. It is dissuaded from agreeing with the Appellant since the Respondent No. 1 Bank had signed the CORLA wherein it had been clearly designated as COR Lenders' Agent. Moreover, though the lenders had appointed SBI Cap as their Security Trustee, in the Security Trustee Agreement dated 21.09.2015, Clause 8.12 stated that any duty or the obligation of the Security Trustee may be performed by the COR Lenders and any such performance shall not be construed as a revocation of the trusts or agency created thereby.
Section 95 of IBC clearly provides that a Section 95 application can be filed by a creditor in his individual capacity or jointly with other creditors or through a RP. It nowhere lays down any prescription that if the credit facility has been extended by more than one financial creditor, the Section 95 application is required to be filed collectively. Hence, there are no irregularity in the invocation of the personal guarantee by the Respondent No. 1 Bank on these counts either.
Section 95 application had been filed without any authority or not - HELD THAT:- The Appellant has claimed that the signing power given to any particular officer is not the decision-making power given to any particular officer of State Bank of India. Decisions have to be taken at the board level for initiating any legal proceedings and only thereafter authority is given to any particular officer to sign pleadings. No such authority had been delegated by the Executive Committee of the Central Board to initiate legal proceedings in the present case thereby rendering the Section 95 application not maintainable. The Respondent No.1 has repelled this argument by placing reliance upon a Gazette notification dated 27.03.1987 issued pursuant to Regulation 76 of the State Bank of India General Regulations, 1955 read with Section 50 of the State Bank of India Act, 1955 to contend that the signatory of the application, Shri Nitin Chauhan was duly authorised to file the Section 95 application - the contention of the Appellant that the Section 95 petition was not signed by a validly authorised person is rejected.
Conclusion - The Respondent No.1 Bank was entitled to invoke the personal guarantee and that the Section 95 application was validly filed by an authorized person.
Appeal dismissed.
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2025 (1) TMI 226
Duplication of a part of the demand already confirmed - respondent had failed to make mandatory pre-deposit - Revenue not heard during the appeal process before the Commissioner of Service Tax (Appeals II) - violation of principles of natural justice - HELD THAT:- As per Section 124 (2) of the Sabkha Vishwas Legacy Disputes Resolution Scheme, 2019, any amount paid under pre-deposit at any stage of Appellate proceedings under the Indirect tax enactment or as deposit during enquiry, investigation or audit, shall be deducted when issuing the statement indicating the amount payable by the declarant.
It stands confirmed that a sum of Rs. 19,15,491/- was paid in excess of amount demanded from the respondent vide Order in Original No. 48/2016 -2017–ST-II dated 14.10.2016, in respect of the second mentioned show cause notice covering the period between April 2008 and March 2010 - The amount that was paid prior to passing of the Order-in-Original No. 48/2016 for a sum of Rs. 99,94,773/- was eligible for being set off against the tax liability of the respondent under the Scheme for the period under dispute covered by the 2nd demand in Show Cause Notice as confirmed by the Order in Original No. 48/2016 dated 14.10.2016 as there was an excess amount of Rs. 15,18,561/- (Rs. 99,94,773/- 84,76,212/-) paid by the petitioner against demand comprised in Order-in-Original No. 48/2016 dated 14.10.2016.
Though, the aforesaid sum of Rs. 15,18,561/- cannot be refunded back, it can be adjusted towards the amount payable under the scheme for the demand confirmed vide Order-in-Original No. 48/2016 dated 14.10.2016 for the period mentioned in the second mentioned show cause notice which is the subject matter of the present dispute - The balance amount of Rs. 15,80,561/- (Rs. 99,94,773 – Rs.84,76,212) is to be allowed for adjustment towards the amount determined in SVLDRS – III dated 06.12.2019.
The balance amount of Rs. 15,80,561/- (Rs. 99,94,773 – Rs.84,76,212) is to be allowed for adjustment towards the amount determined in SVLDRS – III dated 06.12.2019.
