TMI Tax Updates - e-Newsletter
October 29, 2024

Case Laws in this Newsletter:

GST Income Tax Customs Corporate Laws Insolvency & Bankruptcy PMLA Service Tax Central Excise Indian Laws

Articles

• Sale of goods & services in a fixed exchange rate contract and its implications under GST
• SUPREME COURT ON INPUT TAX CREDIT ON CONSTRUCTION RELATED ACTIVITIES
• ITC benefit allowed on commercial property
• Common Challenges in APEDA Registration and How to Overcome Them
• Packing material supplied for selling live honey bee is a part of composite supply

News

• Shri Piyush Goyal to visit Kingdom of Saudi Arabia to enhance economic ties and participate in the 8th Future Investment Initiative

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Notifications

DGFT

• 39/2024-25 - dated 28-10-2024 - FTP
  Alignment of RoDTEP Schedule consequent to changes in the First Schedule of Customs Tariff Act w.e.f. 01.10.2024.

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Circulars / Instructions / Orders

DGFT

• 28/2024-25 - dated 28-10-2024
  Modification of SION E-125 for export of Shea Stearine.

Highlights / Catch Notes

GST

• Appellate authority denied fair hearing by dismissing appeal for signatory defect without allowing rectification.

  Appellate authority erred in dismissing appeal solely on ground of lack of authorisation of signatory, without affording opportunity to establish authorisation or provide resolution conferring necessary powers. Such denial violates principles of natural justice, fair play, and unduly burdens court's docket. Impugned order set aside, appeal restored for fresh consideration on merits as per law by Commissioner (Appeals). Dismissal shortcut disapproved, appellants entitled to substantive adjudication.
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• Penalty quashed for GST violation due to denial of natural justice by ignoring hearing request.

  Order quashing penalty levied u/s 130 of GST Act due to violation of principles of natural justice. Authority failed to address petitioner's request for personal hearing beyond specified date, thereby passing order without considering petitioner's prayer. Once a request for alternate hearing date was made, authority was obligated to either grant or decline it explicitly. Failure to determine or react to the request constituted denial of natural justice. Consequently, the impugned order dated 18.06.2024 was quashed and set aside, allowing the petition.
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• High Court dismisses writ against tax order due to failure to file appeal within time limit.

  The High Court dismissed the writ petition filed by the petitioner challenging the validity of the order determining the amount of tax u/s 74 of the U.P. G.S.T. Act, 2016. The court observed that a coordinate bench had previously directed the petitioner to avail the remedy of appeal within the limitation period from the date of the order. However, the petitioner failed to file the appeal within the prescribed time limit and instead filed the present writ petition after a considerable delay. The High Court held that since the coordinate bench had granted a specific relief, which the petitioner chose not to avail, the present writ petition cannot be entertained and was consequently dismissed.
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• Tax evasion suspected due to excess stock found in survey, proceedings initiated under GST Act sections 73/74.

  Excess stock found during survey triggers proceedings u/ss 73/74 of the GST Act, not Section 130. The authority noted excess stock by eye estimation without physical verification or video recording. The High Court held that if excess stock is found, proceedings u/ss 73/74 should be initiated, not Section 130 read with Rule 120. The impugned orders initiating proceedings u/s 130 were quashed as legally unsustainable when excess stock was found during the survey.
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• Uttar Pradesh GST order quashed for denying personal hearing, violating natural justice.

  Order challenged u/s 74(9) of the Uttar Pradesh Goods and Services Tax Act, 2017 quashed due to denial of opportunity for personal hearing, violating principles of natural justice. Relying on coordinate Bench judgment in Mahaveer Trading Company case, where impugned order was held unsustainable for being passed in gross violation of fundamental principles of natural justice. Factual matrix similar, no reason to take a different stand. Impugned order dated June 8, 2023 quashed, direction given to officer concerned to grant petitioner another opportunity of filing fresh reply, thereafter fix a date of hearing and pass a reasoned order. Petition disposed of.
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• Taxpayer gets relief from tax order due to lack of notice.

  The court allowed the writ petition filed by the petitioner, quashing the impugned order dated 23.04.2024 passed by the Assistant Commissioner, State Tax, Sector-16, Kanpur Nagar. The petitioner was unaware of the issuance of the reminder and the passing of the orders, and could not appear before the authority or question the validity of the orders within the limitation period. Following the judgment in Ola Fleet Technologies Pvt. Ltd [2024 (7) TMI 1543 - Allahabad High Court], the court held that the petitioner was entitled to the benefit of doubt, as there was no material to reject the contention that the impugned order was not reflected under the "view notices and orders" tab. The court found that no useful purpose would be served by keeping the petition pending, calling for a counter affidavit, or relegating the petitioner to the available statutory remedy.
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• Chemicals like soda ash, epsom salt taxed at 8%, not covered under dyes/chemicals entry.

  Sodium Bicarbonate (Soda Ash) and Magnesium Sulphate (Epsom Salt) are not enumerated in Entry-9 of the VI Schedule, which covers dyes and chemicals. A Government Order directs a levy of 8% sales tax on all chemicals not covered under Entry-9. In a similar case, the erstwhile High Court of Judicature, Andhra Pradesh held that any chemical not enumerated in Entry-9 would fall under the Government Order and be taxable at 8% only, irrespective of its usage as a raw material. Consequently, the goods in question are to be taxed at 8% as they are chemicals not covered under Entry-9. The Revision Orders of the Joint Commissioner (CT) (Legal), Office of the Commissioner of Commercial Taxes, A.P, Hyderabad are set aside, and the petition is allowed.
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• Retrospective amendment on time limit for GST appeals clarified; Gujarat & Karnataka HCs applied it. Delayed appeal rejection quashed.

  Amendment to Rule 108(3) of Central Goods and Services Tax Rules, 2017 regarding time limitation for filing appeals u/s 107 is clarificatory in nature with retrospective effect. Gujarat and Karnataka High Courts have considered retrospective application. Impugned order rejecting appeal on grounds of delay quashed, matter remitted to appellate authority to decide on merits after hearing petitioner. Petition allowed.
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• Strict GST rules strangle small biz: Court calls for reforms to aid traders.

  The High Court addressed the issue of cancellation of GST registration due to non-filing of returns and the rejection of an appeal on the ground of time limitation. The respondent claimed that the statute prescribes a specific limitation period of 90 days to file an appeal, and the petitioner's appeal was time-barred. The Court held that no useful purpose would be served by keeping the petitioners out of the Goods and Service Tax regime, as they would continue their businesses and supply goods and services. The Court acknowledged that most small-scale entrepreneurs are uneducated and unaccustomed to handling emails and advanced technologies, despite providing email IDs during registration. The Court emphasized that the object of any government should be to promote trade, not curtail it. The method adopted by the department is likened to strangulating the neck of small-scale entrepreneurs, as cancellation of registration amounts to capital punishment for traders. The Court expects the GST department to amend relevant provisions, considering the consequences on traders, and to find modalities for conveying show cause notices via SMS and regional languages.
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• Fat-laden food product classified as vegetable oil preparation, not margarine. Attracts 5% GST rate.

  The food product containing 22.94% fat cannot be classified as Margarine under chapter heading 1517 10 as per Food Safety and Standards Regulations, 2011 which requires fat content not less than 80% mass/mass for Margarine. The product is a preparation of vegetable fat specifically covered under 1517 90 90, not under residuary chapter heading 2106. Since it is a preparation of vegetable oil without animal fat, GST rate applicable is 5% as per S. No. 89 of Schedule I to Notification No. 1/2017 - IGST(Rate) dated 28.06.2017. The Appellate Authority for Advance Ruling upheld this classification and GST rate.
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• Ruling voided for non-disclosure of ongoing proceedings on same issue.

  The applicant had suppressed material facts from the Authority for Advance Ruling by mis-declaring that the issue was not pending in any other proceedings, when in fact, proceedings on the same issue had already commenced by the DGGI. Upon being informed of this by the Appellant, the Authority for Advance Ruling declared the Ruling void ab initio u/s 104 of the Act. Consequently, the appeal filed by the Appellant before the Appellate Authority for Advance Ruling against the void Ruling became infructuous and was dismissed.
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• Recycled Metals, Batteries, Plastics Ineligible for GST Margin Scheme - Deemed as Scrap, Not Second-Hand Goods.

  Determining whether certain goods, specifically old used iron scrap, used lead acid batteries, old used aluminum utensils and other aluminum scrap, old used brass utensils and other scrap, used old steel utensils scrap, old used scrap of copper, used waste plastic bags and used plastic PET bottles, qualify for the margin scheme u/r 32(5) of the CGST Rules, 2017. The key points are: Notification No. 8/2018-Central Tax (Rate) does not limit the margin scheme to second-hand motor vehicles only, but it is available for all other goods that qualify as second-hand goods. The distinction between second-hand goods and scrap is crucial, with second-hand goods being ready for immediate use by a new owner, while scrap requires processing to be useful again. The goods in question are considered scrap, not second-hand goods, as they do not meet the continuity of usage requirement. Therefore, they are ineligible for the margin scheme u/r 32(5) of the CGST Rules, 2017, for both intra-state and inter-state supply of goods.
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• Advance ruling appeal dismissed due to insufficient fee deposit.

  The appellant was required to deposit a total fee of Rs. 20,000/- (Rs. 10,000/- CGST and Rs. 10,000/- HGST) as a statutory precondition for filing an appeal against the order of the Authority for Advance Ruling, Haryana. However, the appellant paid only Rs. 10,000/- (Rs. 5000/- CGST and Rs. 5000/- HGST), which is not the required fee. Consequently, the Appellate Authority for Advance Ruling held that the appeal filed by the appellant is not maintainable in terms of Section 100(3) of the GST law for want of deposition of the requisite fee. The appeal was disposed of accordingly.
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• Lime with less than 98% calcium oxide/hydroxide classified under CTH 2522 20 00, taxable at 5% GST.

  Slaked/hydrated lime containing less than 98% calcium oxide and calcium hydroxide is classifiable under CTH 2522 20 00 and taxable at 2.5% CGST and 2.5% SGST as per entry Sl. No. 131 of Schedule I of Notification No. 1/2017-C.T. (Rate), dated 28-6-2017 as amended. This ruling is based on the clarification from the All India Lime Manufacturers Association and laboratory analysis reports furnished by the applicant revealing the composition. The classification and tax rate determination are in accordance with the GST rate notifications and applicable legal provisions.
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Income Tax

• Late tax payment for 2005-06 & 2006-07 - Interest payable u/s 234B; Before 209(1) amendment, non-resident still liable despite TDS default.

  Non-payment of tax for Assessment Years 2005-06 and 2006-07 - Liability to pay interest u/s 234B. Prior to the insertion of proviso to Section 209(1), if the payer defaulted in deducting tax at source from payments to non-residents, the non-resident was not absolved from paying taxes, and the question of advance tax payment did not arise. The Supreme Court disposed of the appeal due to low tax effect, keeping any question of law open. Pending applications were also disposed of.
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• Validity of revision challenged over discrepancies in balance sheet & cash flow; technicalities rejected as trivial matter.

  The case pertains to the validity of revision u/s 263 involving a substantial question of law or fact. There were discrepancies between the figures for current assets and current liabilities in the balance sheet and cash flow statement filed before the Assessing Officer for the financial year 2007-08. The CIT(A) dismissed the appeal ex-parte, and the Tribunal restored the issue to the CIT(A)'s file to allow the assessee an opportunity to substantiate its case. However, the Tribunal remarked that the assessee was not interested in reconciling the discrepancies but attempting to use technical reasons to avoid responsibility, showcasing the triviality of the matter. The Supreme Court held that no case for interference was made out under Article 136 of the Constitution and dismissed the Special Leave Petition, condoning the delay. Any pending application was also disposed of.
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• Disputed tax assessment order; halt recovery pending appeal.

  Recovery proceedings u/s 263 were challenged. The Tribunal directed inquiries regarding the correctness of the valuation report, but these directions were allegedly not followed in the assessment order passed on remand. The High Court held that recovery should await the disposal of the appeal, as the demand was based on an assessment order passed prior to the Tribunal's order. 20% of the amounts had already been recovered, and no further recovery would be carried out based on the impugned assessment until the appeal is disposed of. If the assessment is set aside, the assessee would be entitled to a refund along with interest, either as per statute or the interest paid in the cash credit account, whichever is higher. If the assessment is upheld, the assessee would be saved from interest on the amount recovered during the intervening period. There was no need to direct a refund of the 20% already recovered.
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Customs

• Gas cylinders seized for lacking valid certification; PESO blamed, redemption contested.

  Cylinders imported without valid PESO certificate, violating Rules 31 and 32 of Gas Cylinder Rules, 2016. Goods confiscated u/s 111(d) of Customs Act, 1962. Petitioner argued reasons attributable to PESO Authorities, sought relief from confiscation and penalty. Respondents contended goods arrived before incorrect PESO certificate date, justifying redemption fine and penalty. HC ordered provisional release of cylinders worth Rs. 31 lakhs on furnishing bonds and paying Rs. 2,00,000/- without prejudice, subject to adjudication of show cause notice. Petitioner granted liberty to file reply to notice by 30 October 2024. Payment abides by conclusion of adjudication proceedings.
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• Excessive delay quashes show cause notice; authorities fail to justify 15-year pendency, HC restrains further proceedings.

