|
Advanced Search Options
Case Laws
Showing 261 to 280 of 412 Records
-
2025 (1) TMI 152
Maintainability of SLP - Time limitation - HELD THAT:- Though on a prima facie view, the submissions made by learned counsel appearing for the petitioner is agreed, in view of the fact that the impugned order has been passed more than two and a half years ago, and much water has flown under the bridge thereafter, it is not required to interfere with the impugned order(s).
SLP dismissed.
-
2025 (1) TMI 151
Seeking grant of Anticipatory Bail - commission of a serious economic offence of money laundering - offence punishable under Section 3 read with Section 4 of the Prevention of Money Laundering Act, 2002 - HELD THAT:- In view of the statement made and subject to compliance and deposit as directed, the appellant, Rajkumar Daitapati, shall be released on bail in the event of being arrested in connection with ECIR No. JPZ0/1/2015 (Sessions Case No.37 of 2021) (Enforcement Directorate vs. Rajkumar Daitapati) for the offences punishable under Section 3 read with Section 4 of the Prevention of Money Laundering Act, 2002, on the terms and conditions fixed by the trial Court. In addition, the appellant will comply with the provisions mentioned in Section 482(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023.
The impugned judgment is set aside and the appeal is allowed.
-
2025 (1) TMI 150
Grant of Regular bail - Moeny Laundering - collection of illegal levy amounts from the coal transporters - alleged offences under Sections 420, 120-B, 384 of the IPC and Sections 7, 7-A, 12 of the Prevention of Corruption Act, 1988 - HELD THAT:- The prosecution has collected the material regarding active involvement of the applicants in the syndicate and main accused-Suryakant Tiwari has extorted money, which has been utilized for purchase of properties. Thus, involvement of the applicants in commission of offence under Section 7, 7A & 12 of the PC Act, is prima facie reflected.
Hon’ble the Supreme Court while considering the gravity of economic offence in case of P. CHIDAMBARAM VERSUS DIRECTORATE OF ENFORCEMENT [2019 (9) TMI 286 - SUPREME COURT] has held that 'Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation.'
The prosecution has collected sufficient material to demonstrate that the applicants have active participation in the syndicate which has collected illegal money as per the directions of the main accused Suryakant Tiwari by extorting money which has also been utilized for purchase of properties by the accused persons and in the bail petition, they have contended that they are falsely implicated in the crime by taking the stand which is required to be ascertained by the trial Court only during the trial and the applicants have not placed any material to demonstrate that they are not prima facie involved in the commission of offence. The accused persons have nowhere stated that they are unknown to the main accused and there is no linkage between them for commission of offence by the main accused-Suryakant Tiwari with the add of government officers - looking to the involvement of the applicants, gravity of the offence which is economic offence, the applicants are not entitled to get bail. As such, this is not a fit case where the applicants should be granted regular bail.
Conclusion - The prosecution has collected sufficient material to demonstrate that the applicants have active participation in the syndicate which has collected illegal money as per the directions of the main accused. This is not a fit case where the applicants should be granted regular bail.
All the bail applications filed under Section 439 of the Cr.P.C. are liable to be and are hereby rejected.
-
2025 (1) TMI 149
Money Laundering - attachment of the properties acquired prior to the commission of the alleged crime - misappropriation of the funds in conspiracy with government officials - lapse of attachment order after expiry of 180 days - No connection between properties and proceeds of crime - Invalidity of scheduled offence.
Properties acquired prior to commission of crime could not have been attached - HELD THAT:- There are no force in the first argument when the proceeds out of crime was not available with the appellant rather vanished and siphoned off,the property of equivalent value has been attached. The proceeds were siphoned off by diverting it to various group companies and by layering the proceeds. In the light of the aforesaid, second limb of the definition of "proceeds of crime" has been applied to attach the property of equivalent value. Thus, the first ground raised by the appellant cannot be accepted.
