TaxTMI Updates e-Newsletter
Oct 31,2022

Maintainability of appeal under Section 107 of the CGST Act - revocation of cancellation under Section 30 of the CGST Act - effect of COVID-19 pandemic on limitation and condonation of delay - direction to reconsider revocation application

Maintainability of appeal under Section 107 of the CGST Act - revocation of cancellation under Section 30 of the CGST Act - Whether the Appellate Authority was correct in dismissing the appeal as not maintainable on the ground that the petitioner should seek revocation of cancellation instead. - HELD THAT: - The Court held that availability of the remedy of seeking revocation of cancellation under Section 30 does not render an appeal under Section 107 unavailable or non-maintainable. The Appellate Authority's summary dismissal of the appeal on the sole ground that the petitioner ought to have sought revocation was contrary to the statutory scheme and therefore unsustainable. The impugned order dismissing the appeal as not maintainable was set aside and the appeal route under Section 107 recognised as an independent remedy.

Impugned order dated 22.04.2022 dismissing the appeal as not maintainable set aside; appeal under Section 107 is maintainable notwithstanding remedy under Section 30.

Effect of COVID-19 pandemic on limitation and condonation of delay - revocation of cancellation under Section 30 of the CGST Act - direction to reconsider revocation application - Whether the petitioner's explanation for not seeking revocation within the stipulated period due to the COVID-19 pandemic was acceptable and whether the revocation application should be reconsidered. - HELD THAT: - Having regard to the material and the petitioner's specific assertion that lockdown and the pandemic prevented timely application for revocation, the Court accepted the explanation as valid. The Court directed Respondent No.3 to reconsider the petitioner's claim for revocation of cancellation in accordance with law, taking into account the observations in the order and the decisions cited, and without relying on a communication issued during the pendency of the writ petition. Reconsideration was ordered subject to payment of outstanding taxes in accordance with law and to be completed within the timeframe directed by the Court.

Petitioner's explanation for delay due to COVID-19 accepted; Respondent No.3 directed to reconsider revocation application afresh in accordance with law within two weeks.

Final Conclusion: Writ petition allowed; impugned appellate order of 22.04.2022 set aside. Respondent No.3 directed to reconsider the petitioner's application for revocation of cancellation afresh in accordance with law, taking into account the effect of the COVID-19 pandemic on limitation and subject to payment of outstanding taxes, to be disposed within two weeks.

Refund of IGST on export - applicability of Circular No.37/2018 - terms and conditions of Notification No.131/2016 - entitlement to refund under rule 96 of CGST Rules and Section 16 of the IGST Act - judicial review of administrative communication and remand for fresh consideration

Refund of IGST on export - applicability of Circular No.37/2018 - entitlement to refund under rule 96 of CGST Rules and Section 16 of the IGST Act - judicial review of administrative communication and remand for fresh consideration - Impugned communication dated 27.09.2021 set aside and matter remitted for fresh consideration of the petitioner's IGST refund claim. - HELD THAT: - The Court found that the respondents, by relying solely on Circular No.37/2018, failed to advert to the specific contention of the petitioner that he is entitled to refund of IGST paid on export and to other material placed on record. Without expressing any view on the merits of the competing contentions, and having regard to the circular, the notification and the authorities relied upon by the petitioner, the impugned letter was held to be unsatisfactory as it did not consider the petitioner's case on its own facts. In view of this deficiency, the appropriate relief was to quash the communication and remit the matter to the respondents for reconsideration afresh, permitting the petitioner to place additional pleadings, documents and citations before the authority and directing disposal within a specified period in accordance with law. [Paras 6, 7, 8]

Impugned letter dated 27.09.2021 set aside; matter remitted to respondents for fresh consideration of the IGST refund claim in accordance with law within three months, with liberty to the petitioner to place further material.

Final Conclusion: Writ petition allowed; impugned administrative communication quashed and the claim for IGST refund remitted to the competent authority for fresh consideration in accordance with law within three months, with liberty to the petitioner to submit additional material.

Confiscation under section 130 of the CGST Act - powers exercisable under section 129 of the CGST Act - principles of natural justice - interim release of goods and conveyance on deposit and bank guarantee

Principles of natural justice - interim release of goods and conveyance on deposit and bank guarantee - Whether the impugned confiscation order was passed in breach of principles of natural justice and whether interim relief by release of goods and conveyance on conditions should be granted. - HELD THAT: - The Court observed that the order of confiscation under FORM GST MOV-11 was passed in quick succession after issuance of notice and without permitting the petitioner to file a reply, resulting in an evident breach of the principles of natural justice to the prejudice of the petitioner. On the prima facie satisfaction so recorded, the Court held that interim relief was justified. As a protective measure pending final adjudication, the Court directed release of the goods and conveyance subject to conditions: deposit of the amounts assessed as penalty/fine and furnishing of a bank guarantee for the value of the confiscated goods. The conditions and timeline for compliance were specified, and non-compliance was made liable to vacate the interim order. [Paras 5, 6]

Impugned confiscation order prima facie suffered breach of natural justice; interim release of goods and conveyance ordered on condition that the petitioner deposits the specified amount and furnishes the required bank guarantee within the stipulated period, failing which the interim relief will be liable to be vacated.

Confiscation under section 130 of the CGST Act - powers exercisable under section 129 of the CGST Act - Whether the authorities could invoke powers under section 129 to override possession and whether the exercise of powers under section 130 was without jurisdiction. - HELD THAT: - The petitioner contended that the authorities relied on section 129 (a non-obstante clause) and thereby exercised powers independently of section 130, rendering the exercise under section 130 without jurisdiction. The Court noted that this contention raises a question of law and fact requiring detailed examination and does not decide the controversy in the interim order. The matter was left open for final adjudication on merits. [Paras 4]

Contention regarding the interplay and applicability of section 129 and section 130 is not finally decided and is left for detailed consideration in the main proceedings.

Final Conclusion: The petition was admitted and interim relief granted: the goods and conveyance are to be released on the petitioner complying with the deposit and bank guarantee conditions within the stipulated time; the substantive question regarding the correct statutory power (section 129 vis-a -vis section 130) is left open for final determination.

Principles of natural justice - furnishing of material relied upon in assessment - provisional attachment under Section 83 of the A.P. GST Act, 2017 - remand for fresh consideration after opportunity of hearing

Principles of natural justice - furnishing of material relied upon in assessment - remand for fresh consideration after opportunity of hearing - The assessment order in Form DRC-07 dated 20.06.2022 was invalid for non-furnishing of material relied upon, amounting to a breach of principles of natural justice, and was remanded for fresh consideration. - HELD THAT: - The Court found that the assessing authority had relied upon material (identification of dealers, toll gates and vehicle owners) which was not furnished to the petitioner and that the assessment order does not disclose particulars of that material. Because this material formed part of the impugned order, the petitioner was deprived of the ability to make effective representations or produce contrary evidence. Non-furnishing of such material amounted to a violation of principles of natural justice. The Court therefore set aside the impugned order and directed that the petitioner may within ten days request production of the relied-upon documents, which the authority shall furnish within ten days, and that the assessing authority shall consider any additional objections and pass a fresh order after giving an opportunity of hearing to the petitioner. [Paras 6, 7]

Impugned assessment order in Form DRC-07 dated 20.06.2022 set aside and matter remanded to the assessing authority for fresh adjudication after furnishing of relied-upon material and opportunity of hearing.

Provisional attachment under Section 83 of the A.P. GST Act, 2017 - remand for fresh consideration after opportunity of hearing - The provisional attachment order in Form DRC-22 dated 07.05.2022 was set aside, with liberty for the authority to issue a fresh provisional attachment only after following the procedure under Section 83 of the A.P. GST Act, 2017. - HELD THAT: - Because the assessment order was set aside and remanded for fresh consideration on grounds that material relied upon was not furnished, the Court also set aside the provisional attachment made under Section 83. The Court granted liberty to the authority to issue a fresh provisional attachment if required, but directed that any such action must follow the statutory procedure contemplated under Section 83 of the A.P. GST Act, 2017. [Paras 8]

Provisional attachment order in Form DRC-22 dated 07.05.2022 set aside; authority given liberty to issue fresh provisional attachment only after following the procedure under Section 83 of the A.P. GST Act, 2017.

Final Conclusion: Writ petition allowed; assessment order set aside and remitted for fresh consideration after furnishing of material relied upon and opportunity of hearing; provisional attachment set aside with liberty to reissue only in conformity with the procedure under Section 83 of the A.P. GST Act, 2017; no order as to costs.

Show cause notice - personal hearing - opportunity to file reply and produce documents - speaking order - stay on coercive recovery pending consideration

Show cause notice - opportunity to file reply and produce documents - Petitioner permitted to file reply to the show cause notice and produce relevant documents within a specified time. - HELD THAT: - The court noted that during the pendency of the petition a show cause notice dated 26.08.2022 under the GST provisions was issued calling upon the petitioner to reply to the amounts, interest and penalty detailed in the audit report. Rather than deciding the substantive merits, the court granted the petitioner liberty to submit a reply/response to that show cause notice along with all relevant documents within one month from the date of the order, thereby preserving the petitioner's right to be heard and to place documentary material before the authority for its consideration. [Paras 5]

Liberty granted to the petitioner to submit reply/response with relevant documents within one month.

Personal hearing - speaking order - Respondents to provide personal hearing and pass appropriate speaking orders after consideration of the petitioner's reply and documents. - HELD THAT: - The court directed that upon receipt of the petitioner's reply and supporting documents the concerned respondents shall provide an opportunity of personal hearing and thereafter proceed to pass appropriate speaking orders in accordance with law. The direction requires the authority to afford procedural fairness and to record reasons in any order it ultimately passes, without the court expressing any view on the merits. [Paras 5]

Authority to afford personal hearing and then pass reasoned/speaking orders in accordance with law.

Stay on coercive recovery pending consideration - Respondents restrained from taking coercive or precipitate recovery steps until the petitioner's reply is considered and speaking orders are passed. - HELD THAT: - Having permitted the petitioner to file a reply and directed the authority to hold a personal hearing and pass speaking orders, the court further directed that until such consideration and reasoned orders are completed the respondents shall not take any coercive or precipitate steps for recovery of any amount from the petitioner. The court expressly refrained from expressing any opinion on the merits or demerits of the contentions raised in the petition and limited its relief to procedural protection during adjudication. [Paras 6]

No coercive recovery to be undertaken against the petitioner until the authority considers the reply and passes speaking orders.

Final Conclusion: The petition is disposed of by permitting the petitioner to file a reply with documents within one month; directing the respondents to grant a personal hearing and thereafter pass appropriate speaking orders in accordance with law; and restraining respondents from taking coercive recovery steps pending such consideration.

Jurisdiction to issue show cause notice under GST - cross empowerment under Section 6 of the Rajasthan GST Act, 2017 - interference by writ court at show-cause notice stage - violation of principles of natural justice - compliance with Section 73(3) of the Act of 2017 - Rule 142 of the GST Rules, 2017 - discrepancy in Input Tax Credit between GSTR-2A and GSTR-3B

Jurisdiction to issue show cause notice under GST - cross empowerment under Section 6 of the Rajasthan GST Act, 2017 - interference by writ court at show-cause notice stage - Validity of show cause notice insofar as jurisdiction is challenged on the ground that the petitioner's assessment had been assigned to Central Tax authorities - HELD THAT: - The Court considered the contention that once the petitioner's assessment was assigned to Central Tax authorities, the State authority lacked jurisdiction to issue a show cause notice. Reliance was placed on the Division Bench decision in Sanganeriya Spinning Mills Ltd. which upheld the authorisation mechanism under Section 6(1) and treated the circular as an effectuating policy measure. The Court reiterated the settled principle that writ intervention at the stage of a show cause notice is exceptional and confined to cases of apparent lack of jurisdiction or abuse of process. Applying these principles, the Court found no prima facie basis to quash the show cause notice on jurisdictional grounds and observed that challenges to the validity of Section 6 or to exercise of authority are matters for adjudication or appeal under the statute rather than summary writ relief at the notice stage.

Challenge to the show cause notice on jurisdictional grounds is rejected; the writ petition is dismissed insofar as it seeks quashing of the notice for lack of jurisdiction.

