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Showing 181 to 200 of 1575 Records
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2025 (1) TMI 1396
Reopening of assessment - information was received from the “Insight portal” that the assessee was a beneficiary of fake invoices - HELD THAT:- As the Ld. AR of the appellant filed a Paper Book which contains all the relevant details and the same were not filed before the AO/CIT(A), the issue is remitted back to the file of AO with a direction that he should take into consideration all these papers. Appeal of the appellant is allowed for statistical purposes.
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2025 (1) TMI 1395
Addition of cash deposited in her bank account - additions made on account of source of cash deposited in bank account of the assessee/ investment in immovable property remaining unexplained - Onus to prove - HELD THAT:- When the assessee and her husband carried the amount immediately after withdrawal from South Africa to India, and deposited the same immediately thereafter in the Indian Bank NRE account of the assessee, jointly held with her husband. The assessee has also filed confirmation of the said facts from the auditors of the “SPPL”. The assessee, we have noted, also explained the relationship between the said company and herself by pointing out that her spouse is a director of the company, which was one director company. All these evidences have not been disputed by any of the authorities below.
Thus, it is clearly evident that the assessee had explained the source of 50,000 USD and deposit as being the withdrawals made from a company in SA i.e. “SPPL” in which her spouse was a director.
Reason for rejection by the DRP that, it is baffling and beyond one’s logic as to why in this digital era any person would carry dollars physically.
We agree with assessee, is absolutely a flimsy reason and of no consequence for rejecting the assessee’s explanation. It is immaterial for the purpose of proving the genuineness of the transaction, we hold, as to why any person would carry dollars in cash ,as long as the fact of the assessee carrying the dollar in cash was duly evidenced with documents which is not disputed by the Department also.
DRP has also noted that the assessee has failed to explain the source of 50,000 USD which we find is absolutely incorrect. All the documents filed by the assessee duly explain the source of 50,000 USD as being from withdrawals effected from SSPL. DRP has not pointed out as to how the said documents failed to prove the source of 50,000 USD.
Revenue authority had no substantial reasons for rejecting the assessee’s explanation of the source of deposits in cash in her bank account which we find was duly evidenced with proper supporting documents.
No reason to confirm the order of the AO and the addition, therefore made of cash deposited in the bank account of the assessee is accordingly directed to be deleted.
Investment made in an immovable property - only reason apparently for rejecting the assessee’s explanation is that there is no explanation as to why this amount has been transferred by the said foreign company on behalf of the assessee, and also on account of proper confirmation of the said transaction not being filed by the assessee from the foreign entity - HELD THAT:- As for the reason for rejecting the assessee’s explanation in the absence of any explanation furnished by the assessee, as to why the impugned investment was made by the foreign entity, we do not find any substance in the same. As long as there is no dispute about the fact of the investment being made by the said foreign entity, why the foreign entity made the investment, does not impinge in any way on the genuineness of the transaction.
Revenue authorities have not given any reasons as to how this reasoning would in any way effect the genuineness of the transaction. Therefore, this reason for rejecting the assessee’s explanation is dismissed by us, finding no substance in the same.
No proper confirmation being filed by the assessee, we have noted that the even the DRP has noted the fact of confirmation being filed by the management of the foreign entity. Having noted so, we see no reason for doubting the genuineness of the same.
We find that the addition on account of unexplained investment in the immovable property has been made by the AO for no proper reasons despite the fact that the assessee has given proper explanation of the source of the same, evidenced with proper documentary evidences, substantiating with proper documentary evidences, which have not been doubted by the authorities below. Addition deleted.
Unexplained investment - amount paid for registration charges and stamp duty charges for purchase of aforementioned immovable property - HELD THAT:- This is despite the fact that DRP notes credit of 36675 USD in her ICICI Bank account which was utilized for paying stamp duty and registration fee. As noted above, the assessee had explained USD being credited in the bank account as being advanced by her son Kush Bhatt from his bank account in Investec Specialist Bank Account. Even the ITR of son was filed by the assessee.
