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By: - YAGAY and SUN
IP commercialisation requires valuation of legal, technical and commercial factors, including ownership, protection, market demand, revenue potential, remaining life, licensing potential and enforceability. Cost, market, income and relief-from-royalty methods may be used according to the asset and available information. Licensing preserves ownership while granting defined rights, unlike assignment, which transfers ownership. Effective arrangements should define scope, territory, exclusivity, royalties, confidentiality, improvements, enforcement, audit and termination. Due diligence should address title, existing rights, third-party claims and freedom to operate, alongside competition, tax, accounting and cross-border considerations.
Police assistance costs under SARFAESI cannot be imposed on secured creditors as a possession condition.
Section 14 of the SARFAESI Act requires a District Magistrate to assist secured creditors in taking possession of secured assets and permits necessary steps, including force. Police assistance, where required, forms part of that statutory mechanism. As the provision contains no express power to recover police-assistance expenses from a secured creditor or make payment a condition for possession, a requirement to deposit such charges is unauthorised and invalid. Necessary police assistance must be provided for implementation of the possession process.
Mandatory pre-process inquiry for out-of-jurisdiction accused requires remittal, not termination, where prima facie forgery and cheating allegations persist.
Mandatory pre-process inquiry for accused residing outside a Magistrate's territorial jurisdiction requires fresh consideration before process issues; where prima facie material supports alleged forgery and cheating, the procedural defect warrants remittal rather than termination of the complaint. Inherent jurisdiction to quash criminal proceedings remains exceptional and is unavailable where evidentiary disputes, including forensic material concerning alteration of a cheque, require further scrutiny. Company officers cannot be prosecuted solely through vicarious liability unless authorised by statute, but allegations of active participation, conspiracy and criminal intent may support their continued inclusion in the complaint.
Agricultural land recorded and used for farming is excluded from wealth-tax assets under the retrospective amended definition.
Agricultural land classified as such in revenue records and actually used for agricultural purposes falls outside taxable wealth-tax assets under Explanation 1(b) to Section 2(ea) of the Wealth-tax Act, 1957. The Finance Act, 2013 inserted this exclusion retrospectively from 1 April 1993. Where both revenue classification and actual agricultural use are satisfied, the fact that construction may not have been legally prohibited does not determine asset status under the amended definition.
Recorded Software Media Classification places pre-recorded CDs and DVDs under the lower VAT entry, not the blank-media entry.
Recorded and pre-recorded audio/video CDs and DVDs embedded with information-technology software fall within Entry 68(5)(d) of the First Schedule to the Tamil Nadu Value Added Tax Act, 2006, and attract tax at 5%, rather than the rate applicable to blank CDs and DVDs. The wording and placement of the entry distinguish software-bearing recorded media from blank media. Applying noscitur a sociis, recorded media take their character from the related software provisions. Administrative clarifications and consistent assessments of comparable goods support this classification.
Input tax credit remains available when genuine purchases and goods movement are proven despite supplier tax default.
Input tax credit cannot be denied solely because the selling dealer failed to remit tax or filed nil returns where the purchasing dealer establishes genuine transactions and movement of goods. Supporting transaction records, including e-sugam documentation, sufficiently discharge the purchaser's burden of proof under the Karnataka Value Added Tax Act. Once purchases are substantiated, the supplier's tax default alone does not justify rejecting the purchaser's input tax credit claim.
Manufacturing-use concession covers precision instruments unless they are plant and machinery, while non-concessional imported goods face higher tax.
Imported precision instruments classified under Parts D or E fall within the higher-rate entry for other imported goods where no concessional declaration is available; a restrictive interpretation limiting that entry to specifically named goods is unsustainable. The concessional rate for goods used in manufacture applies to any goods used within the State, including manufacturing aids and consumables, unless they constitute excluded plant and machinery. Precision instruments sold against Form XVII for manufacturing use therefore qualify for the concessional rate, while imported instruments otherwise remain subject to the higher rate.
