Bank of Baroda (Erstwhile Dena Bank) vs Thirmax Enterprises Limited & Ors.

13.

Thus, the security applicant by exhibiting the invoices of respondent no.2 company, stock register and e-way bills issued by the Government of Uttar Pradesh have clearly and categorically established that it used to supply Ingot, billet and scrap as raw material to respondent no.2 Company, which after completion of job work, used to supply TMT bars to the security applicant Company and the security applicant has been able to establish that the goods of a total quantity of 1137.620 MT comprising of raw material (Ingot/ Billet) 397.175 MT and finished goods (TMT) 740.445 MT are lying in the premises of respondent no.2 relating to the security applicant.

14.

Though the respondent no.1 bank has filed its evidence and has exhibited report of the Chartered Account, inventory and photographs, but it has failed to show that the material was purchase by respondent no.2 Company as contended by it.

15.

Viewed from any angle, the security applicant Company has been able to prove its claim over the stock sought to be released from the possession of respondent no.1 bank. Accordingly, the present Securitization Application is allowed and the respondent no.1 bank is directed to de-seal the premises in question and to deliver total quantity of 1137.620 MT comprising of raw material (Ingot / Billet) 397.175 MT and finished goods (TMT) 740.445 MT to the security applicant company within one week from today, failing which the Security Applicant Company is entitled to receive the same through the process of the Tribunal. The parties are left to bear their own costs. File be consigned to records.

10.

After giving my thoughtful consideration to the submissions made from both sides I find myself persuaded to accept the submissions made by the learned counsel for the appellant that the learned DRT has passed the impugned order completely swayed only by the documents placed before it on behalf of the securitisation applicant as if the material placed on record by the Bank was not even to be considered. The learned DRT was duty bound to refer to the above noted material placed before it from the side of Bank and then to examine the worth of that material. Having not done that a material irregularity and illegality has been committed by the DRT which is sufficient to set aside its final impugned order and to remand back the matter for a fresh order in accordance with law giving due consideration to the material placed on record by the bank with special reference to the proceedings under PMLA whereunder it was being examined whether the mortgaged factory in question which was attached by PMLA authorities and now ordered to be de-sealed by the DRT which direction has the effect of release of the attached property to the defaulting borrower, was a product of crime of money laundering.

M.A. No. 167 of 2018

S.A. No. 46 of 2018

THERMEX ENTERPRISES LIMITED VS. DENA BANK

24.03.2022

Item no.08

Present: Mr. Sanjeev Bhandari, Ld. Counsel online appears for applicant.

Mr. Arun Aggarwal, Ld. Counsel online appears for respondent bank.

Mr. Pushpendra S. Badharoiya, Ld. Counsel online appears for

Due to Covid 19 situation the matter is taken through VC. The matter is remanded back from Hon'ble DRAT vide order dated 11.03.2020 with the limited direction to this Tribunal to consider the order passed by PMLA for provisional attachment. With this limited scope that party tried to enlarge the scope I tried to obey the order passed by Hon'ble DRAT and only looking at said provisional attachment on PMLA order whatever affect has outcome of the S.A. or not. After going to PMLA order dated 13.02.2018 I observed as follows:-

(i)

it is belonging to 7.5 share of Shri Gaurav Rathi shareholder of M/s Rathi Super Steel Ltd which according PMLA it equal to the amount stated to be Rs.3.50 crores and to safe guard the said amount the provisional attachment has been made on the immovable property, part of plant and machinery M/s Rathi Super Steel Ltd to the extent of Rs.3.50 crores (2.09% of the total value of the building, plants and machinery on 31.03.2017).

(ii)

The S.A. was decided on 19.12.2018.

In the humble opinion this PMLA does not affect the orders of this Tribunal as such order dated 19.12.2018 are retrieved and since as per order S.A. was allowed this stand allowed and that order stand revived.

I have not dealt with any other order except PMLA order on the possible outcome of S.A. The parties are at liberty to make proper pleadings before the Appellant Tribunal. This order I request the bank this order will come affect after two weeks.

File consigned to record.

In the present matter, goods have been sent or supplied on invoice issued under section 13 of the CGST Act and GSTR 1 & GSTR 3B for said supply has already been filed under section 37 of the CGST and read with rule 59 of CGST Rules and to be considered while filing of GSTR 3B under section 39 of the CGST Act read with rule 61 of CGST Rules respectively. We have relied on the Invoices which have been attached along with Writ Petition.

Further, it has been clearly mentioned in the Tax invoice that “Our risk & responsibilities ceases after delivery of goods to the carrier.” Mere stamp on invoice by mentioning it as ‘sent for job-work’ cannot be considered it as Job-work because activity in nature of job work is generally substantiated if goods have been sent on delivery challan and details of such delivery challans have been well disclosed by filing of ITC 04 under Section 143(1) of CGST Act read with Rule 45. Further, even though Job work agreements have been provided to us between the 2 parties, however, the treatment by both the companies seems to be of supply of goods rather than Job Work as per the provisions of GST Law as stated above.

Thus activity of transfer of goods on issuance of tax invoice and same invoice considered for filing of GSTR 1 and GSTR 3B generally will be said to be in the nature of supply of goods and ownership of the goods will remain with receipt of goods and now with supplier of goods.