We fail to understand as to what basis the DRP had for recording finding that the assessee had failed to discharge her onus of explaining the source of investment with the supporting documents, when the fact on record are completely to the contrary reflecting that the assessee had filed all supporting evidences, explaining the source of the said investment, as coming out of the advances given by her son to the assessee from his foreign account. Addition made on account of unexplained investment is held to be untenable on the facts, and the AO is directed to delete the same.
Addition made to the income of the assessee on account of cash deposited in her bank account, source of which remained unexplained - HELD THAT:- Asessee’s explanation of the credit in her bank account being the reimbursement of her travelling expenses by “SHTL” was rejected for the reason that the assessee failed to explain the relationship between her and the said company and rationale for the said transaction. We have noted that the assessee had explained that she was promoter director of the said company, and she had visited also for the official purpose, and the company, therefore, reimbursed her travelling expenses. Therefore, the assessee, we find, had explained her relationship with “SHTL” and also rationale for the said transaction. The reasoning therefore by the DRP for rejecting the assessee’s explanation is arbitrary and without considering the facts on record.
The addition, therefore made, we hold, in her bank account is not tenable on the basis of facts on record itself, and is directed to be deleted.
Cash deposit or amounts invested in immoveable property, were all carried out from her NRE account , which is an Indian Rupee savings account where foreign income earned outside India is parked - Where the transactions whose genuineness is doubted in the case of a non-resident is from NRE account and the assessee has explained the source of the said transactions as either from withdrawals made from companies, in which she/her spouse are associated, outside India or from funds advanced by her son outside India, we have no hesitation in holding that the assessee has sufficiently discharged her onus of proving the genuineness of the transactions. The Revenue, we have noted, has given no proper reason for finding the explanation not satisfactory.
Decided in favour of assessee.
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2025 (1) TMI 1394
Penalty levied u/s 271I - Failure to furnish Form No. 15CA/15CB in respect of overseas transactions - HELD THAT:- We find that assessee in its present appeal has raised similar ground of appeal as has been raised in case of M/s Vinay Diamond [2023 (7) TMI 1262 - ITAT SURAT] wherein by considering the Notification No.G.S.R.978(E) dated 16.12.2015 issued by Central Board of Direct Taxes held that there are certain payment of specified nature mentioned in Rule 37BB which do not require submission of Form No. 15CA/15CB and one of such payment includes advance payment against import.
We find that no penalty is leviable against the payment of import of goods. Decided in favour of assessee.
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2025 (1) TMI 1393
Unexplained money u/s 69A - as submitted cash deposited in the bank was savings out of the profits earned from the earlier years and household savings of the family, which was deposited in the bank during the demonetization period - HELD THAT:- Admittedly the Assessee has not carried out any other business except the imitation jewellery. Even otherwise no material is available on record by which it can be construed that the Assessee has earned any other income other than from the admitted business.
Thus, considering the peculiar facts and circumstances in totality, in the considered opinion of this Court , it would be appropriate, as both the parties have also agreed in the open court, to treat the amount of Rs. 16,81,802/- also as business receipts and therefore the same can be subjected to the profit @ 8 % of the said amount Rs. 16,81,802/-, which can be added as income of the Assessee, hence the AO is directed to consider/apply the profit @ 8% of Rs. 16,81,802/- add the same in the income of the Assessee. Appeal filed by the Assessee stands partly allowed.
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2025 (1) TMI 1392
Exemption u/s 11 - applicability of Section 2(15) - charitable purpose - entities engaged in activities of general public utility - HELD THAT:- As following Supreme Court Judgment in assessee’s own case [2022 (10) TMI 948 - SUPREME COURT] dismissing Revenue appeal concerning the eligibility for deduction/exemption of entities engaged in activities of general public utility, the present appeal filed by the Revenue is hereby dismissed.
Charging of any amount towards consideration for such an activity (advancing general public utility), which is on cost-basis or nominally above cost, cannot be considered to be "trade, commerce, or business" or any services in relation thereto. It is only when the charges are markedly or significantly above the cost incurred by the assessee in question, that they would fall within the mischief of "cess, or fee, or any other consideration" towards "trade, commerce or business".