The attachment order would be lapsed after expiry of 180 days - HELD THAT:- There are no substance in the argument to seek lapse of the provisional attachment order when the intervening period was suffered due to Covid-19 and the period from 15.03.2020 till 28.02.2022 has been eliminated by the Apex Court for termination of proceedings - the ground for challenge to the order cannot be accepted.
No connection between properties and proceeds of crime - HELD THAT:- The properties were linked to the proceeds of crime through financial transactions and layering - the attachment of properties as connected to the proceeds of crime upheld.
Invalidity of scheduled offence - HELD THAT:- The relevant date is a date when the tainted property is projected to be untainted and as a consequence to it, the ECIR is recorded showing offence under Section 3 of the 2002 Act. The relevant date to find out the scheduled offence and the offence of money laundering is when it is projected tobe untainted property to make out an offence under section 3 of the Act of 2002 - the relevant date is of the year 2012 when after registration of FIR other discovery of the offence, an ECIR was recorded in the same year finding an offence of moneylaundering.
Conclusion - The attachment of properties was upheld. The provisional attachment order did not lapse. The properties were connected to the proceeds of crime.
There are no merit in the appeals and they are accordingly dismissed.
-
2025 (1) TMI 148
CENVAT Credit on tax paid in terms of Deposit Insurance Act - input services or not - HELD THAT:- It is, worth-noting, that Mumbai Bench of this Tribunal had expressed its apprehension on the precedent value of M/S. SOUTH INDIAN BANK VERSUS THE COMMISSIONER OF CUSTOMS, CENTRAL EXCISE AND SERVICE TAX-CALICUT [2020 (6) TMI 278 - CESTAT BANGALORE - LB] Larger Bench decision for the reason that observations of Hon'ble Supreme Court in several other cases including that of COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI VERSUS M/S. DILIP KUMAR AND COMPANY & ORS. [2018 (7) TMI 1826 - SUPREME COURT (LB)] concerning strict interpretation of taxation statute was not considered, for which suggestion was made for a reference to a still Larger Bench comprising of Five Members but that was negated by the same Three Members Larger Bench with reasoning noted in the said decision including affirmation of the decision of the Larger Bench made in South Indian Bank Ltd. by Hon'ble Kerala High Court and Hon'ble Bombay High Court.
The decision of the Larger Bench made in South Indian Bank that insurance service provided by the Deposit Insurance Corporation to the banks is an “input service” and CENVAT Credit on Service Tax paid by this service received by the banks from the Deposit Insurance Corporation can be availed by the banks for rendering output service, still holds the field.
Conclusion - The admissibility of CENVAT Credit on the Service Tax paid for insurance premiums under the Deposit Insurance Act upheld.
Appeal allowed.
-
2025 (1) TMI 147
Classification of services - Business Auxiliary Service or not - procuring the services of providing cargo space by airlines for their clients use for the export of goods - HELD THAT:- Reliance placed in the appellant’s own case for an earlier period in COMMISSIONER OF SERVICE TAX, CHENNAI VERSUS M/S. AVR CARGO AGENCY PVT. LTD. [2018 (6) TMI 524 - CESTAT CHENNAI], wherein this Bench had considered the ‘additional amount received as incentives based on the volume of transaction for the activity of forwarding cargo through the airlines’ and, after following other orders of coordinate Benches, this Bench had ruled in favour of the assessee and held that the additional amount would not be liable to service tax.
Conclusion - The demand for service tax under BAS was not justified.
There are no merit in the impugned order - appeal allowed.
-
2025 (1) TMI 146
Refund claim - time limitation - present refund claim was resubmitted by the appellant on 03-09-2013 for the same amount - Whether the resubmitted refund claim dated 03.09.2013 should be considered time-barred, given its connection to the original refund application dated 30.05.2013? - exemption notification change effective from 01.04.2013 applies retroactively to the refund claim period ending on 30.09.2012 - violation of principles of natural justice.
