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Showing 501 to 520 of 1354 Records
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2024 (3) TMI 854
Manner of payment of Pre-deposit amount before filing of appeal against demand of service tax - Admissibility of payment of pre-deposit using DRC-03 - The appellant argued that they had deposited the pre-deposit using the input tax credit available in their DRC-03 under CGST regime. - HELD THAT:- Hon’ble High Court of Bombay in the writ petition filed in the case of SODEXO INDIA SERVICES PVT. LTD. VERSUS THE UNION OF INDIA AND ORS. [2022 (10) TMI 264 - BOMBAY HIGH COURT] has clearly pointed out that there is not proper provision to accept payment of pre-deposit under Section 35F of the Central Excise Act, 1944 through DRC-03.
In the decision of Tribunal, in the case of M/S. SAPHIRE CABLES & SERVICES PVT. LTD., M/S. TENORMAC ENTERPRISES PVT. LTD. AND M/S. NETIZEN ENGINEERING PVT. LTD. (FORMERLY KNOWN AS RELIANCE INFOCOMM ENGINEERING PVT. LTD.) VERSUS COMMISSIONER OF CGST & CE, BELAPUR [2023 (7) TMI 544 - CESTAT MUMBAI] reliance on placed on the fact that the relief was granted by the Hon’ble Bombay High Court in the case of Sodexo India Services Pvt. Ltd. The Hon’ble High Court in the said case has clearly observed that there is no provision for using credit in DRC-03 for the purpose of pre-deposit. It is obvious that the relief was granted by the Hon’ble High Court in exercise of writ jurisdiction. The Tribunal does not have that liberty. In this background, the decision of the Tribunal in the case of M/s Saphire Cables & Services Pvt. Ltd. & Ors. cannot be applied to the instant case.
The applications seeking admission on the strength of pre-deposit made using through DRC-03 are rejected. M/s Army Welfare Housing Organization are at liberty to file appeal after paying pre-deposit in any permissible manner.
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2024 (3) TMI 853
Nature of activity - manufacture or service - making of photo books/albums, calendars, brochures etc. to their different customers - whether the activity of the assessee amounts to ‘manufacture’ or whether it falls under ‘photography service’ prior to 1.7.2012 and whether would fall under the definition of ‘service’ for the period w.e.f 01.07.2012 to 30.07.2015? - HELD THAT:- The issue stands covered by the decision of the Tribunal in the case of M/S. VENUS ALBUMS CO. PVT. LTD. VERSUS CCE, CHANDIGARH/LUDHIANA/AMRITSAR [2018 (11) TMI 754 - CESTAT CHANDIGARH]. The Tribunal in the said case analyzed the issue relating to the very same activity and held that the activity would amount to ‘manufacture’ and does not fall under ‘service’.
The activity carried out by assessee amounts to ‘manufacture’. The demand of service tax cannot therefore sustain. The impugned order to the extent of confirming the demand, interest and imposing penalties is set aside.
Appeal allowed.
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2024 (3) TMI 852
Benefit of exemption on Nozzle and Nozzle Holders cleared for use in the manufacture of Injectors - it was held by CESTAT that The ‘nozzle holder’ and ‘nozzle’ are entitled for the benefit of Notification Nos. 217/85-C.E., dated 8-10-1985 and 75/86-C.E., dated 10-2-1986 - HELD THAT:- The Customs, Excise and Service Tax Appellate Tribunal, Bangalore has arrived at correct conclusion. The Civil Appeal is, therefore, dismissed.
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2024 (3) TMI 851
Confiscation of spirit - Section 43A of the Karnataka Excise Act, 1965 - HELD THAT:- When the appellant herein was not a party respondent before the High Court and since there is no dispute that the appellant herein, was not made as an accused in the FIR, the observations pertaining to it were totally uncalled for.
As such, the words ‘as well as the buyer” expunged from paragraph 6 of the impugned order so also the observations made in paragraph 8 against the buyer.
Appeal allowed.