Section 11(4A) must be interpreted harmoniously with Section 2(15), with which there is no conflict. Carrying out activity in the nature of trade, commerce or business, or service in relation to such activities, should be conducted in the course of achieving the GPU object, and the income, profit or surplus or gains must, therefore, be incidental. The requirement in Section 11(4A) of maintaining separate books of account is also in line with the necessity of demonstrating that the quantitative limit prescribed in the proviso to Section 2(15), has not been breached.
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2025 (1) TMI 1391
Denial of exemption claimed u/s.11- assessee didn’t file the return of income (RoI) within the time limit prescribed u/s.139(1) - HELD THAT:- If the assessee has filed its RoI within the time allowed u/s.139 of the Act, [i.e. even if it is filed belatedly before the time allowed u/s.139(4A) of the Act], then the CBDT circular has directed CPC to rectify its orders passed u/s.143(1)(a) of the Act as well as demands raised be also rectified. Since CBDT Circular is binding on the Income Tax Authority, we find that the CIT(A) erred in not following it, since assessee has filed its ITR/RoI well before time allowed u/s 139(4A) of the Act.
Therefore, we set aside the impugned order of the Ld.CIT(A) and restore this issue back to the file of the Ld.CIT(A) with a direction to pass rectification order as per the CBDT Circular No.173/193/2019-ITA–I dated 23.04.2019. Appeal filed by the assessee is allowed for statistical purposes.
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2025 (1) TMI 1390
Revision u/s 263 - reassessment order was erroneous and prejudicial to the interests of the Revenue - depreciation claimed by assessee @15% on Plant & Machinery when assessee could have claimed depreciation on boiler @80%
HELD THAT:- Re-assessment order u/s.147 of the Act did apply his mind to the issue [less depreciation claimed by assessee @15% on Plant & Machinery when assessee could have claimed depreciation on boiler @80%] has accepted the claim of the assessee being satisfied with the explanation given by it during re-assessment proceedings as found by us.
In such a scenario, the action of the AO can’t be held to be a view taken without enquiry or without application of mind. According to us, the Ld. PCIT couldn’t have interfered with the action of the AO without giving a finding that the view of the AO on the issue [accepting the claim made by assessee on less depreciation on boilers] as unsustainable in law.
It is a well settled position of law, the Ld. PCIT can’t substitute his views with that of the AO, if the AO’s view on the issue is a plausible view. Since there is no finding of the Ld. PCIT that the action of the AO accepting the claim made by the assessee on the fault found by the Ld. PCIT, are unsustainable in law, we are of the considered opinion that the Ld. PCIT erred in exercising his jurisdiction u/s. 263 of the Act without fulfilling the conditions precedent for doing so. Therefore, we quash the impugned action of u/s. 263 of the Act. Appeal filed by the assessee is allowed.
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2025 (1) TMI 1389
MAT applicability to electricity companies - HELD THAT:- High Court of Rajasthan, in Ajmer Vidyut Vitran Nigam Ltd. [2021 (11) TMI 1103 - RAJASTHAN HIGH COURT] clarified that the MAT provisions u/s 115JB did not apply to electricity companies governed by specific statutes distinct from the Companies Act, regardless of their incorporation status. Thus, CIT(A)’s rejection of these judicial precedents is not sustainable.
CIT(A) referenced Section 115JA of the Act, highlighting exclusions under Clause (iv) for companies engaged in power generation, but argued that this exclusion was not extended to Section 115JB.
We note that the legislative history and the interpretation provided by higher judicial authorities clearly establish that companies like GSECL (the assessee company) were not intended to be covered by MAT prior to the amendment in 2012. Consequently, the CIT(A)’s interpretation does not align with the legislative intent and judicial guidance.
The provisions of Section 115JB did not apply to electricity companies governed by distinct statutes before the amendment effective from 1-4-2013. We allow the appeals of the assessee for both assessment years, and the additions to the book profits under Section 115JB are hereby deleted. Assessee appeal allowed.