Compliance with Section 73(3) of the Act of 2017 - Rule 142 of the GST Rules, 2017 - discrepancy in Input Tax Credit between GSTR-2A and GSTR-3B - violation of principles of natural justice - Allegations of procedural and statutory violations in issuance of the show cause notice and the merits of the proposed tax demand based on alleged ITC discrepancies - HELD THAT: - The Court noted the petitioner's complaints about non-compliance with procedural requirements (including Rule 71 and Rule 142), alleged failure to give prior intimation of discrepancies and alleged non-compliance with Section 73(3). However, the Court observed that these contentions require factual examination and are contested. The respondents disputed the correctness of the petitioner's characterization (including that some arguments relied on unamended provisions) and pointed to statutory amendments and clarifications. Given that only a show cause notice has been issued and that the existence and effect of any statutory non-compliance are matters of factual and legal adjudication, the Court declined to undertake merits or factual resolution at the notice stage and directed the petitioner to raise these grounds before the adjudicating authority, preserving statutory remedies.

Alleged procedural/statutory violations and the merits of the ITC discrepancy-based demand are not finally adjudicated; the petitioner must agitate these contentions before the competent authority and, if aggrieved by any adverse order, avail statutory remedies.

Final Conclusion: The writ petition challenging the show cause notice is dismissed. The Court refused to quash the notice on jurisdictional grounds and left the petitioner to raise alleged procedural and substantive objections before the statutory adjudicating authority, with statutory remedies available in case of any prejudicial order.

Reassessment under Section 147 of the Income Tax Act - reopening of assessment - reason to believe - change of opinion - tangible material - nexus between reasons recorded and available material

Reassessment under Section 147 of the Income Tax Act - reason to believe - change of opinion - nexus between reasons recorded and available material - Validity of notice issued under Section 148 (reopening assessment under Section 147) for A.Y. 2013-14 - HELD THAT: - The Court held that reopening the assessment was impermissible where the Assessing Officer acted on the same material that had been called for, furnished and examined during the original scrutiny assessment, such that the reopening amounted to a mere change of opinion. The formation of a 'reason to believe' must be founded on tangible material and there must be a clear nexus between the material relied upon and the belief that income has escaped assessment; absent that nexus, the power to reopen cannot be exercised. The Court relied on established principles that Section 147 cannot be construed to permit reassessment merely on a change of opinion and that the Assessing Officer cannot convert a re-assessment into a review of matters already considered in the regular assessment. Applying these principles, the Court found that the Assessing Officer used facts and figures already in his possession and earlier examined in the course of the Section 143(3) assessment to justify reopening, and erred in law in so doing. [Paras 5, 6, 7]

Notice under Section 148 and the order rejecting objections were set aside as the reopening was based on a change of opinion and lacked the requisite nexus to fresh tangible material.

Final Conclusion: Writ petition allowed; notice dated 23.9.2018 under Section 148 for A.Y. 2013-14 and the order dated 28.9.2018 disposing objections are quashed on the ground that reassessment proceeded from a mere change of opinion and not from fresh tangible material establishing escapement of income.

Incriminating material - statement recorded under Section 132(4) of the Income Tax Act - assessment under Section 153A of the Income Tax Act - relevance of search-seized material to assessment - comparability of transactions for gross profit computation - concurrent findings of fact and re-appreciation of evidence

Incriminating material - statement recorded under Section 132(4) of the Income Tax Act - assessment under Section 153A of the Income Tax Act - Statement recorded under Section 132(4) of the Act does not, by itself, constitute incriminating material sufficient to support additions under Section 153A. - HELD THAT: - The Court recorded concurrent findings of fact that no incriminating or corroborative material relating to the statement of the witness was produced by the Department and that no assessments for the years in question were pending at the time of search. Following this Court's precedents, a statement recorded under Section 132(4) has evidentiary value but cannot, standing alone and unconnected to seized incriminating material, form the sole basis for block assessments under Section 153A. The judgments relied upon establish that there must be a nexus between the statement and evidence/material found during search; absent such corroborative material, additions founded only on the statement are unsustainable. [Paras 7, 8, 9, 10, 11]

The statement under Section 132(4) alone is insufficient to justify additions under Section 153A in the absence of incriminating material seized during the search.

Assessment under Section 153A of the Income Tax Act - distinction between scrutiny assessment and summary assessment - The alleged distinction between assessments completed under Section 143(3) and those under Section 143(1) is immaterial to the requirement of incriminating material for invoking Section 153A. - HELD THAT: - The Court observed that whether prior assessments were scrutiny assessments (Section 143(3)) or summary assessments (Section 143(1)) is irrelevant to the core requirement under Section 153A that incriminating material be found during the search. Reliance on a differentiation between types of earlier assessments does not negate the need for seized material or corroboration to support additions under Section 153A. [Paras 8, 11]

No legal significance attaches to the 143(3)/143(1) distinction for the purpose of imposing additions under Section 153A; incriminating material found in the search remains the determinative requirement.

Comparability of transactions for gross profit computation - relevance of search-seized material to assessment - concurrent findings of fact and re-appreciation of evidence - Additions computed by extrapolating gross profit using seized documents from different financial years and by comparing non-comparable products/lots were unsustainable. - HELD THAT: - Both the Commissioner (Appeals) and the ITAT found that the Assessing Officer computed an enhanced gross profit by using seized transaction instances from later years and by comparing purchases of scrap of one grade with sales of finished/refined goods of different items and lots, which have disparate qualities and price fluctuations. The appellate authorities concluded that such comparisons involved incomparable products and inappropriate selection of highest sale and lowest purchase rates, and that subsequent years' acceptance of the assessee's gross profit supported the reliability of the books. These concurrent factual findings supported deletion of the additions because the AO's extrapolation lacked a valid basis in comparable seized material for the years under appeal. [Paras 12, 13]

The additions based on the Assessing Officer's non-comparable extrapolation of gross profit from seized material of other years were rightly deleted.

Concurrent findings of fact and re-appreciation of evidence - substantial question of law - The High Court will not interfere with concurrent findings of fact reached by the appellate authorities where interference would amount to re-appreciation of evidence; no substantial question of law arose warranting interference. - HELD THAT: - Applying established principles limiting appellate interference, the Court held that the findings of the CIT(A) and ITAT on the absence of incriminating material and on the infirmity of the Assessing Officer's gross-profit comparisons are concurrent factual conclusions. Reversing those findings would require re-appreciation of evidence, which is not permissible in this appellate jurisdiction. Consequently, the appeals did not raise any substantial question of law meriting interference. [Paras 14, 15]

No interference with the concurrent factual findings; appeals dismissed for lack of substantial question of law.

Final Conclusion: Concurrent findings of fact by the lower appellate authorities that no incriminating material was seized and that the Assessing Officer's gross profit extrapolation relied on non-comparable transactions were maintained; statements recorded under Section 132(4) cannot alone sustain additions under Section 153A, the 143(3)/143(1) distinction is irrelevant for this purpose, and the appeals are dismissed for lack of any substantial question of law.

Provision for warranty - Recognition of provision (present obligation, probable outflow, reliable estimate) - Accrual concept and matching concept - Application of Rotork Controls principle to warranty provisions - Remand for fresh consideration - Reversal without dealing with reasons / perverse order

Reversal without dealing with reasons / perverse order - Remand for fresh consideration - Whether the Income Tax Appellate Tribunal erred in reversing the order of the Commissioner of Income Tax (Appeals) and remitting the matter without appropriately dealing with the reasons assigned by the CIT(A). - HELD THAT: - The Tribunal set aside the CIT(A)'s order and remanded the warranty-provision issue to the Assessing Officer. The High Court examined the CIT(A)'s order and found that the CIT(A) had recorded detailed factual findings (including that warranty expenses for the relevant years had been incurred and accounted against provisions) and had applied authorities. The ITAT's finding that the CIT(A) considered incorrect assessment years is factually incorrect because the CIT(A) had considered warranty claims for financial years corresponding to A.Y. 2012-13 and A.Y. 2013-14. The Tribunal also misconstrued the law in its approach. Given that the CIT(A) dealt with the material facts and relevant legal principles, the Tribunal's reversal and remand without properly addressing those reasons was unsustainable. [Paras 6, 16, 18, 20]

ITAT's order reversing the CIT(A) and remanding the issue was erroneous; the Tribunal failed to properly deal with the reasons given by the CIT(A).

Provision for warranty - Recognition of provision (present obligation, probable outflow, reliable estimate) - Accrual concept and matching concept - Application of Rotork Controls principle to warranty provisions - Whether the provision of 1% of sales towards warranty, made by the assessee for the years under consideration despite introduction of new products and exports, was valid and based on past experience as required by law. - HELD THAT: - The Court applied the principle from Rotork Controls that a provision is recognised only if there is a present obligation from a past event, an outflow is probable, and a reliable estimate can be made. Rotork further explains that warranty costs integral to the sale must be provided for to satisfy accrual and matching concepts. The assessee, though introducing new products and entering a new export market, had contemporaneously made a 1% provision and the CIT(A) recorded that warranty expenses incurred in the relevant and subsequent years matched or exceeded the provision. The exported products and new market entry made warranty coverage commercially necessary. On the facts found by the CIT(A) and accepted by the Court, the provision was made based on the assessee's past business experience and satisfied the tests for recognition of a provision under Rotork. [Paras 13, 17, 19, 21]

Provision of 1% towards warranty was validly made and met the legal tests for recognition; the ITAT's contrary conclusion was incorrect.

Final Conclusion: Appeals allowed; questions of law answered in favour of the assessee and against the Revenue, the ITAT's order reversed and the CIT(A)'s allowance sustained.

Validity of notice under Section 148 of the Income Tax Act - Validity of order under Section 148A(d) of the Income Tax Act - Notice issued in the name of a non-existent company - Effect of amalgamation on assessment notices - Power of Revenue to reissue notices

Notice issued in the name of a non-existent company - Effect of amalgamation on assessment notices - Validity of notice under Section 148 of the Income Tax Act - Validity of order under Section 148A(d) of the Income Tax Act - Impugned order under Section 148A(d) and notice under Section 148 dated 20 July 2022 for Assessment Year 2014-15 issued in the name of Sare Marketing Private Limited (an entity amalgamated into the petitioner) are invalid and set aside. - HELD THAT: - The petitioner's case was that Sare Marketing Private Limited ceased to exist w.e.f. 1 April 2014 on account of amalgamation with Sumant Investments Private Limited and that the Revenue was informed of this status in replies to notices. The Respondent/Assessing Officer acknowledged on record by e-mail that the notices had indeed been issued in the name of Sare Marketing Private Limited and that the entity was not in existence on the date of issuance in view of the High Court order of amalgamation. In light of these facts, the Court concluded that the impugned order under Section 148A(d) and the notice under Section 148, both dated 20 July 2022 and addressed to the non-existent entity, could not be sustained and were set aside. The Court left open the Revenue's liberty to take further steps if legally permissible, permitting the petitioner to seek appropriate remedies against any future action.

Impugned order and notice set aside as issued in the name of a non-existent company; Revenue at liberty to take further steps if law permits; writ petition disposed.

Final Conclusion: The High Court set aside the order under Section 148A(d) and the notice under Section 148 dated 20 July 2022 for AY 2014-15 because they were issued in the name of Sare Marketing Private Limited which had ceased to exist due to amalgamation with the petitioner; the Revenue may, if law permits, take further action and the petitioner may seek remedies against such action.

Minimum time to respond under Section 148A(b) - validity of order passed under Section 148A(d) - setting aside and remand for fresh reasoned order

Minimum time to respond under Section 148A(b) - validity of order passed under Section 148A(d) - Impugned order under Section 148A(d) was passed without providing the assessee the minimum statutory period to respond as mandated by Section 148A(b), rendering the order vitiated by procedural infirmity. - HELD THAT: - The Court recorded that the show-cause notice dated 14th March, 2022 required a response by 23rd March, 2022 but was received by the petitioner by speed post only on 17th March, 2022 and that the petitioner had promptly informed the Revenue that the emailed attachment was inaccessible and sought adjournment. Relying on the principle that a minimum period of seven days must be allowed under Section 148A(b) to file a reply, the Court found that the order under Section 148A(d) was passed ex parte without giving the petitioner the statutorily mandated minimum time to respond. The Court therefore treated the impugned order as legally unsustainable on procedural grounds and did not adjudicate the merits of the underlying tax controversy. [Paras 3, 4, 5]

Impugned order under Section 148A(d) set aside for failure to comply with the minimum response period prescribed by Section 148A(b).

Setting aside and remand for fresh reasoned order - Direction to the Assessing Officer to reconsider the matter afresh and pass a reasoned order after giving the petitioner an opportunity to file its reply. - HELD THAT: - The Revenue accepted remand of the matter. The Court directed the petitioner to re-file its reply within one week and directed the Assessing Officer to pass a fresh reasoned order in accordance with law after considering that reply. The Court imposed a specific timeline for disposal and expressly refrained from expressing any view on the merits, keeping the parties' rights and contentions open for fresh adjudication. [Paras 6, 7]

Matter remanded to the Assessing Officer to pass a fresh reasoned order within eight weeks after considering the re-filed reply; rights and contentions of the parties left open.