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2024 (3) TMI 850
Classification of the product manufactured by the appellant during the periods from July 1996 to December, 1996 and July, 1998 to September, 2000 - steel tubes for telephone and telegraph poles which are known as Hamilton Tubes - it was held by CESTAT that The appeals are accordingly disposed of by holding that the product in question is classifiable under sub-heading 7306.90 as held by the Tribunal - HELD THAT:- Having considered various judgments relating to different enteries with respect to the product in issue, the Customs, Excise And Service Tax Appellate Tribunal (CESTAT) has correctly arrived at the right conclusion to dismiss the appeals.
The appeals are dismissed.
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2024 (3) TMI 849
Exemption from duty - Fatty Acid, Wax and Gum falling under Ch.15220090 of the First Schedule to Central Excise Tariff Act, 1985 (Tariff Act) arsing in course of manufacture of refined vegetable oil, are to be treated as “waste” or not - eligibility for exemption under N/N. 89/1995-C.C. dated 18.05.1995 - Extended period of Limitation - HELD THAT:- The issue is covered by the decision in M/S RICELA HEALTH FOODS LTD., M/S J.V.L. AGRO INDUSTRIAL LTD., M/S KISSAN FATS LIMITED VERSUS CCE, CHANDIGARH, ALLAHABAD [2018 (2) TMI 1395 - CESTAT NEW DELHI] where Larger Bench held that Noting that the reference is to decide whether these are to be treated as waste for the purpose of exemption Notification No. 89/95-C.E. we note though the excisability of the product itself is seriously in dispute as per the opinion expressed by us, as above, these cannot be considered as anything other than waste and as such will be covered by the exemption Notification No. 89/95-C.E.
Considering the aforesaid observations made by the Larger Bench, there are no reason to differ from the same and the impugned order confirming the demand in respect of the Fatty Acids treating them as bye-product set aside.
Extended period of limitation - HELD THAT:- Since the issue on merits is answered in favour of the appellant/assessee, the issue of extended period of limitation is not required to be gone into.
Appeal allowed.
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2024 (3) TMI 848
Clandestine removal - it is alleged that respondents have shown excess manufacture in order to avail excess refund to the tune of Rs. 60 lakhs - burden of proof lies with the prosecution or not - suppression of actual consumption of LDO required for manufacturing unit quantity of final product - Extended period of limitation - HELD THAT:- Revenue has missed out the fact that consumption of fuel depends on the atmospheric temperature, quality of raw material, condition of the furnace, initial temperature of furnace, per day frequency of the heats and the skill of the labourers.
Revenue has not discussed this aspect at all. Moreover, the consumption of raw material i.e. copper scrap was not analyzed. Even the stock of fuel, raw material and final product was not taken at the time of audit so as to ascertain where the records maintained by the respondents were correct or otherwise. It is very surprising that the clearance of, allegedly excess produced, goods to different parties was not established; not even statement of a single buyer has been recorded; no verification at the transporter’s to falsify the claim of the appellants that they have supplied the ingots manufactured by them to others. Without conducting any such investigation, department cannot establish claim of excess manufacture just by extrapolating the results of study of a single heat or a few heats.
The charge levelled against the respondents is a serious charge. A charge of this nature cannot be summarily proved without conducting any commensurate investigation. It is now a settled principle that clandestine removal is a charge and has to be proved with all other concerned activities.
The adjudicating authority has correctly analysed the facts of the case and has drawn legally sustainable conclusions - Appeal of Revenue dismissed.
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2024 (3) TMI 847
Process amounting to manufacture or not - classification of Savory Oats to be under 19042000 or not - period February 2015 to January 2016 - HELD THAT:- It is brought out that the very same issue was decided by the Tribunal in the appellant’s own case for different periods wherein the Tribunal has set aside the demand of Excise Duty, interest and the penalties. Following the decision of the Tribunal in the assessee’s own case in M/S. AMEYA FOODS VERSUS THE COMMISSIONER OF GST & CENTRAL EXCISE, COIMBATORE AND MR. I.R. NARAYAN VERSUS THE COMMISSIONER OF GST & CENTRAL EXCISE, COIMBATORE [2023 (8) TMI 1428 - CESTAT CHENNAI] which has been affirmed by the Hon’ble Apex Court in THE COMMISSIONER OF GST AND CENTRAL EXCISE VERSUS M/S AMEYA FOODS [2024 (2) TMI 369 - SC ORDER], the demand in the present case requires to be set aside - It was held by Tribunal that the product Savoury Oats / Silk Oats merit classification under CETH 1104 12 00 and not under 1904 20 00 as determined by the authorities below.
