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Jan 20,2026

Notice to show-cause confines and limits of adjudication - Prohibition on confirmation of demand on grounds other than those specified in the notice - Natural justice opportunity of hearing and disclosure of material - Special knowledge GST back-office data and right to access - Appellate jurisdiction under Section 107 WBGST/CGST - Adjudication proceedings - HELD THAT:- It is now very well settled that an order cannot travel beyond the confines of the preceding notice to show-cause and a person who has been issued a notice to show cause on a particular point cannot be blindsided by passing an order on an entirely different point. In fact Section 75(7) of the said Act of 2017 is a statutory expression of the said very well settled principle of law only.

It is noticed that the appellate authority has acknowledged the aforesaid point raised by the petitioner but has trivialised the same by stating that it was a “technical issue” as it pertained to mere quantification. In the considered opinion of this Court, the issue could not have been said to be a mere technical issue. The issue involves the question as to whether or not the supplies made by the petitioner under the Reverse Charge Mechanism could also be treated as having been made under the Forward Charge Mechanism on the strength of the said notification dated August 22, 2017. The adjudicating authority’s interpretation of the situation could not have been unilaterally imposed on the petitioner in violation of a mandatory statutory provision. The appellate authority should also not have made light of such statutory violation by a statutory authority by calling it a mere technicality.

Since the notice to show-cause is based on ‘data available in GST B.O. portal’ i.e. data available in the GST back office portal therefore they may not have access to the same as the same would be within the special knowledge domain of the GST authorities. In such a situation the petitioners would not have effective opportunity to deal with the notice to show cause.

It is clarified that if additional show-cause notice is notice is issued and/or the adjudication proceedings are conducted and adjudication order is passed in terms of this order, the petitioner shall not be entitled to raise any objection to the same on the ground of limitation unless the petitioner was entitled to raise such ground at the time when the initial show-cause notice was issued.

It is needless to mention that since the appellate order has been set aside, therefore the Proper Officer shall, while deciding the matter, not be influenced by any observation made therein.

The writ petition is allowed.

Anticipatory bail - custodial interrogation and tampering with evidence - fraudulent availment and circulation of ineligible Input Tax Credit - pre-arrest bail concession - High Court exercise of inherent jurisdiction u/s 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 - notice u/s 70 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- It is apparent that there are specific and serious allegations against the petitioner who had allegedly managed two firms and floated fictitious firms thereby passing of fake ITC by showing fictitious inward supplies and by issuing fake invoices. The inquiry is at its nascent stage. As per the reply filed by the respondent, the petitioner has not cooperated with the inquiry conducted so far. Huge amount of Government exchequer is involved. Proper and thorough inquiry is required to be conducted in the matter. There is possibility of petitioner’s misusing the concession of pre arrest bail. Any latitude may enable him to avoid custodial interrogation, tamper with evidence or manipulate record by taking undue advantage of the legal and procedural loopholes. He may also influence the persons who are actually aware of the transactions and can also delay the investigation by avoiding his personal appearance.

Thus, this Court is of the considered opinion that the petition does not deserve to be allowed. Accordingly, the same is dismissed.

It is, however, made clear that the observations made herein above are only for the purpose of deciding this petition and the same shall not be construed as an expression of opinion by this Court on the merits of the case.

Maintainability of petition - availabillity of alternative remedy - requirement of pre-deposit - Principles of natural justice - Order-in-Original was never served upon the petitioner - issuance of the show-cause notice was barred by limitation or not - HELD THAT:- Although the mere existence of an alternate remedy can never be a bar to this Court exercising its extraordinary jurisdiction under Article 226 of the Constitution, still, this is a self-imposed limitation that, when an alternate and efficacious statutory remedy is provided under the statute, ordinarily, the party must exhaust such remedy before invoking the extraordinary jurisdiction of this Court - the issue of limitation would involve the adjudication of mixed questions of fact and law. Similarly, the issue of whether the services rendered by the petitioner fall within the exempted category would also require adjudication as a factual issue.

The argument that the requirement of a pre-deposit of 7.5 per cent renders the statutory remedy less efficacious cannot be accepted. Apart from the fact that the demand for service tax in this case is only Rs. 4,89,582/-, this Court cannot be expected to ignore the statutory Scheme.

The Hon’ble Supreme Court has time and again held that whenever an alternate remedy is provided under the statute, it is only in exceptional circumstances that the same could be bypassed. Therefore, if the case of the impugned order or impugned action being entirely without jurisdiction or in breach of the principle of natural justice is not made out, there is no question of entertaining the writ petition by-passing the statutory remedies provided under the law.

In the case of Oberoi Constructions Ltd. Vrs. the Union of India & Ors. [2024 (11) TMI 588 - BOMBAY HIGH COURT], the Bombay High Court had the occasion to deal with similar issues concerning the by-passing of alternate remedies. By relying upon the reasoning in the said decision, as also the reasoning in the various precedents referred to, we are not inclined to entertain this petition.

The interests of justice would be best served by directing the petitioner to pursue the alternative remedies provided under the statute - Since it is now admitted that the order which was dispatched to the petitioner was returned unserved, it is directed that if the petitioner institutes an appeal within six weeks from today, after complying with all prescribed pre-conditions, including the condition of pre-deposit, then the appellate authority must consider such appeal on merits without adverting to the issue of limitation.

This writ petition is disposed of.

Validity of reopening of assessment - Change of opinion - addition of bogus purchases - case of the assessee is that assessee has not made any investment in equity shares.

HELD THAT:- There is a complete variation and divergence of issues on the basis of which the case was reopened, assessee was called upon by notice u/s 148A(b) to explain the reasons for reopening and the ultimate conclusions drawn in order u/s 148A(d) and in the final assessment order.

Such an action of ‘change of goalpost’ has been held to vitiate the whole of the assessment proceedings and reliance for this is rightly placed in the case of Catchy Prop Build Private Limited [2022 (10) TMI 771 - DELHI HIGH COURT] and USHA RANI GIRDHAR VERSUS INCOME TAX OFFICER WARD 36 (1), DELHI & ORS. [2022 (12) TMI 546 - DELHI HIGH COURT]

Non granting relief to appellant u/s 89/89A in respect of retirement benefit - assessee has received arrears of retirement benefit from the services rendered in USA - assessee has not been granted an opportunity to file revised return before 31/12/2023 - Department emailed the assessee regarding defective return, who has not allowed the assessee to submit the revise return.

As argued CIT(A) dismissed the appeal without giving any opportunity to the assessee to submit his revised return as well as not granted any hearing to the assessee and the matter may be restored to the file of the AO

HELD THAT:- In the light of submissions of the Ld.AR that the matter may be restored to the file of the AO for representing the assessee’s case for grant of exemption of arrears of salary u/s. 89A of the Act and whether the assessee is eligible for revise return to that extent. The matter is remanded back to the file of the AO for de novo adjudication - Appeal filed by the assessee is allowed for statistical purposes.