Conclusion - The duplication of tax demands should be corrected and that excess pre-deposits can be adjusted under the SVLDRS. The amount of Rs. 15,80,561/- (Rs. 99,94,773 - Rs.84,76,212) has to be adjusted towards liability of the respondent under SVLDRS Scheme 2019. Thus, out of the aforesaid amount of Rs. 15,80,561/- (Rs. 99,94,773 – Rs.84,76,212/-), a sum of Rs. 8,75,075/- ought to have been adjusted. The balance of Rs. 7,05,546/- [Rs. 15,80,561/- (-) Rs. 8,75,015/-] is however, not refundable back to the respondent in terms of proviso to Section 124 (2) of the Act.
Appeal dismissed.
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2025 (1) TMI 225
Recovery of service tax with interest and penalty - scope and limits of adjudicating authority's powers during de-novo proceedings - HELD THAT:- The scope of the impugned order therefore cannot go beyond the grievance of the Appellant. Any appeal is filed only against that portion against which the aggrieved party has any grievance and hence, scope of any Appeal cannot go beyond the Grounds of Appeal urged. Hence, by not filing any Appeal, department cannot feel aggrieved and thereby encash the remand order by misinterpreting such order to its benefit. Clearly, the same amounts to abuse and misuse of the process of law and hence, in our view, the Original Authority has grossly erred in taking advantage of the remand order by misinterpreting and thereby travelling beyond the scope of the second Appeal. In that view of the matter, to the extent of the relief granted in the Original Authority order dated 22.12.2008, the impugned order certainly calls for/deserves interference and hence, to that extent, the impugned Order stands set aside forth-with.
Conclusion - The scope of the impugned order therefore cannot go beyond the grievance of the Appellant.
It is deemed appropriate to set aside the impugned order for non-cooperation from the assessee - appeal disposed off.
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2025 (1) TMI 224
Refund of service tax paid - whether the Appellant being the developer / co-developer in Special Economic Zone entitled to refund of service tax paid by them in relation to their authorised operations? - HELD THAT:- In case of INOX INDIA P LTD VERSUS C.C.E. -KUTCH (GANDHIDHAM) [2024 (3) TMI 922 - CESTAT AHMEDABAD], this Bench has considered the issue and decided 'We find that a substantive benefit of Service Tax exemption has been provided under the above Section 26 of the Special Economic Zone Act. Once the legislature by way of enactment has provided certain exemption we feel that any notification issued under any other enactment will not take away the right of the exemption from payment of the Service Tax to the appellant for the activity while falls under category of the authorized operations within a Special Economic Zone.'
Similarly, in case of ANJANI EXCAVATION OPERATION VERSUS COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX –CGST & CENTRAL EXCISE VADODARA II [2024 (11) TMI 405 - CESTAT AHMEDABAD], this Bench has held the benefit of exemption available to the service provider by resorting to the provisions of Special Economic Zones Act, 2005.
The benefit of refund of service tax paid by the appellant cannot be snatched away on grounds of procedural and hyper technical infarctions pointed out by the revenue in the impugned orders. It is no matter of dispute that the appellant including its erstwhile entity were duly approved and authorised as co-developer of Special Economic Zone in Mundra, Gujarat - there are no merit in the arguments and averments made by the appellate authority in impugned order to deny the benefits granted by the provisions of the Special Economic Zones Act.
Once the tax has been charged, collected and paid by the respective service provider, the recipient cannot be burdened to show and explain the reasons for levy carried out by the service provider. Burden of recipient is limited to prove payment of such amount as service tax to the service provider and which has not been challenged in the present appeals. Thus, there are no merit in the justifications given in the impugned orders to deny the refund claim and we find that the appellant succeeds in explaining their eligibility to refund in respect of service tax paid with respect to transportation of passengers services.
Conclusion - The appellant is entitled to the refund of service tax paid for services used in authorized operations within the SEZ.
The appellant is entitled to refunds involved in all the appeals - Appeal allowed.