The impugned order is set aside. The appeal is allowed.
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2024 (3) TMI 846
The Appellate Tribunal CESTAT NEW DELHI issued an order stating that the appellant can seek a refund of the amount deposited through DRC-3 based on a communication from the Central Board of Indirect Taxes and Customs. However, a pre-deposit must be made within four weeks in the present case. The case is listed for February 28, 2024.
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2024 (3) TMI 845
Maintainability of petition - availability of alternative remedy - Constitutionality of the certain provisions of the Odisha Entry Tax Act, 1999 - HELD THAT:- The pre-deposit made by the appellant during the pendency of the Writ Petition(s) shall continue till the disposal of the Writ Petition(s).
Appeal disposed off.
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2024 (3) TMI 844
Jurisdiction Of Authorities - Imposition of entry tax on Indian Made Foreign Liquor ('IMFL') - not placed item in the schedule to the New Act - replacement of the New Act as earlier Act has been declared ultra virus by the High Court - liability non est in law - HELD THAT:- It is clear that the provisional assessment was done as per the earlier Act of 2000 while final assessment has been done under the New Act. The Appellate Authority while passing the order dated December 31, 2022 has not considered the arguments placed by the petitioner with regard to the absence of goods in question in the schedule. It is to be noted that if the goods in question are not in the schedule of the New Act, the authorities had no jurisdiction whatsoever to impose entry tax on the same. This question is going to the very root of the matter and the authority should have considered and answered the same.
Thus, the orders passed are bereft of any reason with regard to imposition of entry tax on IMFL that is not even an item in the schedule to the New Act.
Thus, impugned orders are unreasoned and have been passed in a non speaking manner. Accordingly, the impugned order dated December 31, 2022 is quashed and set aside. The instant writ petition is allowed.
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2024 (3) TMI 843
Direction to make pre-deposit under section 73(5) of the GVAT Act as a condition to proceed with the matters on merits filed under section 73 of the GVAT Act - HELD THAT:- In case of M/s. Aims Biotech, when the Tribunal was passing the order dated 05.04.2022 without reference to the order passed in M/s. Nirman Life Science, neither the appellant nor learned advocate for the respondents have drawn attention of the Tribunal with regard to the order passed in case of the appellant - Tribunal has also imposed the cost of Rs. 6000/- upon the appellant while passing aforesaid order.
The impugned order passed by the Tribunal is also quashed and set aside and the matter is remanded back to the First Appellate Authority for fresh hearing to determine the pre-deposit as per section 73 of the GVAT Act. First Appellate Authority shall hear both the appeals of M/s. Aims Biotech as well as M/s. Nirman Life Science together within a period of two months from the date of receipt of copy of this order after deposit of the cost of Rs. 6000/- by the assessee in each case.
The appeals are accordingly disposed of.
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2024 (3) TMI 842
Rejection of bid as petitioner had not submitted the IT return - Specific criteria for bids of the tenders - petitioner submits that no specific years for filing Income Tax Returns were mentioned in the Tender Notice. Further in terms of Section 44 AB(a) read with Explanation 2 of Section 139 of the Act, 1961, the due date for submitting the return of income for auditing the same was 31st day of October of the assessment year, as the petitioner’s gross receipts was over Rs. 1 Crore for the year ending 31.03.2022. As such, there was no opportunity for the petitioner to have submitted the IT return for the year 2022-2023, in terms of the tender notice dated 06.08.2023
HELD THAT:- The clauses of the tender notice requiring the bidders to submit their IT Return for the last Assessment Year and the Financial Statement of last 3 years from the Chartered Accountant have been submitted by the petitioner. The only problem that has arisen is that the State respondents wanted the IT Return for the Assessment Year 2023-2024. This Court is well aware of the judgments of the Supreme Court, which is to the effect that the decision-making process of the employer or the owner of project in accepting or rejecting the bid of a tenderer should not be interfered with, unless the decisions are found to be arbitrary and irrational. A mere disagreement with the decision-making process or the decision of the Administrative Authority is no reason for a Writ Court to interfere in a tender proceeding, as the author of a tender document is the best person to understand and appreciate it’s requirement and interpret it’s documents.