HELD THAT:- The non-issuance of SCN is a serious issue; the same is required to be issued when the Revenue does not propose to entertain the refund claim of the claimant. It’s a different matter altogether if the application for refund is accepted and refund is granted, in which event, no such SCN is required. This is more relevant as it assumes importance for a bona fide claimant to know the stand of the revenue as to the grounds for not entertaining its application. Hence, SCN is the foundation without which no proceedings shall commence. Calling for a personal hearing, as indicated by the Adjudicating Authority would not take the place of SCN nor would it cure the blunder of non-issuance of the same and nor would it undo the blunder since personal hearing which follows the SCN, is the second stage of meeting with the principles of natural justice.
Hence, the Adjudicating Authority has been very casual in taking very lightly the request of the applicant for non-issuance of SCN and dismissing the same in a very casual manner, thereby seriously prejudicing the principles of Natural Justice. Hence, any order that follows such an incurable irregularity thereafter would only be a castle in the air, lacking seriously the very foundation and hence, the same is to be held as unsustainable, un-enforceable and contrary to the established principles of law and arbitrary. It is unfortunate that such an irregular order has been sustained in the impugned OIA, thereby only perpetuating the irregularity, which also cannot sustain.
Appeal allowed.
-
2025 (1) TMI 145
Demand for service tax paid under a different registration number - barred by time limitation - short payment of service tax - short payment of Swachh Bharat Cess (SBC) - service tax on liquidated damages/penalties.
Time limitation - Payment of service tax of Rs. 5,68,451/- for November, 2015 through challan mentioning Service Tax Registration of Regional Unit belonging to Appellant - Short payment of service tax of Rs. 42,188/- for the period from June 2015 to September 2015 - Short payment of Swacch Bharat Cess (SBC) of Rs. 22,344/- from November 2015 to March 2016 - HELD THAT:- It is also clearly apparent that those demands pertains to the year 2015-2016 and were proposed to be recovered vide show cause notice dated 9.10.2019. The entire period under three of these issues is therefore, beyond the normal period prescribed under Section 73 of Finance Act, 1994 / 11AC of Central Excise Act, 1944. Both these observations and that there is no other evidence except appellant’s own document to prove the alleged act of suppression on part of appellant, we hold that the aforesaid provisions have wrongly been invoked while issuing the show cause notice. Therefore, the show cause notice is held to be barred by them.
Conscious and deliberate withholding of the information manufacturer is necessary for invoking the extended period. If the department had full knowledge or the manufacturer had reasonable belief that he is not required to give a particular information, only normal period of limitation i.e. one year is applicable. Resultantly, the demand of these issues is held purely barred by period of limitation. The demand on three of the issues are liable to be set aside.
Service Tax of Rs. 2,10,11,500/- on Liquidated Damages/Penalty for the period April 2014 to June 2017 - HELD THAT:- Declared service, otherwise, has first to be a service which in terms of Section 65(B)(44) of Finance Act, 1944 is any activity carried by a person for another for consideration. The term consideration is defined in explanation (a) to Section 67 of the Act to mean any amount that is payable for the taxable service. “Section 2(b) of Indian Contract Act, 1872 also defines ‘consideration’ as when at the desire of the promisor the promise or any other person has done or abstained from doing, or does or abstains from doing or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise.” In the present case there is no agreement nor any intention to breach the terms of the agreement. The appellant herein has simply agreed to be compensated by deducting charges from the bills for any loss or admitted cause to them from the breach of contract on part of the contractor. Resultantly, the recovery of liquidated damages/penalty from the other parties cannot be called as service and the amount so received cannot be called as the amount of consideration. The activity of receiving such an amount of penalty is wrongly alleged to be an amount towards rendering the declared services. The act of receiving such an amount/liquidated damages is otherwise covered under Section 73 and 74 of the Contract Act - the demand on this ground has been wrongly confirmed.