Post-Closure Cenvat Credit Refunds Must Meet Statutory Limitation and Cannot Use the Pre-Deposit Refund Procedure
Post-closure refunds of accumulated unutilized Cenvat credit must be claimed through the statutory refund mechanism and within the limitation period under Section 11B, calculated from surrender of excise registration where the claim arises on factory closure. A delayed claim is time-barred and not refundable. Form-R under Section 35F is available only for refund of a pre-deposit; accumulated unutilized Cenvat credit is not a pre-deposit and cannot be recovered through that procedure. Consequently, a post-closure claim filed through Form-R cannot secure refund of such credit.
Movable telecom towers support CENVAT credit and preserve related service credits and SEZ exemption for mobile operators.
Telecom towers and pre-fabricated shelters that are dismantlable, relocatable and saleable despite bolted attachment for operational stability are movable goods. As accessories to BTS and antennas, and as inputs used to provide mobile telecommunication services, they qualify for CENVAT credit. Erection, commissioning and associated site services maintain a direct nexus with output services and qualify as input services. Later restrictions on personal-use outdoor-catering credit do not apply to earlier periods and do not extend to certain specified services. Mobile services supplied to SEZ subscribers remain eligible for SEZ exemption despite possible use outside the SEZ, supported by the overriding SEZ Act framework.
Cenvat credit remains available for capital goods used to manufacture plant and machinery embedded permanently to earth.
Cenvat credit on capital goods used to manufacture plant or machinery embedded to earth remains available even where the resulting plant or machinery is immovable property. Capital goods do not lose credit eligibility solely because their use results in an immovable installation. The applicable materially similar precedent supports this treatment, and the immovable character of the finished plant or machinery does not independently justify denial of Cenvat credit.
Statutory service requirements determine appeal limitation, while a filing deadline falling Sunday extends to the next working day.
Service of Customs appellate orders through registered post or speed post with acknowledgement due is required for limitation to commence. A Document Identification Number authenticates an order but does not establish its electronic upload or valid service. Where prescribed service was not proved, limitation for second appeals ran from actual receipt, making the appeals timely. Where the final day for filing first appeals fell on a Sunday, the Limitation Act permitted filing on the next working day, so the first appeals remained maintainable. The demands require determination on merits at the first appellate stage.
Service classification disputes on taxability follow the exclusive appellate route prescribed for assessment-related questions under the Central Excise framework.
Sections 35G and 35L of the Central Excise Act establish mutually exclusive appellate routes. Section 35G excludes questions concerning the rate of duty or valuation for assessment, while Section 35L directs questions of taxability or excisability connected with assessment to the Supreme Court. Classification of services as falling outside Goods Transport Agency service concerns service taxability and assessment. Consequently, an appeal challenging that classification does not lie before the High Court under Section 35G and must be pursued before the Supreme Court under Section 35L.
Refund exemption compliance distinguishes condonable Form EXP2 filing lapses from mandatory shipping-bill endorsement of foreign-agent commission.
Under Notification No. 18/2009-ST, non-submission of Form EXP2 does not by itself defeat a service tax refund where the prescribed information is otherwise available in the records. Form EXP2 is treated as a procedural filing requirement capable of condonation, rather than a substantive condition of exemption. In contrast, endorsement of foreign-agent commission in shipping bills is a substantive requirement. Refund is admissible for shipping bills bearing that endorsement. For unendorsed shipping bills, entitlement depends on verification of the explanation for non-endorsement, the agency agreement, and remittance evidence linked to the relevant exports.
Reverse-charge liability for foreign-bank charges fails without proof that the exporter received identified taxable services.
