Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
January 5, 2018
Case Laws in this Newsletter:
GST
Income Tax
Customs
Service Tax
Central Excise
CST, VAT & Sales Tax
Articles
News
Notifications
Circulars / Instructions / Orders
Highlights / Catch Notes
Income Tax
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Valuation loss treated as speculation loss - It is a fact that shares traded by the assessee were not of any of the good companies. The assessee had in the normal course of business purchased the shares. Because of the turmoil in the share market in the year under consideration the assessee suffered huge loss. It was valuing its stock on cost or market price whichever was lower and had accordingly valued the shares. The resultant loss, in these circumstances, cannot be considered speculative loss - AT
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Undisclosed income - retraction of the statement - the assessee has been consistent in his statements so recorded even during the post search proceedings when his statement was recorded under section 131. Hence, in light of above discussions, the retraction of the statement recorded u/s 132(4) cannot be accepted in the instant case. - AT
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Exemption u/s 11 eligibility - general public utility - charging subscription as well as consultancy fees on actual - merely because the profits have been earned in one or two years it cannot lead to the fact that assessee is existing for making profit. It is required to be ascertained that whether profit making is not the driving force or dominant objective of the assessee. - AT
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Addition u/s 68 - creditworthiness and genuineness of the transaction - The assessee company being a private limited company, the burden of proof is clearly on higher pedestal as compared to public limited companies which it has failed to discharge i - AT
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TDS u/s 195 - intranet charges, payment of SAP software - the technical support would also be provided by SAP, a German company and not by the recipient of the expenditure. In view of this, the above software receipt is scientific equipment under the Act and India Germany Tax Treaty. - TDS liability confirmed. - AT
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Allowing the deduction u/s 54F - The sale consideration was received much after due date of filing of return of income which makes impossible for assessee to make the investments on/before due date of filing of return. - deduction allowed - AT
Customs
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Refund claim - forced recovery - there was no duty liability assessed and hence the refund claim needs to be allowed and subsequent initiation of SCN proceedings and determination of duty cannot validate illegal recovery made during the investigation - AT
FEMA
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Refinancing of External Commercial Borrowings - Circular
Service Tax
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Rent a cab services - distinction between 'renting' and 'hiring' - the appellant indulges in providing service under a rent-a-cab scheme in relation to a cab and therefore irrespective of whether he retains possession and control of the vehicle or passes it to the consumer, the service so rendered by him would fall within the taxable service as defined under Section 65 (105) (o) of the Act and is chargeable to tax under Section 66 of the Act. - HC
Central Excise
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Classification of goods - Micronutrient - In view of presence of nitrogen, and also considering that they are mixtures and not separate chemically defined compounds, the said goods would therefore come under the ambit of micronutrient fertilisers and will then required to be classified as in other fertilisers in CETH 31.05 - AT
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CENVAT credit - applying the “User Test” to the facts in hand, we have no hesitation in holding that the structural items used in the fabrication of support structures would fall within the ambit of ‘Capital Goods’ as contemplated under Rule 2(a) of the Cenvat Credit Rules, hence will be entitled to the Cenvat Credit - AT
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Classification of box for packing of goods, i.e. vials, ampoules, etc. - the box in question is not made up of corrugated paper or paper board but it is made of plain duplex boards. Therefore, it is correctly classifiable under Chapter heading 4819.19 - AT
Case Laws:
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GST
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2018 (1) TMI 179
Release of detained goods - Rule 140(1) of the Kerala Goods and Services Tax Rules, 2017 - Held that: - the writ petition is disposed of directing the competent authority to complete the adjudication provided for under Section 129 of the statutes referred to above, within a week from the date of production of a copy of the judgment - It is is also directed that if the petitioner complies with Rule 140(1) of the Kerala Goods and Services Tax Rules, 2017, the goods detained shall be released to him forthwith.