The problem that however arises in the present case is that the respondents have not stated clearly, the specific years of the Financial Statement that were required by the tenderers. In the present case, the petitioner whose gross receipts was over Rs. 1 crore, was required to have his Income Return audited, in terms of Section 44 AB(a) read with Explanation 2 of Section 139 of the Act, 1961. When the statutory law provides that the petitioner had until 31st October of the Assessment Year to have his return on income audited, there was no infirmity with the petitioner not submitting his Income Tax Return for the period prior to 2022-2023, as the period for submitting the same for auditing had not expired as per the Act, 1961. This is purely due to the fact that the State respondents in the tender notice have not clearly specified the years for which the IT Returns were required to be submitted by the tenderers.
Thus this Court is of the view that in terms of the judgment of the Supreme Court in Dutta Associates Pvt. Ltd. [1996 (11) TMI 490 - SUPREME COURT] the respondents have not been transparent, fair and open, as the respondents should have made a clarification/specification in the tender notice.
This Court is of the view that the petitioner’s bid would have to be considered to be valid. In the alternative, the respondents should give an opportunity to the petitioner to submit the IT Return for the Assessment Year 2023-2024. The respondents shall thereafter consider the petitioner’s bid along with all other valid bidders.
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2024 (3) TMI 841
Prayer to direct the respondent- C.B.I. to furnish/ supply the copy of the post trap memo - seeking to know the reason of arrest - HELD THAT:- hat is reflected from the record is that all the three persons against whom allegations were levelled by the complainant have been arrested. This Court is not in a position to appreciate the stand taken by the C.B.I. before the court below, which is evident from the reply filed by the C.B.I., before the Special Court, a copy of which has been placed at Page No.43 of the paper book, wherein it is stated that accused Punit Singh has not signed on post trap memorandum, hence, same is not falling in the category of recovery memo and also that the investigation of the case is at initial stage and vital witnesses are yet to be examined and documents are to be collected and thus, the copy of the post trap memo cannot be provided to the accused.
The concept of fair trial may not be confined only to the prosecution and the same with equal force is applicable to the accused and if there is nothing extraordinary, in usual course, the copies of necessary documents must be provided to the accused persons of a crime, even at the stage of investigation and so much material should be provided by the investigating agency to the accused which may at least reflect the necessary evidence and material appearing against accused resulting in his arrest and confinement.
This Court is of the considered view that the Central Bureau of Investigation should have provided a copy of post trap memo of date 31.1.2024 to the applicant - Application allowed.
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2024 (3) TMI 840
Dishonour of Cheque - petitioner has not responded to the legal notice - complaint lacks necessary averments - vicarious liability of Director - HELD THAT:- In the present case, the petitioner has placed on record unimpeachable and uncontroverted material in the form of DIR-11, which is also accompanied by receipt issued by the Ministry of Corporate Affairs of issuance of the said form. The said form indicates that the petitioner who even otherwise was only a non-executive additional director, had resigned from the said post much prior to the date on which the subject cheques came to be dishonoured. The Form DIR-11 as well as the other documents placed on record have not been disputed by learned counsel for the respondent during the course of arguments.
Reference in this regard may be made to the decision of SUNITA PALITA & OTHERS VERSUS M/S PANCHAMI STONE QUARRY [2022 (8) TMI 55 - SUPREME COURT] wherein it was observed when a complaint is filed against a Director of the company, who is not the signatory of the dishonoured cheque, specific averments have to be made in the pleadings to substantiate the contention in the complaint, that such Director was in charge of and responsible for conduct of the business of the Company or the Company, unless such Director is the designated Managing Director or Joint Managing Director who would obviously be responsible for the company and/or its business and affairs.
