Provisional release of imported goods - provisional assessment - valuation for customs - stay of notification - perishable goods as ground for release - furnishing of bond for release Provisional release of imported goods - provisional assessment - valuation for customs - perishable goods as ground for release - furnishing of bond for release - stay of notification - Petitioner entitled to provisional assessment and release of imported apples on furnishing of bond, despite valuation dispute under the stayed notification. - HELD THAT: - The Court directed provisional release because the notification imposing a minimum import price for apples had been stayed by the Kerala High Court, the only dispute related to valuation, and the goods were perishable. The petitioner indicated willingness to comply with conditions to be imposed and to furnish a bond. In these circumstances the detention of goods was held unjustified and respondents were directed to provisionally assess the Bill of Entry and release the goods upon the petitioner furnishing the bond, subject to terms to be imposed by respondent no. 2. The Court specified a limited timeframe for provisional assessment and release. [Paras 6, 7] Respondents directed to provisionally assess Bill of Entry No. 8733339 within four days and release the goods on the petitioner furnishing the bond. Final Conclusion: Writ petition allowed; respondents to provisionally assess and release the imported apples within four days on the petitioner furnishing a bond; no order as to costs.

Writ against show cause notice - jurisdiction of writ court to adjudicate disputed facts - alternative statutory remedy - inspection under GST MOV-02 - release of goods pending adjudicationWrit against show cause notice - M/s. Shiv Enterprises precedent - Maintainability of writ petition challenging the show cause notice and related detention/inspection orders. - HELD THAT: - The High Court held that entertaining a writ petition to quash a show cause notice issued in the course of tax proceedings is not justified. Reliance was placed on the Apex Court's decision in M/s. Shiv Enterprises which observed that it was premature for a High Court to opine on whether there had been tax evasion where a notice under the relevant tax provisions had been issued and that the writ court should not substitute itself for the statutory adjudicatory process. The petitioner's challenge to the notice therefore could not be entertained by way of writ relief and the petitioner must avail the statutory remedy available before the tax authorities.Writ petition challenging the show cause notice is not maintainable and cannot be entertained on merits by this Court.Jurisdiction of writ court to adjudicate disputed facts - Appropriateness of the writ court entering into disputed questions of fact arising from tax proceedings. - HELD THAT: - The court reiterated the settled principle that a writ court ought not to go into disputed questions of fact which are the subject matter of statutory tax proceedings. Determination of factual disputes-such as genuineness of transactions, tax liability and whether purchases were bona fide-must be left to the statutory authorities empowered to conduct inspection and adjudication. The petitioner was directed to place relevant material before the respondents for their consideration rather than seek factual adjudication in the writ jurisdiction.This Court will not adjudicate disputed factual questions arising from the show cause notice; such matters are to be decided by the statutory authorities.Alternative statutory remedy - release of goods pending adjudication - Direction to the petitioner and authorities regarding further proceedings and the interim orders. - HELD THAT: - The Court observed that the vehicle had reportedly been released and, in any event, granted the petitioner liberty to place his case before the respondents. The matter was remitted to the statutory authorities to proceed in accordance with law on the show cause notice and related inspection, allowing the petitioner to avail the statutory remedy. Consequently, the interim orders previously granted by this Court were vacated.Petitioner to approach the tax authorities and the authorities to proceed in accordance with law; interim orders are vacated.Final Conclusion: Writ petitions dismissed with liberty to the petitioner to seek relief before the tax authorities; interim orders vacated and the statutory authorities directed to proceed in accordance with law.

Summary order. [Special Leave Petition dismissed both on the ground of delay and on merits]

Validity of Rule 8(3A) of the Central Excise Rules, 2002 - Restriction on utilization of Cenvat credit during debarred period - Entitlement to discharge duty by utilizing Cenvat credit - Unsustainability of demand, interest and penalty where enabling provision is declared ultra viresRestriction on utilization of Cenvat credit during debarred period - Entitlement to discharge duty by utilizing Cenvat credit - Appellant entitled to discharge duty by utilizing Cenvat credit during the period when Rule 8(3A) required payment consignment wise through PLA. - HELD THAT: - The Tribunal examined whether the use of Cenvat credit to discharge duty liability during the period when the appellant was required to pay duty consignment wise through PLA attracted the prohibition contained in Rule 8(3A). Relying on the decision of the Hon'ble Calcutta High Court in M/s. Goyal MG Gases Pvt. Ltd. v. Union of India (reported in 2017 (8) TMI 1515) which declared Rule 8(3A) ultra vires, and the Tribunal's earlier decision in Rana Sponge Ltd. which followed that High Court ruling, the Tribunal held that the restriction on utilizing Cenvat credit during the debarred period cannot sustain. The Tribunal further noted the Gujarat High Court's view that the words "without utilizing Cenvat Credit" are ultra vires and that subsequent parity must be extended to assessees who discharged duty by using Cenvat credit. Applying those conclusions to the present facts, where the appellant partly used Cenvat credit during the specified months, the prohibition under Rule 8(3A) could not be enforced to sustain the demand.Demand confirmed for contravention of Rule 8(3A) is unsustainable and is set aside; appellant entitled to discharge duty by utilizing Cenvat credit.Unsustainability of demand, interest and penalty where enabling provision is declared ultra vires - Whether interest and penalty could be sustained once the primary demand (based on Rule 8(3A)) was held unsustainable. - HELD THAT: - The Tribunal held that since the substantive demand founded on the invalid provision could not be sustained, consequential imposition of interest and penalty based on that demand did not survive. The reasoning follows directly from the conclusion that the legislative provision invoked to raise the demand was declared ultra vires by the authoritative High Court decision relied upon and followed by the Tribunal.Interest and penalty founded on the unsustainable demand do not arise and stand quashed.Final Conclusion: Impugned orders confirming demands, interest and penalties set aside; appeals allowed and appellant permitted to discharge duty by utilising Cenvat credit in respect of the period in question.