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2025 (1) TMI 223
Denial of exemption from payment of Service tax under Sr. No. 19 of Mega Exemption Notification No. 25/2012-ST dated 20.06.2012 and amended from time to time - extended period of limitation - HELD THAT:- The identical issue has been dealt with by this Tribunal in case of MATASHREE HOSPITALITY SERVICES VERSUS COMMISSIONER OF CENTRAL EXCISE & ST, VADODARA-II [2024 (8) TMI 1507 - CESTAT AHMEDABAD] wherein it is observed that 'the appellant is clearly entitled for the exemption under Notification No. 25/2012-ST. Accordingly, the demand in the present case is not sustainable.'
Conclusion - The exemption of Notification No. 25/2012-ST is clearly admissible to the appellant" as the canteen services were provided within the factory premises covered by the Factories Act, 1948.
The impugned orders set aside - appeal allowed.
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2025 (1) TMI 222
Levy of service tax - reimbursement received by the appellant is a consideration towards provision of taxable service - Admissibility of CENVAT credit availed by the Appellant on the basis of the debit notes - admissibility of CENVAT Credit on the invoices issued for out of pocket expenses - Extended period of limitation - interest on CENVAT credit availed but not utilized.
Whether the reimbursement of Rs. 2,79,58,760/- received by the appellant is a consideration towards provision of taxable service? - HELD THAT:- There is no service provided and it is shown only for the accounting purpose between two Divisions of the Appellant. Therefore, service tax cannot be demanded on the ground that they are expenses reimbursed by the other companies.
Whether the CENVAT credit of Rs. 63,71,672/-, availed by the Appellant on the basis of the debit notes is admissible? - HELD THAT:- The services were received by the appellant and the payment for the services are also made to the service providers. We find that the debit notes contain the essential particulars as required under Rule 9 (2) of the Cenvat Credit Rules, 2004. Further, these debit notes are accounted in the books of accounts of the appellant. Therefore, the appellant has fulfilled the requirements under Rule 4A of Service Tax Rules, 1994 and Rule 4 (7) and 9 (2) of CCR, 2004. Therefore, the denial of Cenvat credit on the debit notes is unsustainable.
Whether CENVAT credit of Rs. 74,160/- availed on the invoices issued for out of pocket expenses is admissible? - HELD THAT:- The invoice produced by the Appellant clearly shows that it is for the purpose of completion of various activities. Facts being so, there is no justification in denying the CENVAT credit against the above invoices once it is paid with applicable service tax.
Extended period of Limitation - HELD THAT:- The issue involved in the present appeal is in the nature of interpretation and considering the fact that Appellant has been paying service tax and filing ST-3 returns in time and there is no allegation that the Appellant had made a deliberate attempt to evade payment of tax, following the decisions in RECKITT & COLMAN OF INDIA LTD. VERSUS COLLECTOR OF CENTRAL EXCISE [1996 (10) TMI 100 - SUPREME COURT], the extended period for demand of service tax is not sustainable.
Whether interest is payable on CENVAT credit availed but not utilized? - HELD THAT:- The demand is made without considering the extant Rule 14 of the Cenvat Credit Rules, 2004. Moreover, the issue is settled by the judgment of the Hon’ble Supreme Court in the matter of CCE Vs. Bombay Dyeing and Manufacturing Company Ltd [2007 (8) TMI 2 - SUPREME COURT] wherein it is held that where CENVAT credit is reversed before utilization thereof, it would be tantamount to credit not having been availed. The said decision has also been accepted by CBEC as per Circular No. 858/16/2007-CX dated 08.11.2007. However, in the facts and circumstances of the case, since it is found that the appellants are eligible to avail Cenvat credit on the debit notes and the service received from M/s Deloitte, the demand of interest on the CENVAT credit availed but not utilized by the Appellant does not arise.
Conclusion - Service tax cannot be demanded on the reimbursement received by the appellant. Denial of Cenvat credit on the debit notes is unsustainable. There is no justification in denying the CENVAT credit against the above invoices once it is paid with applicable service tax. Extended period for demand of service tax is not sustainable. In the facts and circumstances of the case, since it is found that the appellants are eligible to avail Cenvat credit on the debit notes and the service received from M/s Deloitte, the demand of interest on the CENVAT credit availed but not utilized by the Appellant does not arise.
Appeal allowed.