Final Conclusion: Impugned order under Section 148A(d) dated 24th March, 2022 for Assessment Year 2018-19 set aside for procedural non-compliance with the minimum response period under Section 148A(b); matter remanded to the Assessing Officer to decide afresh in accordance with law within the stipulated time after the petitioner re-files its reply.

Transfer pricing adjustment - arm's length price - comparable uncontrolled price method - onus of proof for receipt of international services - Assessment Year as separate unit - substantial question of law under Section 260A

Transfer pricing adjustment - arm's length price - onus of proof for receipt of international services - Whether the transfer pricing adjustment in respect of receipt of business support/administrative services for AY 2008-09 could be sustained. - HELD THAT: - All three fora below concurrently found that the assessee failed to furnish evidence demonstrating that administrative/business support services were actually rendered by the associated enterprise and received by the assessee. The ITAT recorded that on a specific query the assessee's counsel was unable to produce cogent evidence or communications with the AE and sought restoration to the Assessing Officer to furnish evidence, if any. In view of the absence of evidence to establish receipt of services, the ITAT's conclusion that the arm's length price of the transaction was Nil and the consequential transfer pricing adjustment was sustainable. The Court accepted these concurrent findings of fact and declined to disturb the factual conclusion reached by the authorities below.

Transfer pricing adjustment upheld for AY 2008-09; assessee failed to prove receipt of services from AE.

Comparable uncontrolled price method - Assessment Year as separate unit - substantial question of law under Section 260A - Whether a substantial question of law arises warranting interference with the ITAT's application of the comparable uncontrolled price method and its conclusion for AY 2008-09. - HELD THAT: - The Court observed that choice or appropriateness of a transfer pricing method ordinarily involves difference of opinion and, unless shown to be contrary to the Rules (including Rules 10B/10C as noted in precedent), is not ordinarily a matter for interference under Section 260A. The Court also emphasized that each assessment year stands on its own facts and that the ITAT's finding would not prejudice claims in other assessment years, which must be decided on evidence produced for those years. Applying these principles and having regard to the concurrent factual findings, the Court found no substantial question of law for admission.

No substantial question of law arises; appeal dismissed.

Final Conclusion: The High Court dismissed the appeal against the ITAT order for AY 2008-09, upholding the transfer pricing adjustment because the assessee did not furnish cogent evidence of receipt of services from the associated enterprise and finding no substantial question of law for interference.

Reopening of assessment - Order under Section 148A(d) of the Income Tax Act - Notice under Section 148 of the Income Tax Act - Maintainability of reopening where assessment already finalised - Remand for fresh consideration

Order under Section 148A(d) of the Income Tax Act - Notice under Section 148 of the Income Tax Act - Remand for fresh consideration - Impugned order dated 31st July, 2022 under Section 148A(d) and notice dated 31st July, 2022 under Section 148 (both relating to AY 2017-18) were set aside and the matter remanded to the Assessing Officer for fresh decision. - HELD THAT: - The High Court recorded the revenue's acceptance that the file may be remanded to the Assessing Officer for fresh consideration. In view of that statement, the Court set aside the impugned order passed under Section 148A(d) and the notice issued under Section 148, and directed that the Assessing Officer shall reconsider the matter and decide afresh in accordance with law within four weeks. The Court preserved the petitioner's right to seek appropriate relief if aggrieved by the fresh decision. [Paras 6]

Impugned order and notice set aside; matter remanded to the Assessing Officer for fresh decision in accordance with law within four weeks.

Final Conclusion: Writ petition disposed of by setting aside the impugned order under Section 148A(d) and notice under Section 148 dated 31st July, 2022 (AY 2017-18), with the matter remitted to the Assessing Officer for fresh consideration and decision within four weeks; petitioner free to pursue further remedies if aggrieved.

Concurrent findings of fact - scrutiny assessment and verification of books, vouchers and bank statements - burden of proof for unsecured loans and advances - admissibility of audit certificate vis-a -vis production of primary documents - addition treated as income for want of documentary evidence - non-compliance with notices issued under Section 133(6)

Concurrent findings of fact - scrutiny assessment and verification of books, vouchers and bank statements - burden of proof for unsecured loans and advances - admissibility of audit certificate vis-a -vis production of primary documents - Validity of the Tribunal's confirmation of addition on account of unsecured loans where books of account, vouchers and bank statements were not produced. - HELD THAT: - The High Court recorded that both the CIT(Appeals) and the Tribunal arrived at concurrent findings of fact that the assessee failed to produce books of account, vouchers, bills and bank statements required by the Assessing Officer to verify the unsecured loans. The Tribunal rejected the submission that an audit report or certificate could substitute for production of primary documents in scrutiny assessment, noting that the purpose of assessment under scrutiny is to examine such primary materials. In these circumstances the addition made for unsecured loans was sustained on the basis of absence of documentary proof. [Paras 5]

The Tribunal's confirmation of the addition on account of unsecured loans is upheld.

Addition treated as income for want of documentary evidence - concurrent findings of fact - scrutiny assessment and verification of books, vouchers and bank statements - Sustainability of additions/disallowances in respect of various expenses (milling, octroi & freight, electricity) where supporting documentary material was not on record. - HELD THAT: - The Court noted the Tribunal and the CIT(A) found no material on record to support the claimed expenses. Given the absence of vouchers, bills or other corroborative documents during assessment and appellate proceedings, the authorities were entitled to disallow or add back such amounts. The High Court found no substantial question of law arising from those factual findings. [Paras 6]

The Tribunal's and CIT(A)'s confirmations of the disallowances/additions for the expenses are sustained.

Burden of proof for unsecured loans and advances - non-compliance with notices issued under Section 133(6) - addition treated as income for want of documentary evidence - Legitimacy of the addition treated as advance for goods where no documentary evidence or statements under notices were produced. - HELD THAT: - The Court observed that the addition of the amount treated as advance for goods was not supported by documentary evidence and that no persons came forward nor complied with notices issued under Section 133(6) to substantiate the transaction. In absence of such proof the revenue was justified in treating the amount as fictitious and making the addition; the appellate and tribunal findings on this factual basis do not raise any substantial question of law. [Paras 7]

The addition of the amount treated as advance for goods is upheld.

Final Conclusion: Concurrent findings of fact by the CIT(A) and the Tribunal that the assessee failed to produce primary documentary evidence to substantiate the loans, advances and expenses were upheld; no substantial question of law arises and the appeal is dismissed with no order as to costs.

Limitation under Section 153(2A) of the Income tax Act - orders of the Dispute Resolution Panel covered by limitation - time barred order of fresh assessment - effect of acquiescence or cooperation on limitation - remand to Assessing Officer and referral to DRP for re examination of comparables

Orders of the Dispute Resolution Panel covered by limitation - limitation under Section 153(2A) of the Income tax Act - Orders passed by the Dispute Resolution Panel (DRP) are subject to the limitation provided under Section 153(2A) of the Income tax Act. - HELD THAT: - The High Court followed its earlier decision in M/s. Roca Bathroom Products Pvt. Ltd. and the Division Bench confirmation, holding that the limitation regime in Section 153(2A) applies to orders of the DRP. The Court reproduced and relied upon the text of Section 153(2A) to conclude that an order of fresh assessment in pursuance of appellate or revisional directions must be made within one year from the end of the financial year in which the relevant appellate/revisional order is received or passed. Applying that principle, the Court treated DRP orders as falling within the temporal bar prescribed by Section 153(2A). [Paras 10, 11]

Section 153(2A)'s limitation applies to DRP orders.

Time barred order of fresh assessment - remand to Assessing Officer and referral to DRP for re examination of comparables - The impugned DRP order dated 28.02.2020 was barred by limitation because the Tribunal's order was received in 2016 and the limitation expired on or before 31.03.2017. - HELD THAT: - The Tribunal's order remanded all issues to the Assessing Officer and directed reference to the DRP; that order was communicated to the DRP in 2016. Under Section 153(2A), the period for making a fresh assessment expired one year from the end of the financial year in which the appellate order was received. The Court computed the limitation accordingly and found that the DRP's action in 2020 occurred well after the expiry of the statutory time bar, rendering the impugned proceedings time barred. [Paras 4, 7, 11, 12]

The DRP order of 28.02.2020 is time barred and therefore set aside.

Effect of acquiescence or cooperation on limitation - time barred order of fresh assessment - The petitioner's cooperation or participation in DRP proceedings does not cure or extend the statutory limitation period. - HELD THAT: - The respondents contended that the petitioner had cooperated in proceedings and therefore could not challenge the DRP order on limitation grounds. The Court rejected this contention, holding that once an order is established to be beyond the statutory limitation, mere cooperation or participation by the party cannot validate or extend the time for making the order. Noting that when the petitioner wrote to the DRP on 29.01.2020 limitation had already expired, the Court found no merit in the acquiescence argument. [Paras 9, 13]

Acquiescence or cooperation by the petitioner does not cure a time bar; the limitation bar remains effective.

Final Conclusion: Writ petition allowed; the impugned DRP order dated 28.02.2020 is set aside as time barred under Section 153(2A) of the Income tax Act, and the petitioner's cooperation in the proceedings does not validate the order.

Penalty under section 271(1)(c) of the Income Tax Act - bona fide mistake - mens rea for penalty - rectification by offering prior period income in subsequent year - revised return versus subsequent-year adjustment - reliance on precedential decisions on penalty liability

Penalty under section 271(1)(c) of the Income Tax Act - bona fide mistake - mens rea for penalty - rectification by offering prior period income in subsequent year - Deletion of penalty under section 271(1)(c) imposed for duplicate accounting of interest expenses in the assessment year 2007-2008. - HELD THAT: - The Tribunal found as a fact that the assessee, a public sector undertaking, had twice accounted a provision for interest in the year under consideration by bona fide mistake and, upon realising the error, passed rectification entries in the subsequent year and offered the amount as prior period income. The High Court accepted the Tribunal's factual finding and reasoning that the correction made in the subsequent year demonstrated absence of mens rea required to attract penalty under section 271(1)(c). Reliance placed by the Tribunal on the Supreme Court decisions (as referred to in the impugned order) that mere claim of expenditure later disallowed does not automatically attract penalty, particularly where the mistake is rectified, was upheld. The Court rejected Revenue's contention that a revised return should have been filed for the original year and that failure to do so justified penalty; it held that the corrective action in the subsequent year, together with the finding of bona fide mistake, sufficed to negative deliberate concealment or false particulars. In view of these findings, no substantial question of law arose to warrant interference with the Tribunal's order deleting the penalty. [Paras 11, 12, 13]

Penalty under section 271(1)(c) deleted as there was no mens rea; appellate orders sustaining penalty were not interfered with.

Final Conclusion: The Tribunal's deletion of the penalty imposed under section 271(1)(c) for the assessment year 2007-2008 is upheld; the Revenue's appeal is dismissed.

Reopening of assessment - notice under section 148 of the Income Tax Act - reasons to believe - objections to reopening - direction to consider and dispose of objections - stay of proceedings - no expression of opinion on merits

Objections to reopening - direction to consider and dispose of objections - reopening of assessment - Respondent directed to consider and dispose of the objections filed by the petitioner in response to the notice under section 148 for AY 2014-2015 within a specified time-frame. - HELD THAT: - The court found that the objections dated 20.1.2022, submitted in response to the notice dated 30.3.2021 issued under section 148, had not been considered or disposed of by the Income Tax authority. Observing that failure to adjudicate those objections would cause prejudice to the petitioner and that it would subvert the interests of justice to allow proceedings to continue without disposal, the court exercised its supervisory jurisdiction under Article 226 to direct the assessing authority to consider and dispose of the objections. The court confined its order to this procedural direction and expressly refrained from expressing any opinion on the merits of the proposed reassessment or the underlying reasons supplied for reopening. [Paras 4, 5, 6]

Respondent No.1 is directed to consider and dispose of the petitioner's objections dated 20.1.2022 within six weeks from receipt of the order; no opinion expressed on merits.

Final Conclusion: Writ petition disposed by directing the Income Tax authority to consider and dispose of the objections to the reopening for AY 2014-2015 within six weeks; interim stay previously granted and no adjudication on merits by this Court.