Governmental Authority - participation by way of equity or control - works contract services to a Governmental Authority - original works - pure agent - reverse charge mechanism - services neither supply of goods nor supply of services (Section 7(2) and Notification) - Entry (vi) of Notification No.11/2017 (works contract to Governmental Authority)Governmental Authority - participation by way of equity or control - M/s Jaipur Smart City Limited (JSCL) qualifies as a Governmental Authority as defined in the explanation to clause (16) of Section 2 of the IGST Act, 2017. - HELD THAT: - The Authority examined whether JSCL was either set up by statute or established by Government with ninety per cent or more participation by way of equity or control. JSCL was not set up by statute but was established as an SPV by the State Government and the Jaipur Nagar Nigam (JNN) with 50:50 equity. Considering the corporate form, the composition of promoters, the role of JNN as a municipal corporation incorporated under State law, and the appointment/officiation of Government officials on JSCL's board, the Authority concluded that Governmental participation exceeding 90% existed by way of control. Reliance on other AARs and Supreme Court authorities was considered but the determinative facts of control and the relationship between the State and JNN led to the conclusion that JSCL falls within the definition of a Governmental Authority. [Paras 9]JSCL is a Governmental Authority.Entry (vi) of Notification No.11/2017 (works contract to Governmental Authority) - works contract services to a Governmental Authority - original works - The appellant's contract for installation of the firefighting system and pump house falls within Item (vi) of Entry 3 of Notification No.11/2017 as services provided to a Governmental Authority. - HELD THAT: - The scope of work (supply, erection, commissioning, installation, construction of pump houses, underground tanks, civil, mechanical and electrical works, testing and commissioning and 5 years O&M) was examined against the definition of 'original works' and the description in Item (vi). The Authority found the contract to be construction/erection/installation of a civil structure and original works meant predominantly for non commercial public use. Given that JSCL was held to be a Governmental Authority, services provided to it by the appellant therefore fall within Item (vi) of Notification No.11/2017. [Paras 10]The supply is covered by Item (vi) of Notification No.11/2017 as services to a Governmental Authority.Entry (vi) of Notification No.11/2017 (works contract to Governmental Authority) - GST rate applicable to the appellant's services under the contract is 12% (6% CGST + 6% SGST) for the contractual period up to 31.12.2021. - HELD THAT: - Because the services fall under Item (vi) as supplies to a Governmental Authority, the Authority applied the rate specified in the notifications as in force for such entry. The Authority noted the subsequent omission of the words 'a Governmental Authority or a Government Entity' from the Entry w.e.f. 01.01.2022, and therefore limited the applicability of the concessional rate to the period up to 31.12.2021. [Paras 11]Services attract GST at 12% (6% CGST + 6% SGST) up to 31.12.2021.Reverse charge mechanism - services neither supply of goods nor supply of services (Section 7(2) and Notification) - The appellant is liable to pay GST under the reverse charge mechanism on amounts paid as NOC/road cutting charges to Jaipur Nagar Nigam (JNN); Notification exemptions for public authority activities are not attracted. - HELD THAT: - The Authority examined whether the activity of granting permission/NOC for road cutting is an activity 'in relation to' functions entrusted to a municipality under Article 243W such that it would be outside the scope of supply per Section 7(2) and the Notification. While roads and fire services are listed in the Twelfth Schedule, the Authority held that the act of granting road cut permission is not the same as construction of roads and bridges and therefore is not covered by the Schedule entries. The permission/NOC was provided by the municipal authority to the appellant (a business entity) and not as a public authority activity qualifying for exclusion; consequently, the appellant, as recipient of the municipal service, is liable under RCM at the applicable rate. [Paras 12]Appellant liable to pay GST @18% under reverse charge on road cutting/NOC charges paid to JNN.Pure agent - Entry No.3 of Notification No.12/2017 (pure services to Governmental Authority) - Reimbursement recovered by the appellant from JSCL for road cutting/NOC charges does not qualify for exclusion as amounts paid as a pure agent nor for nil rate exemption under the Notification; such recoveries are taxable at 18%. - HELD THAT: - The Authority tested the facts against Rule 33 (pure agent) and the three conditions of Entry No.3 of Notification No.12/2017 (pure services to Governmental Authority). Although the payments were reimbursement in character and involved no goods, the Authority found that the municipal demand note was addressed to the appellant and indicated that the appellant held the title to the approval procured, undermining the contention that the appellant neither intends to hold nor holds title. Further, even accepting JSCL as a Governmental Authority, the activity of obtaining the NOC was not held to be an activity 'in relation to' functions entrusted under Article 243W. Consequently, the exemption/nil rate was not available and recoveries from JSCL are includible in value and taxable. [Paras 13]Recovery of road cutting charges from JSCL is taxable at 18% (9% CGST + 9% SGST); appellant not entitled to pure agent exclusion or nil rate exemption.Final Conclusion: The Appellate Authority allowed the appeal in part: M/s Jaipur Smart City Limited is a Governmental Authority; the appellant's firefighting system contract is covered by Item (vi) and attracts GST at 12% (6%+6%) up to 31.12.2021; however, road cutting/NOC charges paid to Jaipur Nagar Nigam are subject to GST under reverse charge at 18%, and reimbursements recovered from JSCL for those charges are taxable at 18% (pure agent treatment and the Notification exemption were not available).