  The HC quashed the show cause notice pending adjudication for over 15 years due to inordinate and unexplained delay by the respondent. The respondent's affidavit failed to justify the delay satisfactorily. The SC order cited does not mandate excusing gross, unjustifiable, and inordinate delays in adjudicating show cause notices without reasonable explanation. Consequently, the HC restrained the respondents from further proceedings based on the impugned show cause notice.
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• Garment exporter denied duty drawback claim due to exclusionary customs circular; courts uphold retrospective clarification.

  Duty Drawback claim denied due to clarificatory Circular No.55/99-Cus retrospectively applicable. Petitioner's exported product, Woolen Readymade Garments, excluded from S.S.NO.62.09 covering only woollen Suits/Trousers/Blazers/Jackets as per Circular. Revisional Authority's order upheld, relying on Karnataka High Court decision in CCE Bangalore Vs. Central Manufacturing Technology Institute, clarifying retrospective nature of clarificatory notifications. Petitioner entitled only to Brand Rate, not Drawback claim for exported garments other than specified categories. Writ Petition dismissed.
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• Misdeclared polished marbles as unpolished, excess qty found. Duty+interest+penalty paid, seeking closure. Provisional assessment case.

  Misdeclaration of imported polished marble slabs as unpolished slabs. Excess quantity found during physical verification. Customs duty demanded along with interest and penalty imposed. Importer paid duty, interest, and penalty, requested closure u/s 28(5) and 28(6) of Customs Act, 1962. Commissioner held show cause notice premature for duty demand, proceedings concluded u/s 125. Assessment provisional u/s 18(2), not final. Section 28(4) inapplicable, proceedings rightly concluded u/s 125 for provisional assessments. Mis-declaration covered under case law. Provisional release doesn't affect adjudication jurisdiction. Mentioning wrong provision doesn't vitiate proceedings if authority has requisite power. Redemption fine imposable u/s 125 when goods released under bond. Penalty imposed u/s 112(a), omission of Section 114(AA) penalty. Matter remanded to determine nature of proceedings, allow Section 28(5) and 28(6) benefit if assessment not provisional, else finalize assessment, then demand duty u/s 28(4) and allow amnesty.
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Corporate Law

• Insolvency case: Court allows interim measures to protect company assets & stakeholder interests during resolution.

  Corporate insolvency resolution proceedings involved intervention by Greenopolis Welfare Confederation. Court permitted Interim Resolution Professional (IRP) to undertake specific measures to safeguard corporate debtor's assets and stakeholders' interests, including compliance and status reporting before next hearing date. Disposition of application regarding IRP's role and actions in protecting company's assets during insolvency process.
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IBC

• Lease rent & premium not part of CIRP costs as per NCLAT ruling, following previous stance despite NOIDA's challenge.

  The NCLAT set aside the order and allowed the appeal, ruling that outstanding lease rental and premium due during the CIRP period cannot be included in CIRP costs. It relied on its previous decision in Sunil Kumar Agrawal case, which held that the explanation u/s 14(1)(d) of IBC is not applicable to premium amount or lease rent as they are not covered under licenses, permits, registrations, quotas, concessions, or clearances mentioned in that section. The NCLAT maintained the same order as in Sunil Kumar Agrawal case, despite NOIDA challenging it in the Supreme Court through a civil appeal where notice has been issued but no stay granted. The NCLAT will follow its previous order until the Supreme Court decides on its correctness in the pending civil appeal.
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• MSMEs get relief: Corporate debtor's account turned NPA after MSME registration, clearing way for Resolution Plan.

  The Appellate Tribunal examined the applicability of Section 240A of the Insolvency and Bankruptcy Code (IBC) to the Corporate Debtor registered as an MSME and whether the Successful Resolution Applicant (SRA) was ineligible u/s 29A(c) of the IBC to submit the Resolution Plan. The Adjudicating Authority had held the SRA ineligible, considering the Managing Director's control over the Corporate Debtor and Financial Creditor. However, the Appellate Tribunal observed that the Corporate Debtor's account became a Non-Performing Asset after it was registered as an MSME. Applying Section 240A, the SRA's ineligibility u/s 29A(c) cannot be reckoned when the account was declared non-performing under its management. No other ineligibility was pointed out. The Appellate Tribunal set aside the Adjudicating Authority's order, dismissed the Suspended Director's application, allowed the Resolution Professional's application, and approved the Resolution Plan.
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Indian Laws

• Mere failed treatment doesn't prove medical negligence; evidence of doctor's lack of skill/care required.

  Medical negligence requires proving the medical professional lacked requisite qualification, skill or failed to exercise reasonable care. Mere unfavorable outcome or failed treatment does not establish negligence unless evidence shows the doctor failed to exercise due skill possessed. The complainant did not adduce evidence to prove the doctor lacked expertise or failed to exercise reasonable competence. No expert testimony established the doctor's failure to exercise requisite skill. Applying res ipsa loquitur doctrine without such evidence is improper. The consumer forum erred in finding negligence and awarding compensation without sufficient proof of the doctor's failure to exercise due care and skill.
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PMLA

• Organized online betting racket accused denied bail over money laundering charges.

  This summary pertains to a case involving the grant of regular bail in a money laundering case related to proceeds of crime from a scheduled offence of cheating and criminal conspiracy. The key points are: The court need not delve deep into the merits but should consider prima facie material against the accused. The court will not weigh evidence to determine guilt, as that is the trial court's role. At the bail stage, the court can only examine if a prima facie case is established. The criminal activity of opening bogus/benami bank accounts and utilizing them for illegal online betting, with illegal funds transferred through these accounts, constitutes proceeds of crime under PMLA. Digital records and statements u/s 50 of PMLA establish the applicant's link with the illegal betting website and generation of proceeds of crime. The applicant's involvement at the highest level of the betting website is corroborated by statements. The applicant's denial alone is insufficient to negate mens rea for the PMLA offence. Statements u/s 50 of PMLA can be considered for bail purposes. Sufficient evidence exists to prima facie show the applicant's involvement in the money laundering offence. Considering the organized nature of the crime and provisions of Section 45 of PMLA, there are reasonable grounds to believe the applicant is involved and likely to commit another offence on bail. Therefore, bail is.
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SEBI

• SEBI consolidates & supersedes circulars for Investment Advisers until May 2024, safeguarding past actions.

  This Master Circular consolidates and supersedes previous circulars issued by SEBI to Investment Advisers (IAs) until May 15, 2024. It rescinds the directions/instructions contained in earlier circulars listed in the Appendix, while safeguarding past actions, applications, rights, obligations, and proceedings under the rescinded circulars. The circular is issued under SEBI's powers to protect investor interests and regulate securities markets. It is available on SEBI's website under relevant categories.
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• New norms relax compliance for investment advisers - annual audit by any auditor & submission deadline extended.

  This circular amends certain provisions related to compliance requirements for non-individual investment advisers. Firstly, it allows non-individual investment advisers to obtain an annual compliance certificate from any auditor, instead of a statutory auditor, confirming adherence to client-level segregation norms mandated by Regulation 22 of the Investment Advisers Regulations. Secondly, it grants a 30-day period from the end of each half-yearly reporting period for investment advisers to submit periodic reports to the Investment Adviser Administration and Supervisory Body. The circular cites ease of doing business and recommendations of a working group as rationales for these amendments. It directs the supervisory body to notify advisers and update relevant regulations accordingly, invoking SEBI's powers under the Securities and Exchange Board of India Act and Investment Advisers Regulations.
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• SEBI issues consolidated guidelines for Research Analysts to protect investors, superseding previous circulars.

  This Master Circular consolidates various circulars and guidelines issued by SEBI to Research Analysts, superseding the previous Master Circular dated June 15, 2023. It incorporates provisions of circulars issued until May 15, 2024, while rescinding the earlier circulars to the extent they relate to Research Analysts. However, actions taken under the rescinded circulars remain valid, and pending applications will be processed under the corresponding provisions of this Master Circular. The circular aims to protect investors' interests and regulate the securities market, exercising powers under the SEBI Act, 1992.
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• Securities research without promotion exempted from advertisement code.

  This circular clarifies that research reports and recommendations issued by Research Analysts (RAs) are not considered advertisements unless they contain elements promoting products or services offered by the RA. The advertisement code provisions apply to pamphlets, brochures, notices, electronic/audio-visual communications, or any material designed for publication, except research reports lacking promotional content. Research reports with express or implied promotion of RA's offerings will be construed as advertisements. The circular aims to protect investor interests and regulate securities markets under SEBI Act and RA Regulations.
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Service Tax

• Petty contractor's lack of knowledge led to service tax underpayment - penalties imposed despite compliance before adjudication.

  Non-discharge of service tax - extended period invoked, service tax demanded - penalties imposed u/ss 77 and 78 of Finance Act, 1994 - appellant providing taxable maintenance, repair, manpower recruitment and supply services - appellant computed and paid service tax due - lack of knowledge and status as petty contractor pleaded - authorities imposed heavy penalties despite appellant's compliance before adjudication - undisputed findings regarding appellant's status and compliance - no justification for not considering Section 80 benefit and waiving penalties - fit case for waiving penalties u/ss 77 and 78 in terms of Section 80 - appeal partly allowed, setting aside penalties imposed on appellant.
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• Telecom cables laying not exempted from service tax, aimed at boosting subscriber base.

  Service tax exemption under Notification No. 25/2012-ST denied for services of laying cable under NOFN project, as the project aimed at increasing subscriber base and revenues for BSNL, falling within the ambit of 'commerce'. Notification exempts civil structures meant predominantly for use other than commerce, industry or business, which is to be interpreted strictly. Appellant not eligible for exemption. Non-recovery of service tax is an offence u/s 73. Cum-duty benefit allowed, directing recalculation of demand treating receipts as inclusive of service tax and consequential re-computation of penalty u/s 78.
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Central Excise

• Blended aviation fuel with 70%+ petroleum oils now under new tariff item 2710 19 33 with 14% excise duty.

  This notification amends the Fourth Schedule of the Central Excise Act, 1944, related to mineral products under Chapter 27. It substitutes the Supplementary Notes, defining standards and specifications for blended aviation turbine fuel. A new tariff item 2710 19 33 is inserted for "Blended Aviation turbine fuel" with a 14% excise duty rate. The notification clarifies that blended aviation turbine fuel means any aviation turbine fuel containing 70% or more petroleum oils or bituminous mineral oils, blended with synthesized hydrocarbons conforming to BIS standard IS 17081:2019. The notification comes into force on the date of its publication in the Official Gazette.
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• Mistaken duty payment due to ERP error - Refund claim's time limit based on initial filing, not re-filing, allowed by Tribunal.

  The appellant's Daman unit mistakenly paid duty liability of their Halol unit due to an error in the ERP system meant for all group units. The issue pertains to determining the date for computing the one-year time limit u/s 11B for filing a refund application - whether it should be the initial filing date or the subsequent re-filing date after the department returned the initial application. The Tribunal held that since the appellant initially filed the refund claim within one year, the date of first filing should be considered, rendering the refund application not time-barred. Relying on the Gujarat High Court's judgment in Auro Pumps Private Ltd, the Tribunal ruled that the duty paid in excess is refundable. The Commissioner (Appeals)'s order was set aside, and the appeal was allowed, with the Tribunal affirming the Commissioner (Appeals)'s power to remand matters based on amendments to the Central Excise Act, 1944.
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Case Laws:

• GST

• 2024 (10) TMI 1454
  Dismissal of appeal on the ground that the authorised signatory of the Petitioner did not sign the same - HELD THAT:- Proper material has been produced to show that the signatory on the appeal memo was indeed authorised to sign the same. In any event, we do not approve of the appellate authorities adopting such shortcuts and dismissing the appeals, even without allowing the appellants to either establish that the signatory was authorised to sign the appeal memo or to place on record resolutions authorising such signatory with the necessary powers. Denial of such opportunity violates the principles of natural justice and fair play, not to mention avoidable harassment and pressure on the Court s docket. The impugned order dated 31 July 2024 is set aside - the Petitioner s appeal restored to the file of the Commissioner (Appeals) for fresh consideration on its merits and per law - appeal disposed off.

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• 2024 (10) TMI 1453
  Levy of penalty u/s 130 of GST Act - violation of principle of natural justice - HELD THAT:- The order impugned though indicates the communication seeking date for personal hearing beyond 10.02.2024, however, no determination/reaction to the said prayer was indicated even in the order impugned, which clearly indicates that the prayer was not even adverted to and therefore, apparently the order has been passed in violation of principle of natural justice. Once a prayer was made seeking a date beyond the date fixed, it was incumbent upon the authority to either grant the same or decline and communicate the same to the petitioner. The order impugned dated 18.06.2024, Annexure-1, is quashed and set aside - Petition allowed.

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• 2024 (10) TMI 1452
  Input tax credit - petitioner in a commercial suit wanted to examine an official from the GST office to prove no input tax credit was received - HELD THAT:- It does become obvious that despite making best efforts, the defendant could not examine the competent official of GST and, therefore, in such a peculiar situation, the learned Trial Court should have rather given one opportunity to call the concerned official from the GST Office situation in Noida, where such record is stated to be available. Undoubtedly, the petitioner should have been vigilant in the first instance and should have summoned the official from appropriate Branch but keeping in mind the specific stand taken by him and also in view of the question put by him to the plaintiff in cross-examination, the present petition is allowed and petitioner is granted one opportunity to take requisite steps for purposes of summoning the concerned Official. Both the sides shall appear before the learned Trial Court on 04.11.2024 and learned Trial Court, keeping in mind its board position, would fix up a date for examination of said witness and may, accordingly, issue process to such witness through all permissible modes - Petition disposed off.