Reassessment under Section 148 of the Income tax Act - reopening must be based on new and tangible material - reopening cannot be a review of completed assessment - consistency of approach across assessment years - Explanation (2) to Section 147 clause (c) - deeming income to have escaped assessment

Reassessment under Section 148 of the Income tax Act - reopening must be based on new and tangible material - reopening cannot be a review of completed assessment - Validity of the notice for reassessment dated 26.03.2018 (and consequential proceedings) reopening AY 2013-14 - HELD THAT: - The Court held that reassessment under Section 148 must rest on new and tangible material which came to the Assessing Officer's notice after completion of the original assessment. Where the Assessing Officer had raised a specific query, received the assessee's reply and thereafter completed the assessment under Section 143(3) accepting the claim, the re opening based on the very material and the assessee's own response amounted to a disguised review of the completed assessment and was impermissible. The reasons recorded for reassessment simply reproduced and relied upon the note already on record and did not demonstrate any fresh material or tangible information emerging post assessment. The shortness of the assessee's original reply did not by itself furnish a valid basis for re opening; substance and novelty of material, not length of a note, is the test. Consequently, the notice and consequential proceedings were set aside as invalid. [Paras 11, 12, 13, 14, 15]

Notice dated 26.03.2018 and consequential proceedings dated 01.11.2018 reopening AY 2013-14 set aside as illegal for lack of new and tangible material and as being a review in disguise.

Consistency of approach across assessment years - Explanation (2) to Section 147 clause (c) - deeming income to have escaped assessment - Effect of the Department's failure to adopt a uniform approach in respect of similar debits spanning AYs 2012-13 to 2014-15 on the validity of reassessment for AY 2013-14 - HELD THAT: - The reasons for reopening recorded that school cost write offs were debited in respect of AYs 2012 13, 2013 14 and 2014 15, whereas reassessment proceedings were initiated only for AY 2013 14. The Court found this selective action to be a significant infirmity: when an issue spans multiple assessment years, the Department must adopt a uniform and concerted approach to prevent leakage across the years. The omission to reopen or examine the other years where the same debit appeared vitiated the reassessment proceedings for AY 2013 14. Reliance on Explanation (2)(c) to Section 147 was held inadequate in the absence of fresh material and in light of the inconsistent treatment of the contiguous years. [Paras 6, 7, 8, 9]

Selective reopening confined to AY 2013 14, while identical debits existed for AYs 2012 13 and 2014 15, rendered the reassessment proceedings vitiated for want of a consistent approach.

Final Conclusion: The writ petition succeeds: the reassessment notice dated 26.03.2018 and consequential proceedings dated 01.11.2018 in respect of AY 2013 14 are quashed on the grounds that no new and tangible material justified reopening and because the Department's selective treatment of identical debits across assessment years vitiated the proceedings; no costs.

Fees for Included Services - "make available" criterion - Article 12(4)(b) of the India-USA Double Taxation Avoidance Agreement - consultancy/management services versus technical services - taxability under DTAA

Fees for Included Services - "make available" criterion - Article 12(4)(b) of the India-USA Double Taxation Avoidance Agreement - consultancy/management services versus technical services - GSA receipts received by the assessee from Indian entities do not qualify as "Fees for Included Services" under Article 12(4)(b) of the India-USA DTAA and are not taxable in India as FIS. - HELD THAT: - The Tribunal examined the nature and terms of the General Service Agreements (GSA) and the services actually rendered. It noted that the services set out in the GSA (management, coordination, administrative support, development of business strategies, market research, HR support, IT policy coordination, legal and insurance advice, etc.) are consultancy/management or support services and do not, on the facts, transfer technical knowledge, skill, know how, process or effect a development/transfer of a technical plan or design. The Tribunal relied on the memorandum of understanding clarifying that only services which effectively "make available" technical knowledge/expertise fall within Article 12(4)(b). The Tribunal further followed coordinate-bench decisions of the ITAT on identical facts for earlier assessment years and observed that the later GSA was materially similar to earlier agreements; there was no independent contract or mode of transfer that would enable the Indian entities to perform the services on their own by applying transferred technology. Consequently, the receipts under the GSA do not satisfy the "make available" test and therefore are not taxable as FIS under the DTAA. The Tribunal held that consultancy services not of a technical nature cannot be treated as "Included Services" and deleted the addition made by the assessing officer.

GSA receipts are not taxable in India as "Fees for Included Services" under Article 12(4)(b) of the India-USA DTAA; the addition is deleted.

Final Conclusion: The appeals filed by the Revenue are dismissed; the Tribunal holds that the GSA receipts for A.Y.2007-08 to 2009-10 do not satisfy the "make available" requirement and therefore are not taxable in India as Fees for Included Services under Article 12(4)(b) of the India-USA DTAA.

Characterisation of income as capital gains or business income - set-off of brought forward capital loss against current year capital gains - deduction under section 57(iii) for expenditure relating to income from other sources - disallowance under section 40(a)(ia) for failure to deduct tax at source - application of the Indo-Singapore DTAA Article 13 to taxation of capital gains - non-applicability of section 115QA to share buy backs effected prior to its effective date

Characterisation of income as capital gains or business income - set-off of brought forward capital loss against current year capital gains - The sum of Rs.9,73,045 was capital gains and could be adjusted against brought forward capital loss. - HELD THAT: - The Tribunal found that the AO erred in treating the amount as business income. On the record and in view of earlier coordinate bench decisions for corresponding assessment years, the carry forward loss was of the nature of capital loss and therefore the present year gain of Rs.9,73,045 is properly taxable as capital gain and eligible for adjustment against the brought forward capital loss. The CIT(A)'s emphasis on unrelated findings about reporting and revision of return did not vitiate the assessee's entitlement to treat the receipt as capital gain. [Paras 3]

Ground No.1 allowed: amount treated as capital gain and allowed to be set off against brought forward capital loss.

Deduction under section 57(iii) for expenditure relating to income from other sources - disallowance under section 40(a)(ia) for failure to deduct tax at source - Proportionate deduction under section 57(iii) was partly allowable after adjusting the effect of disallowance under section 40(a)(ia). - HELD THAT: - The assessee sought deduction proportionate to interest income (21.35% of total expenses). The CIT(A) disallowed the claim inter alia because TDS was not deducted on certain interest payments and an amount of Rs.613,789 was held liable under section 40(a)(ia). On the material before it the Tribunal accepted the restricted claim after accounting for the 40(a)(ia) disallowance and allowed deduction to the extent of Rs.49,275 (being the residual after adjusting the TDS related disallowance against the claimed proportionate amount). The Tribunal noted the assessee was unable to produce detailed calculations during hearing but adjusted the claim accordingly. [Paras 4]

Ground No.3 partly allowed: deduction under section 57(iii) allowed to the extent of Rs.49,275 after accounting for the 40(a)(ia) disallowance.

Disallowance under section 40(a)(ia) for failure to deduct tax at source - application of the Indo-Singapore DTAA Article 13 to taxation of capital gains - non-applicability of section 115QA to share buy backs effected prior to its effective date - Addition under section 40(a)(ia) read with section 195 for non-deduction of TDS on buy back proceeds paid to a non resident was quashed because the capital gain was taxable in Singapore under the DTAA and section 115QA did not apply to the pre 1 6 2013 transaction. - HELD THAT: - The assessee paid buy back consideration to a non resident resident of Singapore. The AO treated the payment as chargeable in India for want of TDS under section 195 and added the amount under section 40(a)(ia). The CIT(A) had framed the issue alternatively around section 115QA, but that provision was introduced with effect from 1 6 2013 and therefore did not apply to the buy back which related to an earlier year (FY 2012 13). On the facts the Tribunal held that Article 13 of the Indo-Singapore DTAA governed the taxation of the non resident shareholder's capital gains, vesting taxing jurisdiction in Singapore and not India, and consequently section 195 did not obligate the company to withhold tax on those proceeds. The addition under section 40(a)(ia) read with section 195 was therefore quashed. [Paras 5]

Ground No.4 allowed: addition for non deduction of TDS on buy back consideration quashed in view of DTAA application and non applicability of section 115QA.

Final Conclusion: The appeal is partly allowed: characterization of the disputed receipt as capital gain for A.Y.2013-14 and its adjustment against brought forward capital loss was upheld; the section 57(iii) claim was partly allowed after accounting for the 40(a)(ia) disallowance; and the addition for failure to withhold tax on buy back proceeds paid to a Singapore resident was quashed as the gains were taxable in Singapore and section 115QA did not apply to the pre 1 6 2013 transaction. Overall the appeal is partly allowed.

Addition under section 68 as deemed income in the hands of the person in whose books sums are credited - requirement of proof of identity, creditworthiness and genuineness of share application money - protective addition versus substantive addition - remand for fresh adjudication to examine creditworthiness and genuineness

Addition under section 68 as deemed income in the hands of the person in whose books sums are credited - requirement of proof of identity, creditworthiness and genuineness of share application money - protective addition versus substantive addition - Validity of deletion by CIT(A) of additions made under section 68 in the hands of the assessee where similar additions were deleted in the hands of another entity. - HELD THAT: - The Tribunal held that Section 68 operates by deeming credit in the books of the person in whose accounts the sums are shown; the deeming fiction cannot be transferred to another person merely because that other person has been treated as beneficiary. The CIT(A)'s deletion rested on the view that the assessed sums should be taxed only in the hands of the ultimate beneficiary (Shree Global Tradefin Pvt. Ltd.) and on an assertion that the Jogia group entities were conduit entities; however there was no material or finding to justify treating the additions in the assessee's books as merely protective or to displace the requirement under section 68. The Tribunal emphasised that the onus initially lies on the assessee to prove identity, creditworthiness and genuineness of the deposits and that these aspects must be examined by the Assessing Officer irrespective of parallel additions made in other entities. Consequently the Tribunal set aside the deletion by CIT(A) and directed fresh adjudication by the Assessing Officer to examine, in accordance with law and after enquiry if necessary, the identity and creditworthiness of the contributors and genuineness of the transactions in the assessee's own case. [Paras 22, 23, 24, 25, 26]

Deletion by CIT(A) was not sustainable; matter remitted to the Assessing Officer to decide Section 68 issue afresh after examining identity, creditworthiness and genuineness of the deposits.

Remand for fresh adjudication to examine creditworthiness and genuineness - reinstatement of cross-objections where grounds were not adjudicated - Whether cross-objections filed by the assessee, which were dismissed below without adjudication on their grounds, should be restored and considered. - HELD THAT: - The Tribunal observed that the assessee's cross-objections raised substantive challenges to reopening and reassessment (validity of notice under section 148/section 147, change of opinion, reliance on statements of entry operators and absence of live link). As those grounds were not adjudicated by the lower authority, the Tribunal restored the cross-objections to the file of the Assessing Officer so that they can be considered in the course of the fresh adjudication directed on the Section 68 issue. The Tribunal therefore required the Assessing Officer to address the grounds raised in the cross-objections while conducting the reexamination. [Paras 28, 29, 30, 31, 32]

Cross-objections restored to the file of the Assessing Officer for adjudication in the course of the fresh proceedings ordered.

Final Conclusion: Appeals of the Revenue were allowed in part and the deletions by the CIT(A) were set aside; the matter was remitted to the Assessing Officer to decide afresh on the additions under section 68 after the assessee is given opportunity to prove identity, creditworthiness and genuineness of the deposits, and the assessee's cross-objections were restored for adjudication.

Principles of natural justice - right to cross-examination of witnesses whose statements form the basis of adverse action - reliance on statements for adjudicatory conclusions - goods liable for confiscation - imposition of penalties under customs law - direction for fresh proceedings / compliance report

Principles of natural justice - right to cross-examination of witnesses whose statements form the basis of adverse action - reliance on statements for adjudicatory conclusions - Validity of orders-in-original when petitioners were not afforded opportunity to cross-examine persons whose statements were relied upon in the show cause notices - HELD THAT: - The impugned orders proceeded substantially on the basis of statements of various persons/entities. The petitioners repeatedly requested supply of those statements and an opportunity to cross-examine the persons concerned, which was not granted and was expressly recorded but summarily rejected on other purported circumstances. Where the bulk of the adjudicatory material consists of such statements, denial of an opportunity to cross-examine amounts to a breach of the principles of natural justice. In view of this infirmity the Court found that the impugned orders could not stand. Without traversing other alleged deficiencies, the Court directed that the persons/entities whose statements were relied upon be issued notice to appear for cross-examination and that the respondents file a report of compliance; a limited period of eight weeks was granted for this purpose. [Paras 5, 8, 9]

Impugned orders-in-original dated 15.05.2019 set aside; respondents directed to afford cross-examination to persons whose statements were relied upon and to file a report within eight weeks.

Final Conclusion: Writ petitions allowed; impugned original orders set aside for breach of natural justice for failure to permit cross-examination and respondents directed to comply with the Court's directions within the specified period; no order as to costs.