Penalty under Section 114(i) and 114AA of the Customs Act, 1962 - knowledge and mens rea for abetment - evidence of facilitation or complicity in mis declaration - requirement of proof of agent/representative's knowledgePenalty under Section 114(i) and 114AA of the Customs Act, 1962 - knowledge and mens rea for abetment - evidence of facilitation or complicity in mis declaration - requirement of proof of agent/representative's knowledge - Whether the penalty imposed on the appellant under Section 114(i) and 114AA of the Customs Act, 1962 can be sustained in the absence of evidence that the appellant had knowledge of or facilitated the mis declaration. - HELD THAT: - The adjudicating authority imposed penalties on the appellant alleging that he assisted the exporter in illicitly exporting Muriate of Potash as Bentonite Powder. The Tribunal found no admissible evidence on record establishing that the appellant had knowledge of the mis declaration or that he facilitated the export with such knowledge. The fact that the appellant prepared documents without obtaining the exporter's signature was held insufficient to infer awareness of prohibited goods. The Tribunal relied on the principle that the owner or principal must be able to show absence of knowledge by the agent or person in charge and noted that the department did not allege, nor adduce statements showing, that any agent, driver or person in charge had such knowledge. Prior decisions of this Tribunal on materially similar facts were considered, including an instance where penalty was set aside for lack of evidence linking the co noticee to supply of the prohibited goods. Applying these principles, the Tribunal concluded that there was no concrete evidence to prove the appellant's complicity or mens rea necessary to sustain penalties under the cited provisions. [Paras 3, 5]Penalties imposed under Section 114(i) and 114AA of the Customs Act, 1962 are set aside for lack of evidence that the appellant had knowledge of or facilitated the mis declaration.Final Conclusion: The appeal is allowed; penalties under Section 114(i) and 114AA are set aside for want of evidence of the appellant's knowledge or complicity, with consequential relief as per law.

Condonation of delay - substantial question of law - binding precedent effect of a Supreme Court decision - attribution of profits to Indian operations - appeal disposed on meritsCondonation of delay - appeal re-filing - Condonation of delay of 460 days in re-filing the appeals was sought and decided. - HELD THAT: - The applications filed by the appellant/revenue seeking condonation of delay in re-filing the appeals were considered. The Court, stating its intention to decide the appeals on merits, granted condonation of the delay and disposed of the applications accordingly. The order condones the delay and allows re-filings to proceed. [Paras 1, 4, 5]Delay of 460 days in re-filing the appeals is condoned and the applications are disposed of.Binding precedent effect of a Supreme Court decision - substantial question of law - attribution of profits to Indian operations - Whether any substantial question of law arises for consideration in the appeals in view of the Supreme Court's dismissal of SLP and the coordinate bench's decision attributing 15% of profits to Indian operations. - HELD THAT: - The learned senior standing counsel for the appellant/revenue conceded that the Supreme Court's decision in the group-entity case governs the merits. The Supreme Court had dismissed the special leave petition after recording that issues were considered and held against the Revenue by affirming the High Court. The primary merit issue before the Tribunal - the sustainability of attributing 15% of profits from Indian operations to the respondent/assessee - was upheld by the coordinate bench and subsequently affirmed by the Supreme Court dismissal of SLP. In view of this binding precedent, the High Court held that no substantial question of law arises for its consideration and closed the appeals. [Paras 7, 8, 9, 10, 12]In light of the Supreme Court's dismissal of the SLP and the coordinate bench's finding on attribution, no substantial question of law arises; the appeals are closed.Final Conclusion: Applications for condonation of delay are allowed; on the merits the appeals are closed as no substantial question of law arises in view of the Supreme Court's dismissal of the special leave petition affirming the coordinate bench's conclusion on attribution of profits.