Unexplained money u/s 69A - unexplained cash deposits in bank account -appellant has put forth before this Bench only one submission that the matter may be remitted so that the appellant gets an opportunity there to establish that disputed saving bank account did not belong to him - department has opposed the submission on the ground that the assessee failed to participate in the assessment proceedings despite repeated notices, and came up with the above said claim denying connection with the above said bank account, only when he challenged the assessment order by way of appeal before Learned CIT(A)

HELD THAT:- It is true that the assessee did not participate in the assessment proceedings despite repeated notices. Admittedly, the assessee put forth his claim before Learned CIT(A) for the first time by way of grounds of appeal in Form No. 35. It is also true that the assessee-appellant did not take effective steps to discharge onus that the above said saving account has no connection with him.

But, in the facts and circumstances, we are of the view that Learned CIT(A) should have taken steps to enable the assessee-appellant to bring on record all the relevant material in support of his plea that he had no connection with the said bank account with The Kota Central Co-operative bank Ltd.

In the given situation, having regard to the seriousness of the issue involved, we deem it a fit case to afford another opportunity to the assessee-appellant to appear before Learned CIT(A) in order to establish his claim

Estimation of Agricultural income - Contention of the assessee is that the entire land holding was cultivated by the assessee only and accordingly he had disclosed the entire agricultural income in his hands - HELD THAT:- Contention of the assessee is that the entire land holding was cultivated by the assessee only and accordingly he had disclosed the entire agricultural income in his hands. However, no evidence has been brought on record to establish that the other co-owners did not disclose any agricultural income.

Apart from Sundhiyu, other crops such as “Sargawan”, “Cotton”, “Juwar”, “Paddy”, “Castor” etc. were also grown on the land. Even if contention of the assessee that Sundhiyu was purchased by the shepherds at the site is accepted, the assessee should have brought on record the evidence of sale of other crops viz. cotton, juwar, paddy, castor etc.

Merely because the agricultural income disclosed by the assessee in the past was accepted by the Department that cannot be a reason to accept the agricultural income disclosed by the assessee in the current year as correct.

The onus was on the assessee to establish that he had earned agricultural income during the year by bringing on record proper evidences in this regard. It is also found that most of the land was non-irrigated. Therefore, the correctness of the agricultural income disclosed by the assessee was required to be critically examined.

Further, no documentary evidence in respect of agricultural expense incurred by the assessee was brought on record. At the same time, Assessing Officer was not correct in treating the entire agricultural income as unexplained. Considering the fact that the assessee had disclosed agricultural income in past in his return and had brought on record the evidence for land holding of 58.48 acres (in joint ownership), the action of the Assessing Officer in disallowing the entire agricultural income as unexplained, also can’t be upheld.

We deem it proper to set aside the matter to the file of the Jurisdictional Assessing Officer with a direction to allow another opportunity to the assessee to explain the agricultural income disclosed by the assessee. The Assessing Officer is also directed to examine the land holding owned by the assessee and examine the correctness of the agricultural income derived therefrom. It should also be enquired whether any agricultural income was disclosed by the other co-owners of land. Appeal of the assessee is allowed for statistical purpose.

Addition on account of alleged contrived and fictitious profit/loss arising from commodity transactions carried out on the NMCE platform - HELD THAT:- Assessee had not claimed any loss in her return of income for the year under consideration and, on the contrary, had disclosed profit from the NMCE transactions which was offered to tax. Assessee had furnished complete details of all commodity transactions carried out through a registered broker on the NMCE platform, including contract notes, broker ledger accounts, contra confirmations, bank statements and books of account.

These details were found to be matching with the information obtained by the AO directly from NMCE u/s 133(6) of the Act.

We note that the AO has not pointed out any discrepancy between the transactions recorded in the books of the assessee and the data received from NMCE, nor has he brought on record any independent material or evidence to establish that the transactions were fictitious, manipulated or synchronized with a view to generate artificial profit or loss.

The addition has been made primarily on the basis of general information from the Investigation Wing, without any specific evidence linking the assessee to any alleged modus operandi. We also find considerable force in the finding of the CIT(Appeals) that the AO has adopted an impermissible pick-and-choose approach by treating part of the same transaction as genuine and another part as non-genuine, particularly in respect of the transaction dated 11.10.2010.

We are in agreement with the conclusion of the CIT(A) that the addition has no factual or legal basis and was rightly deleted.

Disallowance of commission expenses - assessee non furnishing the nature being purpose of expenses - as per AO assessee failed to prove with documentary evidences that the expenses claimed were related to its business and the parties have actually provided/rendered some services to the assessee for which the payment was made.

HELD THAT:- As dealers are rendering after sales services and keep watch on credit worthiness of ultimate customers. Further storage is also matter of concern and governed by statutory restrictions, hence Dealers also keep storage in their premises/depot to meet urgent requirement of customers.

Looking to all the above dynamics of the Chlor-Alkali business, the assessee has availed the services of the dealers which is beneficial to it by safeguarding payment, long term customer relationship by way of taking care of after sale services.

Thus when every details have been furnished by the assessee, before the assessing officer without making any verification or cross checking of the dealers when the commission payments made through TDS and banking channel. Thus the assessing officer is not justified in making the addition. No infirmity in the order passed by the Addl. CIT(A) deleting the addition made by the AO. Decided against revenue.

Validity of assumption of jurisdiction u/s 147 as barred by limitation - amended provisions of Section 149(1)(b) - escapement of income threshold - HELD THAT:- Admittedly the 1st notice u/s 148 of the Act dated 25-6-2021 has been issued beyond the period of 3 years from the end of the relevant assessment year. Hence as per the amended provisions of section 149 of the Act, notice u/s 148 of the Act could be issued only if the income escaping assessment is more than Rs 50 lakhs.

In the instant case, as stated earlier, the income escaping assessment is only Rs 4,10,200 for Assessment Year 2016-17 and Rs 3,17,776/- for Assessment Year 2017-18. Hence no notice u/s 148 of the Act could be issued by AO as per the amended provisions of section 149(1)(b) of the Act to the assessee herein. Accordingly, the assumption of jurisdiction u/s 147 of the Act is flawed and hence the reassessment proceedings are hereby quashed. Appeals of the assessee are allowed.

Validity of assumption of jurisdiction u/s 147 - Valid Approval under Section 151 - as argued approval granted u/s 151 for reopening the assessment is mechanical which vitiates the entire reassessment proceedings - information was received by the office of the learned AO that there was some cash deposits made in the savings bank account of the assessee

HELD THAT:- On perusal of the proforma seeking approval u/s 151 of the Act, as find that the PCIT had merely stated that – “Yes, it is a fit case for the notice u/s 148”. This sort of approval granted u/s 151 of the Act was held to be approval granted without application of mind and construed as mechanical in the case of CIT Vs. S. Goyenka Lime and Chemicals Ltd [2015 (12) TMI 1334 - SC ORDER]

Hon’ble Delhi High court in the case of PCIT Vs. NC Cables Ltd [2017 (1) TMI 1036 - DELHI HIGH COURT] had also held the same, wherein, the approving authority had merely stated “approved” in the proforma while granting approval in terms of section 151 of the Act. This approval was held by the Hon’ble Delhi High court to be a mechanical approval.

Reopening has been made in the instant case by not taking approval u/s 151 of the Act from the competent authority in the manner known to law. Accordingly, the entire reassessment proceedings are hereby quashed - Decided in favour of assessee.