The second issue whether a written guarantee or a letter of guarantee by an erstwhile Director would make him vicariously liable came up before the Supreme Court in POOJA RAVINDER DEVIDASANI VERSUS STATE OF MAHARASHTRA & ANOTHER [2014 (12) TMI 1070 - SUPREME COURT], wherein it was held that the same may amount to a civil liability but not vicarious liability under the NI Act.
The Court even otherwise, is also convinced that the complaint is bereft of appropriate pleadings alleging that the petitioner was in charge of, and responsible for the conduct of the business of the accused company - In the totality of the facts and circumstances, the petitioner cannot be made responsible for the dishonour of cheque, and the continuation of the criminal complaint against him would be nothing but an abuse of the process of law.
The petition is allowed.
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2024 (3) TMI 839
Application for final approval u/s 80G(5)(iii) - time limit prescribed for making an application for final approval u/s 80G - application of the assessee rejected as the assessee had already commenced its activities since long and since the time period for making application mentioned in Clause (iii) to First Proviso to section 80G(5) of the Act had already expired, therefore, the assessee could not be granted final registration u/s 80G(5)
HELD THAT:- CBDT Circulars regarding the exemption of date for final applications for approval are applicable only for the institutions who stood already registered on the date of Amendment and have made application for renewal of the registration without any time break. However, the said last date which has been extended to 30.09.23 by CBDT Circular No.6 of 2023 is not applicable for the institutions who have filed application for fresh provisional registration under Clause (iv) to First Proviso to section 80G(5) of the Act and thereafter for making application under Clause (iii) to First Proviso to section 80G(5) of the Act.
As observed above, for making application for final registration under Clause (iii) to First Proviso to section 80G(5) of the Act, the institution must have been provisionally registered either under Clause (i) or Clause (iv) to First Proviso to section 80G(5) of the Act. Therefore, after grant of provisional approval, the application cannot be rejected that the institution had already commenced its activities even prior to grant of provisional registration.
Under such circumstances, the date of commencement of activity will be counted when an activity is undertaken after the grant of provisional registration either under Clause (i) or Clause (iv) to First Proviso to section 80G(5) of the Act. In the case in hand, the assessee admittedly has applied for final registration after grant of provisional registration under Clause (iv) to First Proviso to section 80G(5) of the Act and therefore, the application filed by the assessee is within limitation period. The issue is squarely covered by the decision of Vivekananda Mission Asram [2023 (12) TMI 1298 - ITAT KOLKATA] and in the case of West Bengal Welfare Society vs. CIT(Exemption) (2023 (9) TMI 1422 - ITAT KOLKATA]. Therefore, the impugned order of the CIT(Exemption) is set aside and the ld. CIT(Exemption) is directed to grant provisional approval to the assessee under Clause (iii) to First Proviso to section 80G(5) of the Act, if the assessee is otherwise found eligible. Appeal of the assessee stands allowed.
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2024 (3) TMI 838
Prayer for some time to make the pre-deposit - applicant states that as the amount was deposited through DRC-3, the applicant will seek refund as has also been advised in the communication dated November 24, 2023 sent by the Central Board of Indirect Taxes and Customs - HELD THAT:- As prayed, the amount that has to be deposited in the present appeal shall be deposited within six weeks. List on March 11, 2024.
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2024 (3) TMI 837
Requirement to make pre-deposit - appellant intends to withdraw the amount already deposited - HELD THAT:- The predeposit amount that has to be deposited in the present appeal shall be deposited within four weeks. List on March 04, 2024
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2024 (3) TMI 836
Validity of show cause notice (SCN) - Supply of Relied Upon Documents (RUD) - Supply of inter-departmental communications or records/file notings or data/information - Challenge to SCN on the grounds that such notice was issued under the provisions, which were unconstitutional according to the petitioners - HELD THAT:- The petitioners did file the application before the Adjudicating Authorities for information and documents and it is not as if such information and documents were not furnished to the petitioners. All the documents or information may not have been supplied, but that was mainly because the petitioners avoided the specifics and even refused to explain the relevancy. All this has to be considered in the light of a clear and categorical submission/statement that the impugned show cause notices are to be disposed of based upon the RUDs and the non-RUDs already furnished to the petitioners.