Maintainability of writ when alternative statutory remedy exists - invocation of extended period of limitation - mixed question of fact and law - reappreciation of evidence by the appellate tribunal - entertainment of appeal without reference to limitationMaintainability of writ when alternative statutory remedy exists - reappreciation of evidence by the appellate tribunal - Whether the writ petition challenging the adjudication order can be entertained in view of the availability of an alternative statutory appellate remedy. - HELD THAT: - The Single Bench's order was upheld on the basis that the adjudicating authority's conclusions involve disputed questions of fact and mixed questions of fact and law which require reappreciation of evidence. The Court observed that the appellants have an efficacious and effective remedy by way of appeal to the Central Excise and Service Tax Appellate Tribunal and therefore should not bypass that statutory remedy. Procedural objections and allegations of perversity in the adjudication-such as non-consideration or rejection of documents-are matters for factual adjudication and are appropriately addressed on appeal to the Tribunal rather than in writ jurisdiction. The Court's observations were expressly prima facie and stated not to prejudice the appellants' rights to raise all issues before the Tribunal. [Paras 4, 5, 6, 7]Writ petition dismissed; appellants directed to pursue remedy by filing an appeal before the Tribunal.Invocation of extended period of limitation - mixed question of fact and law - Whether the extended period of limitation under the relevant law could be invoked against the appellants for the tax period in question. - HELD THAT: - The Court found that the question of invoking the extended period of limitation is not purely a legal issue but a mixed question of fact and law because the show-cause notice and the adjudicating order contain factual allegations which the appellants have contested. Since determinations as to wilful misstatement, suppression, fraud or collusion require factual examination, the matter cannot be finally resolved in the writ petition and must be gone into by the appropriate adjudicatory forum on appeal. [Paras 4, 5]Issue not decided on merits; to be considered by the appellate Tribunal as a mixed question of fact and law.Entertainment of appeal without reference to limitation - Relief available to the appellants regarding limitation for filing appeal to the Tribunal. - HELD THAT: - The Court granted liberty to the appellants to file an appeal against the adjudicating order before the Central Excise and Service Tax Appellate Tribunal and directed that if such appeal is filed within 90 days from receipt of the certified copy of this judgment the Tribunal shall entertain the appeal without reference to limitation. All questions of law and fact are left open for adjudication before the Tribunal. [Paras 9, 10]Liberty granted to file appeal within 90 days; Tribunal directed to entertain the appeal without reference to limitation.Final Conclusion: Appeal dismissed; appellants directed to challenge the adjudication order before the Central Excise and Service Tax Appellate Tribunal, which shall entertain an appeal filed within 90 days without reference to limitation; questions of law and fact left open for adjudication by the Tribunal.

Offence under Section 138 of the Negotiable Instruments Act, 1881 - presumption under Section 139 of the Negotiable Instruments Act, 1881 - inadmissibility of defence evidence by affidavit - procedure prescribed by Section 145 of the Negotiable Instruments Act, 1881 - remand for adducing evidence in accordance with law - application under Section 391 of the Code of Criminal Procedure to permit additional evidenceInadmissibility of defence evidence by affidavit - procedure prescribed by Section 145 of the Negotiable Instruments Act, 1881 - offence under Section 138 of the Negotiable Instruments Act, 1881 - Validity of the appellate Court's acquittal when defence evidence was admitted by affidavit instead of examination-in-chief and whether the matter required remand. - HELD THAT: - The Court held that the defence evidence by DW1 and DW2 was presented by way of affidavit in lieu of examination-in-chief, contrary to the procedure contemplated by the statute. Relying on the reasoning in M/s. Mandvi Co-operative Bank Ltd. v. Nimesh B. Thakore and the coordinate decision in Smt. H. Bhagya v. Smt. R. Savithramma, the Court observed that the legislative scheme permits the complainant to give evidence on affidavit but does not confer a like right on the accused; the nature of defence evidence is often different from that of the complainant and cannot be equated. Because the appellate Court accepted and acted upon the affidavit evidence of the defence without ensuring that such evidence was taken in accordance with law, its conclusion of acquittal was unsustainable. For these reasons the matter could not be decided on the basis of affidavit evidence and required remand to the trial Court to permit the accused to adduce defence evidence by oral examination in accordance with law. [Paras 10, 12, 13, 14]Impugned acquittal set aside; trial Court judgment set aside; matter remitted to trial Court with direction to permit the accused to adduce defence evidence in accordance with law.Application under Section 391 of the Code of Criminal Procedure to permit additional evidence - remand for adducing evidence in accordance with law - presumption under Section 139 of the Negotiable Instruments Act, 1881 - Whether the complainant should be permitted to adduce additional evidence, specifically the handwriting expert's evidence, by leave under Section 391 Cr.P.C. - HELD THAT: - The Court noted that the appellate Court's decision had turned in part on the handwriting expert's report not having been proved in accordance with law because the expert had not been examined. The complainant sought permission under Section 391 Cr.P.C., by affidavit, to examine the handwriting expert and to lead any further evidence. No objection was filed by the respondent. In view of its conclusion that the defence evidence must be re taken in accordance with law, the Court found it appropriate and just to allow the complainant the opportunity sought to prove the handwriting expert report and to adduce any additional evidence. Accordingly the application under Section 391 Cr.P.C. was allowed and the complainant directed to appear before the trial Court to place the additional evidence. [Paras 10, 15, 16, 17]I.A. No.1/2014 under Section 391 Cr.P.C. allowed; complainant permitted to examine the handwriting expert and to adduce additional evidence upon remand.Final Conclusion: Appeal allowed; appellate Court's acquittal and the trial Court's conviction set aside; matter remitted to the trial Court for fresh disposal - accused to be permitted to adduce defence evidence orally in accordance with law and complainant permitted to examine the handwriting expert and lead additional evidence; trial Court to proceed and conclude the case within six months from the accused's appearance.