Addition u/s 69A - addition on account of cash deposits by treating it as unexplained - Books of accounts not rejected - HELD THAT:- It is not in dispute that the Assessee had furnished the complete month wise cash book, duly reflecting the cash withdrawals and cash sales emanating out of business, which explains the source of cash deposits made in the bank account of the Assessee. Admittedly the cash book and the other books of accounts maintained by the Assessee were not rejected by AO by applying the provisions of section 145(3) of the Act.

No defects whatsoever were found in the books of accounts produced by the Assessee. When the source of cash deposit emanates out of the cash book regularly maintained by the Assessee, find that the lower authorities grossly erred in making an addition on account of cash deposits by treating it as unexplained.

No part of the cash deposit is unexplained in the facts and circumstances of the instant case as there was no negative cash balance on any day in the cash book. Assessee appeal allowed.

Addition u/s 40A - payments in cash more than Rs 10,000 - HELD THAT:- Assessee had made commission payments to the three parties, whereas no commission payments were made by the Assessee to these parties and only purchases were made from the aforesaid three parties.

On perusal of the ledger account of these three parties as find that on none of the days, the Assessee had made purchases more than Rs 10,000 either in singular transaction or in the aggregate, had made payments in cash more than Rs 10,000.

Hence the provisions of section 40A(3) of the Act per se could not be made applicable to the facts and circumstances of the instant case. Accordingly the disallowance made by the AO which stood confirmed by CIT-A is hereby directed to be deleted. The grounds raised by the Assessee are allowed.

Reopening of assessment u/s 147 - audit objections relied upon - Capital gain on sale of land - AO took note of the provision of Section 50C and observed that since the land sold was not the stock in trade of the assessee, as it had claimed the benefit of indexation on land sold, the computation of capital should have been made considering the provision of section 50C of the Income Tax Act which was not done in this case.

HELD THAT:- Admittedly, during assessment proceedings, all relevant documents like purchase bill, sale bill, vouchers related to expenses on cost of improvement were filed to the satisfaction of the AO. The AO examined all the documents and examined the computation of capital gains and has passed the assessment order. It further comes up that the assessee had explained in the response to show cause notice issued u/s 148 of the Act that the property was sold on 15.03.2012 @ 6000 per sq. mtr, but, the property was already under compulsory acquisition by the government and as the compensation amount was just Rs. 1000/- per sq. mtr, the purchasers did not honour the sale deed as the post dated cheques were dishonoured and the assessee had to approach the civil court.

Thus, we are of the considered view that in the given facts and circumstances the reopening suffers from the fact that no material or information outside the assessment record was taken into consideration and the AO merely giving effect to audit objections has reopened the assessment without pointing out as to what all facts the assessee had failed to disclose so as to enable the AO to exercise powers of reopening by recourse to first proviso to section 147 of the Act. Appeal of the assessee is allowed.

Addition being cash deposited in bank account u/s 69A - source of income from which cash deposited by the assessee during demonetarization period remains unexplained - HELD THAT:- Deposits made in the bank account are out of the defined sources, as the assessee took the agricultural loan from two persons. Assessee has also had fixed deposits in the bank account and on the maturity date the assessee received the cash amount out of fixed deposit, which were redeposited in the bank account during the demonetization period.

Apart from these, the assessee had past savings which were explained to the lower authorities.

From the bank statement it is clear that the source of withdrawal out of fixed deposit, is being clearly demonstrated that assessee has deposited the amount during the demonetization period which were received by the assessee out of the maturity amount of fixed deposits. The assessee has also submitted the bank statement before the lower authorities to explain the entire withdrawal and the deposit during the demonetization period. Therefore, it cannot be said that assessee has not explained the money deposited in the demonetization period satisfactorily.

As assessee has submitted all the possible evidences to substantiate its cash deposit in the bank account during the demonetization period. Assessee was not able to prove all its personal expense and drawings which was utilized by the assessee, out of cash withdrawals from bank and out of fixed deposit amount received by the assessee from the bank.

As assessee has not been able to explain the cash deposit in the bank account properly. Therefore, ends of justice would be met, if a net profit rate of 10% is adopted on cash deposit in the bank account. Appeal filed by the assessee is partly allowed.

Deduction u/s 80P(2)(a) - interest earned from Co-operative Banks - HELD THAT:- The appeal filed by Annasaheb Patil Mathadi Kamgar Sahakari Pathpedi Ltd [2023 (5) TMI 372 - SC ORDER] travelled up to Hon’ble Supreme Court and the Hon’ble Supreme Court has decided the appeal in favour of assessee regarding deduction u/s. 80P(2) of the Act. Therefore, this issue has attained finality.

Thus, we direct the AO to allow deduction u/sec.80P(2)(a)(i) on the interest earned and delete the addition - Grounds of appeal raised by the assessee are allowed.

Validity of Proceedings u/s 153C - issuance of the notice as preceded by the drawl of a Satisfaction Note by the jurisdictional AO - importance of material recovered in the course of a search or a requisition made and a right to reassess u/s 153A and 153C - The usage of the expression “have a bearing” - Incriminating material - Cascading effect - Nature of the incriminating material that may be obtained and the years forming part of the block which would merit being thrown open -

As decided by HC [2024 (4) TMI 461 - DELHI HIGH COURT] reopening or abatement would be triggered only upon the discovery of material which is likely to “have a bearing on the determination of the total income” and would have to be examined bearing in mind the AYs’ which are likely to be impacted. Thus be incorrect to either interpret or construe Section 153C as envisaging incriminating material pertaining to a particular AY having a cascading effect and which would warrant a mechanical and inevitable assessment or reassessment for the entire block of the “relevant assessment year”.

In our considered view, abatement of the six AYs’ or the “relevant assessment year” u/s 153C would follow the formation of opinion and satisfaction being reached that the material received is likely to impact the computation of income for a particular AY or AYs’ that may form part of the block of ten AYs’. Abatement would be triggered by the formation of that opinion rather than the other way around.

HELD THAT:- Special Leave Petitions are dismissed on the ground of delay as well as on merits.

Rejecting the books of accounts of the assessee u/s 145(3) - As decided by HC [2017 (5) TMI 1599 - RAJASTHAN HIGH COURT] held merely because of non maintenance of a detailed qualitative and quantitative register alone, the same could not be a valid reason to reach a finding that books of account do not present true and complete picture of accounts and financial transactions.

Our attention was drawn to an order of this Court in M/s. Rama Ajit Builders and Developers [2023 (8) TMI 232 - SC ORDER] held merely because of non-maintenance of a detailed qualitative and quantitative register alone, the same could not be a valid reason to reach a finding that books of account do not present true and complete picture of accounts and financial transactions - Addition of "on-money transactions" in the appellant's case by the authorities below is found without any basis and found perverse on facts.

Following the aforesaid order, we dismiss these Special Leave Petitions.

Benami transaction- provisional attachment - infusion of money by the beneficial owner in the shell Companies for allotment of shares - lack of evidence -burden of proof - piercing the corporate veil -use of documentary evidence - identification of beneficial owner - admissibility of statements under Section 131 - HELD THAT:- The Adjudicating Authority made observation as to why the shares allotted by the respondent companies to the alleged Shell Companies could not to be attached if it was a case of benami transaction. The argument was raised by the appellant in ignorance of the finding that the Initiating Officer failed to subscribe the evidence to make out a case of benami transaction. Thus, we do not find any conflict in finding of the Adjudicating Authority.