Conclusion - The demand held to be purely barred by period of limitation. The act of receiving such an amount/liquidated damages is otherwise covered under Section 73 and 74 of the Contract Act.
Appeal allowed.
-
2025 (1) TMI 144
Service of order - sending of an order by speed post complies with the provision of section 37C(1)(a) of the Central Excise Act or not - Dismissal of appeal on the grounds of limitation holding that the appeal filed on 02.11.2017 is beyond permissible condonable time limit of one month hence cannot be condoned.
Service of notice - HELD THAT:- In the present case the order was not dispatched by registered post. The order was sent by speed post and under the amended section 37C, there should be proof of delivery also. In the present case, admittedly, there is no proof of delivery since what has been stated by the Assistant Commissioner in his comments is that the speed post which was sent to the appellant containing the order in original did not return to the office.
Hon’ble High Court Mumbai, also in the case AMIDEV AGRO CARE PVT LTD VERSUS UNION OF INDIA AND OTHERS [2012 (6) TMI 304 - BOMBAY HIGH COURT] held that Order Is To Be Served On The Assessee Or His Agent By Registered Post A.D. Or Any Other Mode Specified In Section 37C and mere proof of dispatch of order is not sufficient compliance of the section.
Condonation of delay - HELD THAT:- In the present case, no doubt there occurred a delay in filling the appeal before Commissioner (Appeals) but the same was within the condonable powers of the Commissioner (Appeals) but he didn’t call for the explanation from the appellant. The appeal has been dismissed simply holding that there is no request on record seeking condonation of delay in filing the appeal. The order is clear to hold that no opportunity of personal hearing was given to the appellant nor any reasonable time to file the miscellaneous application - the very basic principle of Principles of Natural Justice has been violated by Commissioner (Appeals). In view thereof and the above discussed decisions, the impunged order of Commissioner (Appeals) set aside. Since there are no findings with respect to the merits of the Order in original as was appealed before Commissioner (Appeals) the matter remanded back to Commissioner (Appeals) to decide the appeal on its merits after giving the proper opportunity of being heard to the appellant.
Conclusion - Service by speed post is valid provided there is proof of delivery. In the absence of any proof of delivery, it cannot be said that there is effective service of notice, as contemplated under Section 37C of the Act.
Appeal allowed by way of remand.
-
2025 (1) TMI 143
Liability of sub-contractor to pay service tax even if the main contractor has already discharged the service tax liability on the entire value of the contract - extended period of limitation - HELD THAT:- It is an admitted fact on record that the show cause notice dated 29.06.2012 had proposed for recovery of service tax from the appellant for the services provided during the period of 2007-08 to 2010-11 and for proposed effecting recovery, the proviso clause appended sub-section (1) of Section 73 ibid was invoked. Insofar as issuance of the show cause notice is concerned, the statute clearly mandates that the same should be issued within the normal period of one year from the relevant date. However, under exceptional circumstances, where there is involvement of fraud or collusion or willful mis-statement or suppression of facts or contravention of any of the provisions of this Chapter or of the Rules made there under with intent to evade payment of service tax, then in such cases instead of the normal period of 1 year, the show cause notice can be issued by invoking the extended period of limitation of 5 years.
In the case in hand, it is an admitted fact that payment of service tax by sub-contractor was not free from doubt and thus, there were different views expressed by Co-ordinate Bench of the Tribunal, which are resulted in referral of matter to Larger Bench in COMMISSIONER OF SERVICE TAX VERSUS MELANGE DEVELOPERS PVT. LTD. [2019 (6) TMI 518 - CESTAT NEW DELHI-LB]. Thus, under such circumstances, the service tax demand can only be raised within the normal period and since, the elements itemized in the proviso clause are absent, the extended period cannot be invoked.
Conclusion - The sub-contractors are liable for service tax, even if the main contractor has paid it on the total contract value - The extended period of limitation under Section 73 can only be invoked when specific conditions are met, such as fraud or suppression of facts.