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• 2024 (10) TMI 1451
  Validity of order - determination of amount of tax has been made without service of order passed under Section 74 of U.P. G.S.T. Act, 2016 - violation of principles of natural justice - HELD THAT:- A perusal of the said order would reveal that a co-ordinate Bench of this Court on coming to the conclusion that since the order dated 20.10.2021, which is now impugned in the present writ petition, was not served on the petitioner earlier, it was directed that the petitioner may avail its remedy of appeal within limitation beginning the date of the order i.e. 5.4.2024. A specific relief/remedy was provided by the co-ordinate Bench of this Court against the order dated 20.10.2021. Once a co-ordinate Bench by its order dated 5.4.2024, specifically allowed the petitioner to avail its remedy of appeal and even extended the period of limitation from the date of passing of the order dated 5.4.2024, non filing of the appeal within the limitation provided under the Act and after expiry of the period of limitation, rather long thereafter, filing of the present petition, on the ground sought to be raised cannot be countenanced. Once in the petition filed by the petitioner on the previous occasion a specific relief has been granted which the petitioner chose not to avail, the present writ petition cannot be entertained and the same is, therefore, dismissed.

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• 2024 (10) TMI 1450
  Initiation of proceedings u/s 130 of the GST Act or u/s 73/74 of the GST Act - excess stock found at the time of survey - stock at the time of survey was noted by the authority by eye estimation without any physical verification and no video recording of the alleged stock was made - HELD THAT:- It is not in dispute that survey was conducted at the business premises of the petitioner on 30.11.2018. It is also not in dispute that excess stock was found, which triggered the initiation of the present proceedings against the petitioner. On various occasions, this Court has held that if excess stock is found, then proceedings under sections 73/74 of the GST Act should be pressed in service and not proceedings under section 130 of the GST Act, read with rule 120 of the Rules framed under the Act. This Court in S/s Dinesh Kumar Pradeep Kumar [ 2024 (8) TMI 71 - ALLAHABAD HIGH COURT] has held that 'This Court on various occasions has held that if the excess stock was found then the proceedings under Sections 73 74 of the UPGST Act will come into play and not proceedings under Section 130 read with Rule 122 of the Act.'. The law is clear on the subject that the proceedings under section 130 of the GST Act cannot be put to service if excess stock is found at the time of survey. The impugned order dated 18.07.2019 passed by the respondent no. 5 under section 130 read with section 122 of the UPGST Act as well as the impugned order dated 19.08.2023 passed by the first appellate authority, the respondent no. 4 cannot be sustained in the eyes of law. The same are hereby quashed - Petition allowed.

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• 2024 (10) TMI 1449
  Challenge to order passed u/s 74(9) of the Uttar Pradesh Goods and Services Tax Act, 2017 - denial of opportunity for a personal hearing - violation of principles of natural justice - HELD THAT:- The factual matrix is such that the matter is squarely covered by a coordinate Bench judgment of this Court in MAHAVEER TRADING COMPANY VERSUS DEPUTY COMMISSIONER STATE TAX AND ANOTHER [ 2024 (3) TMI 334 - ALLAHABAD HIGH COURT] where it was held that ' Thus, the impugned order cannot be sustained in the eyes of law. It has been passed in gross violation of fundamental principles of natural justice. The self imposed bar of alternative remedy cannot be applied in such facts. If applied, it would be of no real use. In fact, it would be counter productive to the interest of justice. Here, it may be noted, the appeal authority does not have the authority to remand the proceedings.' Upon a perusal of record, it appears that the factual matrix is very similar to one in Mahaveer Trading Company's case. There are no reason to take a different stand. The impugned order dated June 8, 2023 is quashed and set-aside with a direction given to the officer concerned to grant the petitioner another opportunity of filing a fresh reply and thereafter fix a date of hearing and pass a reasoned order - Petition disposed off.

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• 2024 (10) TMI 1448
  Creation of demand against the petitioner - petitioner being unaware of issuance of the said reminder as well as passing of the orders, could neither appear before the authority nor question the validity of the impugned orders within the period of limitation - HELD THAT:- In the case of Ola Fleet Technologies Pvt. Ltd [ 2024 (7) TMI 1543 - ALLAHABAD HIGH COURT] a co-oridiante Bench of this Court inter alia observed and it was held that ' it does appear that the petitioner is entitled to a benefit of doubt. No material exist to reject the contention being advanced that the impugned order was not reflecting under the tab view notices and orders . On merits, as noted in the earlier orders an other dispute exists whether all replies and annexures to the replies as filed by the assessee were displayed to the assessing officer and whether those have been considered. We find, no useful purpose may be served for keeping this petition pending or calling for a counter affidavit or even relegating the petitioner to the available statutory remedy.' In view of the submissions made and the judgement in the case of Ola Fleet Technologies Pvt. Ltd, the writ petition filed by the petitioner is allowed. The order impugned dated 23.04.2024 passed by the Assistant Commissioner, State Tax, Sector-16, Kanpur Nagar (Annexure-1 to the writ petition) is quashed and set aside. Petition allowed.

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• 2024 (10) TMI 1447
  Classification of goods - rate of tax - Sodium Bicarbonate (Soda Ash) and Magnesium Sulphate (Epsom Salt) - HELD THAT:- This G.O. directs a levy of sale tax @8% on all chemicals which are not covered under Entry-9 which is headed as dyes and chemicals. A perusal of Entry-9 would show that the goods mentioned above are not enumerated in Entry-9. In a similar situation, a Division Bench of erstwhile High Court of Judicature, Andhra Pradesh at Hyderabad while dealing with the product Sodium Hydro Sulphite had, in the Judgment in W.P.No.87 of 2007, held that any chemical which is not enumerated in Entry-9 of VI Schedule would fall within the ambit of G.O.Ms.No.189, dated 07.02.2005 and would be taxable @8% only. In view of the above Judgment, it would have to be held that all the goods in question would have to be taxed only @8% as they are chemicals and the usage of these chemicals as raw materials would not detract from the categorisation of these goods as chemicals. The Revision Orders of the Joint Commissioner (CT) (Legal), Office of the Commissioner of Commercial Taxes, A.P, Hyderabad dated 22.08.2008 set aside - petition allowed.

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• 2024 (10) TMI 1446
  Time Limitation for filing an appeal under Section 107 of the Central Goods and Service Tax Act, 2017 - HELD THAT:- Perusal of amendment notified on 26.12.2022 would reveal that it is clarificatory in nature which came in to force w.e.f. 26.12.2022. Since amendment is clarificatory in nature, it would have a retrospective effect. The retrospective effect of Rule 108(3) of the Rules, 2017 has also been considered by the Gujrat High Court in Otsuka Pharmaceuticals India Pvt. Ltd. Vs. Union of India [ 2024 (4) TMI 282 - GUJARAT HIGH COURT] and also by the Karnataka High Court in the matter of M/s Hitachi Energy India Pvt. Ltd. and another Vs. State of Karnataka and Others [ 2024 (7) TMI 53 - KARNATAKA HIGH COURT] . Since on the date of passing of the order dated 11.03.2024, the notification already came into force from 26.12.2022 and it is found that it is clarificatory in nature with retrospective effect on the provisions of Rule 108(3) of the Rules, 2017, the impugned order passed by the appellate authority rejecting the appeal filed by the petitioner on the ground of delay was not justified. The impugned order dated 11.03.2024 is accordingly quashed and set aside and the matter is remitted back to the appellate authority to pass a afresh order on merits after giving proper opportunity of hearing to the petitioner. Petition allowed.

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• 2024 (10) TMI 1445
  Maintainability of appeal to High Court - Imposition of taxability - HELD THAT:- The Division Bench of this Court in the case of Commissioner of Central Excise, Delhi vs. M/s Evalueserve.com Pvt. Ltd. [ 2023 (12) TMI 902 - PUNJAB AND HARYANA HIGH COURT] has held that ' Keeping in view the above and the question of law itself raised, we hold that the appeal is not maintainable and dismiss the same. However, liberty is granted to take appropriate steps in accordance with law.' Taking into consideration the law as settled by the Division Bench, it is found that in terms of Section 35(G) of the Central Excise Act, 1944, appeal would not lie to the High Court and the appeal would only lie to the Supreme Court. Appeal dismissed.

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• 2024 (10) TMI 1444
  Levy of GST on seigniorage fee and mining lease amounts paid by the petitioner to the Government - HELD THAT:- Division Bench Judgment in a batch of cases where the lead case is TVL. A. VENKATACHALAM VERSUS THE ASSISTANT COMMISSIONER (ST) [ 2024 (2) TMI 488 - MADRAS HIGH COURT] held that ' In the cases, where the challenge is made to the show cause notices, the writ petitioners shall submit their objections / representations within a period of four weeks from the date of receipt of a copy of this order.' In view of the said judgment, these petitions are liable to be disposed of on the same terms. Consequently, in these cases, the petitioner is permitted to submit his reply to the intimation within a maximum period of four weeks from the date of receipt of a copy of this order. Petition disposed off.

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• 2024 (10) TMI 1443
  Challenge to assessment order - discrepancies between the GSTR 3B return of the petitioner - petitioner submits that the petitioner agrees to remit 10% of the disputed tax demand as a condition for remand - HELD THAT:- On examining the impugned assessment order, it is evident that the confirmed tax demand has arisen entirely on the basis of discrepancies between the GSTR 3B return of the petitioner and the auto- populated GSTR 2A return. It is also evident that the petitioner was not heard before the tax demand was confirmed. The assessment order was preceded by a show cause notice and intimation. Therefore, the explanation of the petitioner that he was unable to respond to the above on account of being unaware of the same is not entirely convincing. At the same time, in order to provide an opportunity to the petitioner to contest the tax demand on merits, it is inclined to interfere with the impugned order by putting the petitioner on terms. The impugned assessment order is quashed subject to the condition that the petitioner remits 10% of the disputed tax demand as agreed to within a maximum period of two weeks from the date of receipt of a copy of this order. The petitioner is also permitted to submit a reply to the show cause notice dated 03.09.2022 within the aforesaid period of two weeks - Petition disposed off.

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• 2024 (10) TMI 1442
  GST liability under applicable GST laws in respect of seigniorage fee paid by the petitioner to the Government - Relevancy of decision made by a Nine Judge Constitution Bench on royalty - HELD THAT:- As decided in TVL. A. VENKATACHALAM VERSUS THE ASSISTANT COMMISSIONER (ST) [ 2024 (2) TMI 488 - MADRAS HIGH COURT] where the challenge is made to the show cause notices, the writ petitioners shall submit their objections / representations within a period of four weeks from the date of receipt of a copy of this order. Upon receipt of the objections / representations from the writ petitioners, the authority concerned shall proceed with the adjudication, on merits and in accordance with law, after affording reasonable opportunity of being heard to the petitioners. However, the orders of adjudication shall be kept in abeyance until the Nine Judge Constitution Bench decides the issue as to the nature of royalty. It is made clear that there shall be no recovery of GST on royalty until the Nine Judge Constitution Bench takes a decision. Needless to state that on the matters being decided, the writ petitioners if still aggrieved, shall redress their grievance(s), if any, before the appropriate forum, including by filing appeal(s). Insofar as the challenge to the notification as well as the circular, it is open to the writ petitioners to act upon, after the outcome of the case pending before the Nine Judge Constitution Bench. In view of the said judgment, this petition is liable to be disposed of on the same terms. Consequently, the petitioner is permitted to submit his reply to the intimation with in a maximum period of four weeks from the date of receipt of a copy of this order.

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• 2024 (10) TMI 1441
  Challenge to assessment order - discrepancy between the GSTR-3B return and GSTR-1 return - HELD THAT:- On examining the show cause notice, it is evident that two tables are set out therein. In the first table, the CGST and SGST amounts in GSTR-3B are shown as Rs. 3,33,787/-, whereas in the second table dealing with the difference between the GSTR-3B return and the auto populated GSTR-2A return, the GSTR-3B amounts are specified as Rs. 5,19,362/- both for CGST and SGST. The sum of Rs. 5,19,362/- tallies with the ITC availed of by the petitioner. Thus, the show cause notice is contradictory. In addition, it appears that the reply of the petitioner was not considered in the assessment order. The assessing officer did not take into account the reply dated 29.09.2023 and record reasons as to why such reply is not satisfactory. Therefore, the impugned assessment order calls for interference - the show cause notice is contradictory. Hence, the impugned assessment order is quashed by leaving it open to the respondent to initiate fresh proceedings by issuing a fresh show cause notice. Petition disposed off.

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• 2024 (10) TMI 1440
  Levy of GST on seigniorage fee and mining lease amounts paid by the petitioner to the Government - HELD THAT:- Division Bench Judgment in a batch of cases where the lead case is TVL. A. VENKATACHALAM VERSUS THE ASSISTANT COMMISSIONER (ST) [ 2024 (2) TMI 488 - MADRAS HIGH COURT] held that ' In the cases, where the challenge is made to the show cause notices, the writ petitioners shall submit their objections / representations within a period of four weeks from the date of receipt of a copy of this order.' In view of the said judgment, this petition is liable to be disposed of on the same terms insofar as it relates to either the issue of seigniorage fee or mining lease. Consequently, the petitioner is permitted to submit his reply to the intimation within a maximum period of four weeks from the date of receipt of a copy of this order.