We, further, find that the appellant company has shown not only their business activity but a profit earned out of it. It was followed by the return of income-tax duly assessed. The appellant has shown their profit before tax to a sum of Rs. 3,09,78,498/- in the Financial Year 2008-09 on the paid- up capital of Rs 77.25 lakhs. The profit was shown to be more than 400% to its capital in one year alone, demonstrating its financial capacity from business operations to justify allotment of shares on the premium in pursuance to the Share Allotment Application which said to have been routed through the Shell Companies. We may accordingly refer to the facts pertaining to the alleged Shell Companies.

The appellant has failed to show an independent inquiry to find out a case of benami transaction. The appellants have solely relied upon the material collected in the Income-tax proceedings. For that reason alone, the appellant could not show that alleged benami transaction was used for the benefit of beneficial owner. The facts on records, rather, show that the properties in the shape of shares of CGCL and other financial investments were acquired by the respondent companies for their own benefit and not for the benefit of the beneficial owner. The benefit was never passed on to beneficial owner and the appellants have failed to show any such arrangement to make out a case of benami transaction. Accordingly, the Adjudicating Authority did not find a case to confirm the provisional attachment order while answering the references.

It is despite of the fact that burden of proof lies on the person making allegation of benami transaction which in that case is the Initiating officer. We do not find any error in the findings recorded by the adjudicating Authority for the aforesaid.

Section 24 of the Act of 1988 is to be invoked to continue the PAO passed under Section 24(3) of the Act of 1988 or if no such order has been passed then to pass an order for provisional attachment under Section 24(4) of the Act of 1999 which in the present case was not applicable in the light of the availability of the order under Section 24(3) of the Act of 1988. The addition of the properties for provisional attachment was caused and has been taken to be illegal by the Adjudicating Authority. It has been highlighted by the respondent in their arguments.

We accordingly accept the arguments raised by the Ld. Counsel for the respondent touching the merits of the case supported by the judgments to endorse the order passed by the Adjudicating Authority denying the confirmation of the Provisional Attachment Order finding lack of evidence to prove a case of benami transaction.

Thus, we do not find any reason to cause interference in the impugned order. The confirmation of the provisional attachment of different properties in the hands of the four respondents has been rightly denied and accordingly this order would cover the cases of four respondent companies.

Appeals are accordingly dismissed.

Condonation of delay - Substantial question of law - Maintainability of appeal under Section 130 of the Customs Act, 1962 - Appeal to the Supreme Court under Section 130E of the Customs Act, 1962

Condonation of delay - Sufficient cause for delay - Delay in filing the appeals was condoned and the applications for condonation were allowed. - HELD THAT: - The Court considered the explanation offered for the delay of 455 days in preferring the appeals and was satisfied that sufficient cause had been shown for not filing within the prescribed period. In view of that satisfaction, the applications (GA 1 of 2025) seeking condonation of delay were allowed and the delay was condoned. [Paras 2]

Delay of 455 days condoned; condonation applications allowed.

Substantial question of law - Maintainability of appeal under Section 130 of the Customs Act, 1962 - Appeal to the Supreme Court under Section 130E of the Customs Act, 1962 - Appeals filed under Section 130 in the High Court should have been preferred to the Supreme Court under Section 130E; accordingly the appeals and connected applications were dismissed. - HELD THAT: - Having quoted and considered the provisions of Sections 130 and 130E of the Customs Act, 1962, the Court concluded that the matters raised fell within the appellate jurisdiction provided by Section 130E and therefore should properly be pursued before the Supreme Court. The Court thus found that the appeals before the High Court were not the appropriate forum for adjudication of the questions sought to be raised and disposed of the matters by dismissing the appeals and connected applications. The Court also granted limited procedural relief to the appellant's advocate-on-record to obtain and replace the tribunal's certified copy as noted. [Paras 6, 7, 8]

Appeals and connected applications dismissed; leave granted to the appellant's advocate-on-record to receive the tribunal's certified copy for replacement with a photocopy.

Final Conclusion: The High Court condoned the delay in filing the appeals but held that the appeals were to be preferred to the Supreme Court under Section 130E of the Customs Act, 1962; consequently the appeals and connected applications were dismissed, with limited procedural relief to obtain the tribunal's certified copy.

Classification of products - Serial No. 33 of Table 4 in Appendix 37D entitles “Technical Textiles – Woven Fabrics of Synthetic Filament Yarn”, classifiable under ITC (HS) 5407, to the benefit of the FPS - Legality of administrative clarification restricting scope of an export incentive scheme - Interpretation of Foreign Trade Policy (FTP) and Handbook of Procedures (HBP) - Doctrine against retrospective amendment of vested rights by executive circular - Role and powers of Directorate General of Foreign Trade in issuing clarifications - Focus Product Scheme / Duty Credit eligibility under Appendix 37D - ITC (HS) Classification Heading 5407 - HELD THAT:- The restriction of FPS benefits to exports of 33 items which were enlisted in the table annexed to the Policy Circular dated 21 October 2011 hurt the respondents as, the fabric exported by them does not, admittedly, fall within the said entries. The respondents contended that their product fell within the description of “woven fabrics of synthetics filament yarn”, which were entitled to FPS benefits, as per S. No. 33 of Table 4 in Appendix 37D to the HBP. That benefit, according to the respondents, could not have been restricted by the Policy Circular dated 21 October 2011 issued by the DGFT.

While any reiteration thereof would amount to an exercise in repetition, we may only note that the DGFT in the garb of a clarification could not have restricted the number of items, which were entitled to FPS benefit as per Appendix 37 D to the HBP v1, and that no occasion arose for any clarification from the DGFT, as Serial No. 33 in Table 4 in Appendix 37D was clear and categorical.

Though the learned Single Judge has, has interpreted the dash (–) between the words “technical textiles” and “woven fabrics of synthetics filament yarn”, we do not think it is necessary to enter into any such syntactical exercise. It is clear to us that the use of the words “woven fabrics of synthetics filament yarn” is deliberate. In fact, the manner in which the DGFT Policy Circular dated 21 October 2011, as well as Mr. Beriwal before us, seeks to interpret S. No. 33 in Table 4 in Appendix 37D to the HBP, would render the words “woven fabrics of synthetics filament yarn” entirely redundant and would result in re-writing the entry as reading “technical textiles” alone. This is not an exercise that DGFT, or for that matter, even this Court can undertake.

It is perfectly clear to us that “woven fabrics of synthetics filament yarn” which fall within ITC (HS) Classification 5407 are fully entitled to the benefit of the FPS in terms of S. No. 33 in Table 4 in Appendix 37D to the HBP.

There is no dispute about the fact that the fabrics exported by the respondents fell within the broad description “woven fabrics of synthetics filament yarn”. To our mind, the matter should have ended there, and this has been an entirely unnecessary exercise. Once the respondents’ export products fell within the description of “woven fabrics of synthetics filament yarn”, they were entitled ipso facto to the benefit of the FPS in terms of S. No. 33 in Table 4 in Appendix 37D to the HBP.