The impugned order, to the extent it has confirmed the adjudged demands under the extended period of limitation is set aside - Appeal allowed.
-
2025 (1) TMI 142
Refund claim for services availed by a Special Economic Zone (SEZ) unit, which were approved post-receipt but pre-filing of the refund claim - admissibility under N/N. 12/2013-ST. - HELD THAT:- The order of the Tribunal in the case of Kolland Developers Pvt. Ltd. [2016 (8) TMI 847 - CESTAT MUMBAI] was challenged before the Hon’ble High Court of Bombay [2021 (12) TMI 479 - BOMBAY HIGH COURT].
The Hon’ble High Court of Bombay in the case of Kolland Developers Pvt. Ltd. V/s Commissioner of C.EX. & CUS. (Appeals), Nagpur have allowed the appeal of the assessee and set aside the order of the Tribunal and remanded the proceedings to the Tribunal to decide the appeal afresh on its own merits and in accordance with law.
The Tribunal while deciding the appeal in remand proceeding in M/s Kolland Developers Pvt. Ltd. V/s Commissioner of Central Excise, Nagpur has held that 'the refund claim made as per Notification No.12/2013 could not have been denied just for the reason that at the time of receipt of services, there was no approval of Approval Committee cannot be upheld.'
There are no reasons to interfere with the impugned order and the same is sustained - appeal filed by the Department being devoid of any merits, is dismissed.
-
2025 (1) TMI 141
Levy of service tax - Valuation - activities of erection, commissioning, and installation of machines, which are part of a composite contract for the sale and supply of machines - HELD THAT:- As per the facts of the present case the respondent have manufactured and supplied the textile machines as per the contract and sale invoice was issued to the customers. The respondent-assessee is supposed to undertake the supply and also the erection, commissioning and installation of the machine at the customer’s site. The sale value includes all the elements and there is no separate consideration received by the respondent on account of the service related to erection, commissioning and installation. In such case there is no amount available for charging service tax.
The issue has been considered by this Tribunal in the respondent’s own case of C.C.E & S.T. -SILVASA VERSUS AALIDHRA TEXTOOL ENGINEERS PVT LTD [2022 (12) TMI 11 - CESTAT AHMEDABAD] wherein this Tribunal has held that 'in the present case where the entire value has suffered excise duty and the buyer is under obligation to not only manufacture and supply the machinery but also to carry out activity of erection, commissioning and installation of the said machinery, the service tax cannot be demanded.'
Conclusion - The entire value of the goods has to be taken as sale value, consequently, no service value is involved separately.
Appeal of Revenue dismissed.
-
2025 (1) TMI 140
Clandestine removal - classification of same type of goods under headings 3197 when cleared/removed officially and under 8424 when cleared allegedly unofficially or clandestinely - impact of such classification under different headings - CESTAT did not address the clandestine removal of goods issue, but proceeded on the premise that such clandestine removal was irrelevant - HELD THAT:- The CESTAT’s order warrants interference because the CESTAT has not discharged the duties and obligations expected of a first appellate Court in this case. The central and crucial issues were not considered. The findings of fact were not addressed. The CESTAT failed to address, much less come into close quarters with the reasoning of the Commissioner. The impugned order, with respect, is a cryptic single-paragraphed order. None of the principles in Santosh Hazare [2001 (2) TMI 131 - SUPREME COURT] are followed, and the CESTAT’s approach is contrary to the law declared by the Hon’ble Supreme Court.
The CESTAT should have considered the rectification application in the facts of this case. The ROM application tried to bring to the notice of the CESTAT that factual issues were raised, and they were not decided. The CESTAT’s attention was drawn to the material on record, which was not even referred to in the “single paragraph” order and was much less considered. Failing to address vital issues or even look into crucial material is grounds for judicial review. Accordingly, the impugned order dated 22 February 2008 warrants interference.
Conclusion - The appellate Court must reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for the decision of the appellate Court.
The three substantial questions of law answered in favour of the revenue and against the assessee.