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• 2024 (10) TMI 1439
  Exemption from entry tax on implementation of Bihar Policy for Promotion of New and Renewable Energy Sources, 2011 - exemption claim was denied by the Assessing Officer on the ground that there was no notification absolving the levy of entry tax during the period in which the construction was carried out - HELD THAT:- Admittedly, the petitioner s activity occurred during the period 2016-17. In fact, the Bihar Goods and Services Tax (Amendment) Act, 2019 by Section 22, amended Section 174 and extended the validity of notification S.O. 391 dated 10.11.2011 till 30.06.2017. The Assessing Officer obviously has not considered the said notification. The order of assessment is set aside and the Assessing Officer directed to look at the matter afresh, especially reckoning the notification pointed out by us and the extension of time provided therefrom.

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• 2024 (10) TMI 1438
  Seeking to quash the assessment order - Amnesty scheme - petitioner contended that, since the Ministry of Finance, Department of Revenue (Central Board of Indirect Taxes and Customs) has issued an amnesty scheme vide Notification No.53/2023-Central Tax [S.O.4767(E)], dated 2nd November 2023, this writ petition may be disposed of permitting the petitioner to pursue its grievance in terms of the said notification, to which Department raised no objection. - HELD THAT:- This writ petition stands disposed of permitting the petitioner to pursue its remedy in terms of the aforesaid amnesty scheme before the appropriate authority.

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• 2024 (10) TMI 1437
  Seeking quashing of adjudication order - prayer to declare that the show cause proceeding initiated under already repealed act after omission of the Chapter V of the Finance Act, 1994 - HELD THAT:- This Court is of the opinion that since similar matter has already been decided by the Delhi High Court in the case of MEGA CABS PVT. LTD. VERSUS UNION OF INDIA ORS. [ 2016 (6) TMI 163 - DELHI HIGH COURT] , this writ petition may be disposed of in terms of the said judgment, which is under adjudication before the apex Court. This writ petition stands disposed of.

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• 2024 (10) TMI 1436
  Violation of principles of natural justice - petitioner was unaware of proceedings culminating in the impugned order until he received a communication from the second respondent herein with regard to the bank account of the petitioner - HELD THAT:- In view of the sum of Rs. 9,17,238/- having been appropriated, revenue interest is fully secured. The documents on record clearly indicate that the petitioner was not heard before the impugned order was issued. Therefore, the impugned order calls for interference. The impugned order dated 08.08.2023 is quashed. The petitioner is permitted to submit a reply to the show cause notice dated 05.06.2023 with in a maximum period of two weeks from the date of receipt of a copy of this order - Petition disposed off.

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• 2024 (10) TMI 1435
  Exemption from sales tax - prayer that an opportunity be granted to petitioner to file a reply - HELD THAT:- Perusal of the impugn orders shows that orders have been passed solely on the ground that reply has not been submitted by petitioner. Accordingly, an opportunity needs to be granted to the petitioner to file a reply to the Show Cause Notice. The impugn orders are set aside. Matter is remitted to the proper officer for re-adjudication of the Show Cause Notice - Petition allowed by way of remand.

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• 2024 (10) TMI 1434
  Challenge to assessment order - SCN were merely uploaded on the GST portal and not communicated to the petitioner in any of the other modes specified in Section 169 of the applicable GST statutes - violation of principles of natural justice - HELD THAT:- The documents on record clearly indicate that an intimation and show cause notice preceded the assessment order. The records also disclose that personal hearings were offered to the petitioner. In these circumstances, the explanation of the petitioner that he was unaware of proceedings, in spite of being a registered person, is not wholly convincing. At the same time, it should be recognized that the petitioner was not heard and therefore did not have the opportunity to contest the tax demand on merits. The learned counsel for the petitioner is agreeable to remit 10% of the disputed tax demand as a condition for remand. In these circumstances, solely with a view to provide an opportunity to the petitioner, the impugned assessment order is quashed subject to the condition that the petitioner remits 10% of the disputed tax demand with in a period of three weeks from the date of receipt of a copy of this order - petition disposed off.

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• 2024 (10) TMI 1433
  Challenge to assessment order - personal hearing was not provided - violation of principle sof natural justice - HELD THAT:- On examining the show cause notice, the contention of learned counsel for the petitioner that no personal hearing was offered is liable to be accepted. As per Section 75(4) of the applicable GST statutes, a personal hearing is mandatory either if requested for or if an order adverse to the registered person is proposed to be issued. Since this mandatory requirement was not complied with, the order calls for interference. The impugned assessment order dated 01.09.2023 is quashed and the matter is remanded for re- consideration by the assessing officer. The petitioner is permitted to file a reply to the show cause notice within a maximum period of two weeks from the date of receipt of a copy of this order - Petition disposed off.

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• 2024 (10) TMI 1432
  Cancellation of GST registration due to non-filing of returns - rejection of appeal on the ground of time limitation - respondent claims that the Statue prescribes specific limitation period of 90 days to file an appeal and the appeal filed by the petitioner is a time barred one - HELD THAT:- This Court in TVL. SUGUNA CUTPIECE CENTER VERSUS THE APPELLATE DEPUTY COMMISSIONER (ST) (GST) , THE ASSISTANT COMMISSIONER (CIRCLE) , SALEM BAZAAR [ 2022 (2) TMI 933 - MADRAS HIGH COURT ], wherein it was held that no useful purpose would be served keeping the petitioners out of the Goods and Service Tax regime as such the assessee would still continue to his businesses and supply goods and services. The petitioner in this case is doing hotel business. Most of the small scale entrepreneurs like carpenters, electricians, fabricators etc... are almost uneducated and they are not accustomed with handling of e-mails and other advance technologies. Though they are providing e-mail IDs at the time of Registration, the applications are prepared by some agents by creating an e-mail IDs, however, on reality most of the Traders are not accustomed with handling of e-mails - the uneducated traders can also respond to these notices to some extent, otherwise, these notices will be an empty formality and will not serve any purpose for which it has been issued. The object of any Government is to promote the trade and not to curtail the same. The method, which is adopted by the Department as on today is like strangulating the neck of the small scale entrepreneurs. The cancellation of registration certainly amounts to a capital punishment so for as the traders are concerned. If they are not filing an appeal with in the statutory period, then his entire business comes to stand. He cannot do any business activities and without business, he cannot pay salaries to his employees, pay bills to the loans and ultimately, all his developments over a long period of time could be ruined in few months and it is also very difficult to regain the business in this competitive world. Therefore, the Department of GST has to think of the consequences and relax the rules and also find the modalities of conveying the show cause notice by way of SMS and also in the regional languages. This court expects the Department of GST to take appropriate action by amending the relevant provisions considering the consequences on traders. These writ petitions are disposed of.

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• 2024 (10) TMI 1431
  Power to condone delay - whether the appellate authority has the power to condone the delay beyond the statutory period? - HELD THAT:- The issue of whether the appellate authority has the power to condone the delay beyond the statutory period is no more res integra in view of the law laid down by the Hon ble Division Bench in S.K. CHAKRABORTY SONS VERSUS UNION OF INDIA ORS. [ 2023 (12) TMI 290 - CALCUTTA HIGH COURT] where it was held that 'Since provisions of Section 5 of the Act of 1963 have not been expressly or impliedly excluded by Section 107 of the Act of 2017 by virtue of Section 29 (2) of the Act of 1963, Section 5 of the Act of 1963 stands attracted.' This Court deems it appropriate to set aside the impugned order dated 02.11.2023 and remand the matter back to the appellate authority for fresh consideration on merit - Petition disposed off by way of remand.

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• 2024 (10) TMI 1430
  Challenge to assessment orders - GST liability exemption under Schedule III of applicable GST statutes - HELD THAT:- On examining the impugned assessment orders, it is noticeable that the reply submitted by the petitioner on several dates were referred to therein. All the documents submitted by the petitioner, such as purchase documents, Government approvals, copies of sale deeds to customers, documents relating to development fees paid to the Government and the statement relating to purchase of goods were taken into account. Thus, it is evident that the assessing officer engaged with the evidence placed on record by the petitioner and entered findings after appraising such evidence. It cannot be said that a reasonable opportunity was not provided to the petitioner and that the order is a consequence of non application of mind. In these circumstances, no case is made out to warrant interference in exercise of discretionary jurisdiction. The appropriate recourse for the petitioner would be to carry these assessment orders in appeal before the appellate authority. These writ petitions were filed in January 2024 after orders were issued on the rectification petitions on 05.01.2024. In these circumstances, if appeals are presented by the petitioner within a period of 15 days from the date of receipt of a copy of this order, the appellate authority is directed to consider and dispose of the same on merits without going into the question of limitation.

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• 2024 (10) TMI 1429
  Challenge to assessment order - arrears to tax and penalty - petitioner asserts that he was unaware of the proceedings until he received a phone calls from the respondent's office stating that he was in arrears of tax and penalty - violation of principles of natural justice - HELD THAT:- The documents on record disclose that the impugned assessment orders were issued on 29.09.2023. The three month period for filing an appeal expired on 28.12.2023. The further period of one month for condonation expired on or about 29.01.2024. These writ petitions were filed on 13.02.2024. If the time subsequent thereto is excluded, the actual period of delay beyond the condonable period is limited. In the overall facts and circumstances, these are appropriate cases to permit the petitioner to submit statutory appeals subject to fulfilment of pre-deposit requirements in that regard. These writ petitions are disposed of by permitting the petitioner to present statutory appeals before the appellate authority provided such appeals are presented with in a maximum period of ten days from the date of receipt of a copy of this order. If statutory appeals are presented with in the time frame specified above, the appellate authority is directed to consider and dispose of the same on merits without going into the question of limitation.

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• 2024 (10) TMI 1428
  Challenge to assessment orders - levy of GST on reverse charge basis on seigniorage fees - levy of GST on forward charge basis based on sales turnover - non-application of mind - violation of principles of natural justice - HELD THAT:- Insofar as the assessment orders deal with seigniorage charges, the directions issued in paragraph 9 of the Division Bench Judgment in a batch of cases where the lead case is A.Venkatachalam v. Assistant Commissioner (ST), Palladam, in W.P.No.30974 of 2022 [ 2024 (2) TMI 488 - MADRAS HIGH COURT] squarely apply. However, with regard to the imposition of GST on forward charge basis on turnover, the impugned assessment orders record the objections of the petitioner. The objection, in each case, is based on the declared taxable turnover of the petitioner. The petitioner contends that taxes were paid on the basis of the declared taxable turnover and that, therefore, the impugned assessment orders were issued mechanically without application of mind. On examining the impugned assessment orders, especially the extraction of the petitioner's objections with regard thereto, the contention of learned counsel for the petitioner is liable to be accepted. As a consequence, on this aspect, the impugned assessment orders call for interference. The assessment orders impugned herein are quashed only insofar as such orders deal with the imposition of GST on forward charge basis on the turnover. Consequently, these matters are remanded for re-consideration on such aspect - Petition disposed off.

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• 2024 (10) TMI 1427
  Levy of GST on seigniorage fee and mining lease amounts paid by the respective petitioner to the Government - applicability of N/N. 13/2017 - Central Tax (Rate) - HELD THAT:- Relaince placed for consideration the Division Bench Judgment in a batch of cases where the lead case is A. Venkatachalam v. Assistant Commissioner (ST), Palladam [ 2024 (2) TMI 488 - MADRAS HIGH COURT ], where it was held that ' In the cases, where the challenge is made to the show cause notices, the writ petitioners shall submit their objections / representations within a period of four weeks from the date of receipt of a copy of this order.' In view of the said judgment, this petition is liable to be disposed of on the same terms insofar as it relates to either the issue of seigniorage fee or mining lease. Consequently, in this case, the petitioner is permitted to submit his reply to the intimation with in a maximum period of four weeks from the date of receipt of a copy of this order. Petition disposed off.

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• 2024 (10) TMI 1426
  Dismissal of petition, relegating the appellant to the statutory appellate remedy - availment of excess input tax credit and utilizing the same for output tax - HELD THAT:- The 1st respondent passed Ext.P9 assessment order under Section 73(9) of the CGST/SGST Act. The appellant filed Ext.P10 application for rectification of the said order on the ground that there are apparent errors in the said order. The 1st respondent dismissed Ext.P10 application as per Ext.P13 order. The challenge on Exts.P9 and P13 is on merits. The impugned orders were passed after giving sufficient opportunity to the appellant for a hearing. It is settled that disputed questions of fact cannot be adjudicated by this court in the exercise of jurisdiction under Article 226 of the Constitution of India. The learned Single Judge rightly dismissed the writ petition, relegating the appellant to the statutory appellate remedy. There are no merit in the appeal. Accordingly, it is dismissed.

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• 2024 (10) TMI 1425
  Challenge to assessment orders - alleged discrepancies in the returns filed by the petitioner - petitioner was not provided sufficient time to respond to the show cause notices and that no personal hearing was offered - violation of principles of natural justice - HELD THAT:- The documents on record clearly indicate that the show cause notice was issued on 20.09.2023 and the impugned assessment orders on 28.09.2023. The time provided to the petitioner appears to be inadequate. In addition, the summary of the show cause notice does not provide an opportunity of personal hearing to the petitioner, which is not in consonance with the statutory mandate. Nevertheless, it also appears that the petitioner did not respond either to the notice in Form GST ASMT-10 or the intimation preceding the show cause notices. In those circumstances, the remand should be subject to terms. The assessment orders impugned herein are quashed and these matters are remanded for reconsideration subject to the petitioner remitting 10% of the disputed tax demand in respect of each assessment year as agreed to - Petition disposed off by way of remand.