Restriction of the items, the export of which would entitle the exporter to incentive, is certainly permissible. That, however, has to be by amendment of the HOP, and not by way of a clarificatory Policy Circular. Further, any such amendment could not be permitted to operate retrospectively, in view of Asian Food Industries [2006 (11) TMI 10 - SUPREME COURT] on which the learned Single Judge has rightly placed reliance.

No case to interfere with the impugned judgment of the learned Single Judge. Appeals are accordingly dismissed, albeit without costs.

Classification on the import - Dark seedless Raisins - obtaining Advance Ruling u/s 28H - eligibility for customs exemption under Serial No. 32 of Notification No. 50/2017-Cus. - description of goods under Customs Tariff Heading 08062010 which pertains to "Grapes, dried raisins" - Whether the DARK SEEDLESS RAISIN (subject goods) are classifiable under HS Code 08062010 ?- HELD THAT:- It is settled principle of law that the classification of any good under Customs Tariff Act, 1975 is governed by the General Rules for the Interpretation of the Import Tariff. Further, Rule 1 of GRI stipulates that "classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes." It is only when the headings and notes require otherwise that one may proceed to the subsequent rules. I observe that Chapter 08 of the First Schedule to the Customs Tariff Act covers "Edible fruit and nuts; peel of citrus fruit or melons". Heading 0806specifically covers "Grapes, fresh or dried".

Therefore, the starting point is an analysis of the terms of the heading 0806 read with the relevant Chapter/Section notes, legal context and statutory framework.

The goods described as Dark Seedless Raisins are obtained from dark seedless grape varieties and are dried through natural or controlled processes without undergoing any treatment that alters their essential character.

The ruling of the Customs Authority for Advance Rulings, Mumbai [2022 (5) TMI 1624 - CUSTOMS AUTHORITY FOR ADVANCE RULINGS, MUMBAI] wherein dehydrated dark and small seedless raisins were held to be classifiable under tariff item 08062010. Although advance rulings are binding only on the applicant and jurisdiction concerned, consistency in classification of identical goods is a desirable objective, particularly in the absence of any contrary judicial pronouncement or distinguishing factual circumstances. The impugned goods being dehydrated dark and seedless raisins appears to be classifiable under heading 0806. Custom Tariff Item (CTI) 08062010 covers raisins. Therefore, the goods under consideration are appropriately classifiable under CTI 08062010.

Duty exemption: The raisins are the dried products of the grapes belonging to the family Vitis Vinifera. Therefore, if the goods to be imported satisfy the above-mentioned condition and are of seedless variety obtained from Black Corinth grapes, then they are classifiable under CTI 08062010 and will be eligible to avail benefit under Sr. No. 28 of the Notification 45/2025. In other words, on verification, if the product imported by the applicant is proved to be Vitis Vinifera, specifically Black Corinth grape variety, either by way of certification from PQ or FSSAI, or otherwise, then the appropriate classification will be CTI 08062010 and goods will be eligible for the said notification benefit.

The applicant has failed to produce sample of the goods, actual photograph of the goods and PQ (Plant Quarantine) or FSSAI Certificate/license as mentioned. Further, the ascertainment with respect to the subject goods whether these are dark seedless raisins or not, depends on the production of PQ and FSSAI certificate/license and further verification of the subject goods to be imported vis-à-vis PQ and FSSAI certificate/license by the concerned port where the applicant intends to import the subject goods as the exemption benefit allowed under serial no. 28 of Notification no. 45/2025-Customs, dated 24.10.2025 is only available to dark seedless raisins.

Thus, the dark seedless raisins (Vitis Vinifera) obtained from Black Corinth grapes merit classification under subheading 08062010 of the first schedule of the Customs Tariff Act, 1975 and are eligible for exemption benefit allowed under serial no. 28 of Notification no. 45/2025-Customs, dated 24.10.2025.

Classification of goods - principal function - General Rules of Interpretation (GIR) - condition of the article at the time of import - Note 3 to Section XVI - Heading 8537 - boards, panels, cabinets for electric control or distribution of electricity - residuary heading (Heading 8543) vs specific heading - GRI 3(a) - specific description preferred to general description - concessional Basic Customs Duty under Notification No. 45/2025 (S. No. 281)

Classification of goods - principal function - Note 3 to Section XVI - Heading 8537 - boards, panels, cabinets for electric control or distribution of electricity - Heading 8504 - static converters - Heading 8517 - switching/communication apparatus - residuary heading (Heading 8543) vs specific heading - GRI 3(a) - specific description preferred to general description - Classification of the Racks imported by the applicant - HELD THAT: - The Authority applied Rule 1 of the GIR and the HSN Explanatory Notes, examined the Racks as imported (condition at import) and identified competing headings 8504, 8517, 8537 and 8543. Although the Racks incorporate a UPS (a static converter within Heading 8504), the assembly is a multifunctional/composite unit whose principal function is distribution and control of electricity to antennas and networking equipment; the UPS function is ancillary. The Racks do not perform any transmission/reception or networking function in the imported condition and thus are not within Heading 8517. Heading 8543 is a residuary entry and applies only where no specific heading covers the product; since Heading 8537 specifically describes assemblies of two or more apparatus of Headings 8535/8536 for electric control or distribution of electricity, it is the more specific and appropriate heading under GRI 3(a). The Authority also relied on authoritative precedents and Explanatory Notes to conclude that the essential character of the composite assembly is its power distribution/control function and therefore it should be classified accordingly. [Paras 5]

Racks (such as Rack V2.2) are classifiable under Heading 8537, subheading 8537 10 and specifically under tariff item 8537 10 90 of the First Schedule to the Customs Tariff Act, 1975.

Concessional Basic Customs Duty under Notification No. 45/2025 (S. No. 281) - Heading 8537 - eligibility for exemption/concession - goods not suitable for use in motor vehicles - Availability of concessional Basic Customs Duty to the Racks under the relevant notification - HELD THAT: - Having classified the Racks under Heading 8537, the Authority examined the relevant concessional tariff notification. The applicant informed that Notification No.50/2017 has been superseded by Notification No.45/2025, wherein Serial No.281 provides concessional BCD at 7.5% for goods falling under Heading 8537, except those suitable for use in specified motor vehicle headings. The Racks, intended for fixed gateway installations and not for use in motor vehicles, fall within the scope of the notification exemption/concession. The Commissionerate's comments similarly accepted applicability of the concessional rate. [Paras 5, 6, 7]

Benefit of the concessional Basic Customs Duty at 7.5% under Serial No.281 of Notification No.45/2025Cus, dated 24.10.2025 is available to the Racks.

Final Conclusion: The Authority allowed the advance ruling: Racks (such as Rack V2.2) are classifiable under Tariff Item 8537 10 90 and the concessional Basic Customs Duty at 7.5% under Serial No.281 of Notification No.45/2025Cus is available to the imported Racks.