-
2025 (1) TMI 139
Tribunal can ignore inquiry/investigations conducted and statements recorded under Section 14 of the Central Excise Act, 1944 read with Section 193 and Section 228 of the Indian Penal Code or not - supplier of crude Menthol oil were found non-existence/fake during investigation - demand on account of assumption and presumption - fraud, wilful suppression/mis-declaration of the material facts - Benefit of N/N. 56/2002-CE dated 14.11.2002.
HELD THAT:- The appellant was required to demonstrate and prove that during the relevant period, when the refund was claimed by the respondent, it had not procured any raw material, nor had it undertaken any manufacturing process. This could have been determined by the appellant by conducting an inquiry/investigation specifically focused on these aspects of the matter.
Indisputably, in the inquiry conducted by the Commissionerate, the respondent was not associated. The clear case of the respondent is that it procured raw material for its unit i.e, crude menthe oil, from various suppliers in Lukcnow and, therefore, it was not for the respondent to further find out and inquire as to how and from whom the suppliers had procured the raw material. The Commissionerate has undoubtedly conducted an elaborate inquiry, but could only conclude that the farmers, whose names were appearing on the vouchers seized from the possession of M/s Sachin and Nitin Enterprises were non-existent. The Commissionerate has, thus, seriously doubted the procurement of raw material by the suppliers of the respondent - The Adjudicating Authority has also ignored the fact that the respondent had installed two DG sets of 125 KVA to supplement the power. The case was clearly set up by the respondent before the Adjudicating Authority, but the same was not enquired into or investigated and the Adjudicating Authority rather placed sole reliance upon the investigation conducted by the Commissionerate. The CESTAT has rightly not approved the manner in which the proceedings were conducted by the Adjudicating Authority.
In reply to the show cause notice issued by the jurisdictional Authority, the respondent had brought on record some evidences clearly demonstrating that not only the raw material stood procured, but the goods were also manufactured in the unit of the respondent from the procured raw material. The raw material was transported in trucks from outside the State of Jammu and Kashmir into the State. The jurisdictional officers of the Central Excise, the State Industries Department, and other statutory authorities had inspected the premises of the respondent from time to time and had never reported that the respondent’s unit was defunct and was not engaged in the permitted manufacturing activity - All these evidences could not have been ignored by the jurisdictional Authority only on the ground that there was investigation report from the Commissionerate belying the claim of suppliers of the respondent that they had procured the crude mentha oil from different farmers in Barabanki District of U.P.
Conclusion - The Tribunal has rightly not approved the manner in which the proceedings were conducted by the Adjudicating Authority.
Appeal dismissed.
-
2025 (1) TMI 138
Recovery of CENVAT Credit with interest and penalties - manufacture of sugar and molasses - manufacture of dutiable and exempted goods - Appellant had availed and utilised Cenvat credit without maintenance of separate accounts - Whether the Appellant is liable to pay an amount equivalent to 5% / 6% on the value of Bagasse clearances in terms of Rule 6(3) of CENVAT Credit Rules, 2004? - HELD THAT:- The identical issues as involved in the present case, was also involved in the case of M/S. PONNI SUGARS (ERODE) LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, SALEM [2023 (10) TMI 876 - CESTAT CHENNAI] wherein Chennai Bench of this Tribunal has allowed the appeal by setting aside the demands of Cenvat credit.
Conclusion - In absence of Bagasse being a manufactured final product, the obligation of reversal of Cenvat Credit under Rule 6(1) of the Cenvat Credit Rules, 2004 is not attracted.
The impugned orders set aside - appeal allowed.