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2025 (1) TMI 221
CENVAT Credit - input service was used by multiple coating centers located in different places - Department had alleged that the respondent was not entitled to avail cenvat credit at Pune unit inasmuch as the input service in question, was used by all coating centers located at different places - period of dispute involved in the present appeal is from April 2014 to January 2015 - HELD THAT:- For the earlier period i.e., from October 2009 to March 2014, the demands confirmed by the department against the respondent itself, on identical set of facts, was appealed against by the respondent before this Tribunal [2017 (5) TMI 889 - CESTAT MUMBAI], the Tribunal has set aside the demand and allowed the appeal in favour of the respondent. It is found that appeal filed by Revenue against the said order dated 29.03.2017 of the Tribunal was also dismissed by the Hon’ble Bombay High Court [2018 (12) TMI 1300 - BOMBAY HIGH COURT].
Conclusion - On plain reading of Rule 7 as existing both pre and post amendment 2012 covering period involved in these proceedings, the respondent - assessee was entitled to utilize the CENVAT credit available at its Pune unit.
There are no merits in the appeal filed by Revenue and accordingly, the same is dismissed.
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2025 (1) TMI 220
CENVAT credit on capital goods initially brought into Plant No.1 and subsequently moved to Plant No.2 and Plant No.3 - HELD THAT:- It is noted that the contention of Revenue is that capital goods were brought into Plant No.1 which is also referred to as Unit No.1 and after availing cenvat credit, they were utilized into Plant No.2 and 3 which were also referred to as Unit No.2 and 3 and during the relevant time those units were not part of the Central Excise registered premises and, therefore, there was proposal for denying cenvat credit which was confirmed by the original authority.
It is noted that through the communication dated 24.06.2016, Principal Commissioner of Central Excise having jurisdiction over all the three plants has allowed them to be treated as part of the existing Central Excise registration No. AABCM9380KXM001. Thus, different units stated in the present proceedings are part of the same manufacturing unit and, therefore, there is no case of capital goods being removed out of the manufacturing unit after availing cenvat credit.
Conclusion - Different units stated in the present proceedings are part of the same manufacturing unit and, therefore, there is no case of capital goods being removed out of the manufacturing unit after availing CENVAT credit.
Appeal allowed.
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2025 (1) TMI 219
Classification of electrical machinery parts and accessories - to be classified under Chapter 86 or under Chapter 84? - extended period of limitation - penalty.
Classification of electrical machinery parts and accessories - HELD THAT:- As these goods were manufactured as per the designs submitted by the Indian Railway, they have to be specifically treated as part of Diesel Locomotive and so more appropriately classifiable under Chapter 86 of Central Excise Tariff Act, 1985. Further, the Tribunal in the case of M/S. FAIVELEY TRANSPORT RAIL TECHNOLOGIES INDIA PVT. LTD. VERSUS COMMISSIONER OF GST & CENTRAL EXCISE, SALEM [2024 (8) TMI 1143 - CESTAT CHENNAI] has held on the classification of goods supplied to Indian Railways that the pantographs and its parts are exclusively used in railway or tramway locomotives.
Further, in the case of PREMIER POLYFILM LIMITED VERSUS COMMISSIONER, CGST, GHAZIABAD [2024 (7) TMI 6 - CESTAT ALLAHABAD] the Tribunal Allahabad has decided the issue in favour of the Assessee that the goods will be classified under the specific tariff entry of the goods cleared or under Chapter 86 in view of the Hon’ble Supreme Court’s decision in the case of WESTINGHOUSE SAXBY FARMER LTD. VERSUS COMMR. OF CENTRAL EXCISE CALCUTTA [2021 (3) TMI 291 - SUPREME COURT].
Thus, parts of railway diesel locomotive are more appropriately classifiable under CETH 86079100.Hence the issue regarding classification is decided in favour of the Appellant.
Extended period of limitation - Penalties - HELD THAT:- In the absence of any finding as to intent of suppression by the Appellant in the impugned order, the allegation of wilful misclassification and intention to evade duty by the appellant is not at all tenable as misclassification could not be equated with misdeclaration and it is a settled law that once the goods are correctly described, the bona fide adoption of classification by the importer cannot be equated with misdeclaration as the manufacturers are not expected to be fully conversant with the schedule to the Central Excise Tariff Act, 1985. So, the issue of limitation is also decided in favour of the appellant and consequently, penalties imposed are set aside.