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• 2024 (10) TMI 1424
  Cancellation of registration before SCN issued - no appellate remedy for reason of the limitation period having expired long prior - petitioner did not availed Amnesty Scheme by Circular No. 3 of 2023 by which the registered dealers, whose registrations were cancelled, were permitted to restore their registration, on payment of all dues, between 31.03.2023 to 31.08.2023 - HELD THAT:- The petitioner being not a registered dealer, there was no monitoring of his activities by the Department in the intervening period. There is no way to ascertain as to whether there was any transaction carried out during the said period. It is also a fact that the petitioner has neither availed of the appellate remedy nor the Amnesty Scheme which was made applicable. Petitioner also does not in the memorandum of writ petition controvert the allegation in the show cause notice that no returns were filed for the prescribed periods. The law favours the diligent and not the indolent. The delay stands against the petitioner.

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• 2024 (10) TMI 1423
  Imposition of GST on reverse charge mechanism on seigniorage fee, lease charges and payments made to the District Mineral Fund (DMF) - payment of interest and penalty - HELD THAT:- As decided in recent judgment A.Venkatachalam [ 2024 (2) TMI 488 - MADRAS HIGH COURT] in the cases, where the challenge is made to the show cause notices, the writ petitioners shall submit their objections / representations within a period of four weeks from the date of receipt of a copy of this order and upon receipt of the objections / representations from the write petitioners, the authority concerned shall proceed with the adjudication, on merits and in accordance with law, after affording reasonable opportunity of being heard to the petitioners. The orders of adjudication shall be kept in abeyance until the Nine Judge Constitution Bench decides the issue as to the nature of royalty. Thus, as it is made clear that there shall be no recovery of GST on royalty until the Nine Judge Constitution Bench takes a decision. These petitions are liable to be disposed of on the same terms in so far as the impugned assessment orders pertain to the imposition of interest and penalty on seigniorage fee, lease charges and DMF payments. In respect of all other aspects, the impugned assessment orders are not interfered with.

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• 2024 (10) TMI 1422
  Classification of goods - appropriate Chapter Heading under which the product proposed to be manufactured - applicable rate of GST - timelines of filing appeal - HELD THAT:- The food product is either Table Margarine or Bakery Industrial Margarine, if the fat content is not be less than 80 per cent mass/mass. The impugned product is indicated to have fat content of 22.94%. Thus, as per 'Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011, the impugned product 'Cream' cannot be classified as Margarine under chapter heading 1517 10. The Authority in its findings have found that the other ingredients, i.e. sugar and premix (emulsifiers, stabilizers, acidity regulators and preservatives) are not been found mentioned in the HSN explanatory notes in respect of preparations of vegetable oil in the nature of an emulsion of water-in-oil, though it may resemble like a regular cream and it can't be understood to be included in the proposed product to fall under chapter heading 1517. In this regard we find that the appellant has submitted that sugar contains only 1% and premix (emulsifiers, stabilizers, acidity regulators and preservatives) comprises 5.5% if the impugned product. Then the proposed product 'Cream' is a preparation of vegetable fat more specifically covered under 1517 90 90, therefore classifying the same under residuary chapter heading 2106 is not warranted - Since the proposed product is preparation of vegetable oil and does not contain animal fat, therefore GST rate applicable on the proposed product shall be 5% in terms of S. No. 89 of Schedule I to Notification No. 1/2017 - IGST(Rate) dated 28.06.2017.

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• 2024 (10) TMI 1421
  Timeliness of the appeal filed by the Appellant - Levy of GST - rate of tax - work carried by the applicant is a Composite supply of work contract involving pre dominantly earth work provided to a Government Entity - applicability of Serial No. 3, Heading 9954 of Notification No. 11/2017-Central Tax (Rate), dated 28.06.2017 and as per Notification No. 31/2017-Central Tax (Rate), dated 13.10.2017 both under the CGST Act, 2017 and the corresponding State Tax notification under HGST Act, 2017 - HELD THAT:- It was observed that the Appellant vide letter dated 13.01.2021 informed the Members of the Authority of Advance Ruling that M/s. KBPL has mis-stated the facts in their application filed before the Authority of Advance Ruling as they tick marked against S. No. 17 (at point 'a') that the question raised in the application was not already pending in any proceedings in their case under only of the provisions of the Act, WHEREAS proceedings on the same issue had already been commenced by the Gurugram Zonal Unit of the DGGI on 06.03.2019 which later culminated into Show Cause Notice dated 09.10.2020. Thus 'KBPL' has suppressed the material facts from the Authority of Advance Ruling. It is clear that M/s KBPL had mis-declared the facts before the Authority for Advance Ruling for obtaining the ruling; that the Appellant had filed the instant appeal before this authority (Appellate Authority for Advance Ruling); that thereafter informed the AAR about such mis-declaration of facts; that on being informed by the Appellant, the AAR had declared the Ruling to be VOID ab initio in terms of powers given under Section 104 of the Act. Since Ruling given has been held Void ab initio by the AAR, the appeal filed by the Appellant appears infructuous and merits to be dismissed. The appeal filed by the Commissioner, CSGT, Rohtak is dismissed as Infructuous.

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• 2024 (10) TMI 1420
  Margin Scheme notified under Rule 32 (5) of the CGST Rules, 2017 - selling the old used Iron Scrap, used Lead Acid Batteries, old used Aluminium utensils other Aluminium Scrap, old used brass utensils and other scrap, used old steel utensils scrap, old used scrap of copper, used waste plastic bags used plastic PET bottles etc to manufacturers - whether the goods when sold outside the state or when sold within the state of Rajasthan qualifies under the Margin Scheme? Whether or not the goods other than second hand Motor vehicles as notified under the Notification No. 08/2018 -Central Tax (Rate) dated 25.01.2018 are eligible for margin scheme or not? - HELD THAT:- The Notification No. 8/2018-Central Tax (Rate) dated 25.01.2018 has not been issued under Rule 32 (5) of CGST Rules, 2017. GST rate in case of sale of second hand goods will be the same as applicable on original products/new product except in case of second hand /used motor vehicles on which different GST rate are specifically notified by the Government vide Notification No. 8/2018-Central Tax (Rate) dated 25.01.2018. The intention of Government to issue notification No. 8/2018-Central Tax (Rate) dated 25.01.2018 is not to limit Motor Vehicles as second hand goods to cover under margin scheme rather to give separate rate on sale of such second hand motor vehicles. Thus, we hold that the benefit of margin scheme is not limited to second hand Motor vehicles only but it is available to all other goods as well subject to condition that subject goods qualify as second hand goods. Distinction between second-hand goods and scrap - HELD THAT:- It is a settled principle of jurisprudence that when the words of a statute are unambiguous and only one reasonable meaning can be given to it, then the courts are bound to give effect to that meaning. Such words have to be interpreted in their natural and ordinary sense. It is evident from the above that the key difference lies in the usability of the items; scrap requires processing to be useful again, whereas second hand goods are ready for immediate use by a new owner. Additionally, the value of scrap is generally determined by the material s potential for recycling and reuse, while the value of second hand goods is influenced by their condition, brand, and demand in the used goods market. The reference to second hand goods in the margin money scheme is to such goods whose pre post sale/disposal usage remains the same. For instance a second hand car shall be used in the same way as a new car. Used jewellery shall be worn the same way as new jewellery. Thus mere change of ownership is not sufficient to bring the term them as second hand goods under the purview of Rule 32 (5) of the CGST Rules, 2017. There is one more requirement i.e. continuity of usage. The judgement references relied upon the appellant conform to the above test. However, the items which are subject matter of the Ruling do not qualify the test. The items in question fall within the realm of scrap not second hand goods, rendering them ineligible to operate under the margin scheme as per Rule 32 (5) of the CGST Rules, 2017, in so far as the goods are considered scrap. Whether they are eligible for benefit of Margin Scheme for intra state supply or inter-state supply of goods? - HELD THAT:- The Margin Scheme under the CGST Rules, 2017, specifically Rule 32 (5), is designed to prevent double taxation on the supply of second-hand goods. It allows the GST to be levied only on the margin, which is the difference between the selling price and the purchase price of the goods. However, for goods to qualify under this scheme, they must be second-hand, used, or have undergone minor processing that does not change their nature. Additionally, the input tax credit should not have been claimed on these goods. Since the appellant s goods do not meet the criteria of second-hand goods, they are not eligible for the benefits of the Margin Scheme for either intra-state or inter-state supply of goods. This interpretation is congruent with the provisions and the intent of the GST framework to facilitate a fair taxation process while avoiding undue tax burdens on the circulation of second-hand goods. Snce the appellant is not eligible to operate under margin scheme in term of Rule 32 (5) of the CGST Rules, 2017 with corresponding provisions of SGST Rules, 2017 as the goods are not qualified as second hand goods, thus the benefit is neither available for intra state supply of goods nor inter-state supply of goods.

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• 2024 (10) TMI 1419
  Maintainability of Application - want of deposition of requisite fee as mandated under the GST law - Levy of tax on the monthly amount being deposited by occupier in the registry of the High Court of Punjab Haryana and which is thereafter released into the account of the applicant from the official bank account of the Punjab Haryana High Court - HELD THAT:- The Appellant was mandated to deposit a total of Rs. 20,000/- as fee (Rs. 10,000/- CGST and Rs. 10,000/- HGST) as a mandatory statutory precondition for filing appeal against the order of the Authority for Advance Ruling, Haryana. However, it is found that vide challan No. 23040600189701 dated 21.04.2023, the Appellant has paid only Rs. 10,000/- (Rs. 5000/- CGST and Rs. 5000/- as HGST), which is not the required fee. Since the appeal filed by the Appellant is incomplete for want of deposition of requisite fee, the Authority is of the view that the appeal filed by the Appellant is not maintainable in terms of Section 100(3) of the Act. Appeal disposed off.

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• 2024 (10) TMI 1418
  Rate of GST for hydrated lime/slaked lime - Advance Ruling - classification and HSN Code for supply of slaked / hydrated lime manufactured by the applicant containing less than 98% of the Calcium Oxide and Calcium Hydroxide - determination of the liability to pay tax on any goods or services or both - What should be the classification and HSN Code for supply of slaked / hydrated lime manufactured by the applicant containing less than 98% of the Calcium Oxide and Calcium Hydroxide? Classification and HSN Code - HELD THAT:- The All India Lime Manufacturers Association (AILMA) which is apex body for lime manufacturers and suppliers in India having registration number 63735 and CIN IJ91900RJ2019NPL063735 located at Jodhpur sought clarification from Honorable Commissioner (GST) of both center (CGST) and Rajasthan state (SGST) in which the department vide clarification letter dated 06.03.2020 16.02.2022 has clarified that Hydrated lime/Slaked Lime and Quick Lime with purity less than 98% falls under HSN heading 2522. Thus the goods in question fall under the HSN 2522 and accordingly the rate of tax applicable on the same in accordance with rate notification no. 1/2017-Central Tax (Rate) shall be 5%. Classification and HSN Code for supply of slaked / hydrated lime manufactured by the applicant containing less than 98% of the Calcium Oxide and Calcium Hydroxide - The laboratory analysis reports furnished by the applicant reveals that the calcium hydroxide/oxide composition in the said goods are less than 98% and impurities are also available in such goods. Applying the above, to the case at hand, we find that the goods to be supplied is slaked lime and hydrated lime of purity less than approximately 98% merit classifiable under CTH 2522 20 00. We hold that slaked/hydrated lime manufactured by the applicant containing less than approximately 98% of the calcium oxide and calcium hydroxide, are classifiable under CTH 2522 20 00 taxable at 2.5% CGST and 2.5% SGST as per entry Sl. No. 131 of Schedule I of Notification No. 1/2017-C.T. (Rate), dated 28-6-2017 as amended. RULING Q. 1 What should be the classification and HSN Code for supply of slaked lime manufactured by the applicant containing less than 98% of the Calcium Oxide and Calcium Hydroxide? Ans-1 The classification and HSN for supply of slaked lime manufactured by the applicant containing less than approximately 98% of the calcium oxide/hydroxide is classifiable under CTH 2522 20 00. Q2. What shall be the rate of tax on the said product? Ans-2 The rate of tax of the subject goods is at 2.5% CGST and 2.5% SGST as per entry S.No. 131 of Schedule I of Notification No. 1/2017-C.T. (Rate), dated 28-6-2017 as amended.

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• Income Tax

• 2024 (10) TMI 1417
  Unexplained investments/ amounts deposited in the foreign bank account - delay filing SLP - Whether no concrete evidence to establish either the ownership of the alleged bank account or the alleged disputed deposits in those accounts to be belonging to the assessee - HC decided [ 2023 (11) TMI 759 - PUNJAB AND HARYANA HIGH COURT] assessee being an agriculturist and only having a small holding of land apparently could not be in possession of such huge amounts, which were also in foreign currency. Nothing as such was produced on record that the same was transferred from India where he was doing some business. It is neither the case of the revenue that the amounts were credited from his income while doing business at abroad and neither he was based abroad for such long periods to generate that kind of income, thus decided against revenue. HELD THAT:- There is gross delay of 233 days in filing this Special Leave Petition. The reasons assigned for seeking condonation of delay are neither satisfactory nor sufficient in law to be condoned. Hence, the application seeking condonation of delay is dismissed. Consequently, the Special Leave Petition also stands dismissed. Even otherwise, we find that the High Court has noted that no substantial question of law arose in the case. In passing the aforesaid order, we have followed the earlier order of this Court in Joginder Singh Chatha [ 2024 (10) TMI 874 - SC ORDER]

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• 2024 (10) TMI 1416
  Maintainability of appeal on low tax effect - Liability to pay interest u/s 234B - non payment of tax in respect of Assessment Year 2005-06 and 2006-07 - as decided by HC [ 2020 (9) TMI 873 - KARNATAKA HIGH COURT] legal position as it existed for the relevant Assessment Years prior to insertion of proviso to Section 209(1) of the Act, it is clear that if payer who was required to make payments to non resident had defaulted in deducting the tax at source from such payments, the non resident is not absolved from payment of taxes thereupon and non resident is liable to pay tax and the question of payment of advance tax would not arise. HELD THAT:- The special leave is disposed of owing to low tax effect.Question of law, if any, is kept open. Pending application(s), if any, shall stand disposed of.