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Income Tax
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2018 (1) TMI 196
Deduction u/s 80IA (5) and 80IB (10) - clearly established that the constructions of the projects started before 1.10.1998 - Held that:- Where the assessee undertakes levelling work so as to develop the land to facilitate the construction of a building over it, the development and construction of the housing project commences with such levelling of the earth. Therefore when the expression used is "Commences Development and Construction of the Housing Project" the intention of the legislature is clear that the development of the project and the construction which follows such development must start on or before the date specified even if either the development or the construction starts before the specified date, the benefit under the aforesaid provisions would not be admissible. The evidence on record may prove that the foundation laying ceremony of the projects may have been performed on 30.9.1998 and actual construction may have started later on but the levelling of the earth in the project had started much earlier. Thus, with the levelling of the earth, the development and construction of the project had commenced which was prior to 1st October 1998. In view of the fact that the development and construction of the housing project are integral to each other and as the filling or levelling of the earth of the projects which is part of development had commenced prior to 1.10.1998, it would be deemed that the development and construction had commenced prior to 1.10.1998. Thus, the respondent assessee failed to satisfy the third condition for grant of benefit under Section 80 IA (4F) read with Section 80 IA (5) and 80 IB (10) of the Act. Accordingly, the tribunal was not justified in granting the benefit of Section 80 IA (4F) read with Section 80 IA (5) and 80 IB (10) of the Act. - Decided in favour of revenue
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2018 (1) TMI 195
Reopening of assessment - non-application of mind on the part of the sanctioning authority while granting the sanction - Held that:- There can be no dispute with regard to the application of Section 292B of the Act to sustain a notice from being declared invalid merely on the ground of mistake in the notice. However, the issue here is not with regard to the mistake / error committed by the Assessing Officer while taking a sanction from the Joint Commissioner of Income Tax but whether there was due application of mind by the Joint Commissioner of Income Tax while giving the necessary sanction for issuing the impugned notice. It is a settled principle of law that sanction granted by the higher Authority for issuing of a reopening notice has to be on due application of mind. It cannot be an mechanical approval without examining the proposal sent by the Assessing Officer. Prima facie, it appears to us that if the Joint Commissioner of Income Tax would have applied his mind to the application made by the Assessing Officer, then the very first thing which would arise is the basis of the notice, as the provision of law on which it is based is no longer in the statute. Non pointing out the mistake / error by the Joint Commissioner of Income Tax on the part of the Assessing Officer is prima facie evidence of non-application of mind on the part of the sanctioning authority while granting the sanction.
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2018 (1) TMI 194
Reopening of assessment - undisclosed income of the assessee company which received the contribution to its share capital - Held that:- Prior to amendment to Section 68 of the Act by addition of the proviso, there is no responsibility upon the assessee to explain the source of share capital as the amendment is not retrospective. Further where share application money is received from the alleged bogus share holders, whose names are available with the Assessing Officer, then the Revenue is free to open their individual assessments in accordance with law, but it could not be regarded as undisclosed income of the assessee company which received the contribution to its share capital. In view of the decisions of this Court in Gagandeep Infrastructure Pvt. Ltd. (2017 (3) TMI 1263 - BOMBAY HIGH COURTa) and the Apex Court in Lovely Exports (P) Ltd. (2008 (1) TMI 575 - SUPREME COURT OF INDIA), prima facie, the Assessing Officer, could not have reason to believe that the income chargeable to tax has escaped assessment. - Decided in favour of assessee.
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2018 (1) TMI 193
Reopening of assessment - case made out in the affidavit belatedly filed by the Assessing Officer - Held that:- An Appeal against the order of Assessing Officer was preferred by the respondent – assessee on 25th January, 2011. During the pendency of the said Appeal which was decided on 20th June, 2011 no such affidavit was filed by the Assessing Officer. On 8th September, 2011 the appellant – assessee preferred an Appeal before the Appellate Tribunal. From the impugned judgment, it appears that the Appeal was heard 3˝ years thereafter on 19th February, 2015. The affidavit relied upon by the learned counsel appearing for the appellant was belatedly filed on 24th March, 2014 which is nearly 2˝ years after the Appeal was preferred before the Appellate Tribunal. Thus, what was stated in the affidavit was clearly an afterthought. The affidavit has been taken into consideration by the Appellate Tribunal. The Appellate Tribunal noted that even assuming that the Assessing Officer had dictated reasons on 30th March, 2010, in fact the reasons were signed by him admittedly on 31st March, 2010. The Appellate Tribunal, in our view, rightly held that the process of recording reasons as per the mandate of Sub-Section (2) of Section 148 of the said Act was completed when the Assessing Officer signed the reasons on 31st March, 2010. Thus, even before recording reasons under his signature, a notice under Section 148 was already issued on 30th March, 2010. Therefore, the Appellate Tribunal was right in holding that even if the case made out in the affidavit belatedly filed by the Assessing Officer is correct, it will not advance the case of the appellant – revenue any further. No substantial question of law arises
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2018 (1) TMI 192
Penalty u/s 271(1)(c) - bogus purchases - Held that:- The assessee has been consistently asking for the statement of said Sh. Jagdish C Mundra as well asking for cross examination of said Sh. Jagdish C Mundra which is consistently denied by Revenue. There is no such voluntary disclosure made by the assessee company w.r.t. bogus purchases during the course of search u/s 132(1), while the same was made by another Group concern namely Balaji Telefilms Limited. Thus, in our considered view, the penalty as levied by the Revenue u/s 271(1)(c) of the 1961 Act in the instant case cannot be sustained as the explanation offered by the assessee keeping in view peculiar facts of the case as also keeping in view smallness of the amount vis-a-vis returned loss is a bonafide explanation. Thus keeping in view peculiar facts of the case as enumerated above and ratio of decision of Hon’ble Supreme Court in the case of Andaman Timber Industries (2015 (10) TMI 442 - SUPREME COURT), we are inclined to accept the explanation offered by the assessee to be bona-fide and we hereby order for the deletion of the penalty as levied by the AO which was later confirmed by learned CIT(A). - Decided in favour of assessee.