Reverse-charge liability for foreign-bank charges under the Service Tax Rules and Finance Act arises only where the Indian exporter is proved to be the recipient of an identified taxable service through privity of contract or an equivalent service relationship. Charges ultimately borne by the exporter do not alone establish recipient status; for collection of export proceeds, the Indian bank may instead receive the foreign bank's service. A composite demand that does not separately identify overseas commission and banking services is unsustainable. Extended limitation and equal penalty require evidence of suppression or mala fide intent and are unavailable where audit records disclosed the facts and revenue neutrality exists.
Procedural proof delays cannot defeat Sabka Vishwas discharge certificates after timely payment and appeal withdrawal.
Under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, timely payment of the determined amount and withdrawal of a pending appeal are substantive conditions for a discharge certificate, while furnishing proof of withdrawal is procedural. Where payment and a withdrawal request were made during the Scheme's operation, delayed court listing and formal withdrawal during the COVID-19 disruption could not defeat settlement. The principle that no party should suffer from a court's act or delay required manual processing of the request. Denial of Form SVLDRS-4 and revival of the settled demand were therefore unsustainable.
Equivalent-value attachment permits pre-offence property to secure unavailable proceeds of crime in money-laundering enforcement proceedings.
Section 2(1)(u) of the Prevention of Money Laundering Act treats proceeds of crime as property derived or obtained from criminal activity, including the value of that property. The reference to property value permits provisional attachment of untainted property of equivalent value where the actual tainted assets cannot be traced, have been siphoned off, vanished, or laundered. Limiting attachment to property directly linked to a scheduled offence would deprive the equivalent-value provision of effect. Property acquired before the scheduled offence may therefore be attached when necessary to secure unavailable proceeds of crime.
Medical interim bail under PMLA protects personal liberty where serious illness and prolonged pre-trial custody justify release.
Interim bail on medical grounds may be considered under the sick and infirm exception to the Prevention of Money-laundering Act where prison-based treatment is inadequate and continued detention compromises personal liberty under Article 21. Serious spinal illness requiring ongoing treatment, an undisputed medical condition, and more than five years of pre-trial custody supported interim release. Restrictive bail conditions under the Act do not displace constitutional protection of life and liberty when medical infirmity and prolonged trial justify relief. Interim bail was granted without examining the merits of the prosecution case.
Recall of ex parte orders cannot be denied on delay where express liberty was granted to contest pending proceedings.
Recall jurisdiction over ex parte procedural orders must be exercised consistently with procedural fairness. An application cannot be treated as substantially delayed when it was filed under express liberty granted by the Adjudicating Authority, especially where an earlier application mistakenly targeted a later order, its reply was already on record, and the substantive proceeding remained pending. The delay-based rejection was unsustainable; the ex parte order was recalled as against the appellant, enabling it to contest the pending proceeding.
Pre-suspension default controls Section 10A despite a mistaken Form I date and failed One-Time Settlement in CIRP applications.
Section 10A does not bar a Section 7 CIRP application where the actual default occurred before the suspension period, even if Form I mistakenly records a later date arising from non-payment under a One-Time Settlement. Failure of the settlement restores the original debt position rather than creating a fresh default. A default-date error and other procedural defects may be rectified where cure does not affect merits or jurisdiction, and supporting documents may be placed on record. At admission, the enquiry remains confined to financial debt, default and application completeness; unsupported assertions of solvency or commercial viability do not displace CIRP admission. A reasoned admission order should record the material establishing debt and qualifying default.
Fit and proper insolvency professional status cannot be denied solely because disciplinary proceedings continue after punishment is stayed.
Fit and proper status for enrolment as an insolvency professional cannot be denied solely because disciplinary proceedings remain pending where the punishment removing the applicant from the professional register has been stayed in appeal. Under clause 4(1)(g) of the Insolvency Professionals Regulations, the applicant remained registered and permitted to perform professional duties while the punishment was in abeyance. The distinction between staying the punishment and continuing disciplinary proceedings did not support a finding of unfitness. The enrolment rejection was set aside, requiring fresh consideration without influence from the pending appeal.