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2025 (1) TMI 1388
TDS u/s 194C - disallowance of freight, diesel and fuel expenses under Section 40(a)(ia) on non deduction of TDS - contention of the assessee is that there existed no contract between the assessee and the truck owners, since the trucks are hired from the market as per the demand at prevailing market rates - HELD THAT:- AO has not brought on record any material to show that there existed any oral or written contract between the assessee and lorry owners. Hence the provisions of sec.194C, as per the above discussed decisions, will not apply. Even if it is assumed for a moment that there existed an oral contract between the parties, it is the submission of the assessee that the payment made to each lorry on each occasion did not exceed the threshold limit prescribed for deducting tax at source u/s 194C of the Act. The above said submission has not been disproved. Accordingly, we are of the view that the AO was not justified in invoking the provisions of sec. 40(a)(ia) of the Act for disallowing the freight charges - Accordingly, we set aside the order passed by Ld CIT(A) on this issue and direct the AO to delete the above said addition.
Non deduction of TDS on Diesel & Fuel expenses - The reasoning given by us for deleting the disallowance of freight charges u/s 40(a)(ia) of the Act would equally apply to this expenditure also. Accordingly, we set aside the order passed by Ld CIT(A) on this issue and direct the AO to delete the disallowance of Diesel & Fuel expenses.
Partial disallowance of Truck repairs and maintenance expenses - AO had initially disallowed entire expenditure and CIT(A) restricted the disallowance to 15% of the expenses in the first round of proceedings. The same has been reiterated by the AO in the second round also - HELD THAT:- We notice that the above said adhoc disallowance was made for the reason that the assessee did not produce bills and vouchers, which defect remained unrectified in the second round also. Accordingly, we confirm the disallowance of 15% of the Truck repaid and maintenance expenses.
Appeal filed by the assessee is partly allowed.
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2025 (1) TMI 1387
Classification of imported goods - LG Watch W7 - classifiable under CTH 91021900 as claimed by the appellant or is classifiable under CTH 85176290 as confirmed vide the Order-in-Original? - it was held by CESTAT that 'The product imported is a Smart Watch which is classifiable under 8517 6290. The appellant has wrongly classified it under 9102 1900. Thus the benefit under exemption Notification No. 152/2009-Cus. was not available to products of 8517 tariff entry hence it is held that same has wrongly been claimed.'
HELD THAT:- The appeal is admitted for hearing.
Time of six weeks granted to the appellant to pay the amount payable as per the impugned orders under protest and subject to final outcome of this appeal.
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2025 (1) TMI 1386
Rejection of pending applications filed by the Petitioner for issuance of scrips under the “Merchandise Exports from India Scheme” (MEIS) - rejection of the MEIS benefits/scrips is done solely on the purported ground that the Petitioner did not have a valid RCMC during the period of export for which MEIS benefits were claimed by the Petitioner - HELD THAT:- Under the subsequent Foreign Trade Policy i.e. the Foreign Trade Policy 2023, all Export Oriented Units have to be registered with EPCES to avail of the benefit/scrips under the MEIS. Under the FTP 2015-20 there was no such requirement. It is for this very reason that on 12th October 2022, the Government of India, Ministry of Commerce and Industry, Seepz Special Economic Zone Authority, SEEPZ-SEZ, Andheri (E), Mumbai, issued Circular No.78 of 2022 informing all EOUs that EPCES membership is now compulsory for all the SEZ Units/SEZ Developers. In these circumstances, the benefits/scrips under the MEIS, rejected by Respondent No. 3 under the impugned order is incorrect and would have to be rectified.
Conclusion - Under the FTP 2015-2020, exporters could be registered with either FIEO or EPCES to claim MEIS benefits. The requirement for exclusive registration with EPCES was introduced only in the subsequent FTP 2023. The impugned order rejecting the Petitioner's MEIS applications set aside.
Petition disposed off.
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2025 (1) TMI 1385
Entitlement to the benefit under the MEIS - Seeking a direction to Respondent Nos. 2 to 4 to forthwith accept the amendment made by Respondent Nos. 5 and 6 in 50 shipping bills filed by the Petitioner appearing on ICEGATE, and to use the flag “Y” under the head “REWARD” against the said 50 shipping bills and grant the “Merchandise Exports from India Scheme” (MEIS) Scrips - HELD THAT:- The only argument canvassed by the DGFT is that since the MEIS scheme expired on 28th February 2022 (although extended initially in March 2020, and later until January 2021, and thereafter until 28th February 2022), the DGFT is unable to process the applications filed by the Petitioner under the MEIS. This is the sole ground on which the above Petition is opposed. We find this argument to be without any merit. It is not in dispute that the Petitioner had, as far back as on 27th April 2018, made an application to the Commissioner to amend its 50 shipping bills in terms of Section 149 of the Customs Act, 1962.