Pendency of appeal - admission of appeal - eligibility for settlement under the Direct Tax Vivad Se Vishwas Act, 2020 - CBDT circulars not to be adverse to assessee - Section 10 powers analogous to Section 119Pendency of appeal - eligibility for settlement under the Direct Tax Vivad Se Vishwas Act, 2020 - Interpretation of the requirement that an appeal be "pending" as on the specified date for purposes of eligibility under the VSV Act, 2020. - HELD THAT: - The Court held that for the purpose of Section 2(1)(a) of the VSV Act the word "pending" means that an appeal which has been filed remains pending until it is adjudicated upon and there is no requirement that the appeal must be valid, competent or admitted on the specified date. The Court relied on established authorities holding that whether an appeal is competent or maintainable is a question for the appellate forum to determine and that an appeal does not cease to be an appeal merely because it may later be found to be incompetent or barred by limitation. Applying that principle, an appeal filed before an appellate forum within the period contemplated by the scheme is to be treated as pending for the purposes of the VSV Act until adjudicated, and thus satisfies the statutory predicate for filing a declaration under the scheme. [Paras 11, 12, 13]An appeal filed and awaiting adjudication is to be treated as pending on the specified date; no separate requirement of validity, competence or admission on that date is necessary for eligibility under the VSV Act.Admission of appeal - CBDT circulars not to be adverse to assessee - Section 10 powers analogous to Section 119 - Validity of FAQ No.59 of Circular No.21/2020 to the extent it treats admission of an appeal as a condition precedent to pendency under the VSV Act. - HELD THAT: - The Court held that the CBDT's FAQ which imposed a condition that an appeal must be "admitted" before a declaration could be filed is contrary to the statutory scheme. While recognising that Section 10 confers power on the CBDT to issue directions, the Court observed that such power is analogous to Section 119 of the Income-tax Act and does not permit issuance of circulars adverse to assessees. Relying on precedents that circulars inconsistent with statutory provisions have no legal existence, the Court concluded that FAQ No.59 insofar as it contemplates admission of appeal as a precondition must be ignored. [Paras 15, 16, 17, 18]FAQ No.59 requiring admission of appeal as a condition precedent is contrary to law and must be ignored; the requirement of admission cannot be read into the VSV Act.Eligibility for settlement under the Direct Tax Vivad Se Vishwas Act, 2020 - Correctness of the Designated Authority's orders rejecting the petitioner's declaration under the VSV Act. - HELD THAT: - Applying the interpretation that a filed appeal remains pending until adjudicated and that the CBDT circular cannot add the precondition of admission, the Court found the Designated Authority's rejection of the declaration on the ground that the appeal was not pending on the specified date to be legally unsustainable. The Court directed that the declarations rejected by the orders dated 31.03.2021 and 15.04.2021 be set aside and that the authority process the petitioner's claim under the VSV Act in accordance with law. [Paras 19]The orders rejecting the declaration dated 31.03.2021 and 15.04.2021 are set aside and the Designated Authority is directed to process the petitioner's declaration under the VSV Act.Final Conclusion: The writ petition is allowed: the Court rules that an appeal filed and awaiting adjudication is "pending" for the specified date under the VSV Act; FAQ No.59 to the extent it requires admission of the appeal is contrary to law and must be ignored; the orders rejecting the declaration are set aside and the Designated Authority is directed to process the petitioner's claim under the scheme.

Ultra vires - curtailment of adjudicating authority's discretion - provisional release of seized goods - reliance on administrative circular - setting aside administrative order passed on invalid circular - remand for fresh decision - speaking order - perishable goods - expedited disposalUltra vires - curtailment of adjudicating authority's discretion - reliance on administrative circular - Validity of paragraph 2 of Circular No. 35/2017-Cus to the extent it curtails the discretion of the adjudicating authority - HELD THAT: - The Court held that paragraph 2 of the impugned Circular, insofar as it curtails the discretion of the adjudicating authority to grant provisional release of goods, had been declared void by a Coordinate Bench and, following the decision in the connected petition, that portion is set aside. Consequently, the petitioner's challenge to the impugned Circular does not survive and the Circular cannot be the basis for restricting the adjudicating authority's discretion in provisional release matters. [Paras 3, 5]Paragraph 2 of the impugned Circular to the extent it curtails the adjudicating authority's discretion is void/has been set aside.Provisional release of seized goods - setting aside administrative order passed on invalid circular - remand for fresh decision - speaking order - perishable goods - expedited disposal - Validity of the impugned provisional-release order and appropriate remedy - HELD THAT: - The impugned order granting provisional release subject to specified bonds and security was passed on the basis of paragraph 2 of the impugned Circular. Because that paragraph has been set aside as curtailing adjudicatory discretion, the impugned order is liable to be set aside. The matter is remitted to the adjudicating officer for fresh consideration of the petitioner's application for provisional release. The Court directed that a fresh, speaking order be passed within an expedited timeframe because the goods are perishable, and restored the petitioner's application before the adjudicating authority for rehearing. [Paras 6, 8, 9]Impugned order set aside; matter remanded to respondent no.6 for fresh, speaking decision within four working days (expedited due to perishability); petitioner's application restored.Final Conclusion: The petition is allowed: the portion of the Circular curtailing adjudicatory discretion is set aside; the impugned provisional-release order, being founded on that Circular, is set aside; the matter is remanded for fresh, expedited decision with the petitioner's application restored.

Summary order. Civil appeals dismissed in view of the order dated 27th November, 2019 in Civil Appeal No. 6983 of 2009 and connected matters titled Commissioner of Central Excise Vs. M/s. Madras Cements Ltd.; pending applications, if any, disposed of.