Interim stay of appellate tribunal order - Non-filing of appeal not constituting acquiescence and not precluding filing in other similar cases (interpretation of Section 131BA) - Mid-Term Review determination on product scope for anti-dumping duty - Powers under Article 226

Interim stay of appellate tribunal order - Non-filing of appeal not constituting acquiescence and not precluding filing in other similar cases (interpretation of Section 131BA) - Mid-Term Review determination on product scope for anti-dumping duty - Powers under Article 226 - Whether the judgment and order dated 05.07.2019 of the Customs Excise and Service Tax Appellate Tribunal in Customs Appeal Nos.399 and 400 of 2011 should be stayed pending disposal of the Special Civil Application. - HELD THAT: - The petition surviving for consideration sought setting aside the Tribunal's judgment which had held that imported Extra Clear Float Glass (ECFG) was not liable to anti-dumping duty. The Court recorded that the Department had, by affidavit, questioned the Tribunal's distinction between float glass and extra clear float glass and referred to a subsequent Mid-Term Review notification which concluded that ECFG could not be excluded from the product scope under consideration. The Court also noted the statutory scheme in Section 131BA that the non-filing of an appeal pursuant to departmental monetary limits does not preclude the Department from filing appeals in other cases involving similar issues, and that such non-filing does not constitute acquiescence. Having regard to these aspects and the potential repercussions on the industry, the Court directed expedition and, by way of interim relief, ordered that the impugned Tribunal judgment dated 05.07.2019 be stayed pending final disposal of the Special Civil Application. The stay is subject to the final outcome of the petition and the rights and obligations of the parties during the stay are preserved for determination at the final hearing. [Paras 6, 7]

Impugned Tribunal order dated 05.07.2019 in Customs Appeal Nos.399 and 400 of 2011 is stayed interim pending final disposal of the Special Civil Application; rights and obligations during the stay to be subject to final outcome.

Final Conclusion: Interim stay granted on the Tribunal's order dated 05.07.2019 in Customs Appeals Nos.399 and 400 of 2011; the stay is without prejudice to the final adjudication of the Special Civil Application and the parties' rights and obligations are to be determined at final hearing.

Responsibility of the person-in-charge to file a full and true Export General Manifest (EGM) - penalty under Section 117 of the Customs Act, 1962 - inordinate delay in issuance of show cause notice - liability of the carrier cannot be shifted to consolidator - selective read-only access to ICEGATE for stuffing reports and shipping-bill details - facilitation-oriented approach to resolution of EGM mismatches

Responsibility of the person-in-charge to file a full and true Export General Manifest (EGM) - liability of the carrier cannot be shifted to consolidator - penalty under Section 117 of the Customs Act, 1962 - Statutory duty of carriers to file correct and complete EGMs and effect of admitted omissions on imposition of penalty. - HELD THAT: - The Court held that Section 41 casts on the person-in-charge of the conveyance (the liner/carrier) the primary responsibility to ensure the EGM fully and truthfully discloses the contents of every container and that this statutory burden cannot be shifted to consolidators or customs officials. The Court accepted that consolidators assist in stuffing and that customs officers supervise aspects of stuffing, but these realities do not absolve carriers of their duty. Notwithstanding the admitted omissions in the EGMs, the Court examined whether penalty under Section 117 could be sustained and concluded that, on the facts of these petitions, imposition of penalty could not be upheld because of other intervening factors (see analysis under the delay issue). The Court therefore recognised the carrier's statutory liability while setting aside the impugned penalty orders for the reasons recorded elsewhere in the judgment. [Paras 10, 14, 15, 16, 28]

Carriers bear statutory responsibility for correct EGMs and cannot shift liability to consolidators; however the penalties imposed in the impugned orders are set aside for reasons given in the judgment.

Inordinate delay in issuance of show cause notice - facilitation-oriented approach to resolution of EGM mismatches - Effect of delay between the date of the shipping bills and issuance of show cause notices on validity of penalty orders. - HELD THAT: - The Court found that the impugned penalty proceedings were significantly delayed - orders passed in 2019 related to shipping bills of 2017 - and that such delay was unacceptable. Although the statutory provisions under which penalty was levied do not prescribe a limitation period, the Court emphasised that punitive action must be taken in a timely fashion. The tabulation of dates demonstrated delay in issuance of show cause notices and consequent orders across the batch of matters. The Court held that this inordinate delay was fatal to the respondents' case and contributed to the conclusion that the penalties should be set aside. The Court also noted policy guidance in Board/Commissioner circulars favouring facilitation and steps to remedy EGM mismatches rather than immediate penal action. [Paras 20, 21, 22, 23, 28]

Delay in initiating penal proceedings rendered the imposition of penalty unsustainable; impugned orders are set aside.

Selective read-only access to ICEGATE for stuffing reports and shipping-bill details - ICEGATE access - Whether petitioners are entitled to access ICEGATE and the form of any such access. - HELD THAT: - The Court rejected the petitioners' general request for access to ICEGATE on the basis that the system consolidates inputs from multiple stakeholders and cannot be made wholly available to a single operator. The Court recognised, however, that practical facilitation might be possible and suggested a middle path: authorities may consider segregating and granting access to that portion of the system containing stuffing reports and shipping-bill details, subject to safeguards (for example, read-only display to prevent tampering). The Court granted liberty to petitioners to file representations seeking such selective access and directed expeditious consideration of any such representations after hearing all stakeholders. [Paras 25, 26, 27]

General request for ICEGATE access refused; petitioners may represent for selective, secured, read-only access to stuffing reports and shipping-bill details and authorities shall decide expeditiously after hearing stakeholders.

Final Conclusion: Impugned penalty orders and related appellate orders are set aside principally because of inordinate delay in initiating penal proceedings; the Court upholds the carriers' statutory duty to file complete and true EGMs and rejects an unfettered right to ICEGATE access while allowing petitioners to seek limited, secure, read-only access by representation for operational facilitation. All writ petitions disposed; no costs.

Extinguishment of claims upon approval of Resolution Plan - Binding effect of approved Resolution Plan on statutory authorities and creditors - Effect of non-lodgement of claim during corporate insolvency resolution process - Ceasing of liability for pre-CIRP offences under Section 32A of the IBC - Clarificatory effect of the 2019 amendment to Section 31 of the IBC

Effect of non-lodgement of claim during corporate insolvency resolution process - Extinguishment of claims upon approval of Resolution Plan - Binding effect of approved Resolution Plan on statutory authorities and creditors - Ceasing of liability for pre-CIRP offences under Section 32A of the IBC - Whether the appeal and the demand could be pursued by the Commissioner of Customs having not lodged any claim during the CIRP and after approval and implementation of the Resolution Plan. - HELD THAT: - The Court found that it is not disputed that the Commissioner of Customs did not file any claim with the Resolution Professional within the time prescribed under the IBC and that the Resolution Plan was approved and implemented, resulting in change of management and ownership. The Apex Court's precedent in the respondent's own earlier litigation was applied to hold that upon approval of a Resolution Plan, claims not included in the plan stand frozen and do not survive. The Court relied on the statutory effect of Section 31 (as amended) that an approved Resolution Plan is binding on the corporate debtor and its creditors, including the Central Government and other statutory authorities, and on Section 32A which provides that liability of the corporate debtor for offences committed prior to commencement of CIRP ceases where the plan effects change of management/control to persons not falling within the specified exceptions. Having regard to those statutory provisions and controlling decisions, and given non-lodgement of the claim and completion and implementation of the Resolution Plan, the Court held that any liability in respect of the pre-CIRP period has been extinguished and the appeal is infructuous and abated. [Paras 6, 9, 11, 14, 15]

The appeal is disposed of as abated; the claim/demand relating to the pre-CIRP period stands extinguished following approval and implementation of the Resolution Plan, and the proposed substantial questions are not answered.

Final Conclusion: Appeal dismissed as abated: Commissioner of Customs, having not lodged a claim during the CIRP, may not pursue the pre-CIRP demand after approval and implementation of the Resolution Plan; liabilities in respect of the pre-CIRP period stand extinguished under Sections 31 and 32A of the IBC as interpreted by the courts.

Undervaluation - transaction value - rejection of transaction value and determination of value under Rule 9 of the Customs Valuation (determination of price of imported goods) Rules, 2007 - confessional statements recorded under Section 108 of the Customs Act, 1962 - redemption fine in lieu of confiscation under Section 125 of the Customs Act, 1962 - penalty under Section 112(a) of the Customs Act, 1962 - penalty under Section 114AA of the Customs Act, 1962 - prohibition on double punishment for a single offence

Undervaluation - transaction value - rejection of transaction value and determination of value under Rule 9 of the Customs Valuation (determination of price of imported goods) Rules, 2007 - confessional statements recorded under Section 108 of the Customs Act, 1962 - Validity of rejection of declared transaction value and re-determination of assessable value under Rule 9 on the basis of established under-valuation and confessional statements. - HELD THAT: - The Tribunal upheld the finding that the declared invoice value did not represent the true transaction value because part payments had been made through unauthorized channels (hawala) and the importer along with co-noticees admitted under-valuation in statements recorded under Section 108. Having rejected the transaction value in view of mis-declaration, the authorities properly proceeded sequentially through the Valuation Rules and, on the facts that identical/similar values or relevant data under Rules 4-8 were not available, correctly applied Rule 9 to arrive at the re-determined assessable value. The appellant's revised commercial invoice was discarded in light of the systematic modus operandi and admissions. The re-determination of value was therefore sustained as legal and proper. [Paras 4, 8]

Rejection of declared transaction value and re-determination of assessable value under Rule 9 upheld; the re-determined value is sustained.

Redemption fine in lieu of confiscation under Section 125 of the Customs Act, 1962 - market value cap under Section 125 - Appropriateness of the redemption fine imposed in lieu of confiscation. - HELD THAT: - The appellate authority examined the gravity and systematic nature of the undervaluation scheme and observed absence of market-value evidence. In the absence of market inquiry, the assessable value was accepted as a guiding benchmark for the maximum fine as permitted by Section 125. Considering the value of goods and the deliberate under-valuation scheme to defraud revenue, the redemption fine imposed by the adjudicating authority was held to be within permissible limits and not excessive, warranting no interference. [Paras 4, 8]

Redemption fine imposed in lieu of confiscation upheld as not excessive.

Penalty under Section 112(a) of the Customs Act, 1962 - penalty under Section 114AA of the Customs Act, 1962 - prohibition on double punishment for a single offence - Validity of imposing both penalties under Section 112(a) and Section 114AA on the same person for the same offence. - HELD THAT: - The appellate authority noted the settled principle that a person cannot be penalized twice for the same single offence. Applying that principle, the authority found it erroneous to impose both penalties on appellant No.2 for the single mis-declaration offence. Consequently, the penalty under Section 114AA was struck down while the penalty under Section 112(a) was retained. [Paras 8]

Penalty under Section 114AA set aside; penalty under Section 112(a) maintained.

Final Conclusion: On the facts and confessional evidence establishing systematic under-valuation and hawala remittances, the Tribunal upheld the re-determined assessable value arrived at under Rule 9, sustained the redemption fine imposed in lieu of confiscation, and affirmed the maintenance of penalty under Section 112(a) while setting aside the penalty under Section 114AA; the appeals are dismissed.

Penalty under Section 112(a) of the Customs Act, 1962 - Steamer agent liability for pre-shipment inspection certificate - Pre-shipment inspection certificate requirement for import of metallic waste/scrap - Temporal applicability of administrative memorandum - Confiscation of imported goods

Penalty under Section 112(a) of the Customs Act, 1962 - Steamer agent liability for pre-shipment inspection certificate - Validity of the penalty imposed on the appellant under Section 112(a) for alleged failure to ensure furnishing of pre-shipment inspection certificate - HELD THAT: - The Tribunal examined the statutory and regulatory framework for imports of metallic waste/scrap and the requirement of a pre-shipment inspection certificate as set out in the Handbook of Procedures/FTP. The court found that the obligation to furnish the pre-shipment inspection certificate is prescribed to be discharged "at the time of clearance of goods" by the importer and that a steamer agent (the appellant) does not have locus to fulfil that requirement on the importer's behalf. The Tribunal further held that failure to produce the prescribed certificate does not, by itself, render the goods "prohibited" under Section 111(d) and therefore does not automatically justify penal measures under Section 112(a) on the steamer agent. Applying these principles to the material facts, the Tribunal concluded that the imposition of penalty on the appellant was not sustainable.

Penalty under Section 112(a) imposed on the appellant set aside; appeal allowed insofar as penalty is concerned.