Conclusion - Parts of railway diesel locomotive are more appropriately classifiable under CETH 86079100. In the absence of any finding as to intent of suppression by the Appellant in the impugned order, the allegation of wilful misclassification and intention to evade duty by the appellant is not at all tenable.
Appeal allowed.
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2025 (1) TMI 218
Whether the benefit of exemption under the provisions of the Tamil Nadu Value Added Tax (TNVAT) Act, 2006 would ennure for exemption under Section 8(2) of the Central Sales Tax (CST) Act, 1956? - HELD THAT:- Identical issue arose for consideration in NATESAN VERSUS THE STATE TAX OFFICER, ATTUR [2025 (1) TMI 135 - MADRAS HIGH COURT] where it was held that 'the petitioner is entitled to the benefit of exemption under Notification No.II(1)/CTR/30(a-2)/2007 (TNGG Extraordinary/March 23, 2007 [G.O.Ms.No.79, Commercial Taxes and Registration (B2) Department] dated 23.03.2007 with consequential relief.'
Conclusion - The petitioner is entitled to the exemption under the TNVAT Act for interstate sales under the CST Act, as no notification to the contrary was issued under Section 8(5) of the CST Act.
Petition allowed.
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2025 (1) TMI 217
Demand of central sales tax on movement of goods from the manufacturing unit of the appellant situated in the State of Rajasthan to its depots in the State of Bihar and the State of Jharkhand - inter-state supply of goods or inter-state stock transfers - HELD THAT:- A perusal of the order dated 04.10.2017 passed by the Rajasthan Tax Board shows that it has reproduced the observations of the Rajasthan Tax Board in Appeal No’s. 1229-1233 decided on 24.11.2014. It is the order passed in these five appeals that were assailed by M/S CARLSBERG INDIA PVT. LTD., M/S UNITED BREWERIES LTD. AND M/S MOUNT SHIVALIK INDUSTRIES LTD. VERSUS THE STATE OF RAJASTHAN, THE COMMISSIONER COMMERCIAL TAXES, JAIPUR, THE ASSISTANT COMMISSIONER COMMERCIAL TAX DEPARTMENT, JAIPUR, THE STATE OF BIHAR AND THE STATE OF JHARKHAND [2024 (10) TMI 1124 - CESTAT NEW DELHI]
It was held in the case that 'The movement of goods cannot also be considered incidental to the Master Agreement. Reliance placed by the Rajasthan Tax Board and the learned senior counsel for the State of Rajasthan on clause 2 of the Master Agreement to justify that the movement of goods occurred incidental to the Master Agreement, is not correct.'
Conclusion - The transactions were stock transfers, not sales.
Appeal allowed.
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2025 (1) TMI 216
Dishonour of Cheque - acquittal of offence under Section 138 of the Negotiable Instruments Act, 1881 - rebuttal of presumptions raised u/s 139 and 118 of the NI Act - HELD THAT:- It is trite law that a Court while considering the challenge to an order of acquittal ought to only interfere if the Court finds that the appreciation of evidence is perverse.
The present case, however, relates to acquittal of an accused in a complaint under Section 138 of the NI Act. The restriction on the power of Appellate Court in regard to other offence does not apply with same vigor in the offence under NI Act which entails presumption against the accused. The Hon’ble Apex Court in the case of ROHITBHAI JIVANLAL PATEL VERSUS STATE OF GUJARAT & ANR. [2019 (3) TMI 769 - SUPREME COURT] had observed 'However, such restrictions need to be visualised in the context of the particular matter before the appellate court and the nature of inquiry therein. The same rule with same rigour cannot be applied in a matter relating to the offence under Section 138 of the NI Act, particularly where a presumption is drawn that the holder has received the cheque for the discharge, wholly or in part, of any debt or liability. Of course, the accused is entitled to bring on record the relevant material to rebut such presumption and to show that preponderance of probabilities are in favour of his defence but while examining if the accused has brought about a probable defence so as to rebut the presumption, the appellate court is certainly entitled to examine the evidence on record in order to find if preponderance indeed leans in favour of the accused.'.