When the applications for amendment for shipping bills were made by the Petitioner, the MEIS was very much in existence and had not lapsed or expired. In such a situation, the benefit under the scheme cannot denied to the Petitioner. Besides, if the MEIS coming to an end in February 2022 was to lead to expiry of all benefits under the scheme, including those that had accrued during the life of the scheme, there would have been no need to issue the advisory dated 11th April 2023.
The issue in the present case is covered by two decisions of this Court in the case of TECHNOCRAFT INDUSTRIES (INDIA) LIMITED [2023 (2) TMI 74 - BOMBAY HIGH COURT] and in the case of LARSEN & TOUBRO LIMITED [2024 (11) TMI 808 - BOMBAY HIGH COURT]. Though in these matters, the issue of limitation arising out of the expiry of the MEIS was not squarely raised, the facts in this case would show that though the scheme had expired, reliefs were granted to the Petitioner. In fact, the DGFT had not even raised the issue of expiry of the MEIS being fatal to the benefits in those cases. We are of the opinion that this is a new and novel attempt to now deny the benefit under the MEIS to the Petitioner.
Respondent Nos. 2 to 4 is directed to process the Petitioner’s applications for release of MEIS scrips and if the Petitioner is found eligible for the issue of any such scrips, to release the same within 15 days from the date of uploading of this order on the High Court website.
Conclusion - The expiration of a scheme does not negate accrued benefits if administrative delays are responsible for the inability to claim those benefits timely. Government departments must act in a timely manner to avoid prejudicing the rights of individuals.
Petition disposed off.
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2025 (1) TMI 1384
Seeking to set aside the impugned orders - 100% EOU - failure to to fulfill the export obligation and to achieve the value addition to the satisfaction of the Development Commissioner, Noida Export Processing zone, Noida - violation of “Import & Export Policy in force at that point of time - HELD THAT:- A Coordinate Bench of this Court had examined the matter briefly on 13.05.2024 and had directed the Petitioner to make a representation. As stated above, the representation has not reached the Office of the Respondent.
The Petitioner and/or his authorized representative will appear for hearing with a copy of his representation before Mr. Pradyumna Sahu, Deputy Director General of Foreign Trade, PC-VI Division, Ministry of Commerce and Industry on 21.01.2025 at 3:30 PM - The Petitioner is permitted to produce any additional facts or documents in support of his contentions, at the time of the hearing before the concerned Authority.
Conclusion - The proceedings shall be conducted de novo by the Respondent keeping in mind the orders passed by this Court from time to time.
Petition disposed off.
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2025 (1) TMI 1383
Classification of imported communication modules - classifiable under Customs Tariff Item [CTI] 8517 70 90 as parts of communication hubs or under CTI 9028 90 10/ CTI 9028 90 90 as parts of electricity meters / gas meters? - benefit of exemption N/N. 24/2005-Cus. dated 01.03.2005 (till 30.6.2017) and Notification No. 57/2017-Cus. (S. No. 5) (from 01.07.2017) - suppression of facts or not - extended period of limitation.
Classification - HELD THAT:- The goods whose classification is in dispute in this case are imported communication modules. There is no dispute that their only function and purpose is as a part of communication hubs which, in turn, become part of the smart meters manufactured by the importer. Thus, communication modules have their own identity as parts of communication hubs but if they are fitted in and become part of communication hubs, they will not be classifiable separately but will become part and parcel of the communication hubs and they should be classified as such. Further, if the communication hubs are fitted in the smart meters, the communication hubs become part of the smart meters and will not be classifiable separately. The entire structure will be a smart meter and it must be classified as such and communication module will be its child part. Smart meters are composite machines of which one part records the consumption of electricity or gas and the other part (communication hub) communicates the readings. Undisputedly, the primary function of the smart meter is measuring the consumption and the communication is a secondary function which gives it additional functionality. The smart meters (including the communication hubs in them), therefore, are classifiable as smart meters.