Provisional release under Section 110A - Discretion of adjudicating authority to impose conditions and security - Circular No.35/2017-Cus paragraph 2 ultra vires - Set-aside and remand for fresh adjudication - Expedited decision for perishable goods Provisional release under Section 110A - Discretion of adjudicating authority to impose conditions and security - Circular No.35/2017-Cus paragraph 2 ultra vires - Paragraph 2 of Circular No.35/2017-Cus to the extent it prescribes categories ineligible for provisional release and mandates specific securities is contrary to Section 110A and is liable to be set aside. - HELD THAT: - Section 110A confers discretion on the adjudicating authority to release seized goods on a bond with such security and conditions as the adjudicating authority may require. Paragraph 2 of the impugned Circular attempts to exclude certain categories of goods from provisional release and prescribes fixed requirements for bond and security, thereby curtailing the statutory discretion. A coordinate Bench has held that para 2 is contrary to Section 110A and void to the extent it supplants the statutory provision; that decision has been followed and the petitioner's challenge to para 2 is prima facie meritorious. Consequently, para 2 is set aside insofar as it limits the discretion conferred by Section 110A. [Paras 6, 7] Paragraph 2 of the impugned Circular is set aside to the extent it curtails the discretion of the adjudicating authority under Section 110A. Set-aside and remand for fresh adjudication - Expedited decision for perishable goods - The impugned order fixing bond and security in reliance on paragraph 2 of the Circular is set aside and the matter is remitted to the adjudicating authority for fresh decision. - HELD THAT: - The impugned order fixed the value of the bond and the quantum of security by applying paragraphs 2.1 and 2.2 of the impugned Circular. Because paragraph 2 has been held to impermissibly curtail statutory discretion, the order that relied upon those prescriptions cannot stand. The matter is remanded to respondent no. 6 to decide the petitioner's application for provisional release afresh, with opportunity to be heard. Given that the goods are perishable, the Court directs a speaking order to be passed within four working days from the date and gives a specific date for the petitioner's appearance before the adjudicating authority. [Paras 8, 9, 10] The impugned order is set aside and the application for provisional release is restored for fresh consideration by respondent no. 6, who shall decide and pass a speaking order within four working days after hearing the petitioner. Final Conclusion: The petition is allowed: paragraph 2 of Circular No.35/2017-Cus is set aside insofar as it curtails the adjudicating authority's discretion under Section 110A; the impugned provisional-release order is set aside and remitted for fresh, expedited consideration with a four-working-day direction due to the perishable nature of the goods.

Additions made dehors incriminating material found during search - deletion of additions in absence of incriminating material (PCIT vs Abhisar Buildwell) - section 2(22)(e) deemed dividend limited to shareholder and inapplicable where advance is a trade advance - addition under section 68 for unsecured loan not sustainable without seized material - disallowance under section 40(a)(ia)/TDS cannot be mechanical and requires application of mind - Rule 27 ITAT petition challenging post-search additions on ground of finalityAdditions made dehors incriminating material found during search - deletion of additions in absence of incriminating material (PCIT vs Abhisar Buildwell) - Rule 27 ITAT petition challenging post-search additions on ground of finality - Deletion of additions made without reliance on seized/incriminating material as per Hon'ble Supreme Court authority - HELD THAT: - The Tribunal found that multiple additions in the assessments under challenge were not founded on any incriminating or seized material recovered during the search and were made dehors such material. The Revenue's concession on this factual position was recorded. Applying the principle in PCIT vs Abhisar Buildwell Pvt. Ltd. (2023) SCC Online SC 481, additions which are not supported by incriminating material seized in the search cannot be sustained. On this basis the Tribunal held that the additions so made were liable to be deleted and allowed the assessee's petitions filed under Rule 27 of the ITAT Rules asserting finality of assessment in absence of incriminating material. [Paras 7, 13, 23]Additions made dehors seized/incriminating material deleted; assessee's Rule 27 grounds allowed and revenue grounds dismissed.Section 2(22)(e) deemed dividend limited to shareholder and inapplicable where advance is a trade advance - addition under section 68 for unsecured loan not sustainable without seized material - Deletion of addition as deemed dividend under section 2(22)(e) where recipient was not a registered shareholder and advance was found to be a trade advance - HELD THAT: - The Assessing Officer treated a loan/advance from another company as deemed dividend under section 2(22)(e) on account of common director/shareholding. The Appellate Authority found the nature of the advance to be a trade advance and recorded that the assessee was not a registered shareholder of the lender-company. Reliance was placed on precedents holding that the scope of section 2(22)(e) is confined to shareholders and that trade advances do not attract deemed dividend treatment. On these findings the Tribunal upheld the deletion of the addition treated as deemed dividend. [Paras 14, 15, 17]Addition as deemed dividend deleted; revenue appeal dismissed on this issue.Disallowance under section 40(a)(ia)/TDS cannot be mechanical and requires application of mind - Deletion of addition for alleged failure to deduct TDS where the Assessing Officer acted mechanically and Appellate Authority's factual findings on nature of payments and compliance were upheld - HELD THAT: - The Appellate Authority remanded and then examined the nature of payments alleged to be made without deduction of tax. It found that certain transactions were not made, that only a small portion attracted TDS and had been complied with, and that remaining payments either did not attract TDS or were below threshold. The Tribunal agreed that the Assessing Officer had made the disallowance mechanically without applying his mind and that the Appellate Authority's reasoning was cogent. Accordingly, the deletion of the addition under section 40(a)(ia) was affirmed. [Paras 24, 26]Addition for alleged non-deduction of TDS deleted; Appellate Authority's order affirmed.Final Conclusion: All three appeals filed by the Revenue are dismissed: additions made without reliance on incriminating/seized material are deleted under the principle in PCIT vs Abhisar Buildwell; the deemed dividend addition is deleted as section 2(22)(e) was inapplicable; and the TDS-related disallowance was deleted for being mechanical and lacking application of mind.