Classification under Heading 8471 - portable computers (mobile, tablet, wearable and vehicle-mounted computers) - automatic data processing machines (ADP machines) - principal function / Section Note 3 to Section XVI - General Rules of Interpretation (GRI) - Rule 1 - Customs Authority for Advance Rulings (CAAR) -Whether the Portable Computers in question i.e., Mobile Computers, Tablet Computers, Wearable Computers and Vehicle-Mounted Computers in the present application are classifiable under Tariff Item 84713090 of the First Schedule to the Customs Tariff Act, 1975? - HELD THAT:- It is settled principle of law that the classification of any good under Customs Tariff Act, 1975 is governed by the General Rules for the Interpretation of the Import Tariff. Further, Rule 1 of GRI stipulates that "classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes." It is only when the headings and notes do not require otherwise that one may proceed to the subsequent rules. Therefore, the starting point is an analysis of the terms of the competing headings, 8471 and 8517, read with the relevant chapter/Section notes. For the purpose of determining the correct classification of the impugned goods, it is imperative to examine Tariff Headings 8471 and 8517 in the proper context and statutory framework.

The impugned goods operate on operating systems (Windows, Android) that allow for the storage and execution of diverse applications. Thus, they meet one of the basic criteria of an ADP machine. They can be programmed with custom or off-the-shelf software for specific enterprise tasks. Thus these products meet second criteria also. They process data input from barcodes, perform computations (e.g., inventory calculations, price updates), and execute these tasks based on pre-programmed logical sequences with minimal human intervention post-initiation. Thus they meet third and fourth criteria of classification as ADP machine. Therefore, the subject goods squarely fall within the statutory definition of an ADP machine.

So far as further subheading level classification is concerned, find that sub-heading 8471 30 specifically covers "Portable digital automatic data processing machines, weighing not more than 10 kg, consisting of at least a central processing unit, a keyboard and a display." The subject goods, being portable, containing a CPU, a display, and an input unit (which includes a touchscreen functioning as a keyboard), satisfy this description.

As the goods are composite machines incorporating functions of an ADP machine and a communication apparatus, the question is which is the principal function of these machines.

Chapter Note 6(D) of chapter 84 provides a list of apparatus (e.g., printers, communication apparatus) that are excluded from Heading 8471 when presented separately. This note is relevant for classifying units of an ADP system, not the complete ADP machine itself. Since, the subject goods are complete ADP machines, Note 6(D) does not operate to exclude them from Heading 8471. Additionally, Note 6(E) states that “Machines incorporating or working in conjunction with an automatic data processing machine and performing a specific function other than data processing are to be classified in the headings appropriate to their respective functions ...”. This note applies when the machine's principal function is other than data processing. As noted above, the principal function of the subject goods is data processing. Therefore, to my mind they are not excluded by Note 6(E).

The CAAR, Mumbai, in a series of rulings, maintained a consistent view on the classification of such specialized, rugged portable computers. The rulings in Brightpoint India Pvt. Ltd., Rashi Peripherals Pvt. Ltd., and Mustek Technologies Pvt. Ltd. [2025 (12) TMI 1677 - CUSTOMS AUTHORITY FOR ADVANCE RULINGS, MUMBAI], among others cited by the applicant, have analyzed devices with near-identical features and have conclusively held them to be classifiable under CTH 8471 30 90. I took these decision as persuasive value.

The jurisdictional Commissionerate's has placed reliance on "permanent communication modules" and "international classification practices" in support of its view but I do not find force in argument on account of reason that the permanence of a module does not equate to the primacy of its function. A high-end laptop has "permanent" Wi-Fi and Bluetooth modules, but its principal function remains data processing. The same logic applies here. Regarding international practices, while they can be persuasive, the binding authority in India is the Customs Tariff, the GRIs, the Chapter Notes, and the clarifications issued by the CBIC. The CBIC Circular No. 20/2013 represents a conscious policy decision on the classification of such goods, which aligns with the WCO's view on tablet computers. Other international rulings referenced by the Commissionerate, without specific details, cannot supersede this clear and directly applicable guidance. Therefore, I am not inclined to accept the above argument.

Thus, the impugned goods namely, the various models of Mobile Computers, Tablet Computers, Wearable Computers, and Vehicle-Mounted Computers, as detailed in the application, merit classification as Automatic Data Processing Machines. Consequently, the impugned goods are correctly classifiable under Tariff Item 8471 30 90 of the First Schedule to the Customs Tariff Act, 1975.

Thus, the goods merit classification under CTI 84713090.

Admission to Corporate Insolvency Resolution Process (CIRP) under Section 7 - Mandatory inquiry limited to existence of financial debt and occurrence of default - Discretionary exception to admission where narrow and exceptional circumstances exist - Stakeholder locus standi and representative participation in insolvency proceedings - Inherent powers of the Appellate Tribunal under Rule 11 - Authorised representative mechanism for homebuyers under Section 21(6A) read with Regulation 16A - Protection of possession and post-admission consequences under Regulation 4E of CIRP Regulations - Moratorium and overriding effect of the Code under Section 14 and Section 238 - Abuse of process and mala fide invocation under Section 65 - right to participate in the proceedings before NCLT or NCLAT - violation of principles of natural justice -

Admission of the Corporate Debtor into CIRP - HELD THAT:- The default, according to the Corporate Debtor, was not wilful but occurred due to EARCL’s refusal to issue provisional No Objection Certificate, which allegedly frustrated further sale of remaining units. Such conduct, it is contended, disentitles EARCL from invoking Section 7 of the Code.

The existence of a financial debt owed to EARCL is undisputed. Persistent defaults stand admitted and are conclusively established on record, including breach of the restructuring agreement and failure to pay instalments within the stipulated cure period. The restructuring arrangement failed due to non-payment by the Corporate Debtor, thereby triggering an express event of default under its terms.

The Corporate Debtor admittedly possesses no adjudicated or realisable claim exceeding the amount in default. Its reliance on business viability, unsold inventory, project status, or anticipated receivables does not constitute “good reasons” in law to defer or deny admission of CIRP.

The NCLAT rejected the plea of mala fide invocation, observing that acceptance of such argument would render lenders effectively remediless. It also rejected the contention that the Corporate Debtor’s alleged viability could excuse non-payment of admitted dues, noting that financial distress was manifest from the continuing and acknowledged defaults.

The debt and default having been conclusively established, and the narrow exception carved out in Vidarbha Industries [2022 (7) TMI 581 - SUPREME COURT] being clearly inapplicable, the NCLAT was fully justified in admitting the Corporate Debtor into the CIRP. The NCLT’s refusal was contrary to the settled law and the statutory mandate of Section 7.

Accordingly, the impugned judgment admitting the Corporate Debtor into the CIRP does not suffer from any legal infirmity.

Whether a society or association of homebuyers possesses locus standi to intervene in proceedings under Section 7 of the Code, either at the admission stage or at the appellate stage. - HELD THAT:- The issue of locus at the Section 7 stage is no longer res integra. In GLAS Trust Company, this Court held that while there is no rigid requirement restricting the right to appeal only to the applicant creditor and the corporate debtor, such latitude applies when proceedings are in rem post-admission of CIRP. At the pre-admission stage, proceedings under Section 7 remain in personam, and neither the Adjudicating Authority nor the Appellate Authority is required to hear other creditors, much less unrelated third parties. When proceedings are in personam, no right of audience inheres in persons who are strangers to the debt and default forming the basis of the application.