Evidently, note (2) deals with three kinds of parts and accessories- the first are parts and accessories which are goods covered in any of the headings and they should be classified as such as per note 2(a). Other parts, if suitable with a particular machine or apparatus must be classified with it as per note 2(b). If there are parts which do not fall under either of the above must be classified under 9033 as per note 2(c). The expression ‘other parts and accessories’ in note 2(b) shows that it refers to those which are not covered by the previous part of the note, i.e., note 2(a). If the parts and accessories are goods which fall under any heading under Chapter 85, they are covered by note 2(a) and therefore, note 2(b) cannot apply because such parts are not ‘other parts’. - Section note 3 to Section XVI, as made applicable to Chapter 90, is also not relevant to the case because it deals with composite machines. If the communication hub is installed in the smart meter, this note would apply. But what are imported in this case are merely communication modules and not composite machines. These are parts of communication hubs and they are goods which fall under CTI 8517 70 90.
The classification of communication modules under CTI 9028 90 10/CTI 9028 90 90 in the impugned order is not correct and deserves to be set aside. Consequently, the demand of duty and interest and imposition of penalty under section 114A in the impugned order also need to be set aside.
Extended period of limitation - suppression of facts or not - penalties - HELD THAT:- The allegations in the SCN that the importer had suppressed facts is completely baseless. The Commissioner has, in the impugned order recorded that the importer had recorded that “these glaring facts of intentional non-payment of actual duty leviable on the impugned goods, contravention of the provisions of self-assessment and the act of manipulating the classification of the goods in order to fall under the category of goods covered under the above notifications was sufficient to have a reasonable belief that there was short levy or duty on the impugned goods.” - the demand for duty invoking the extended period of limitation was not justified, and penalties under sections 114A, 112, and 114AA were not applicable.
Conclusion - The correct classification of the communication modules is CTI 8517 70 90. The allegations of ‘mis-declaring and mis-classifying with an intent to evade against the importer are completely unfounded. Extended period cannot be invoked.
Appeal of importer allowed.
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2025 (1) TMI 1382
Misdeclaration of imported good - Goods found to be “zinc ingots” bearing the mark “calcimin zinc” contrary to the declaration that the goods were “lead ingots” - re-determination of declared value - demand of differential duty - confiscation - redemption fine - penalty - HELD THAT:- The proprietor of the appellant had pleaded that it was a case of a bonafide mistake on the part of the foreign supplier and there was no evasion of duty. In view thereof he requested for release of the goods on payment of fine and penalty so as to avoid the further liability of heavy demurrage charges. The admission is not of any guilt on the part of the importer. It is not a case of malafide intention to evade duty or import goods which are prohibited as both “lead ingots” and “zinc ingots” were freely importable items. Moreover, there was not much difference in the price of the two products rather as per the supplier, the lead ingots were more expensive than zinc ingots and even the rate of duty of the two items is also the same and hence the appellant would not have really gained any monetary benefit by resorting to mis-declaration. At the most the appellant can be said to have made an incorrect declaration which can be termed as a bonafide mistake on the part of the foreign supplier for which neither confiscation can be directed nor penalty can be imposed.
Surprisingly, the adjudicating authority having accepted the contention of the importer that it was a bonafide mistake of the supplier that they have dispatched the goods by mistake, since the importer does not appear to gain much by way of mis-declaration of the description since rate of duty on the two items is also same, ordered for confiscation with redemption fine and penalty. In view of the peculiar facts of the present case, neither confiscation nor imposition of redemption fine and penalty is justifiable and therefore the same needs to be set aside.
Conclusion - The mis-declaration was a bona fide mistake, not warranting confiscation, redemption fine, or penalty.
Appeal allowed.