Revisionary jurisdiction under Section 263 of the Income-tax Act - Requirement of twin conditions for invoking Section 263 - Scope of interference where Assessing Officer has conducted independent enquiry and taken a plausible view - Maintainability of a second revision on the same issue - Duty of the revisional authority to make independent enquiry before invoking revisionary powerScope of interference where Assessing Officer has conducted independent enquiry and taken a plausible view - Requirement of twin conditions for invoking Section 263 - Validity of exercise of revisionary jurisdiction to set aside an assessment where the Assessing Officer had made enquiries, called for details from shareholders and taken a plausible view deleting additions. - HELD THAT: - The Tribunal found that in the set-aside assessment proceedings the Assessing Officer had called for and considered details from the assessee and subscribers (including notices under section 133(6)), carried out examination and enquiry and recorded reasons for deleting the addition made earlier under section 68. The revisional power under Section 263 can be exercised only when the twin conditions envisaged therein are satisfied; if those conditions are not met the jurisdiction is not available. Where the Assessing Officer has conducted an enquiry and taken a plausible view based on material on record, the Principal Commissioner cannot exercise revisionary jurisdiction merely because he would have taken a different view. Further, if the revisional authority believes there was inadequate enquiry, it is incumbent on him to make or cause an independent enquiry to reach a conclusion that the order is erroneous and prejudicial to revenue before invoking Section 263. Applying these principles to the facts, the Tribunal held that the twin conditions were not satisfied and the second revisionary order was therefore invalid. [Paras 9, 10, 11, 12]Revision under Section 263 quashed as the Assessing Officer had conducted inquiry and taken a plausible view; the twin conditions for invoking Section 263 were not satisfied.Maintainability of a second revision on the same issue - Revisionary jurisdiction under Section 263 of the Income-tax Act - Whether a second invocation of revisionary jurisdiction under Section 263 on the same issue, after an earlier revision and fresh assessment, is maintainable. - HELD THAT: - The Tribunal noted precedents of the Calcutta High Court holding that a second round of revision under Section 263 on the same issue, following an earlier exercise of revision, is invalid. Respecting that ratio and applying it to the facts - where the matter had already been subjected to revision and the Assessing Officer had adjudicated the set-aside assessment - the Tribunal held that a subsequent revision in respect of the same issue was not maintainable. Consequently the second revisional order was held to be invalid. [Paras 13, 14]Second revision on the same issue held invalid and not maintainable; the revisional order quashed.Final Conclusion: The second revisional order passed under Section 263 was quashed: the Assessing Officer had conducted inquiries and taken a plausible view, the twin conditions for invoking Section 263 were not satisfied, and a second revision on the same issue is not maintainable; appeal allowed.

Assessment against a dissolved company is a nullity - company struck off under Section 560(5) of the Companies Act ceases to exist - restoration and continuance of juridical personality under Section 560(6)-(7) - liability and recovery from directors or third parties under Section 179 and Section 226(3) of the Income tax Act - competence to prosecute appeals: dissolved company versus directorsCompany struck off under Section 560(5) of the Companies Act ceases to exist - assessment against a dissolved company is a nullity - competence to prosecute appeals: dissolved company versus directors - liability and recovery from directors or third parties under Section 179 and Section 226(3) of the Income tax Act - Validity of assessment orders passed in the name of a company that had been struck off and dissolved under Section 560(5) of the Companies Act - HELD THAT: - The Tribunal found on facts that the assessee company had been struck off and dissolved w.e.f. the date notified by the Registrar of Companies and therefore had ceased to exist on the dates when the impugned assessment orders were passed. Relying on the statutory scheme in Section 560(5)-(7) (which permits restoration in limited circumstances) and on authoritative precedents, the Tribunal held that a company dissolved under Section 560(5) has no juridical existence and an assessment made against a non existent entity is a nullity. The Tribunal noted that Sections 226(3) and 179 of the Income tax Act preserve remedies to recover tax from persons who hold money for the dissolved company or from directors where recovery from the company is not possible; such persons retain locus to challenge assessments. The Tribunal distinguished decisions concerning conversion of a company into another form (such as conversion to an LLP) where dissolution was not involved. In the circumstances, and following coordinate bench decisions and the J&K & Ladakh High Court authority, the Tribunal upheld the Commissioner (Appeals) in quashing the assessments which were made in the name of the non existing company and dismissed the Revenue appeals. [Paras 4, 6]Both assessment orders passed in the name of the struck off and dissolved company are not sustainable and are quashed; Revenue appeals dismissed.Final Conclusion: The Tribunal upheld the CIT(A)'s orders quashing the assessments for A.Y. 2008 09 and A.Y. 2009 10 because the company had been struck off and dissolved under Section 560(5) of the Companies Act, and an assessment against a non existent company is a nullity; appeals by the Assessing Officer are dismissed.