The appellant Society is neither a financial nor an operational creditor. It is a maintenance society not constituted for insolvency representation. No documentary proof of registration, collective authorisation, or general body resolution has been produced. Membership is automatic and mandatory, negating consensual representation. Reliance on compulsory membership to claim representational authority on behalf of allottees is nothing but a brutm fulmen. Notably, the intervention application was filed only at the appellate stage and not before the NCLT. The Society is not a party to the financial transaction forming the substratum of the Section 7 application. Hence, no statutory right of appeal inheres in the appellant.

While the NCLAT’s distinction between completed and uncompleted towers may be overbroad and untenable, the ultimate conclusion on absence of locus standi rests on sound legal footing. Permitting such intervention would undermine the expeditious and structured insolvency framework envisaged under the Code.

The plea of violation of principles of natural justice is equally untenable. It is settled that such violation cannot be alleged in the absence of demonstrable prejudice, particularly where no foundational right of participation exists.

Accordingly, in the instant case, in the absence of any foundational right to participate in the proceedings before NCLT or NCLAT, the appellant society cannot claim a vested right to be heard at the appellate stage, for such right flows from the statute and is not a matter of right.

Money Laundering - provisional attachment of the property acquired prior to commission of crime - deemed tainted property-definition of "proceeds of crime" in Section 2(1)(u) - bona fide receipt- provisional attachment without providing the appellants an opportunity of hearing - violation of the principles of natural justice - opportunity to contest the notice but failed to avail the opportunity - fraudulent balance sheets - HELD THAT:- The argument has been raised in ignorance of the definition of “proceeds of crime” having three limbs out of which the second limb of the definition can be applied when the proceeds of crime acquired or derived directly or indirectly out of the predicate offence is not found available with the person and cannot be otherwise traced out, having been siphoned off. In such case, the respondent can attach the property of equivalent value to the value of the proceeds of crime and in the instant case the second limb of the definition of “proceeds of crime” has been applied. In that case, the property acquired prior to commission of crime can be attached for equivalent value to the proceeds. The issue aforesaid has been settled by this Tribunal in the case of Sadananda Nayak Versus The Deputy Director, Directorate of Enforcement, Bhubaneswar in Appeal [2024 (10) TMI 1619 - APPELLATE TRIBUNAL UNDER SAFEMA AT NEW DELHI] after referring various judgments of the High Courts and the Supreme Court.

We find that the Adjudicating Authority has all-India jurisdiction and it can hold sitting for hearing of the OC at a suitable place and in the instant case the venue of hearing was changed from Delhi to Mumbai. The appellant was having opportunity of hearing on Virtual Mode which has been enforced by the Apex Court for all the Courts and the Tribunals but the appellant insisted for physical hearing which cannot be accepted to be justified and therefore we do not find a case of violation of principles of natural justice. Thus, the first argument raised by the appellant cannot be accepted.

Thus, we do not find that even second ground is made out to question the provisional attachment of the property.

The facts remain that once the appellant could know about the involvement of the amount received by them out of commission of crime, it ought to have returned it as was done for an amount of more than Rs. 20 Crores out of Rs. 30.90 Crores received by the appellant. There is nothing on record to show utilization of the amount of Rs. 10.50 Crores against the shares or returns and accordingly we do not find reason to accept the argument raised by the appellant. The argument aforesaid has been raised in ignorance of the statements of the witnesses recorded during the course of investigation which is of Shri Sant Lal Aggarwal and Shri Satish Pawa. They categorically stated that the appellant did not return a sum of Rs. 10.50 and therefore it remains proceeds of crime in the hands of the appellant.

It is not taking only first limb of the definition of proceeds of crime to attach the property only when it is directly or indirectly obtained or acquired out of predicate offence. If the proceeds is not found available or traceable having been laundered, the property of equivalent value would fall within the definition of proceeds of crime which can be attached as per the judgment of the Apex Court in the Vijay Madanlal Choudhary [2022 (7) TMI 1316 - SUPREME COURT (LB)] and otherwise the recent judgment of the Division Bench has been given by the Hon’ble Punjab and Haryana Court in the Dilbag Singh [2024 (11) TMI 833 - PUNJAB AND HARYANA HIGH COURT]

Thus, do not find any case to cause interference in the impugned order. Accordingly appeals fail and are dismissed.

Proceeds of crime - provisional attachment - deposit of huge cash in the bank account of the complainants without their knowledge - forged documents or forgery of valuable security - seizure of records and digital devices - freezing of bank accounts - Appellate Tribunal under SAFEMA - definition of proceeds of crime -statement recorded u/s 50(2) -acquisition of the properties - HELD THAT:- In the instant case, the transaction or putting cash in the bank account of the complainant has been taken to be crime and therefore FIR was registered in reference to offences under IPC. The inducement of the cash not only invited offence under IPC but remained proceeds of crime because it was initially deposited in the bank accounts of the complainants and was thereupon transferred in the account of non-existing firm. The concealment or laundering of the funds amounts to an offence under section 3 of the Money Laundering Act of 2002 which has been ignored by the appellant. It is even in ignorance of the fact that if tainted money is projected to be untainted then also an offence under section 3 of the Act of 2002 is made out.

Assuming in a case of dacoit, the accused secured the money and it has been used for the purchase of property, then such a property would fall in the definition of ‘proceeds of crime’ having been obtained out of proceeds of crime. In other case where the property was not acquired or derived by the accused himself but he passed on money out of the crime to another person and he acquired the property, then also it would be considered to be the proceeds of crime to acquire the property. In any case, there should be an element for use of the proceeds directly or indirectly obtained out of the crime and thereby the property would have nexus with the crime.

We do not find any illegality in causing provisional attachment of the properties acquired prior to the commission of the crime in a situation where the proceeds of crime were laundered and thereby not found available with the appellant, otherwise the respondents would have caused the provisional attachment of the proceeds directly or indirectly acquired or obtained out of scheduled offence but when it was not found available with the appellant, the property of equivalent value were attached.

It has been informed that documents seized in the hands of Dhiraj Jain has already been released after keeping the Xerox copies of those documents by the respondents, thus nothing survives on that account.

The issue now remains about the freezing of bank accounts. Subsequent to the freezing of bank accounts, majority of those accounts were provisionally attached by the respondents and the issue in reference to the provisional attachment of moveable and immovable property has already been dealt with by us. Thereby, the freezing of the bank account was superseded by the provisional attachment for majority of bank accounts thus nothing would survive now for those bank accounts and even if we cause interference in the freezing of the bank accounts, it is not going to be released on account of subsequent provisional attachment of those bank accounts.

We, however find that out of many bank accounts freezed in the hands of appellant Dhiraj Jain, two bank accounts have not been provisionally attached and accordingly, there remains no justification to retain or keep those two bank accounts under freezing, otherwise the respondent would have provisionally attached even those bank accounts.

Thus, the interference in the order is made only to the extent of the retention of the bank accounts in the hands of the appellant Dhiraj Jain which were not subsequently provisionally attached and thus, no justification for further retention remains.

Thus, we find no reason to cause interference in the order passed by the Adjudicating Authority confirming the provisional attachment of the properties, while we partially allow the appeal of the appellant Dhiraj Jain on a challenge to the freezing of bank account as indicated.