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2025 (1) TMI 1381
Revocation of Customs Broker License - omission and commission in regard to facilitating exports by non-existent entities - contravention to Regulation 10(n) of the Customs Broker Licensing Regulation, 2018 - HELD THAT:- The basic requirement of regulation 10(n) is that the customs broker should verify the identity of the client and functioning of the client at the declared address by using reliable, independent, authentic documents, data or information. For this purpose, a detailed guideline on the list of documents to be verified and obtained from the client is has been mentioned. In the context of the present case, we note that the CB has the required KYC documents such as PAN, Aadhar, IEC and none of these have been found to be fake. It is noted that the CB had carried out due diligence at the time of filing of the documents and there is no requirement for actual physical verification to verify the correctness of the document submitted. It is not the case of the department that the documents had been obtained for forged documents as noted above. The appellant had submitted the KYC documents, and it is also on record that the importer/exporter had duly appeared for statement as in when summoned by the department.
In the instant case, it is noted that the Department has not led any evidence to show that the appellant had in any manner facilitated exports by non-existent exporter for availing export incentives. From the above, it is evident that the importer/exporter was available at the time of import, as is evident from the fact that his statement was recorded on 10.02.2022 and 24.02.2022. It has been submitted by the department that the appellant did not verify the GSTIN as the same was cancelled. It has been submitted before us that the software linked to ICEGATE had automatically taken the Aadhar number of the importer instead of the GSTIN. This has not been controverted by the Department in their submissions. It is not the case of the Department that the said Aadhar number is fake or fraudulent - it is evident from the fact that this was not a case of an exporter who was non-existent or had taken undue monetary export benefits.
Conclusion - There was no violation of Regulation 10(n) or the KYC guidelines, and the Department did not provide sufficient evidence to justify the revocation and penalties imposed.
Appeal allowed.
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2025 (1) TMI 1380
Absolute confiscation of gold seized from the - option of redemption fine - levy of penalty - town seizure - concrete evidence for confiscating the gold or not - discharge of burden of prove - HELD THAT:- Only reasonable belief is sufficient for Department side that is recovered gold smuggled goods or not. In these circumstances, when recovered gold have foreign marking and no any supporting document produced by the appellant, so it was reasonable ground for Officer concerned to believe otherwise. Therefore, in the fact and circumstances burden to prove otherwise on appellant.
Hon’ble Supreme Court in the case of State of Gujarat Vs Shri Mohan Lal Jitamalji Porwal and Another [1987 (3) TMI 111 - SUPREME COURT] in which Hon’ble Supreme Court has held 'The circumstances have to be viewed from the experienced eye of the officer who is well equipped to interpret the suspicious circumstances and to from a reasonable belief in the light of the said circumstances.'
Seized gold of 2 FG biscuits with foreign marking as VALCAMBI SUSSIE with serial no. AJ855365 & AJ855366. In this regard, appellant failed to produce any documentary evidence which relates to seized gold biscuit. Appellant has stated in his statement dated 22.06.2022 that he was given Rs. 10,50,000/- by Shri P. Radha Krishna for purchase of 2 gold biscuits from Shri Ashok Kumar, Chennai. However, this part of his statement was denied by Shri P. Radha Krishna and also stated that he did not know anyone by name Shri Ashok Kumar from Chennai and also denied to given money of Rs. 10,50,000/- requested appellant to get gold biscuits. Shri Ashok Kumar from Chennai did not turn up to respond Summons. Therefore, appellant failed to prove that the seized gold biscuit is not illicit - Department has established that seized gold relates to smuggled gold, hence appellant has failed to prove otherwise. In this case, no any supporting evidence by the appellant and it is also important to mention that statement as given by the appellant denied by concerned person Shri P. Radha Krishna. Mr Ashok Kumar also has not come to support Appellant’s version in spite of serving proper summons. The seized gold was tested by a recognised agency. Therefore, no any infirmity in the process of testing.
The burden under the Section 123 of Customs Act, 1962 which is only of a reasonable belief is effectively discharged by the Department who initiated the action on the basis of the seizure and the recorded statements of the concerned person. Then the onus to prove that the gold was not smuggled, so as to reasonable belief entertained by the Department shifted and is squarely rested on his shoulder. But, in this case, appellant is failed to prove that seized gold is not smuggled.
Conclusion - The appellant failed to prove that the seized gold is not smuggled. Impugned order based on facts and law and proper appreciation of evidence. No any interference required in the impugned order. Therefore, appeal is liable to be dismissed.
Appeal dismissed.