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2018 (1) TMI 191
Disallowance of depository charges related to shares held as stock in trade - Held that:- FAA directed the AO to restrict the disallowance for earning exempt income to the extent of 0. 5% of average of the value of investment as per rule 8D of the Rules. However, he did not decide the issue of disallowance of depository charges of ₹ 2. 20 lakhs, though a specific ground was raised before him. As the ground of appeal is not arising out of the order of the FAA, so, we are not in a position adjudicate the same. As stated earlier, the assessee had raised the issue before the FAA. So, in the interest of the justice, we restore back the matter to the file of the FAA. First ground of appeal is decided in favour of the assessee, in part. Deduction claimed u/s. 35DD - Held that:- We find that before the AO the assessee for the first time claimed that expenditure was allowable u/s. 35DD of the Act, that he rejected the claim made by it. The basic issue is as to whether the expenditure is allowable u/s. 35DD of the Act or not. We are of the opinion that the matter needs further verification. So, in the interest of justice we are restoring back the issue to the file of the FAA, who would decide the issue after considering the judgment of Pruthvi Brokers (2012 (7) TMI 158 - BOMBAY HIGH COURT)of the Hon’ble Bombay High Court. Second ground of appeal is partly allowed. Valuation loss treated as speculation loss - Held that:- It was brought to our notice that identical issue had arisen in the earlier year [2017 (3) TMI 1327 - ITAT MUMBAI] and that tribunal had decided the issue in favour of the assessee as held both the authorities did not consider the argument about the exception to the explanation to section 73, that the assessee had earned profit of ₹ 2, 20, 67, 126/-, that it had STCG on sale of mutual funds to the tune of ₹ 2. 68 crores. It is a fact that shares traded by the assessee were not of any of the good companies. The assessee had in the normal course of business purchased the shares. Because of the turmoil in the share market in the year under consideration the assessee suffered huge loss. It was valuing its stock on cost or market price whichever was lower and had accordingly valued the shares. The resultant loss, in these circumstances, cannot be considered speculative loss as held by AO and confirmed by FAA. Disallowance made u/s. 14A - Held that:- Provisions of section 14A r. w. r. 8D were introduced to discourage the assessees from claiming double deductions i. e. claiming expenditure against exempt income. So, expenses booked against exempt income are not be allowed. But, first step is incurring of expenses. The AO/FAA has not given any details of expenses incurred by the assessee for earning exempt income. They have also not given any reason as to why the calculation made by the assessee was not acceptable. No automatic disallowance can be made u/s. 14A of the Act. Secondly, the assessee has made claim about stock-in-trade. No comment has been offered by the FAA in that regard. The assessee is offering income from business of share trading so all the expenses related to the business have to allowed. Considering the peculiar facts and circumstances of the case, we decide first ground of appeal in favour of the assessee. We would also like to refer the case of India Advantage Securities Ltd. (2015 (6) TMI 140 - BOMBAY HIGH COURT), wherein it has been held that no disallowance can be made u/s. 14A for the securities held as stock in trade.