Temporal applicability of administrative memorandum - Pre-shipment inspection certificate requirement for import of metallic waste/scrap - Applicability of the Memorandum dated 20.01.2014 (fastening responsibility on Shipping Lines) to the Bill-of-Entry dated 24.05.2011 - HELD THAT: - The Tribunal noted that the administrative Memorandum relied upon by the Revenue post-dates the import transaction (Bill-of-Entry dated 24.05.2011). The Memorandum issued in 2014 could not retrospectively impose obligations on the appellant for an import occurring in 2011. The Tribunal therefore rejected the contention that the 2014 Memorandum could justify penalising the appellant for an earlier import.

Memorandum of 20.01.2014 held inapplicable to the 2011 import; it could not sustain the penalty.

Confiscation of imported goods - Penalty under Section 112(a) of the Customs Act, 1962 - Overall effect of the appellate decision on the impugned Order-in-Original which both confiscated the goods and imposed penalty - HELD THAT: - The Tribunal considered the impugned original order that absolutely confiscated the goods and imposed penalty. While the deliberation focused on the illegitimacy of imposing penalty on the steamer agent for the missing pre-shipment certificate and on the temporal inapplicability of the 2014 Memorandum, the Tribunal set aside the impugned order and allowed the appeal. The reasoning emphasised that regulatory requirements for pre-shipment certificates are tied to the importer at the time of clearance and cannot be retroactively or improperly translated into penal liability against the steamer agent in the facts before the Tribunal.

Impugned Order-in-Original set aside and appeal allowed.

Final Conclusion: The penalty confirmed against the appellant under Section 112(a) was held unsustainable because the obligation to furnish the pre-shipment inspection certificate lay with the importer at the time of clearance and the 2014 administrative memorandum could not be applied to a 2011 import; the impugned order is set aside and the appeal is allowed.

Transaction value as primary method of valuation under Section 14 - Rejection of transaction value - Redetermination of value under Rules 4 and 5 of the Valuation Rules - Reason to doubt the truth or accuracy of declared value based on contemporaneous imports - Confiscation under Section 111(l) and 111(m) - Penalty under Section 112 for improper importation - Penalty under Section 114AA for use of false or incorrect material - Committee review under Section 129A(2) - Time-limit for review under Section 129D(3) (contrast with Section 129A(2))

Committee review under Section 129A(2) - Time-limit for review under Section 129D(3) (contrast with Section 129A(2)) - Validity and timeliness of the Committee of Commissioners' review under Section 129A(2) and maintainability of the Revenue's appeal. - HELD THAT: - Section 129A(2) authorises the Committee of Commissioners to direct an appeal against an order passed by the Commissioner (Appeals) but does not prescribe any time-limit for passing such a review order. Section 129D(3) prescribes time-limits for review of orders passed by original authorities and is therefore distinguishable. The Tribunal declined to read a time-limit into Section 129A(2). Further, the chronology showed communication and filing dates falling within the period excluded by the Supreme Court's suo moto orders arising from the COVID pandemic; accordingly the appeal filed by the officer pursuant to the Committee's direction was to be treated as not time-barred. [Paras 11, 12]

Review under Section 129A(2) was not time-barred and the Revenue's appeal is maintainable.

Transaction value as primary method of valuation under Section 14 - Rejection of transaction value - Reason to doubt the truth or accuracy of declared value based on contemporaneous imports - Redetermination of value under Rules 4 and 5 of the Valuation Rules - Correctness of the Original Authority's rejection of the declared transaction value under Rule 12 and redetermination of assessable value under Rules 4 and 5, and correctness of the Commissioner (Appeals) in setting aside that rejection. - HELD THAT: - Section 14 makes transaction value the primary method of valuation but contemplates rejection where the proper officer has reason to doubt truth or accuracy; Rule 12 provides the procedure and illustrative grounds for such doubt, including significantly higher value of identical or similar goods imported at or about the same time. In this case the officers, acting on intelligence, examined the consignment and found the goods to be Zhiyun brand though declared as 'unpopular brand', and noted that the respondent had earlier imported identical models of Zhiyun at much higher prices from the same supplier. The importer failed to produce contemporaneous documentary evidence (WECHAT message) to substantiate the claim of a lower-end variant; the only supporting email was produced after the case was booked and was insufficient in the face of contrary documentary and market-survey evidence. The Commissioner (Appeals) erred in relying on the post-facto technical letter and in setting aside the Original Authority's rejection and re-determination of value; the Tribunal found the Original Authority had valid reasons to doubt and validly proceeded to re-determine value under Rules 4 and 5. [Paras 14, 16, 17, 18, 21]

Rejection of the declared transaction value and redetermination under Rules 4 and 5 by the Original Authority was justified; the Commissioner (Appeals) erred in setting aside that finding.

Confiscation under Section 111(l) and 111(m) - Penalty under Section 112 for improper importation - Penalty under Section 114AA for use of false or incorrect material - Legality of confiscation of the imported goods and imposition of penalties under Sections 112 and 114AA. - HELD THAT: - Section 111(l) and (m) make liable to confiscation goods not corresponding with the entry or not corresponding in value with the entry. The record established that the goods were described in the Bill of Entry as 'unpopular brand' while actually being Zhiyun brand of the same models earlier imported by the respondent at much higher values; the importer failed to substantiate alternative explanations (unpopular brand/model or lower version). Given the false declarations and the disparity in declared value vis-a -vis contemporaneous imports, confiscation under Section 111 and penalty under Section 112 were rightly imposed. Because the importer made false declarations and used post-facto documents, penalty under Section 114AA for use of false or incorrect material was also correctly imposed. The Commissioner (Appeals) erred in setting aside confiscation and penalties. [Paras 22, 23, 24]

Confiscation and penalties imposed by the Original Authority under Sections 111, 112 and 114AA were lawful; the Commissioner (Appeals) erred in reversing them.

Final Conclusion: The Tribunal allowed the Revenue's appeal, held the Committee review under Section 129A(2) to be timely and maintainable, upheld the Original Authority's rejection of the declared transaction value and redetermination under Rules 4 and 5, and restored the Original Authority's order of confiscation and penalties, setting aside the Commissioner (Appeals) order.

Issue of further redeemable preference shares under Section 55(3) - consent of holders of three-fourths in value of preference shares - deemed redemption upon issue of further redeemable preference shares - compliance with procedural requirements including Form MGT-14 and Rule 69 NCLT Rules, 2016

Issue of further redeemable preference shares under Section 55(3) - consent of holders of three-fourths in value of preference shares - deemed redemption upon issue of further redeemable preference shares - compliance with procedural requirements including Form MGT-14 and Rule 69 NCLT Rules, 2016 - Petition under Section 55(3) for permission to issue further redeemable preference shares in respect of unredeemed preference shares and to treat the unredeemed preference shares as redeemed. - HELD THAT: - The Tribunal examined the petition, the company's board and general meeting resolutions authorising initiation of proceedings under Section 55(3), and the written consents executed by the preference shareholders. The Registrar of Companies had raised a procedural objection that requirements of Section 55 and the Companies (Share Capital and Debentures) Rules, 2014 had not been complied with; the petitioner thereafter filed Form MGT-14. The Tribunal considered the statutory scheme in Section 55, including the requirement of shareholder consent and the provision that unredeemed preference shares shall be deemed redeemed on the issue of further redeemable preference shares, and verified that the petition met the criteria and compliance required under the Rules (including Rule 69 of the NCLT Rules, 2016). Having found that the requisite consents were on record and the procedural filing before the ROC had been made, the Tribunal concluded that the petition deserved to be allowed and that the company could be permitted to issue further redeemable preference shares for a period of five years equal to the amount due (including dividend) in respect of the unredeemed preference shares, thereby deeming those unredeemed shares to have been redeemed. The Tribunal directed the petitioner to place a copy of the order before the Registrar of Companies and to comply with formalities for certified copies.

Company petition allowed; petitioner permitted to issue further redeemable preference shares for five years equal to the amount due (including dividend) in respect of the unredeemed preference shares and the unredeemed preference shares are deemed redeemed; petitioner to place copy of order before ROC.

Final Conclusion: The Tribunal found that the petition complied with the requirements of Section 55(3) and applicable procedural rules, allowed the petition, permitted issue of further redeemable preference shares for five years in respect of the unredeemed preference shares (including dividend), directed deemed redemption of the unredeemed shares, and ordered compliance formalities including filing before the Registrar of Companies.

Scheme of Amalgamation - sanction under Sections 230 to 232 of the Companies Act, 2013 - dispensing with meeting of shareholders and creditors - consent affidavits of shareholders and creditors - compliance with sub-section (5) of Section 230 and Rule 8 of the Companies (CAA) Rules, 2016 - declaration under Section 29A of the IBC - filing of compliance report proving service of statutory notices

Dispensing with meeting of shareholders and creditors - consent affidavits of shareholders and creditors - Whether convening and holding of meetings of equity shareholders and creditors of the applicant companies should be dispensed with - HELD THAT: - The Tribunal, on perusal of the records and consent affidavits filed on behalf of the shareholders of the Transferor Companies and the Transferee Company, and having regard to the fact that the Transferor Companies have NIL creditors and that a consent affidavit has been filed on behalf of the creditors of the Transferee Company, held that the requirement of convening and holding meetings of equity shareholders and of creditors is dispensed with. The dispensation is founded on the existence of unanimous or requisite consents and absence of creditors in the Transferor Companies, making convening of separate meetings unnecessary. [Paras 8]

Meetings of equity shareholders and meetings of creditors of the applicant companies are dispensed with.

Scheme of Amalgamation - sanction under Sections 230 to 232 of the Companies Act, 2013 - Whether the Scheme of Amalgamation between the four Transferor Companies and the Transferee Company should be sanctioned - HELD THAT: - Having considered the application, the Scheme annexed thereto, the statutory auditor certificates (including confirmations as to creditors and conformity of accounting treatment with AS-14), valuation reports, board resolutions approving the Scheme with the appointed date recorded, and the consent affidavits of shareholders, the Tribunal concluded that the Company Application merits allowance. The Tribunal therefore allowed the petition in terms of its prayer clause and sanctioned the proposed amalgamation, subject to the directions set out by the Tribunal. [Paras 1, 6, 8, 9, 12]

The Scheme of Amalgamation is sanctioned and the Company Application is allowed and disposed of in terms of the prayer clause.

Compliance with sub-section (5) of Section 230 and Rule 8 of the Companies (CAA) Rules, 2016 - filing of compliance report proving service of statutory notices - declaration under Section 29A of the IBC - What directions and compliances are required consequent to sanctioning the Scheme - HELD THAT: - The Tribunal directed compliance with sub-section (5) of Section 230 and Rule 8 by serving Form No. CAA 3 with the Scheme, Explanatory Statement and applicable disclosures on specified authorities including the Regional Director (NER), Registrar of Companies (NER), Official Liquidator (NER) and the Income Tax Authority, allowing those authorities 30 days from receipt to make representations. The Tribunal recorded that the applicants have filed the declaration under Section 29A of the IBC. The applicants were directed to file a Compliance Report proving service of such notices and compliance with the Tribunal's directions within two weeks from the date the order is uploaded on the e-portal. [Paras 9, 10, 11]

Applicants must serve prescribed notices on the listed authorities and file a Compliance Report within two weeks; the declaration under Section 29A of the IBC is recorded.

Final Conclusion: The Tribunal sanctioned the Scheme of Amalgamation between the four Transferor Companies and the Transferee Company, dispensed with convening meetings of shareholders and creditors on the stated bases, required service of statutory notices in accordance with Section 230(5) and Rule 8 and directed filing of a Compliance Report; the petition is allowed and disposed of in terms of the prayer clause.