Transfer of Cenvat credit on closure of factory - Scope of Rule 10 of Cenvat Credit Rules, 2004 - Requirement of transfer of inputs or capital goods for credit transfer - Precedential effect of High Court decision affirmed by Supreme CourtTransfer of Cenvat credit on closure of factory - Scope of Rule 10 of Cenvat Credit Rules, 2004 - Requirement of transfer of inputs or capital goods for credit transfer - Precedential effect of High Court decision affirmed by Supreme Court - Legality of rejecting the appellant's request to transfer unutilized Cenvat credit to another unit on account of closure of the factory. - HELD THAT: - The appellant notified the department of closure of its Puducherry unit and sought transfer of unutilized Cenvat credit to its Sriperumbudur unit. Rule 10 of the Cenvat Credit Rules, 2004 permits transfer of Cenvat credit when a manufacturer shifts his factory to another site or when factory is transferred on account of change in ownership, sale, merger, amalgamation, lease or transfer to a joint venture, subject to accounting of inputs or capital goods to the satisfaction of the proper officer. The Tribunal followed the reasoning in the Madras High Court decision in CCE Chennai v. Featherlite Products Pvt. Ltd., which held that Rule 10's purpose-enabling use of unutilised Cenvat credit-permits transfer in situati ons of factory closure/shift, and that the question of transfer of stocks or capital goods depends on factual accounting and was addressed in the record before the authority. That decision was affirmed by the Supreme Court, so the High Court ratio is binding. Applying that precedent to the facts, the Tribunal held that rejection of the transfer request solely on the ground that Rule 10 does not cover closure/shifting is unsustainable, and directed allowance of the transfer with consequential relief.The impugned order rejecting transfer of unutilized Cenvat credit on account of closure of the factory is set aside; the appeal is allowed with consequential relief.Final Conclusion: Following the binding precedent of the Madras High Court affirmed by the Supreme Court, the Tribunal allowed the transfer of unutilized Cenvat credit on closure/shift of the factory and set aside the rejection, granting consequential relief.

Summary order. Special Leave Petitions dismissed; delay condoned; no interference under Article 136 of the Constitution of India. Pending applications, if any, disposed of.

Rectification of assessment - treatment of representation as rectification application - GSTR-3B return correction - opportunity of hearing - writ of mandamus under Article 226Rectification of assessment - treatment of representation as rectification application - GSTR-3B return correction - opportunity of hearing - Whether the representation filed by the petitioner (Exts.P4 and P5) should be treated as a rectification application and decided by the 3rd respondent after affording opportunity of hearing. - HELD THAT: - The petitioner admitted errors in the GSTR-3B returns which, according to counsel, resulted in the impugned assessment order (Ext.P3). The petitioner submitted Ext.P4 (and Ext.P5) seeking correction/rectification of those mistakes. The learned Government Pleader raised no substantial objection to treating the representation as a rectification application. On these facts the High Court directed that the 3rd respondent shall consider Exts.P4 and P5 as a rectification application filed by the assessee and decide the same in accordance with law after affording the petitioner an opportunity of hearing. The Court specified an expeditious timeline for disposal, indicating the order should be passed preferably within two months. [Paras 5]Exts.P4 and P5 shall be treated as a rectification application and the 3rd respondent is directed to decide them in accordance with law after giving the petitioner an opportunity of hearing, preferably within two months.Final Conclusion: Writ petition disposed by directing the 3rd respondent to treat Exts.P4 and P5 as a rectification application, hear the petitioner and pass appropriate orders expeditiously (preferably within two months).

Sham transaction / bogus transaction - pre-arranged transaction / accommodation entry - surrounding circumstantial evidence - onus on assessee to prove genuineness of transaction - assessment based on trade and financial analysis of scrip - onus under Section 68 - set-off of short term capital loss against long term capital gainSham transaction / bogus transaction - pre-arranged transaction / accommodation entry - surrounding circumstantial evidence - assessment based on trade and financial analysis of scrip - onus on assessee to prove genuineness of transaction - set-off of short term capital loss against long term capital gain - Validity of disallowance of claimed short-term capital loss on sale of shares of M/s Looks Health Services Ltd as a bogus/sham transaction - HELD THAT: - The AO and the CIT(A) concluded that the assessee's short-term capital loss was a product of a pre-arranged accommodation entry and therefore bogus, relying on trade data, price movements of the scrip, concentration of bulk deals, the use of a broker pool account and payments from the assessee's father's account. The Tribunal examined whether these circumstantial observations were supported by corroborative material or enquiries directed to other participants or brokers. It found that the transactions were executed on the BSE platform where counter-parties are anonymous, and there was no independent or corroborative evidence on record showing collusion, rigging by the assessee or his broker, or any material establishing that money was converted through accommodation entries. The Tribunal held that the principle of surrounding circumstantial evidence, applied without further corroboration, was insufficient to sustain a finding of sham transactions in the facts of this case. The Tribunal noted that the assessee had made payments routed through banking channels, had dematerialised shares and that the claimed loss did not equal the entire long-term gain (which, the Tribunal observed, would have been expected if a wholly pre-arranged set-off had been contrived). Relying on the reasoning in PCIT v. Krishna Devi, the Tribunal concluded that absent cogent corroborative material or further inquiry, the lower authorities' conclusion was conjectural. On that basis the Tribunal set aside the disallowance and directed deletion of the addition.Disallowance of the short-term capital loss held unsupported by corroborative material and set aside; the addition deleted and the assessee's ground of appeal allowed.Final Conclusion: The Tribunal allowed the appeal, set aside the findings of the AO and CIT(A) that the short-term capital loss on sale of Looks Health Services Ltd shares was bogus, and directed deletion of the addition for Assessment Year 2014-15.