It is also well settled that once the execution of the cheque is admitted, the presumption under Section 118 of the NI Act that the cheque in question was drawn for consideration and the presumption under Section 139 of the NI Act that the holder of the cheque/ respondent received the cheque in discharge of a legally enforceable debt or liability are raised against the accused.
On a perusal of the record, it is seen that right from the time of framing of notice, the statement of the respondent under Section 313 of the CrPC, and during the course of the trial, the respondent denied taking any loan from the appellant. The respondent, however, did not dispute the issuance of the cheque in question, or his signatures on the cheque. He consistently maintained that it was in fact the respondent who had advanced the loan to the appellant - It is pertinent to note that the presumptions under Section 118 and 139 of the NI Act are not absolute, and may be controverted by the accused.
From a perusal of the record, it is apparent that the respondent was acquitted of the offence under Section 138 of the NI Act chiefly on the premise that on a juxtaposition of the financial status of both the parties, the respondent appeared to be more financially sound that the appellant.
In the present case, except for the averments made by the respondent, no material is led to demonstrate that the appellant did not possess the financial wherewithal to advance the said loan in question. Even at the stage of cross-examination, no question is put to the appellant to indicate that she did not possess the financial means to advance the loan in question. For this reason, in the opinion of this Court, the burden never shifted upon the appellant to demonstrate that she possessed the means to advance the said loan.
Conclusion - The respondent failed to rebut the presumptions raised against him under Sections 139 and 118 of the NI Act.
The impugned judgment dated 24.07.2019, acquitting the respondent of the offence under Section 138 of the NI Act is accordingly set aside - List on 16.01.2025 for further directions.
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2025 (1) TMI 215
Failure to adhere to the time lines - Whether the proceedings under Section 129(3) can be sustained in the absence of complying with the time line mandated under Section 129(3)? - HELD THAT:- Petitioner has relied upon the judgment of this Court in TVL. UDHAYAN STEELS PRIVATE LIMITED, REP. BY ITS DIRECTOR SELVAN VERSUS DEPUTY STATE TAX OFFICER (INT.) ROVING SQUAD, COIMBATORE, THE ASSISTANT COMMISSIONER (ST) , ADJUDICATION, COIMBATORE [2023 (1) TMI 378 - MADRAS HIGH COURT] wherein this Court held that 'The impugned proceedings are set aside and the vehicles/goods in question shall be released forthwith.'
This Court is of the view that the impugned proceedings are liable to be set aside inasmuch as it is in contravention of the time lines stipulated in Section 129 of the Act. Consequently, vehicle bearing Registration No. TN-29-AB-7887 shall be released forthwith.
Petition disposed off.
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2025 (1) TMI 214
Levy of penalty under Section 129(1)A of the CGST Act - penalty based on the interception of goods, which were found to be unloaded at an unauthorized location without proper documentation - It is the case of the petitioner that on 04.11.2024 while filing the reply they had sought for a personal hearing, however, no personal hearing was granted - violation of principles of natural justice - HELD THAT:- The petitioner would appear for personal hearing at 18.12.2024 at 11.00 a.m. Orders would be passed afresh after considering the submission of the petitioner. It is submitted by the learned counsel for the petitioner that the goods may be provisionally released. It is open to the petitioner to make such request before the appropriate authority in accordance with law. If any such request is made the same would also be considered and orders would be passed in accordance with law.
Petition closed.
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2025 (1) TMI 213
Vioaltion of principles of natural justice - neither the show cause notices nor the impugned order of assessment has been served on the petitioner by tender or sending it by RPAD - petitioner is ready and willing to pay 25% of the disputed tax - HELD THAT:- The petitioner shall deposit 25% of the disputed tax within a period of two weeks from the date of receipt of a copy of this order.
The impugned order of assessment shall be treated as show cause notice and the petitioner shall submit its objections within a period of four weeks from the date of receipt of a copy of this order along with supporting documents/material.
Petition disposed off.
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