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• 2024 (10) TMI 1415
  Validity of Revision u/s 263 - substantial question of law or fact - there were discrepancies in the figure with regard to value of current assets and current liabilities shown in the balance sheet as on 31.03.2008 vis- -vis the cash flow statement filed before the AO - as decided by HC [ 2023 (12) TMI 1364 - ORISSA HIGH COURT] CIT(A) has dismissed the appeal exparte. Appeal had been filed before the Tribunal and the Tribunal had exparte restored the issue back to the file of CIT(A). CIT(A) also dismissed the appeal for non-compliance. Tribunal in the interest of natural justice had restored the issue to the file of the CIT(A) so that the, assessee could be granted the opportunity to substantiate its case. This clearly shows that the assessee is not interested in showing the reconciliation but is attempting to use technical reasons to avoid the responsibility. This scathing remark from the ITAT showcases the triviality of the matter at hand. Additionally, the submissions made with regard to the section 255 showcases the intention of the petitioner to delay the case. HELD THAT:- Delay condoned. No case for interference is made out in exercise of our jurisdiction under Article 136 of the Constitution of India. The Special Leave Petition is accordingly dismissed. Pending application, if any, also stands disposed of.

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• 2024 (10) TMI 1414
  Recovery proceedings - Suo motu revision u/s 263 - Tribunal directed to make inquiries as directed by the Principal Commissioner of Income Tax regarding the correctness of the valuation report of the accountant - petitioner s primary contention is that the directions of the Tribunal were not carried out in the order of assessment passed on remand; nor were the directions issued in the order u/s 263 complied with. HELD THAT:- We are of the opinion that the recovery should await the disposal of the appeal especially since the demand raised is based on an assessment order, which was passed prior to the Tribunal s order. As submitted that 20% of the amounts have already been recovered and hence, there would be no recovery carried out based on the assessment order at Annexure-3. The appeal filed as submitted by petitioner. It is submitted by the learned counsel for the petitioner that amounts were recovered from the cash credit account and this created huge liability on the petitioner especially since the interest would run on the debit made. The petitioner, hence, seeks refund of the amounts already attached and recovered from the petitioner s account. The petitioner also relies on judgment at Annexure-9 of another Division Bench of this Court. Annexure-9 decision was in a batch of three writ petitions where attachment of the bank accounts of the assesses were made, when the assessment orders which created the demand were challenged in appeal after depositing 20% of the disputed tax amount under the Value Added Tax Act. Identical to the case herein, the attachment order was made of a cash credit account, which is a credit facility offered to the customer by the bank subject to a limit; which even if not overdrawn to the limit, would still not have any money belonging to the assessee as distinguished from a credit balance in a current account. But therein the demand was not met, which was met in the present case; which detains us from directing a refund. We make it clear that if the assessment is set aside, the assessee would be entitled to the refund along with interest payable as per the statute or that paid by the assessee in the cash credit account; whichever is higher and if not, the assessee would be saved from the interest on the amount recovered in the intervening period. There is no requirement to direct the assessee to be refunded the 20% already recovered. There shall be no further recovery based on the impugned assessment till the appeal is disposed of

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• Customs

• 2024 (10) TMI 1413
  Import of cylinders without a PESO certificate - non-compliance with Rules 31 and 32 of the Gas Cylinder Rules, 2016 - goods under the bill of entry confiscated under Section 111(d) of the Customs Act, 1962 - as argued reasons entirely attributable to the PESO Authorities, the Petitioner cannot be made to suffer either confiscation or Penalty -Respondents, pointed out that even if the incorrect PESO Certificate dated 25th April 2024 were to be regarded as valid, still, the goods, in this case, arrived on 16th April 2024 i.e. before the date of such certificate - redemption fine and the penalty imposed HELD THAT:- Considering that in the present case, the value of the Cylinders is around Rs. 31 lakhs, we direct that the Cylinders be provsionally released subject to the Petitioner furnishing the usual bonds and paying the concerned Respondents an amount of Rs. 2,00,000/- without prejudice to the Petitioners rights and contentions that in the present case, no penalty or redemption fine is payable. All parties' contentions in the context of the Show Cause Notice issued are left open. Petitioner states that the payment and other formalities will be completed by 30 October 2024. When this is done, the cylinders must be released immediately. We clarify that the payment of Rs. 2,00,000/- will abide by the conclusion in the adjudication of proceedings pursuant to the Show Cause Notice already issued. ORDER - Seventh and Eighth Respondents are directed to provisionally release the Cylinders upon the Petitioner furnishing the usual bonds for paying an amount of Rs. 2,00,000/- without prejudice. Petitioner is granted the liberty to file reply to Show Cause notice by 30 October, 2024.

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• 2024 (10) TMI 1412
  Show cause notice pending adjudication for the last 15 years - eligible reasons for inordinate and unexplained delay - HELD THAT:- In the present case, the delay between 2008 and 2021 is inordinate and, moreover, unexplained. The affidavit filed by the Respondent does not explain this inordinate delay. The Hon ble Supreme Court s order M/S SWATI MENTHOL AND ALLIED CHEMICALS LTD ANR. [ 2023 (7) TMI 662 - SC ORDER] as noticed by the Co-ordinate Bench, does not make out the proposition that gross, unjustifiable and inordinate delay in adjudication of the show cause notice must, in every case, be excused regardless of the absence of any reasonable explanation. Accordingly we quash and set aside the impugned show cause notice and restrain the Respondents from proceeding further based on it.

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• 2024 (10) TMI 1411
  Duty Drawback claim - Impugned Order is challenged by the Petitioner primarily on the ground that the denial of Duty drawback long after the export were made and the benefits which were extended have been denied pursuant to Circular No.55/99-Cus dated 25.08.1999 - HELD THAT:- The order does not call for any interference. The issue has been examined by the Revisional Authority in the light of the decision of the Karnataka High Court in the case of CCE Bangalore Vs. Central Manufacturing Technology Institute [ 2001 (7) TMI 147 - HIGH COURT OF KARNATAKA AT BANGALORE ], wherein, it has been held that clarificatory notifications are retrospective in nature. The petitioner was not entitled to drawback claim as the product exported by the petitioner was Woolen Readymade Garments. It has been clarified by CBEC Circular No.55/99 dated 25.08.1999 that S.S.NO.62.09 is applicable to only woollen Suits/Trousers/Blazers/Jackets, therefore woollen garments other than these categories are not covered by any of the S.S. Nos of Drawback Table and hence the exporters can only claim Brand Rate for the same. This Writ Petition is dismissed.

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• 2024 (10) TMI 1410
  Misdeclaration of imported polished marble slabs as unpolished slabs - as alleged that during physical verification, quantity of 51.85 Sqm (slabs) were found in excess - customs duty demanded along with interest and imposed on the importer and other co-noticees' Importer admittedly paid total customs duty as prior to issue of show cause notice and after issue of show cause notice along with interest and 15% penalty and requested to close the proceedings in view of Section 28(5) and 28(6) of the Customs Act, 1962 - Commissioner instead of closing the proceedings under Section 28(5) and 28(6) of the Customs Act, held that show cause notice is pre-mature for demand of duty only, therefore proceedings cannot be closed. Whether the assessment was provisional or final? - HELD THAT:- The adjudicating authority has clearly mentioned that not just release but assessment was also provisional under Section 18(2) of the Customs Act, 1962. The appellant requested to finalize the assessment quite a few times. All these requests to make the assessment final were made after provisional release. The letter dated 25.10.2018 is also available in case file at page number 198. The last line clearly mentions the request to finalize the Bill of Entry. Further, a letter dated 15.11.2018, submitted by the appellant to the Di, Gandhidham regional Unit is also available in case file at page number 201. This letter also requests to finalize the Bill of Entry. Therefore, as admitted by the appellant many times, the assessment of the Bills of Entry remained provisional. It was not just a provisional release but a provisional assessment also. The same fact has been recorded by the adjudicating authority in para 4.4 of the O-1-0. Though Provisional Release and Provisional Assessment are two independent concepts, in the instant case both are present. Whether Section 28(4) is applicable at all? - The adjudicating authority has held that it would be premature to demand duty under Section 28(4) of the Act. This is in consonance with various judicial pronouncements and it is a settled law that Section 28(4) kicks in only after final assessment. As explained in para 2, assessment was provisional, and therefore, the proceedings have been rightly concluded under Section 125. Provisions quoted in the Show Cause Notice - What is the recourse for adjudicating authority when assessment is provisional in case of provisional release? - Since the assessment was provisional, the proceedings were required to be concluded under Section 125 of the Customs Act after issuing a Show Cause Notice under Section 124. Various judicial pronouncements have held that when the assessment is not final, a Show Cause notice should be given under Section 124 of the Customs Act which as a corollary can be concluded under Section 125. The instant case is squarely covered by case of DEEP JYOTI WAX TRADERS PVT. LTD [ 2014 (8) TMI 1055 - CALCUTTA HIGH COURT] since there is a mis-declaration of goods. As per case M/S PUSHPAK LAKHANI VERSUS THE COMMISSIONER OF CUSTOMS (PREVENTIVE) NEW DELHI [ 2022 (1) TMI 114 - CESTAT NEW DELHI] allowing provisional release does not interfere in adjudication process or with the jurisdiction of adjudicating authority. Jurisdiction of the adjudicating authority in the instant case under Section 125 cannot be questioned by any stretch of imagination and hence, the adjudicating authority has correctly adjudicated the issue under Section 125. Mere mentioning of wrong provisions or not mentioning of it does not vitiate the proceedings till the time statutory authority has requisite authority therefore or not - mentioning Section 28(4) in the Show Cause Notice - Since order of dismissal of an army personnel was upheld despite the fact that wrong provision was quoted in the order of discharge but the authority had power, though in a different section, to dismiss him. In the instant case also, though wrong section Le. Section 28(4) has been quoted, authority of adjudicating authority cannot be questioned under Section 125 after the goods were seized and found liable for confiscation on account of mis-declaration. See RAM SUNDER RAM VERSUS UNION OF INDIA ORS. [ 2007 (7) TMI 673 - SUPREME COURT] Mentioning of a wrong provision ie. Section 28(4) and not mentioning of correct section i.e. Section 124 does not vitiate the proceedings till the adjudicating authority has the power to pass an order under Section 125 which is unquestionably present with the adjudicating authority. See MERINO PANEL PRODUCT LTD. [ 2022 (12) TMI 453 - SUPREME COURT] Contention of the appellant is that since goods were released provisionally and were not available, redemption fine cannot be imposed - When the goods are released under bond, RF can be imposed under section 125 since RF is in lieu of confiscation of goods and not in lieu of goods. When the goods are liable for confiscation, RF should be imposed. See KAY BEE TAX SPIN LTD. [ 2017 (1) TMI 1223 - GUJARAT HIGH COURT] Adjudicating authority has imposed a penalty u/s 112(a) of the Customs Act, 1962 whereas the Show Cause Notice proposes penalties u/s 112(a), 114(AA) and 117 of the Act - defect in the order can be considered as omission on the part of the adjudicating authority as adjudicating authority has erred by not imposing any penalty under Section 114(AA) - We find that it is not coming out clearly as to whether the goods were provisionally released or assessment were done provisionally as the former relates to seized goods and later in part of interim assessments required to be subjected to finalisation. In case demand under Section 28 (4) was applicable and duty was demandable then the party is very much entitled to claim the amnesty under Section 28 (5) and the same on following of the requisite conditions. In which case confiscation of goods and interest thereof does not get triggered nor any provisional assessment is required to be finalized to the prejudice of the party. We are therefore, remanding the matter back to the adjudicating authority to decide firstly nature of proceedings by determining the appropriate facts and if assessment was not provisional to allow benefit of provisions of Section 28(5) 28 (6) to the party on fulfilment of the conditions or otherwise to finalise assessment first and then demand duty under Section 28 (4) and allow amnesty under Section 28 (5) and 28 (6) on fulfilment of conditions.

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• Corporate Laws

• 2024 (10) TMI 1409
  Intervention by Greenopolis Welfare Confederation in the proceedings - Role and actions of the Interim Resolution Professional (IRP) - HELD THAT:- Having heard the learned counsel for the parties and in order to safeguard the assets of the corporate debtor, for now, the IRP is allowed to take measures which are indicative above vide serial no. 1, 2, 3, 5, 6 and 12. In the consideration of this Court, such measures are necessary so as to safeguard the assets of the company and also the interest of the stakeholders. Compliance cum updated status report be filed by the IRP on or before the next date of hearing - This application is disposed of.