-
2025 (1) TMI 137
CENVAT Credit - input service credit of the service tax paid on lease rentals and operation and maintenance charges of windmills - extended period of limitation - HELD THAT:- A perusal of the impugned order reveals that the Commissioner had observed from the above Agreement between the Appellant and M/s.ALWEL, the inputs which were used for operation and maintenance of windmills was used by M/s.ALWEL which is evident from the fact that the contract specified that the cost of operation and maintenance was to be borne by M/s.ALWEL. M/s.ALWEL was also responsible for the generation of electricity and they were in fact getting the windmills maintained and hence the appellant was in no way responsible for maintenance of windmills nor had they given any contract for doing so to M/s.ALWEL for operation and maintenance of windmills in question. A perusal of the above Agreement between the parties clearly indicates that the understanding was for supply of electricity and nowhere in the contract is it mentioned that M/s.ALWEL would be operating and maintaining the windmills on behalf of the Appellant.
The fact however remains that the doubt in the minds of the Adjudicating Authority remains unanswered, which, goes into the root of the issue, that is to say, there is no mention about the lease of the windmills in the Agreement between the parties, the agreement is only for supply of electricity and M/s.ALWEL was not at all operating and maintaining the windmills for the Appellant.
The Commissioner is justified in invoking the extended period of limitation.
Conclusion - The appellant was not entitled to input service credit and the extended period of limitation was justifiably invoked by the Revenue.
Appeal dismissed.
-
2025 (1) TMI 136
Refund of amounts deposited - amount paid voluntarity or is paid under protest - rejection on the ground of being barred by limitation as provided by Section 11B of the Central Excise Act, 1944 - applicability of principles of unjust enrichment - HELD THAT:- It is evident that the amounts have been deposited as per the direction of the departmental officers in respect of certain shortages detected at the time of visit. The amounts so deposited on the direction of the departmental officer cannot be said to be voluntary deposit. Further appellant have contested the demand and have finally succeeded in getting the same set aside by the tribunal. As the appellant was contesting the demand the amount paid by them were necessarily not paid voluntarily but were paid under compulsion from the officer and were paid under protest.
Further it needs to be noted that the amounts paid by the appellant were in respect of the shortages of the raw material detected by the officers at the time of visit. The amounts deposited could not have acquired the character of duty till the time they have been cleared from the premises of the appellant. Tribunal has clearly held that the charge of clandestine clearance of these goods cannot be established. Hence the amounts deposited do not acquire the character of “duty”. The expressions used in the Section 11B are in respect of “refund of Duty” and not the refund of deposits made complying with the directions of the officers.
It is a settled law that any amount which becomes due to the appellant consequent to an Appellate order the deposits should have been refunded to the appellant - In case of GS. RADIATORS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, LUDHIANA [2004 (10) TMI 158 - CESTAT, NEW DELHI] it was held that 'such payment will be considered as payment under protest. Tribunal under its Final Order had given direction to give consequential relief to the appellants which should have been given by the department. But instead of giving them refund, they rejected it on time-bar which is not correct. In view of the above, I find that payment made by the appellants has to be considered as payment under protest and the refund should be allowed to them if otherwise in order.'
Conclusion - The amounts so deposited on the direction of the departmental officer cannot be said to be voluntary deposit. Payments made under protest during an ongoing dispute are not subject to the limitation period under Section 11B of the Central Excise Act, 1944. Such payments do not attract the doctrine of unjust enrichment.
There is no reasonable ground for rejection of the refund claim - Appeal allowed.
-
2025 (1) TMI 135
Entitlement to claim a concessional tax rate under the Central Sales Tax (CST) Act, 1956, without furnishing 'C' forms - It is submitted that in absence of specific notification issued under Section 8(5) of the CST Act, the petitioner cannot claim benefit of exemption under the above notification issued under the Tamil Nadu Value Added Tax (TNVAT) Act, 2006 for local clearance - HELD THAT:- As per Sub-Section (5) to Section 8 of the CST Act, the State Government has to issue a notification which should specify the conditions - In this case, no notification has been issued under Sub-Section (5) to Section 8 of the CST Act which has been brought to the attention of the Court.