Letter of comfort versus contract of guarantee - maintainability of petition under Section 7 of the Insolvency and Bankruptcy Code, 2016 against an alleged corporate guarantor - intention to create legal relations as determinative for enforceability of commercial documents - requirements for a contract of guarantee under Section 126 of the Indian Contract Act, 1872 - compliance with Section 179(3)(f) and Section 185 of the Companies Act, 2013 for corporate guarantees - effect of unstamped or improperly stamped documents under the Indian Stamp Act and admissibility in evidence - parol evidence rule and Section 92 of the Indian Evidence Act, 1872

Letter of comfort versus contract of guarantee - requirements for a contract of guarantee under Section 126 of the Indian Contract Act, 1872 - compliance with Section 179(3)(f) and Section 185 of the Companies Act, 2013 for corporate guarantees - effect of unstamped or improperly stamped documents under the Indian Stamp Act and admissibility in evidence - maintainability of petition under Section 7 of the Insolvency and Bankruptcy Code, 2016 against an alleged corporate guarantor - The alleged letter of comfort does not amount to a contract of guarantee and, consequently, the Section 7 petition against the respondent as a corporate guarantor is not maintainable. - HELD THAT: - The Tribunal examined whether the undated, unsigned document relied upon by the financial creditor constituted a contract of guarantee. Applying the definition in Section 126 of the Contract Act, a contract of guarantee envisages three parties (surety, principal debtor and creditor) and, where reduced to writing, must manifest the requisite parties and intention. The alleged letter of comfort was undated, lacked company seal and board authorization, was not signed by the borrower or creditor, and the sanction letter expressly identified a different corporate guarantor. The Tribunal found no evidence of a board resolution authorizing the respondent to give a guarantee as required by Section 179(3)(f) and observed that Section 185 may operate as a bar where applicable. The document's unstamped status and absence of mandatory corporate formalities further undermined its evidentiary value, and parol evidence could not cure a written instrument under Section 92 of the Evidence Act. The Tribunal also noted that jurisprudence recognises that a letter of comfort may or may not create legal obligations and that the determinative test is the intention of the parties; on the material before it no such intention to create a guarantee in favour of the petitioner could be inferred. In view of these factors, and given the presence in the sanction letter of a distinct corporate guarantee by another entity, the alleged letter of comfort could not be treated as a binding contract of guarantee. [Paras 18, 19, 21, 22, 23]

The alleged letter of comfort is not a contract of guarantee; the petition under Section 7 is dismissed as not maintainable against the respondent.

Final Conclusion: The petition under Section 7 of the Insolvency and Bankruptcy Code filed against Jotindra Steel and Tubes Limited is dismissed for want of maintainability because the alleged letter of comfort does not constitute a valid contract of guarantee on the material before the Tribunal; no order as to costs.

Initiation of Corporate Insolvency Resolution Process - Existence of operational debt - Default under the Insolvency and Bankruptcy Code - Service of demand notice under Section 8 of the Insolvency and Bankruptcy Code, 2016 - Compliance with Section 9 of the Insolvency and Bankruptcy Code, 2016 - Limitation for filing petition under Section 9 - Absence of pre-existing dispute - Moratorium under Section 14 of the Insolvency and Bankruptcy Code, 2016 - Appointment of Interim Resolution Professional

Existence of operational debt - Default under the Insolvency and Bankruptcy Code - The Corporate Debtor owed an operational debt to the Operational Creditor and a default had occurred on 02.02.2022 which was continuing. - HELD THAT: - On the material placed before it (invoice, delivery challan, ledger and acknowledgements), the Adjudicating Authority found that the Operational Creditor supplied 2,300 gms of gold pursuant to invoice dated 01.02.2022 and that the Corporate Debtor had not paid the amount due. The Tribunal recorded that the term of payment was immediate, identified 02.02.2022 as the date of default and concluded that the debt existed and default had occurred and was continuing. These findings satisfy the statutory notions of 'debt' and 'default' for initiating proceedings under the Code. [Paras 8]

Existence of operational debt and occurrence of default on 02.02.2022 established.

Service of demand notice under Section 8 of the Insolvency and Bankruptcy Code, 2016 - Compliance with Section 9 of the Insolvency and Bankruptcy Code, 2016 - Limitation for filing petition under Section 9 - The demand notice was duly served and the Section 9 petition complied with the procedural requirements and was filed within the limitation period. - HELD THAT: - The Tribunal accepted the Operational Creditor's evidence of dispatch and delivery of the demand notice dated 18.02.2022 to the Registered and Administrative offices of the Corporate Debtor. Having found that the notice was served and that the petition under Section 9 was filed on 22.03.2022, the Adjudicating Authority concluded that the procedural preconditions for admission under Section 9 had been met and that the petition was within time measured from the date of default as pleaded. [Paras 6, 8]

Demand notice served, statutory requirements of Section 9 satisfied and petition filed within limitation.

Absence of pre-existing dispute - No undisputed pre-existing dispute was found to exist prior to the issue of the demand notice. - HELD THAT: - The Corporate Debtor had replied to the demand notice admitting liability and seeking time to pay. The Tribunal recorded that there was no evidence of a dispute existing prior to the demand notice; the defence based on post-default events (market disruption due to geopolitical developments) was not found to constitute a pre-existing dispute that would bar admission under the Code. [Paras 8]

No pre-existing dispute established; defence raised after default did not preclude admission.

Initiation of Corporate Insolvency Resolution Process - Moratorium under Section 14 of the Insolvency and Bankruptcy Code, 2016 - Appointment of Interim Resolution Professional - The petition under Section 9 was admitted, CIRP was initiated with moratorium declared and an Interim Resolution Professional was appointed, with related administrative directions. - HELD THAT: - Having satisfied itself on debt, default, service of demand notice, limitation and absence of pre-existing dispute, the Adjudicating Authority admitted the Section 9 petition and declared the commencement of the Corporate Insolvency Resolution Process effective from the date of admission. The Tribunal imposed the moratorium for the purposes set out in the Code, directed a public announcement and called for claims, appointed the nominated Interim Resolution Professional and directed compliance with the Code, Rules and Regulations (including timelines and duties of the IRP). The Operational Creditor was directed to deposit an initial amount for CIRP expenses. [Paras 9, 10, 11, 12, 13]

Section 9 petition admitted; CIRP initiated, moratorium declared, IRP appointed and directions issued for conduct of the process.

Final Conclusion: The Adjudicating Authority admitted the Section 9 petition filed by the Operational Creditor against Matiz Metals Pvt. Ltd., holding that an operational debt existed, default occurred on 02.02.2022, the demand notice was duly served, no pre-existing dispute was shown, and accordingly initiated CIRP with moratorium declared and an Interim Resolution Professional appointed.

Limitation for filing appeal under the Insolvency and Bankruptcy Code - time runs from pronouncement of order and not from receipt of free certified copy - due diligence in obtaining certified copy - limited condonation power of the appellate forum to fifteen days under the proviso to Section 61(2)

Time runs from pronouncement of order and not from receipt of free certified copy - due diligence in obtaining certified copy - Limitation for filing the appeal runs from the date the order is pronounced and does not stop running until the aggrieved party obtains a free certified copy. - HELD THAT: - Relying on the legal principle affirmed by the Hon'ble Supreme Court in V Nagarajan, the Tribunal held that the IBC regime requires a harmonious interpretation which treats the period of limitation as running from pronouncement of the order. The appellate regime under the IBC expects the aggrieved party to exercise due diligence and apply for a certified copy upon pronouncement; a party cannot await receipt of a free certified copy and thereby delay commencement of limitation. The Rule permitting exclusion of time for obtaining a copy under the Limitation Act does not permit postponement of the start of the limitation period where the IBC provides a short and specific timeline for filing appeals. [Paras 6]

Limitation began on pronouncement of the impugned order and did not cease to run until the appellant obtained the free certified copy.

Limited condonation power of the appellate forum to fifteen days under the proviso to Section 61(2) - Whether the Tribunal could condone the delay beyond fifteen days under the proviso to Section 61(2). - HELD THAT: - The Tribunal observed that its power to extend time under the proviso to the relevant provision is confined to a maximum of fifteen days upon sufficient cause being shown. Having found that the delay in filing the appeal exceeded fifteen days, the Tribunal concluded that it lacked jurisdiction to grant condonation beyond that statutory limit. The Court therefore dismissed the condonation application and refused to admit the appeal. [Paras 6]

Delay in filing the appeal exceeded the fifteen-day condonation limit and therefore the condonation application was dismissed and the appeal rejected.

Final Conclusion: Application for condonation of delay dismissed and Memo of Appeal rejected as time-barred; limitation runs from pronouncement of the order and the Tribunal's condonation power is limited to fifteen days under the proviso.

Adjustment of pre-deposits under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - treatment of deposits made under protest including tax, interest and penalty - interpretation of Section 124(2) of the Finance Act, 2019 - effect of departmental acceptance of a High Court judgment and requirement of consistent departmental treatment - use of CBIC clarification in construing scope of adjustment of deposits prior to adjudication

Adjustment of pre-deposits under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - treatment of deposits made under protest including tax, interest and penalty - interpretation of Section 124(2) of the Finance Act, 2019 - use of CBIC clarification in construing scope of adjustment of deposits prior to adjudication - Amounts deposited by the declarant under protest, including amounts towards interest and penalty, are liable to be deducted/adjusted when issuing the SVLDRS-3 statement under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019. - HELD THAT: - The Court applied the plain language of Section 124(2) which requires deduction of "any amount paid" as pre-deposit or as deposit during enquiry, investigation or audit when issuing the statement of amount payable under the Scheme; the provision does not distinguish deposits by the head under which they were made. The Division Bench decision in Schlumberger, holding that amounts deposited even as interest or penalty must be adjusted, squarely covers the controversy and was relied upon. The Central Board's circular clarifies that deposits made after issuance of show cause notice but before adjudication may be appropriated/adjusted by the designated committee, and that deposits made under protest must be adjusted. The department had estimated duty while ignoring deposits made by the assessee under protest and thereby applied an inconsistent yardstick; where deposits were made before crystallisation of liability and under protest they lacked a specific character that would bar adjustment. In these circumstances the impugned estimate had to give effect to deduction of the amounts already paid and the Single Judge's direction to re-consider and adjust the deposits in SVLDRS-3 was correct. [Paras 12, 13]

The amounts deposited under protest (including interest and penalty) must be adjusted when issuing SVLDRS-3; the Department's estimate ignoring such deposits cannot be sustained.

Final Conclusion: The appeal is dismissed. The Single Judge's judgment allowing the writ petition is affirmed and the department is directed to re-issue/rectify Form SVLDRS-3 after adjusting the entire amount deposited by the assessee under protest (including interest/penalty) in accordance with law and the CBIC clarification.

Retrospective exemption - service tax on grant of liquor licence - benefit of amendment to the Finance (No.2) Act, 2019 - quashing of show-cause notice - consideration of discharge of liability on remand

Retrospective exemption - service tax on grant of liquor licence - quashing of show-cause notice - Item Nos.1 to 5 of the impugned show-cause notice are not maintainable and are to be set aside insofar as they demand service tax on fees paid for grant of liquor licence - HELD THAT: - The Court found that the Amendment vide the Finance (No.2) Act, 2019 (Act No.23 of 2019) granted retrospective exemption in favour of assessees from payment of service tax on service by way of grant of liquor licence. The retrospective exemption, as clarified by the subsequent Notification dated 30.09.2019 and Circular dated 11.10.2019 produced by the petitioner, enures to the benefit of the petitioner-assessee. In view of this statutory amendment which operates retrospectively and covers the subject matter of Item Nos.1 to 5 in paragraph No.14 of the show-cause notice, those items deserve to be quashed. [Paras 8, 10]

Impugned show-cause notice dated 30.11.2018 is set aside insofar as Item Nos.1 to 5 at paragraph No.14.

Consideration of discharge of liability on remand - quashing of show-cause notice - Claims in respect of Item Nos.6 to 14 are not finally adjudicated by the writ court and are remitted to respondents for fresh consideration of the petitioner's claim of discharge of liability and interest - HELD THAT: - The petitioner specifically asserted that liability and interest pertaining to Item Nos.6 to 14 have already been discharged. The Court did not decide the merits of that contention on the writ petition, but directed that the respondents shall consider the petitioner's claim, afford an opportunity, examine the pleadings and documents submitted, and pass appropriate orders in accordance with law. The Court therefore remitted the matter back to the respondents for expeditious consideration, while granting the petitioner liberty to submit additional representations and documents. [Paras 9, 10]

Respondents directed to consider the petitioner's claim of discharge of liability and interest in respect of Item Nos.6 to 14 and pass appropriate orders; matter remitted for consideration.

Final Conclusion: Writ petition disposed: the show-cause notice dated 30.11.2018 is quashed insofar as Item Nos.1-5; insofar as Item Nos.6-14 the respondents are directed to consider the petitioner's claim of discharge of liability and interest and decide afresh in accordance with law, with liberty to the petitioner to file further representations.