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• Insolvency & Bankruptcy

• 2024 (10) TMI 1408
  Inclusion of outstanding lease rental and premium due from the date of CIRP commencement that is 26.11.2018 till the approval of the resolution plan i.e. 12.09.2022 in the CIRP costs - CIRP has been triggered and moratorium has been imposed - Section 5(13) of IBC - HELD THAT:- The Appellant has relied upon a decision of this Court in the case of Sunil Kumar Agrawal [ 2023 (1) TMI 552 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] in which a similar controversy was involved. In the said case, the application was filed under Section 60(5)(c) of the Code by GNIDA for a direction to the resolution professional to make the payment of the amount due and payable towards the outstanding dues which became due during the CIRP. The same was allowed by the Tribunal. It was argued by the Appellant in that case that the Adjudicating Authority has erred in applying explanation of Section 14(1)(d) for allowing the application because the said explanation is not applicable and thus the question was framed by this Court as to whether the explanation under Section 14(1)(d) of the Code for the purpose of directing the Appellant to pay the lease premium amount and the lease rent to the Respondent is applicable?. This court in the decided case has held that explanation is not applicable because the premium amount or lease rent is not part of Section 14(1)(d) which cannot be read as similar grant or right which has to be in respect of the license, permit, registration, quota, concession, clearance etc. but not with premium amount or lease rent. The order passed in the case of Sunil Kumar Agarwal [ 2023 (1) TMI 552 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] applies to this case also even though the said decision has been challenged by the Noida by way of Civil Appeal No. 901 of 2023 before the Hon ble Supreme Court in which notice has been issued but stay has not been granted. It cannot but have to maintain the same order that has been passed in the case of Sunil Kumar Agrawal till a decision about its correctness is taken by the Hon ble Supreme Court in Civil Appeal No. 901 of 2023. The impugned order is set aside - Appeal allowed.

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• 2024 (10) TMI 1407
  Approval of Resolution Plan - Applicability of Section 240A of the IBC to the Corporate Debtor registered as MSME - whether SRA was ineligible as per Section 29A (c) of the IBC, to submit the Resolution Plan in the CIRP of the Corporate Debtor? - HELD THAT:- The Adjudicating Authority has held that Birendra Kumar Pasari, who is Managing Director of the SRA is also the Promoter and in control and management of the CD, hence, he shall be deemed to be in management and control of the SRA. It was also noted and observed that Birendra Kumar Pasari and his family members are also in management and control of the Financial Creditor. After considering the RBI Circular dated 01.07.2015; clarification dated 12.11.2021; provisions of Section 29A and judgment of the Hon ble Supreme Court in ARCELORMITTAL INDIA PRIVATE LIMITED VERSUS SATISH KUMAR GUPTA ORS. [ 2018 (10) TMI 312 - SUPREME COURT ], the Adjudicating Authority has come to the conclusion in paragraph 48 that account of CD having become Non-Performing asset on 14.06.2020, whose debt could not have been paid for a period of at least one year before commencement of CIRP, by virtue of Section 29A, the SRA becomes ineligible to submit the Resolution Plan. The facts of the present case, clearly indicate that the Corporate Debtor was registered as MSME much prior to the submission of the Resolution Plan by Bishwanath Traders Investment Ltd. Thus, the eligibility of SRA has to be seen on the date of submission of Resolution Plan. A perusal of the judgment of the Adjudicating Authority indicate that Adjudicating Authority has not adverted to Section 240A of the IBC and declared the SRA ineligible on the strength of Section 29A(c). On looking into the scheme of Section 29A(c), which is relied by the Suspended Director, the scheme itself contemplate ineligibility on the ground that Resolution Applicant is a person under whose management or control the Corporate Debtor s account has become non-performing. Thus, when Section 240A is applied, ineligibility in the Resolution Applicant, under whose management and control, the account of the CD was declared non-performing, cannot be reckoned. No other ineligibility of the SRA has been pointed out or pressed, SRA Bishwanath Traders Investment Ltd. did not suffer from any ineligibility from submitting the Resolution Plan on 11.07.2022, on which date Plan was submitted. The Adjudicating Authority committed error in allowing IA No.4173 of 2023 filed by the Suspended Director and rejecting IA No.5458 of 2022 filed by the RP for approval of the Resolution Plan. The order dated 24.01.2024 impugned in these Appeal(s) are set aside. IA No.4173 of 2023 is dismissed and IA No.5458 of 2022 is allowed, approving the Resolution Plan - appeal allowed.

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• PMLA

• 2024 (10) TMI 1406
  Availability of statutory remedy under Section 8 of the Prevention of Money Laundering Act, 2002 - Refund of money deposited with interest - HELD THAT:- This Court has not gone into the merits of the claim, which shall be considered by the court concerned in accordance with law and in accordance with the merits of the case, without being influenced by any observation made by this Court in this order. Certified copy of this order along with claims shall be filed before court concerned within ten days. The decision shall be taken by the court concerned on the claim in accordance with law and on the basis of material brought before the court by the petitioner in support of his claim. The present writ petition stands disposed of.

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• 2024 (10) TMI 1405
  Grant of regular bail - Money Laundering - proceeds of crime - scheduled offence - offence of cheating and criminal conspiracy - HELD THAT:- For consideration of the bail application under PMLA, 2002 the Court need not go deep inside the merits of the case but should consider the prima facie material against the accused in the case. The Hon ble Supreme Court in the matter of Vijay Madanlal Chaudhary case [ 2022 (7) TMI 1316 - SUPREME COURT] has held that ' The Court will not weigh the evidence to find the guilt of the accused which is, of course, the work of Trial Court. The Court is only required to place its view based on probability on the basis of reasonable material collected during the investigation and the said view will not be taken into consideration by the Trial Court in recording its finding of the guilt or acquittal during trial which is based on the evidence adduced during the trial.' In the case of Satish Jaggi Vs. State of Chhattisgarh [ 2007 (4) TMI 775 - SUPREME COURT] , the Hon ble Supreme Court has held that at the stage of granting of bail, the Court can only go into the question of prima facie case established for granting bail, it cannot go into the question of credibility and reliability of witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during trial. The criminal activity of opening bogus/benami bank accounts and utilizing them for illegal online betting therefore the illegal funds belonging to Mahadev Online Book being transferred through the bogus bank account is the proceeds of crime as defined under Section 2 (1) (u) of PMLA, 2002. The digital record seized in the case and from the statements recorded under Section 50 of the PMLA, 2002 clearly establishes the link of the present applicant with the illegal betting website Sky Exchange and the generation of proceeds of crime through it. In the statement of Prashant Bagari recorded under Section 50 of the PMLA, 2002, the involvement of the present applicant Nitin Tibrewal at the highest level of Sky Exchange clearly appeared which corroborates the statement Smt. Preeti Rathi and Kamal Kishore Rathi the present applicant Nitin Tibrewal was engaged in online betting through Sky Exchange. On perusal of the material produced in the present case, it is not acceptable that the present applicant did not know about the transactions in either from Techpro IT Solutions or from other sources and owned a property at UAE. Denial by the accused itself is not sufficient to consider prima facie that there is no mens rea of the applicant for the said offence under the PMLA, 2002. Although the statement recorded under Section 50 of the PMLA, 2002 is required to be tested at the time of trial, for the purpose of consideration of bail application the statement recorded under Section 50 of the PMLA, 2002 can be considered against the applicant. It cannot be said that there is no involvement of the applicant in the offence in question. Considering the role of the applicant in the ensuing money laundering case of proceeds of crime in Mahadev Book App, it is found that, there is sufficient evidence collected by the respondent-Enforcement Directorate to prima facie show the involvement of the applicant in the offence of money laundering as defined under Section 3 of the PMLA, 2002. It is an organized crime having various facets of its complexion, therefore, further considering the provisions of Section 45 of the PMLA, 2002 this Court is satisfied that there are reasonable grounds for believing that the applicant is involved in the offence and he is likely to commit any other offence while on bail, it is not required to grant bail to the applicant. The present bail application filed by the applicant Nitin Tibrewal is rejected.

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• Service Tax

• 2024 (10) TMI 1404
  Interpretation of statute - Rule 4(7) and Rule 11 of Cenvat Credit Rules - Applicability of Rule 6 of Cenvat Credit Rules in recovering cenvat credit for unsold carpet area - HELD THAT:- The appellant had availed cenvat credit of service tax paid on input services when the output service was subjected to levy of service tax. It is, therefore, found that availment of cenvat credit was in accordance with law. It is also noted from the proceedings that before receipt of Occupancy Certificate on 22.01.2016 appellant had utilized the entire cenvat credit of Rs.2,51,02,850/- towards payment of service tax on output service. Service Tax Law does not provide for levy of service tax on the flats or buildings constructed for which Occupancy Certificate is obtained. Therefore, carpet area of 21,010 square feet constructed by the appellant was not liable to levy of service tax. Revenue has invoked Rule 6 of Cenvat Credit Rules which provides for circumstances where cenvat credit is admissible or not admissible depending on taxability or otherwise of output service. It is clear from the ruling by Hon ble Gujarat High Court in the case of Principal Commissioner vs. Alembic Ltd. [ 2019 (7) TMI 908 - GUJARAT HIGH COURT] that after obtaining Occupancy Certificate in respect of unsold carpet area for which no service tax will be leviable, cenvat credit already availed when the activity was taxable, the said cenvat credit need not be recovered. Thus, the appellant was not required to pay back the amount equivalent to cenvat credit of Rs.25,03,849/- - the impugned order is set aside - appeal allowed.

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• 2024 (10) TMI 1403
  Non discharge of service tax - invocation of the extended period or the demand of service tax - Penalties imposed u/s 77 and 78 of the Finance Act, 1994 - appellant was providing taxable services under the category of Maintenance Repair Service, Man Power Recruitment Supply Agency Service to the service recipient HELD THAT:- Both the authorities below have misdirected themselves as there was no contest by the appellant to the invocation of the extended period or the demand of service tax. Appellant has suo motto computed the service tax due and has paid the said amount. As pleaded his lack of knowledge and status as petty contractor not having means to understand the complexity of taxation of services. Both the authority agree to these submissions and have still gone on to impose heavy penalties u/s 77 and 78 of the Finance Act, 1994. Taking note of undisputed findings with regards to status of appellant and his compliance even before the adjudication has been undertaken we do not find any justification for not having considered extending the benefit of Section 80 of the Finance Act, 1994 and waiving of all the penalties imposable on the appellant. We do not find any merits in the impugned order to the extent it is in relation to the penalties imposed on the appellant. This is a fit case where penalties imposable under Section 77 and 78 should have been waived in terms of provisions of Section 80 of the Finance Act, 1994. Appeal partly allowed to the extent of setting aside the penalties imposed on the appellant.

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• 2024 (10) TMI 1402
  Non discharge of service tax - Appellant was providing taxable services under the category of Maintenance Repair Service, Man Power Recruitment Agency Service Construction (Commercial Industrial) Services to the service recipient - Demand of service tax + Education Cess + Secondary Higher Education Cess - HELD THAT:- As the appellant was well aware that he was providing taxable services and short paid the service tax, even after issuing invoices indicating the services tax payable and collecting the same from the service recipient. They were not filing the ST-3 returns on time in the manner as specified in law. They have suppressed the information with intend to evade payment of taxes. Accordingly, the demand by invoking the extended period of limitation and penalty imposed cannot be disputed with. As decided in Afsar Tour and Travels [ 2018 (8) TMI 1281 - CESTAT HYDERABAD] leviable of service tax does not change that whether or not they have collected same from their clients. We cannot accept a new ground of liability of service tax at this stage, proposed by the Learned Counsel for the appellant because there was never a point of contention at the time of Order-in-Original or Order-in-Appeal. We therefore, find the Learned Lower Authority was correct and confirmed the demands along with interest and imposing penalties. Appeal dismissed.

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• 2024 (10) TMI 1401
  Failure to pay the service tax on the full amount of consideration received - services of construction of complex service - disputed period is from 01/2008 to 08/2010 - HELD THAT:- Attention invited to an order of this bench in the case of M/s. Shanti builders wherein this bench vide Final Order No. 40257/2023 dated 06.04.2023 [ 2023 (4) TMI 350 - CESTAT CHENNAI] has held that no service tax could be levied under construction of residential complex services prior to 01.07.2010. The confirmation of the demand of Service Tax cannot sustain, nor could there be any scope to impose penalties under Sections 77 78 of the Financial Act, 1994. Therefore, the impugned order which has upheld the demands deserves to be set aside - appeal allowed.