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2018 (1) TMI 190
Undisclosed income in form of cash found during the course of search - retraction of the statement recorded u/s 132(4) - Held that:- In light of legal proposition laid down Ravi Mathur & others [2016 (5) TMI 1304 - RAJASTHAN HIGH COURT] there is clearly an inordinate delay in retraction and no justifiable explanation has been given by the assessee company for such delay. It is clearly an afterthought and loses its signifance. The statement recorded u/s 132(4) has great evidentiary value and there is no material which has been brought on record that such statement has been recorded and obtained forcefully/by coercion/undue influence. Further, the assessee has been consistent in his statements so recorded even during the post search proceedings when his statement was recorded under section 131. Hence, in light of above discussions, the retraction of the statement recorded u/s 132(4) cannot be accepted in the instant case. Thus the addition towards the undisclosed income in form of cash found during the course of search is confirmed in the hands of the assessee company. - Decided against assessee. Disallowance u/s 40A(3) - Held that:- Where the amount has been offered to tax in the subsequent year, the same amount cannot be brought to tax in the impunged assessment year. Hence, the addition is deleted and ground of appeal is allowed in favour of the assessee. Addition u/s 40A(3) - Held that:- The fact that the payments have been made for the purposes of the assessee’s business have not been doubted by the AO. Regarding the business exigency of making payment in cash, it has been stated that first payment has been made after the banking hours for making labour payment, the second payment was necessitated on account of machine break down at site. Regarding the third payment, it has been stated that the said was paid to two labourers and payment to each is less than ₹ 20,000 and in this regard, we find that the ld CIT(A) has in similar circumstances allowed the payment in cash to the labourers not exceeding ₹ 20,000. In the entirety of facts and circumstances of the case, the disallowance made by the AO amounting to ₹ 82,200 is hereby deleted. In the result, ground of appeal is allowed.
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2018 (1) TMI 189
Exemption u/s 11 eligibility - general public utility - charging subscription as well as consultancy fees on actual - whether the assessee is not involved in any business or commercial activity and the provisions of section 2(15) of the Act is not attracted in the case of the assessee? - Held that:- With respect to the fees charged by the assessee naturally, it should be commensurating with the efforts put in by the organization and to defray its cost as well as further capital cost. It is also required to be noted that assessee is engaged in research based activity which is highly cost intensive and requires continuous spending on the innovation and new developments as it is concerning with the education of the society. The Assessee has categorically stated before the ld AO as well as before Ld CIT (A) that it is charging subscription as well as consultancy fees on actual, which fact is not denied. Therefore merely earning the surplus does not result in to the conclusion, that assessee is carrying on its activities, which can be termed as business, trade, or commerce. Furthermore on perusal of the order of the ld CIT (A), we do not concur with the arguments of the ld CIT DR that order is perfunctory and devoid of reasons for the reasons that he has decided the issues relying on the decision of Honorable Delhi high court. According to us, the ld CIT (A) has also given his finding on all the aspects of the issues raised by ld AO. In view of the above facts and respectfully relying on the decision of M/s GS1 India Versus [2013 (10) TMI 19 - DELHI HIGH COURT] we find no infirmity in the order of the ld CIT (A), hence we dismiss all the grounds of appeal of revenue.
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2018 (1) TMI 188
Addition u/s 68 - burden of proof - creditworthiness and genuineness of the transaction - Held that:- The word “identity” means the condition or fact of a person or thing being that specified unique person or thing. The identification of the person would include the place of work, the staff, the fact that it was actually carrying on business and recognition of the said company in the eyes of public. Merely producing certificate of incorporation, PAN number or assessment particulars did not establish the identity of the person. PAN numbers are allotted on the basis of applications without actual de facto verification of the identity or ascertaining active nature of business activity. The actual and true identity of the person or a company was the business undertaken by them. Further, these documents have their limitation and cannot be relied upon blindly when there are surrounding circumstances to show that the subscriber was a paper company and not a genuine investor. The assessee company being a private limited company, the burden of proof is clearly on higher pedestal as compared to public limited companies which it has failed to discharge in the instant case as we have discussed above in terms of creditworthiness and genuineness of the transaction and till such time, initial burden is not satisfied, the burden cannot be said to have been shifted on the Revenue to conduct further enquiries. Accordingly, we hereby affirm the action of the ld. CIT(A) in sustaining the addition of ₹ 93.30 crores in the hands of the assessee company u/s 68 of the Act. In the result, ground no. 1-3 are dismissed.
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2018 (1) TMI 187
Condonation of delay - Held that:- In the present appeal, the wilful negligence is established, therefore, the huge delay cannot be condoned, consequently, the appeal of the assessee is dismissed as not admitted.