Refund in cash of unutilized CENVAT credit - re-credit of CENVAT credit - application of Section 142(3) and Section 142(6)(a) of the CGST Act - interpretation of Rule 5 of the CENVAT Credit Rules, 2004 read with Notification No. 27/2012-C.E. - practical impossibility of availing re-credit after introduction of GST

Refund in cash of unutilized CENVAT credit - re-credit of CENVAT credit - application of Section 142(3) and Section 142(6)(a) of the CGST Act - practical impossibility of availing re-credit after introduction of GST - interpretation of Rule 5 of the CENVAT Credit Rules, 2004 read with Notification No. 27/2012-C.E. - Whether the appellant is entitled to cash refund of the unutilized CENVAT credit directed to be re credited, when re credit has become impractical after the introduction of GST - HELD THAT: - The appellants had claimed refund for the quarter July 2014 to September 2014 and a portion of the claim related to amounts earlier withdrawn and re credited during that quarter. The authorities below denied cash refund and directed re credit. After the introduction of GST the direction to take re credit became practically ineffectual because CENVAT accounts no longer exist. The Tribunal applied the reasoning in the cited precedent which held that where a claim for CENVAT credit remains pending on the appointed day, sub section (3) and sub section (6)(a) of Section 142 of the CGST Act require that any amount eventually accruing be paid in cash notwithstanding contrary provisions of the existing law. Following that principle, amounts which were debited in the CENVAT account in bona fide expectation of cash refund and which could not be utilised as re credit after GST implementation are refundable in cash. On this basis the impugned order directing re credit and denying cash refund was held untenable and set aside, and the appellant was held eligible for cash refund of the disputed amount.

The appellant is entitled to cash refund of the disputed unutilized CENVAT credit, the impugned order is set aside and the appeal is allowed with consequential reliefs as per law.

Final Conclusion: The Tribunal allowed the appeal and directed payment of the disputed unutilized CENVAT credit in cash (instead of permitting re credit) because re credit became impractical after the introduction of GST and Section 142(3) and (6)(a) of the CGST Act mandate cash payment in such circumstances.

Cenvat credit - application of Rule 3(4) of Cenvat Credit Rules - transitional provisions of CGST Act - revenue neutrality - penalty under Section 78

Cenvat credit - application of Rule 3(4) of Cenvat Credit Rules - transitional provisions of CGST Act - revenue neutrality - Admissibility of cenvat credit of Rs.3,58,555/- taken by the appellant for supply of manpower services. - HELD THAT: - The Tribunal accepted that, on the strict operation of Rule 3(4) of the Cenvat Credit Rules, the credit in question was not available on 31.03.2013 and the lower authority was therefore correct in so observing. However, applying the transitional regime under the CGST Act, the Tribunal held that if the appellant is required to re-deposit the input tax amount in cash under GST transition rules, the cenvat-adjusted amount earlier utilised would become refundable to the appellant. Given that the service provider had deposited the tax (with interest) and taking into account the transitional mechanism which renders re-deposit refundable, the Tribunal concluded the position to be revenue neutral and therefore set aside the demand for the said cenvat credit amount.

Demand of Rs.3,58,555/- on account of denial of cenvat credit set aside; appeal allowed on this point with consequential benefits.

Penalty under Section 78 - revenue neutrality - Validity of penalty imposed under Section 78 consequent to the cenvat credit denial. - HELD THAT: - Because the Tribunal found the tax demand in respect of the cenvat credit to be set aside on the basis of transitional neutrality and the tax having been deposited by the service provider (with interest), the circumstances did not justify the continuance of the penalty imposed under Section 78. The Tribunal therefore exercised its discretion to set aside the penalty in the facts and circumstances of the case.

Penalty imposed under Section 78 set aside.

Final Conclusion: The appeal is allowed: the demand of Rs.3,58,555/- for denial of cenvat credit is set aside on the ground of revenue neutrality under the CGST transitional provisions, and the penalty under Section 78 is also set aside; consequential benefits to follow.

Allegation of fraud and burden of proof - Onus shifts upon prima facie proof of fraud - Remand for fresh adjudication - Examination of statutory returns/registers and declarations - No adjudication on merits where remand ordered

Allegation of fraud and burden of proof - Onus shifts upon prima facie proof of fraud - Examination of statutory returns/registers and declarations - Whether the impugned CESTAT orders upholding demand and penalty should be set aside and the matters remitted for fresh adjudication after a full examination of the material. - HELD THAT: - The High Court found that the departmental allegation that cenvat credit had been availed without actual receipt of inputs raised questions requiring examination of the statutory returns/registers and documentary material produced by the appellant. Relying on the approach taken by a Coordinate Bench in a similar factual matrix, the Court noted that while the department must prove fraud, once a prima facie case is made the onus shifts to the assessee to establish genuineness; nonetheless, detailed scrutiny of bills, invoices, statutory forms and declarations is necessary before reaching a final conclusion. The Court therefore declined to express any view on the merits, set aside the impugned Tribunal orders and remitted the matters to the CESTAT for fresh consideration after examining the complete material including RG registers, returns and declarations, leaving all submissions open to the parties.

Impugned orders dated 30.08.2013 are set aside and the matters remanded to the CESTAT, New Delhi, for fresh adjudication after examination of the statutory returns/registers and other material; no opinion expressed on merits and parties' submissions remain open.

Final Conclusion: Appeals disposed of by setting aside the CESTAT orders and remitting the matters to the CESTAT, New Delhi, for rehearing and fresh decision after examination of the registers, returns and documentary evidence; merits not decided by this Court.

Refund claim time limit - claim under Table-II of Form A-4 - limitation and condonation for refund claims - quarterly single refund claim by SEZ unit

Refund claim time limit - claim under Table-II of Form A-4 - limitation and condonation for refund claims - Tribunal's interpretation that the mandatory time limit in clause (e) of Para 3(III) of Notification No.12/2013-ST is not applicable to refund claims covered by Table-II of Form A-4 of the Notification - HELD THAT: - The High Court has admitted the Tax Appeal and framed the question for adjudication, noting that the correctness of the Tribunal's interpretation on applicability of the one year time limit to Table II/Form A 4 refund claims requires consideration. The Court did not decide the substantive legal issue on the merits; it confined its order to granting admission and directing that the question be considered in the appeal. No findings were recorded on whether the clause (e) time limit applies to or is inapplicable to Table II/Form A 4 claims, nor was any remittance directed for fresh fact finding on this point in the impugned order.

Admitted for consideration; no adjudication on the substantive question regarding applicability of clause (e) to Table II/Form A 4 refund claims.

Quarterly single refund claim by SEZ unit - claim under Table-II of Form A-4 - Tribunal's interpretation that the condition mandating that an SEZ unit shall submit only one refund claim per quarter may include consolidated invoices of previous quarters - HELD THAT: - The High Court has taken the question on admission to determine whether clause (f) of Para 3(III) of Notification No.12/2013 ST was correctly interpreted by the Tribunal to permit a single quarterly claim to include invoices of preceding quarters (consolidated invoices). The Court did not rule on the correctness of that interpretation; it recorded that the substantial question merits appellate consideration and admitted the appeal on that question. No merits determination or remand for factual verification was made in the order.

Admitted for consideration; no adjudication on whether clause (f) permits inclusion of invoices from previous quarters in a single quarterly claim.

Final Conclusion: The Tax Appeal is admitted on the two framed substantial questions relating to (i) applicability of the clause (e) time limit to Table II/Form A 4 refund claims and (ii) scope of the clause (f) requirement of one quarterly claim by SEZ units; the High Court has not decided the substantive issues and has directed that they be considered in the appeal.

Removal - physical removal - constructive/ deemed removal - CENVAT credit reversal - Rule 3(5A) of Cenvat Credit Rules, 2004 - penalty under Rule 26 of Central Excise Rules, 2002 - interpretation of statutory language - precedent value of J.K. Spinning & Weaving Mills

Removal - physical removal - constructive/ deemed removal - CENVAT credit reversal - Rule 3(5A) of Cenvat Credit Rules, 2004 - precedent value of J.K. Spinning & Weaving Mills - Whether Rule 3(5A) CCR, 2004 is attracted on sale/transfer of an installed power plant as a going concern without physical uprooting or shifting of capital goods. - HELD THAT: - The Tribunal examined the statutory phrase 'removal' and accepted the Supreme Court's interpretation in J.K. Spinning & Weaving Mills that 'removal' contemplates physical movement of goods from one place to another. The Business Transfer Agreement transferred movable and immovable assets as a going concern on an 'as is where is' basis without uprooting or physically shifting the capital goods. Reliance was placed on precedents (including Dalmia Cements, L.G. Balakrishnan, Bhilai Steel Plant) and CBEC Circular No.1063/2/2018-CX which adopt the view that mere transfer of ownership, amendment of site plan, alteration of registered premises, or separate registration by transferee do not amount to physical removal for the purposes of Rule 3(5)/(5A). The Tribunal declined to follow earlier contrary authority (ACC) and held that in the absence of physical removal the deeming fiction in Rule 3(5A) is not attracted and no CENVAT reversal/duty demand could be sustained. [Paras 42, 43, 46, 51, 52]

Rule 3(5A) of the Cenvat Credit Rules, 2004 is not attracted where a power plant forming a going concern is transferred on 'as is where is' basis without physical removal of capital goods; therefore no reversal of CENVAT credit or duty demand is sustainable.

Penalty under Rule 26 of Central Excise Rules, 2002 - CENVAT credit reversal - Whether personal penalty under Rule 26 CER, 2002 is imposable on the Chairman for the transfer of the power plant. - HELD THAT: - Given the Tribunal's conclusion that Rule 3(5A) is not attracted because there was no physical removal of capital goods, the foundational premise for imposing personal liability under Rule 26 (linked to wrongful dealing in excisable goods) fails. The adjudicating authority's imposition of penalty on the Chairman was therefore unsustainable on the facts and law as applied. [Paras 51]

No penalty is imposable under Rule 26 of the Central Excise Rules, 2002 on the Chairman in the facts of this case.

Final Conclusion: Appeals allowed: the Tribunal set aside the adjudicating authority's demand for reversal of CENVAT credit and the penalty orders, holding that sale/transfer of the power plant as a going concern on 'as is where is' basis without physical removal does not attract Rule 3(5A) CCR, 2004; consequential benefits to appellants to follow in accordance with law.

Cenvat credit on inputs - Cenvat credit on capital goods - reconciliation of ER-1 return with sales register - assessable value discrepancy - clandestine removal - extended period of limitation - Rule 2(k) of the Cenvat Credit Rules, 2004 - definition of capital goods

Cenvat credit on inputs - Rule 2(k) of the Cenvat Credit Rules, 2004 - Cenvat credit on Floor Top Hardener/paints used for repair and maintenance of factory floor is allowable as inputs. - HELD THAT: - The Tribunal found that the item 'Floor Top Hardener' was used for filling gaps between factory floor tiles and thus constituted materials used in the factory. Applying the definition of inputs in Rule 2(k), the material falls within the scope of eligible inputs for cenvat credit. The appellate finding thus allowed cenvat credit on the said items. [Paras 10, 13]

Cenvat credit on Floor Top Hardener/paints allowed under Rule 2(k).

Cenvat credit on capital goods - definition of capital goods - Cenvat credit on capital goods such as Induction Lamps and Lift Table is allowable as they are essential for factory use and manufacture of taxable goods. - HELD THAT: - The Tribunal held that Induction Lamps and Lift Table are essential for use in the factory and without them taxable finished goods could not be manufactured. The appellant's contention that these items were used inside the factory was not disproved. Consequently, these items qualify as capital goods for cenvat credit purposes and credit is allowable. [Paras 11, 12, 13]

Cenvat credit on Induction Lamps and Lift Table allowed as capital goods.

Reconciliation of ER-1 return with sales register - assessable value discrepancy - clandestine removal - No duty demand can be sustained for the small assessable value differences for May 2016 and Jan. 2017 as there was no case of clandestine removal or evasion. - HELD THAT: - The Tribunal considered the appellant's explanation that differences arose from SAP reports and accounting reconciliation while operating on an MRP basis with abatement, and noted the appellant's substantial turnover. Appreciating the minor nature of the discrepancy and absence of any clandestine removal or intent to evade duty, the Tribunal held that no adverse inference or duty demand was warranted on the reconciliation difference for the stated periods. [Paras 14]

Demand arising from assessable value discrepancy for May, 2016 and Jan. 2017 rejected; no duty payable.

Extended period of limitation - The question of limitation under the extended period was not adjudicated and is left open. - HELD THAT: - Although the show cause notice invoked extended limitation, the Tribunal observed that allegations necessary to sustain an extended period (such as fraud or suppression with intent to evade duty) were not properly pleaded or established. The Tribunal expressly refrained from deciding the limitation point and left the ground of limitation open for further consideration. [Paras 4, 15]

Extended period of limitation not decided; ground of limitation left open.

Final Conclusion: The appeal is allowed: cenvat credit on the disputed inputs and capital goods is permitted and the demand on assessable value discrepancies for May, 2016 and Jan. 2017 is set aside for lack of clandestine removal; the question of extended limitation remains undecided and is left open. Consequential relief to the appellant follows in accordance with law.