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• 2024 (10) TMI 1400
  Service Tax Exemption under Notification No. 25/2012-ST denied - Demand of Service Tax along with interest and imposed penalty - amount on providing services of laying of cable, under or alongside road, under NOFN project - as per Respondent amount was neither shown by the appellant in their ST-3 returns nor had any service tax been paid by them on such services provided by them to M/s BSNL (BBNL) - appellant submitted that the appellant had rendered services to BBNL/BSNL towards execution of the NOFN project, which are exempt from service tax by virtue of Sl. No. 12 of Notification No. 25/2012-ST dated 20.6.2012 Whether the appellant is eligible for the exemption under Notification 25/2012-ST dated 20.06.2012? - Even though BSNL is wholly owned by the Government, but it is a State-run Telecom company, whose primary objective is to increase sales revenue with focus on subscriber retention acquisition by way of strengthening marketing, quality of service and customer delivery. Consequently, any activity undertaken for BSNL would also be for the same purpose, viz., expanding its subscriber base and increase revenues. Therefore, it cannot be said that the NOFN project (now known as Bharat Net project) aimed at bringing broadband connectivity to the Gram Panchayats was only towards planning for economic and social development. Such network was laid in recognition of the fact that expansion was important to increase their subscriber base, thus providing an opportunity to increase their revenues. Hence, the activity undertaken by the appellant is for use for commerce. The term Commerce as understood by layman refers to the activity of buying and selling goods and services, between businesses or individuals, and can occur domestically or internationally. Commerce is a key component of the economy, encompassing various activities such as trade, logistics, advertising, customer interactions, also includes different channels like traditional retail, online transactions (e-commerce), and wholesale trade etc. As in Lilavati Kirtilal Mehta Medical Trust v. Unique Shanti Developers [ 2019 (11) TMI 1824 - SUPREME COURT ] held that a straight-jacket formula cannot be adopted in every case and the broad principles which can be curled out for determining whether an activity or transaction is for a commercial purpose would depend on facts and circumstances of each case. In the instant case, it stands established that the appellant undertook the activity of laying cables for M/s BSNL, which was for the purpose of providing broadband connectivity was for connecting the areas of India for the purpose of increasing their business, sales revenue which would clearly fall within the ambit of commerce. Scope of Notification no. 25/2012-ST dated 20.06.2012 - We note the Notification exempts a civil structure or any other original works meant predominantly for use other than for commerce, industry, or any other business or profession. The term used in the said notification is that other than commerce, industry or any other business or profession , which is required to be interpreted strictly, as held consistently by the Hon ble Supreme Court. Exemption notification should not be liberally construed and the beneficiary must fall within the ambit of the exemption and fulfill the conditions thereof. In case such conditions are not fulfilled, the issue of application of the notification does not arise at all by implication. We hold that the appellant is not entitled to the benefit of the Notification no. 25/2012-ST dated 20.06.2012. We find no infirmity in the impugned order. Eligibility of benefit of cum-duty - It is seen from the show cause notice that the appellant had vide their letter submitted that neither had they collected/received the service tax from M/s BSNL(BBNL) on account of providing the service of laying cable, under or along side the road under NOFN project or did they deposit any service tax. In this context, we note non-recovery of service tax is an offence under Sec 73 of the Act. Tribunal in M/s Panther Detective Services V. Commissioner of Central Excise, Kanpur [ 2006 (7) TMI 15 - CESTAT, NEW DELHI] held that the only relief in regard to valuation that the appellants would be entitled to treat the total receipts as inclusive of service tax. It was accordingly ordered that the Revenue shall recompute the tax amount in these appeals treating the total receipts as cum-tax. We also take note of the Supreme Court s decision in the case of Commissioner of Central Excise V. Maruti Udyog Ltd. [ 2002 (2) TMI 101 - SUPREME COURT ] wherein the Court granted the cum-duty benefits to the assessee. The Hon ble Court noted that the service tax is on the value of taxable services rendered and therefore service tax has to be collected on that value only and the value of taxable services cannot be said to include the tax also. The Court went on to note that the Finance Act, 2006 inserted clause 2 to Sec. 67 with effect from 18.04.2006 provides that where the gross amount charged by a service provider, for the service provided or to be provided is inclusive of service tax payable, the value of such taxable service shall be such amount as with the addition of tax payable, is equal to the gross amount charged. We find it appropriate to remand the matter to the original authority for recalculation of the demand extending the benefit of cum-tax on the gross amount charged by the appellant. Accordingly, the penalty under section 78 would be appropriately recalculated, based on the demand.

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• 2024 (10) TMI 1399
  CENVAT Credit in respect of input services as well as on capital goods on the basis of advisory notes - Invocation of the extended period of limitation under the Finance Act - As alleged audit noticed that BSNL had mainly availed CENVAT Credit on towers falling under Chapter 73 of the Central Excise Tariff, which would not be covered under the definition of the capital goods as defined under rule 2(a) of CENVAT Credit Rules, 2004 - HELD THAT:- The show cause notice alleges that BSNL had availed CENVAT credit on tower materials. Neither the show cause notice nor Annexure-A to the show cause notice, except for a bald allegation, substantiate that BSNL had actually availed CENVAT credit on tower materials. Annexure-A to the show cause notice takes into consideration all the CENVAT credit availed on duty paid by BSNL. Annexure-A does not show that BSNL had actually availed CENVAT credit on duty paid for tower materials. The Commissioner completely failed to notice this part of the reply submitted by BSNL and merely proceeded to decide whether credit could have been taken by BSNL on the duty paid for tower materials. The issue as to whether CENVAT Credit could have been availed by BSNL on duty paid for tower materials has now been settled by the Tribunal in M/s GMTD Bharat Sanchar Nigam Limited [ 2024 (8) TMI 785 - CESTAT NEW DELHI ] after taking into consideration various decisions, held that BSNL could avail CENVAT credit on duty paid for tower materials. Such being the position there is no error in the finding recorded by the Commissioner that BSNL could have availed CENVAT credit on duty paid for tower materials. Whether the extended period of limitation could have been invoked in the facts and circumstances of the case? - A perusal of the show cause notice indicates that there is a bald allegation relating to suppression of facts but there is no allegation that facts were suppressed with an intent to evade payment of service tax. The extended period of limitation under the proviso to section 73 (i) of the Finance Act, therefore, could not have been invoked. See Sunshine Steel Industries [ 2023 (1) TMI 638 - CESTAT NEW DELHI ]

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• Central Excise

• 2024 (10) TMI 1398
  Refund of unutilized CESTAT credit - no appeal lies against the order dated 6 November 2023, by which the Appellant s application for rectification came to be rejected - HELD THAT:- The learned counsel for the Appellant relied on Lav Kush Textile [ 2017 (5) TMI 1021 - RAJASTHAN HIGH COURT] to contend that relief was granted by the Division Bench of the Rajasthan High Court on identical facts. On considering Lav Kush Textile, it is found that the same has relied upon the decision of the Karnataka High Court in Slovak India [ 2006 (7) TMI 9 - KARNATAKA HIGH COURT] . Further, this decision notes that the Hon ble Supreme Court had confirmed the Karnataka High Court order by dismissing the SLP against the same. In effect, therefore, the view taken in Lav Kush Textile based, according to the learned counsel for the Appellant on facts identical to the present case, directly conflicts with the view taken by the Full Bench of this Court in the case of Gauri Plasticulture [ 2018 (4) TMI 1233 - BOMBAY HIGH COURT] . There are no error in the impugned orders made by the CESTAT, since these orders relied upon the decision of the Full Bench in the case of Gauri Plasticulture. Even considering the slight difference in the factual positions, it is difficult to hold that the ratio in the case of Gauri Plasticulture is not attracted or would not cover the Appellant s case. The impugned orders made by the CESTAT are not error-prone and that no substantial question of law arises in this appeal - Appeal dismissed.

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• 2024 (10) TMI 1397
  Recovery of short paid service tax - time limitation - appeal has been preferred beyond the period of 1325 days - HELD THAT:- It is not in dispute that after service of the impugned order dated 31.03.2017, the appeal should have been preferred within limitation, but the appeal has been preferred beyond the period of 1325 days. Admittedly, the impugned order dated 31.03.2017 was received by the petitioner. The appeal has been preferred on 13.01.2021 beyond the period of 1325 days. This Court, under extra ordinary jurisdiction, cannot interfere with the impugned orders as the application of limitation does not apply to section 35 Central Excise Act. The Apex Court, after considering the judgement of ITC Limited [ 1990 (8) TMI 173 - SUPREME COURT] , in the case of Singh Enterprises [ 2007 (12) TMI 11 - SUPREME COURT] has specifically held ' Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days' period.' Thus, it has been held that the delay cannot be condoned beyond the period what is prescribed under the respective Act as the language of the section specifically provides for condonation of delay of additional period mentioned therein only. Further, since the petitioner has equally, efficacious alternative remedy of filing an appeal under section 35-G of the Central Excise Act before the Division Bench of this Court, writ petition before the Single Judge is not maintainable. Petition dismissed.

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• 2024 (10) TMI 1396
  CENVAT Credit - input service or not - denial on the ground that expression Setting up has been deleted from the inclusive clause of the definition w.e.f. 01/04/2011 and since no goods were manufactured or removed prior to 24/11/2015, the impugned services do not qualify to be input service - HELD THAT:- From the definition of Input Service, it is clear that except the services mentioned in the exclusion clause all the services which are used in or in relation to the manufacture of final product and clearance of goods upto the place of removal are admissible input service. As regard the use of service, there is no dispute that those services were used in or in relation to the manufacture of the final product. As regard the contention of the revenue that setting up of factory has been removed from the inclusion clause, in our view the removal of from setting up of factory will not make any difference because the inclusive portion is not additional service but it is only clarificatory out of all the services covered in main clause. Therefore, even if it is removed from the inclusion clause so long it is used in or in relation to the manufacture of final product, all the services are admissible input service. On perusal of the exclusion clause of the definition, it is found that none of the services which are subject matter in the present appeal is falling in the exclusion clause. Therefore, there are no hesitation to hold that all the services are admissible input service and Cenvat credit is admissible. The impugned order is set aside - appeal allowed.

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• 2024 (10) TMI 1395
  Determination of date of filing of Refund Application - Refund in respect of the duty paid by their Daman unit (appellant) which is liability of their Halol unit - mistake has occurred due to error of ERP system which is meant for all the group units - computation of time period of one year provided under Section 11B for refund of duty should be computed as on date of first time of filing of refund or on the date of second time filing of refund after return of the refund by the department - time limitation - HELD THAT:- As regard the admissibility of the refund there is no dispute that the duty liability of halol unit was paid by the appellant s Daman unit due to error in the ERP system. Therefore, the duty paid in access by the appellant unit is clearly refundable to them in principle. Somewhat identical issue has been considered by the Hon ble Gujarat High Court in the case of Auro Pumps Private Ltd [ 2017 (7) TMI 24 - GUJARAT HIGH COURT] wherein Hon ble Court after considering the identical facts, where it was held that ' this is a case of issuing appropriate mandamus for calling upon the authorities to treat the payment of Rs. 5,10,573/- against Code No. 002 from the date on which, it was paid resulting into exempting the petitioners from any coercive liability of so called non-payment against Code No. 002. All the communications and order, which are impugned in the petition are hereby quashed and set aside.' Time limitation - HELD THAT:- There is no dispute that the appellant have initially filed the refund claim within one year from the relevant date, it is only after the department raised some discrepancies, the appellant have re-filled the refund second time. Therefore, in this fact the date of first time filing of the refund has to be considered as date of filing of refund application which is well within the time. Therefore, the refund is not time barred in the facts of the present case. It is settled that date of first time filing of refund shall be taken as date of filing of refund even though the refund application was returned and subsequently the same is re-filled at a later date. Accordingly, in the identical facts in the present case applying the ratio of above judgments, the refund is not time barred. The Appellants have challenged the said Order in Appeal on the grounds that the Ld. Commissioner (Appeals) has no power to remand and also on the merits of the matter - the issue on Ld. Commissioner (Appeals) has power to remand the matter or not, this Tribunal in catena of judgments considering the amendments in Central Excise Act, 1944, held that Commissioner (Appeals) has power to remand the matter. The impugned orders are set aside - Appeal allowed.

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• Indian Laws

• 2024 (10) TMI 1394
  Medical negligence of the doctor - deterioration of patient's condition due to neglugence of Doctor or otherwise? - HELD THAT:- A medical professional may be held liable for negligence only when he is not possessed with the requisite qualification or skill or when he fails to exercise reasonable skill which he possesses in giving the treatment. None of the above two essential conditions for establishing negligence stand satisfied in the case at hand as no evidence was brought on record to prove that Dr. Neeraj Sud had not exercised due diligence, care or skill which he possessed in operating the patient and giving treatment to him. In Jacob Mathews [ 2005 (8) TMI 621 - SUPREME COURT ] this Court held that a professional may be held liable for negligence if he is not possessed of the requisite skill which he supposes to have or has failed to exercise the same with reasonable competence. The complainant has not adduced any evidence to establish that Dr. Neeraj Sud or the PGI were guilty of not exercising the expertise or the skill possessed by them, so as to hold them liable for negligence. No evidence was produced of any expert body in the medical field to prove that requisite skill possessed by Dr. Neeraj Sood was not exercised by him in discharge of his duties. Simply for the reason that the patient has not responded favourably to the surgery or the treatment administered by a doctor or that the surgery has failed, the doctor cannot be held liable for medical negligence straightway by applying the doctrine of Res Ipsa Loquitor unless it is established by evidence that the doctor failed to exercise the due skill possessed by him in discharging of his duties. The NCDRC ought not to have interfered with the findings and the impugned judgment and order of the State Commission so as to hold the doctor of the PGI negligent and to award compensation - the judgment and order dated 24.08.2011 of the NCDRC is hereby set aside and that of the State Commission is restored. Since the complainants have failed to prove any negligence on part of the doctor or the PGI, they are not entitled to any compensation as such, no question arises for its enhancement. Appeal disposed off.

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• 2024 (10) TMI 1393
  Extension of time for making and passing/publishing of the Award under Section 29A of the Arbitration and Conciliation Act, 1996 - HELD THAT:- The period during which the interim order passed by this Court was in operation, will be excluded for the purpose of computation of the period for making and passing/publishing of the Award under Section 29A of the Arbitration and Conciliation Act, 1996. Applications disposed off.

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