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2025 (1) TMI 1379
Classification of imported goods - Paddle Wheel Aerators - to be classified under CTH 8436 or under CTH 8479? - time limitation - HELD THAT:- Admittedly, the ld.Commissioner (Appeals) has dismissed the appeal on the sole ground that it was filed belatedly after 87 days. Since this is within the condonable period along with proper justification under Medical Certificate, in the normal course, the matter should have beed remanded to the ld.Commissioner (Appeals).
The issue is squarely covered by the decision of this Tribunal in M/S. SUYOG AGRO POULTRY PRODUCTS PVT. LTD. VERSUS CC (SEA - IMP.) , CHENNAI [2015 (12) TMI 998 - CESTAT CHENNAI], wherein this Tribunal has held that 'paddle wheel aerators are used for fisheries/aqua culture and are classifiable under chapter heading 8436 of the CTH.'
Conclusion - Since there is no dispute that the paddle wheel aerators used in aqua farming by aqua farmers for cultivation of fish/shrimps etc., these are rightly to be considered as other agricultural machineries and rightly classifiable under Ch. 84368090.
Appeal allowed.
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2025 (1) TMI 1378
Declaration under the Voluntary Compliance Encouragement Scheme (VCES) - declaration was "substantially false" or not - Department is of the view that the appellant has not made a true and truthful declaration under VCES scheme and basic premises on which the declaration of the appellant was rejected - Classification under Works Contract Service or Commercial Construction Service - HELD THAT:- The Adjudicating Authority has not considered the work invoices issued by the appellant. While deciding the matter, the Adjudicating Authority has not decided whether the activity undertaken by the appellant falls under the category of “Works Contract Service” or under “Construction Service”. It is also opined that the Adjudicating Authority while holding the subject activity falls under commercial construction service, he has also not provided the facility of the abatement of the value as provided under N/N. 13/2012-ST dated 28.06.2012 while confirming the demand of service tax. The fact is noted that while the appellant has been claiming that activity undertaken by them falls under category of “Works Contract Service” while the department has considered the same is “Commercial Construction Service”.
The Circular No.170/05/2013-ST dated 08.08.2013 clearly provides that the Commissioner would “in overall facts of the case take into account the reasons he has to believe, take a judicious view as to whether a declaration is “substantially false”, it is not feasible to define the term “substantially false” in precise terms, the proceedings under Section 111 would be initiated in accordance with the principles of the Natural Justice.” In view of the Board’s circular, the Adjudicating Authority has to categorically determine as to how a declaration made under VCES scheme is “substantially false”. In this case the Adjudicating Authority has not determined whether the activity undertaken by the appellant qualified to fall under “Works Contract Service” as claimed by the appellant on the basis of work orders and invoices.
Conclusion - The determination of whether a declaration under VCES is "substantially false" must be made in accordance with the principles of natural justice and relevant legal precedents. The classification of the appellant's services as "Works Contract Service" or "Commercial Construction Service" is crucial for determining the correct tax liability and entitlement to abatements.
Appeal allowed by way of remand.
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2025 (1) TMI 1377
Extended period of limitation - whether the demand for the period on 1 April 2010 to 30 September 2010 is barred by limitation for not? - HELD THAT:- From the provisions of Section 73 the 'relevant date' in the case of the appellant has to be computed calculating one year from the date of issue of show cause notice. The appellant was required to file service tax returns for the period April 2010 to September 2010 by October 25, 2010 and for the period October 2010 to March 2011 by April 25, 2011, therefore, the relevant date for computing the normal period in the case of service tax liability for the period April 2010 to September 2010 is 25.10.2010 and hence the show cause notice was required to be issued by 24.10.2011. The show cause notice dated 17.10.2011, therefore, falls within the period of one year and the demand for the period April 2010 to September 2010, therefore, falls within the normal period.
There are no error in the service tax liability confirmed by the authorities below on the appellant for the period involved. The calculation arrived at by the learned counsel for the appellant in the submissions placed during the course of hearing calculating the demand of Rs. 1,07,718/- for the period from 01.04.2010 to 30.09.2010 being barred by limitation is not correct.
There are no reason to interfere with the impugned order and hence the appeal is dismissed.
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