Abatement of assessment proceedings on death of the assessee - Strict construction of taxing statutes - failure to levy service tax on value of taxable service at applicable rate -abatement of proceedings on death of assessee - expression “person liable to pay the service tax” - Interpretation of 'includes' in definition - continuation of proceedings -machinery provisions not to create substantive liability -invoke extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India - Whether proceeding under Section 73 of Chapter-V of the Finance Act, 1994 initiated by issue of the Demand-cum-Show Cause Notice can proceed further culminating in passing of Order-in-Original in the name of the service provider-assessee on his death? - HELD THAT:- Section 65(7) reveals that the “assessee” is a “person” and said term includes “his agent”. It is also well-settled that in order to determine whether the word ‘includes’ has that enlarging effect.

One of the legal heirs of the deceased service provider in the status of “individual” can neither be construed as a “person liable to pay service tax” nor is he/she treated to be “his agent”. The proceeding under Section 73 of the Act, 1994 could not, therefore, have been completed after the death of the service provider and the Order-in-Original being issued in the name of a dead person, namely Atal Bihari Senapati, cannot be held to be tenable in the eye of law.

There is no other view permissible than to hold that the proceeding for recovery of service tax determined under Section 73, though initiated by service of notice dated 30.12.2020 on the “person” alleged to be “chargeable with the service tax”, the same could not be continued after 04.06.2021, i.e., on the death of such “person”/service provider, an individual. The Order-in-Original dated 30.08.2024 (Annexure-5) passed by the Assistant Commissioner, GST and Central Excise, Bhubaneswar-II Division, Bhubaneswar in the name of a person, who is no more, is faulted with.

The discussions that “legal heir” cannot fall within ken of Section 65(7) of Chapter-V of the Finance Act, 1994 so as to proceed further to determine service tax under Section 73 of said Act after the death of service provider. In other words, on the death of the service provider, in absence of statutory provision empowering the authority to continue further, the proceeding under Section 73 would abate.

The Hon’ble Supreme Court of India in the case of Shabina Abraham Vrs. Collector of Central Excise and Customs [2015 (7) TMI 1036 - SUPREME COURT] that in absence of provision to continue with the proceeding after the death of service provider, it is, hence, held the Order-in-Original could not be passed against the dead person.

Fact on record vide copy of certificate of death issued by the Department of Health and Family Welfare (Annexure-3) and intimation of the legal heir of Atal Bihari Senapati to the Assistant Commissioner, GST and Central Excise, Bhubaneswar-II Division submitted on 05.06.2024 (Annexure-4) and the Order-in-Original dated 30.08.2024 (Annexure-5) persuades this Court to hold that the contemplated action for initiation of recovery proceeding under Section 87 of Chapter-V of the Finance Act, 1994 vide Letter dated 30.05.2025 indicating the demand of Rs. 17,92,354/- and penalty of Rs. 18,12,354/-, cannot be held to be valid.

There is no scope left for this Court but to set aside Order-in-Original dated 30.08.2024 (Annexure-5) by the Assistant Commissioner, GST and Central Excise, Bhubaneswar-II Division, Bhubaneswar as also in consequence thereto the direction contained in the Letter dated 30.05.2025 (Annexure-6).

With the aforesaid observation, the writ petition is allowed.

Refund of duty paid on clearance of 'fly ash' under protest - fly ash fall under the category of excisable goods so as to attract levy of central excise duty or not - applicability of period of one year of limitation as per Section 11B of the Central Excise Act, 1944 - HELD THAT:- The appellant was asked to pay central excise duty even after the decision of Hon’ble Gujarat High Court in the case of M/s Ahmadabad Electricity Company Ltd. Vs UOI [2000 (4) TMI 48 - HIGH COURT OF GUJARAT AT AHMEDABAD] against which the SLP, filed by the department, was dismissed by the Hon’ble Supreme Court vide its order [2001 (11) TMI 1065 - SC ORDER] and also the decision of Hon’ble Madras High Court in [2015 (9) TMI 152 - MADRAS HIGH COURT] filed against show cause notice demanding duty on fly ash. The above letter clearly shows that taking note of the above judgment, appellant was paying duty under protest.

No action was taken by the revenue’s authorities on the letter of protest filed by the appellant to either accept or reject the same. In the meantime Hon’ble Supreme Court has dismissed writ appeal filed by the revenue against the order of Hon’ble Madras High Court referred above. Subsequently, appellant claimed refund of the duty paid by them under protest, which is the bone contention in the present proceedings.

It is found that the protest made by the appellant was never decided. Dismissal of the appeal/ SLP filed by the revenue against the order of Gujarat High Court in case of some other person would not amount to disposal of the protest made by the appellant. Hon’ble Supreme Court has in the case of M/s Mafatlal Industries Ltd. [1996 (12) TMI 50 - SUPREME COURT] observed that 'at this stage that when the duty is paid under the orders of Court (whether by way of an order granting stay, suspension, injunction or otherwise) pending an appeal/reference/writ petition, it will certainly be a payment under protest; in such a case, it is obvious, it would not be necessary to lodge the protest as provided by Rule 233B.'

The crux of the decision of Hon’ble Supreme Court is that each person in respect of the proceedings of demand or refund filed, it is individual battle and the protest are to be initiated and complied in respect of the said person. In the present case, it is found that the protest made was not disposed of by the order of Hon’ble Supreme Court dismissing the Civil Appeal filed by the revenue in the case of some other person for the simple reason that appellant was not even party to that matter - it is found that the duty was paid under protest, the refund claim could not have been hit by the period of limitation.

It is also brought to my knowledge that in the case of same appellant for his unit located in the jurisdiction of Lucknow Commissionerate refund claims have been allowed by the authorities.

There are no merits in the impugned order and the same is set aside - appeal allowed.

Time limitation - Ante-dated order - order passed by the revisional authority is as such barred by limitation prescribed under the APGST Act or not - power of Tribunal to review its own order - HELD THAT:- This issue of limitation under similar circumstances came up for consideration before this very Bench itself recently in THE SALES TAX APPELLATE TRIBUNAL VERSUS M/S. VOLTAS LIMITED [2025 (9) TMI 1731 - TELANGANA HIGH COURT], wherein it is held that 'It appears that the petitioner-State has preferred the instant Revision laying emphasis on the contents of Section 14 of the Act wherein the period of limitation for assessment to tax is four years. However, the said Section 14 of the Act may not be acceptable for the simple reason that Section 24-A of the Act being a non obstante clause clearly holds that notwithstanding anything referred to in Sections 14 and 20 of the Act where an order of re-assessment, rectification or revision is to be made, it has to be made within the prescribed period of three years.'

The facts in the present case so far as the question of limitation is concerned being almost identical to the facts of this case, the High Court is inclined to accept the view taken by this Bench in the aforesaid TREVC. As a consequence the two orders i.e. the order of learned Tribunal in TA.No.1675 of 2004, dated 03.08.2009 and the order dated 20.05.2004 passed by the Deputy Commissioner (CT) Warnagal, revisional authority’s order, both deserves to be and accordingly set aside holding them to be barred by limitation.

The Tax Revision Case stands and allowed.