In T. Takano [2022 (2) TMI 907 - SUPREME COURT] relied upon by the petitioners, the Hon'ble Supreme Court has held that it could not be oblivious to the wide range of sensitive information that the investigation report submitted under Regulation 9 of the SEBI Regulations may cover, ranging from information on financial transactions and on other entities in the securities market, which might affect third-party rights. The Court held that the report may contain market sensitive information which may impinge upon the interest of investors and the stability of the securities marker. Therefore, the Court held that the requirement of compliance with the principles of natural justice cannot therefore be read to encompass the right to a roving disclosure on matters unconnected or regards the dealings of third parties. The investigating authority may acquire information of a sensitive nature bearing upon the orderly functioning of the securities market. The right of the noticee to disclosure must be balanced with a need to preserve any other third-party rights that may be affected.
In T. Takano, the Hon'ble Supreme Court relied upon Natwar Singh [2010 (10) TMI 156 - SUPREME COURT], wherein it was observed that there are exceptions to the general rule of disclosing evidentiary material. The Court held that such exceptions can be invoked if the disclosure of material causes harm to others, is injurious to public health or breaches confidentiality. The Court held that while identifying the purpose of disclosure one of the crucial objectives of the right to disclosure is securing the transparency of instructions. The claims of third-party rights vis-a-vis the right to disclosure cannot be pitted as an issue of public interest and fair adjudication.
T. Takano provides that a quasi-judicial authority has a duty to disclose the material that has been relied upon at the stage of adjudication. A mere ipse dixit of the authority that it has not relied on certain material would not exempt it from its liability to disclose such material if it is relevant to and has a nexus to the action taken by the authority. Thus, the actual test is whether the material that is required to be disclosed is relevant for the purpose of adjudication. If so, then the principles of natural justice require its due disclosure.
On conclusion of investigation proceedings, the investigation team indeed prepared investigation report, and further it is on acceptance of the same by the competent authority that the show cause notices were issued, then subject to exceptions being made out by the respondents, copy of such investigation report should be furnished to the petitioners. If such an investigation report contains sensitive information regarding the identity of the sources or regarding third parties and unrelated transactions, respondents can always furnish such investigation reports to the petitioners by redacting such portions and such information.
Thus, no directions are called for in the context of inter-departmental communications or records/file notings or data/information shared with ISI. Records show that respondents have furnished all the documents relied upon in the show cause notices and even allowed the petitioners' inspection based upon which they retrieved the Non-Relied Upon Documents. The show cause notice is detailed and refers to the material/documents based upon which it is issued. All this, coupled with the statement/submission that the show cause notices would be disposed of by reference to the documents furnished to the petitioners, suggests sufficient transparency and fairness.
The petitioners must join the adjudication process and not delay the same. This clarification is necessary because Ms Desai, at the stage of admitting these petitions, has made a statement that final orders will not be made without the leave of this Court.
All these civil applications are disposed of.
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2024 (3) TMI 835
Maintainability of petition - appealable order u/s 107 of the Goods and Service Tax, 2017 - petitions have been dismissed by this Court on the ground of availability of an efficacious alternative remedy - HELD THAT:- In Hameed Kunju vs. Nizam [2017 (7) TMI 1414 - SUPREME COURT] the Apex Court held that any petition under Article 227 of Constitution of India should be dismissed in limine when there is statutory provision of appeal. In another case ANSAL HOUSING AND CONSTRUCTION LTD. VERSUS STATE OF U.P. AND ORS. [2016 (3) TMI 1435 - SUPREME COURT] it is held that when there statutory appeal is provided, then the said remedy has to be availed.
Looking to the fact of availability of an efficacious alternative remedy, it is not found proper to entertain this petition. Petitioner would be at liberty to avail the alternative remedy in accordance with law, if so advised.
Petition dismissed.
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