Unless a specific notification has been issued under Sub-Section (5) to Section 8 of the CST Act, only General Notification issued under the Tamil Nadu Value Added Tax (TNVAT) Act, 2006 will apply to the interstate transactions by applying Sub-Section (2) to Section 8 of the CST Act.
Conclusion - Since there is no notification issued under Section 8(5) of the CST Act, the conditions of Section 8(5) of the CST Act will not apply to the facts of the case.
The petitioner is entitled to the benefit of exemption under Notification No.II(1)/CTR/30(a-2)/2007 - Petition allowed.
-
2025 (1) TMI 134
Recovery of arrears of sales tax - priority charge over the assets - Whether the Respondent No. 5 (The Deputy Commissioner of State Tax) will have priority charge over the secured assets sold by Petitioner bank (secured creditor) under the SARFAESI Act?
HELD THAT:- The dicta of the Full Bench in Jalgaon Janta Sahakari Bank Ltd. [2022 (9) TMI 163 - BOMBAY HIGH COURT] is squarely applicable to the present proceedings. In the ratio of the said judgment it has been held that even where there is an attachment order of the State Tax authorities prior to the secured assets’ attachment, without any further steps being taken towards issuing a proclamation of sale, the State Tax Authorities cannot claim priority over the dues payable to the secured creditor, whose security interest is registered with CERSAI.
In the present case, the order of attachment issued by the State Tax Department is dated 11th December, 2018. It is thereafter that steps have been taken to attach the immovable property. As noted above, the registration of the Bank Security Interest with CERSAI is dated 18th December, 2014 which is much prior to the order of attachment issued by the State Tax Department.
Conclusion - The claim of secured creditor that is the Petitioner – Bank, will have preference over the claim of Respondents (State Tax Department).
Petition disposed off.
-
2025 (1) TMI 133
Acceptance of an illegal gratification from the original complainant - whether CBI had power to register the FIRs and investigate offences qua respondent No.1 in the appeals? - whether the FIR for offences under the PC Act could be registered in Hyderabad in the State of Telangana when the offences alleged to have been committed at places within the State of Andhra Pradesh and for that reason whether the CBI Court in the State of Telangana got jurisdiction to try the offence under the PC Act in respect of offences allegedly committed at places falling within the State of Andhra Pradesh?
HELD THAT:- The term ‘law’ was defined in para 2(f) of the Circular Memo dated 26.05.2014. The said definition, as extracted above, would reveal that it would take in any order, bye-law, scheme, notification, or any other instrument having immediately before the appointed day viz., 02.06.2014, the force of law in the whole or in any part of the existing State of Andhra Pradesh. Thus, the cumulative effect of para 2(f), clauses (i) to (iii) of para 6 of the said Circular dated 26.05.2014 as also other notifications issued prior to 02.06.2014 or in modification of the then existing law(s), as it is to be understood in terms of the definition in para 2 (f), especially, in the absence of repeal or alteration or amendment in the State of Telangana also have to be looked into while considering the question(s) involved in the cases on hand.
In the contextual situation it is also relevant to refer to Resolution No.4-31-61-T dated 01.04.1963 of Ministry of Home Affairs establishing the Central Bureau of Investigation. Going by the said resolution dated 01.04.1963, it provides the function of the CBI in cases where public servants under the control of the Central Government are involved either themselves or with the State Government servants and/or other person - it is difficult to accede to the contentions of the first respondent in the captioned appeals made in a bid to support and sustain the impugned judgment. In such circumstances, considering the questions from such different angles, the impugned judgment whereunder subject FIRs and further proceedings in pursuance thereof, were quashed cannot be sustained.
Conclusion - The laws which were applicable to the undivided State of Andhra Pradesh would continue to apply to the new States created by the Act and that the laws that operated would continue to operate notwithstanding the bifurcation of the erstwhile State of Andhra Pradesh. CBI retains jurisdiction to investigate offences within the newly formed states without requiring fresh consent.
Appeal allowed.
............
|
9911796707