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2018 (1) TMI 186
Addition of share application money made by the AO u/s 68 - Held that:- FAA was satisfied that the assessee has discharged the initial burden of proof placed on its shoulders by sec. 68 of the Act. Once the assessee discharges the burden placed upon him, then the burden to disprove the same would shift upon the shoulders of the AO. As pointed out by Ld CIT(A), the AO has failed to discharge the burden shifted upon his shoulders. Before me, no material was placed by the revenue to contradict the findings given by Ld CIT(A). Since the Ld CIT(A) has passed an reasoned order, it is of the view that the same does not call for any interference. The Ld D.R submitted that the share applicants are paper companies, but the Assessee has shown that those companies are “active companies”. - Decided against revenue
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2018 (1) TMI 185
Valuation of the property to the Departmental Valuation Officer (DVO) u/s 55A - Held that:- We find that Ld.CIT(A) after considering the various decisions cited in the order and the decision of Bombay High Court in the case of Pooja Prints (2014 (1) TMI 764 - BOMBAY HIGH COURT) has noted that the assessee had considered the valuation of the property as on 01.04.1981 at ₹ 35.99 lakhs on the basis of valuation report. AO had referred the impugned property to the DVO for valuation and the DVO valued the same at 6.68 lakhs. Ld.CIT(A) noted that in view of the decision of the Hon’ble High Court of Bombay in the case of Pooja Prints (supra), wherein the valuation of the property declared by the assessee was not less than its fair market value, reference to DVO u/s 55A is not permissible. Ld.CIT(A) has further placed reliance on various decisions cited in the order. Before us, Revenue has neither placed any contrary binding decisions in its support nor pointed out any fallacy in the findings of Ld.CIT(A). In view of the aforesaid facts, we find no reason to interfere with the order of Ld.CIT(A). Thus, the grounds of the Revenue are dismissed.
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2018 (1) TMI 184
TDS u/s 195 - intranet charges, payment of SAP software - AO held that above services constitute royalty u/s 9(l)(vi) of the Act and it has deemed to accrue or arise in India hence, chargeable to tax u/s 5(2) of the Act in the hands of the non-resident recipient - India Germany DTAA - Held that:- In the present case the financial year are FY 1999-2000 to 2005-06, therefore, the ld Assessing Officer cannot assume jurisdiction for FY 1999- 2000 and 2000-01 accordingly, the ld AO cannot work out short deduction of tax on SAP Maintenance expenses of ₹ 18248673/- and ₹ 2503235/- for FY 2000-01 respectively. Accordingly, respectfully following the decision of the Hon’ble Delhi High Court we direct AO to not to treat the assessee in default u/s 201(1) as well as not to charge interest consequently, u/s 201(1A) of the Act for these two financial years. Accordingly, the orders passed u/s 201 (1) / 201 (1A) for FY 1999-2000 and 2000-01, consequent tax and interest thereon covered in the order for these two years are cancelled. Contentions raised by the assessee that it is a reimbursement of expenses and therefore, no tax is required to be deducted thereon - Held that:- To test the payment made by the assessee for SAP charges it is important to note that payment of such charges are made for use of licensed software on the Internet/ intranet and payment is also contingent on the basis of number of the user license or number of sessions for which the software is used, in the present case the technical support would also be provided by SAP, a German company and not by the recipient of the expenditure. In view of this, the above software receipt is scientific equipment under the Act and India Germany Tax Treaty. Hence, such payment is correctly regarded as royalty by the lower authorities according to article 12 of the DTAA. In view of this, the above payment made by the assessee to its holding company is chargeable to tax as royalty according to the income tax act as well as according to the double taxation avoidance agreement. Therefore, on such payment assessee should have deducted tax at source under the provisions of section 195 of the income tax act at the beneficial rate of 10% provided under the double taxation avoidance agreement. In view of this, the order passed by the Ld. assessing officer under section 201/201 (1A) for financial year 2001 - 2002 to 2005 - 2006 are correctly confirmed by the Ld. CIT (A). Hence, appeal of the assessee with respect to the financial years 2001 - 2002 to 2005 - 2006 are dismissed.
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2018 (1) TMI 183
Addition on account long term capital gain - estimating the fair market value by adopting rent capitalization method - Held that:- Basically the property was a residential property. The property was let out but it was constructed in the back portion of the plot of land. The District Valuation Officer has treated the property as fully commercial, which is not justified. It is also a fact that no site plan was sanctioned by the local bodies, which the assessee could submit to the District Valuation Officer, therefore, the District Valuation Officer’s observation was that the assessee did not file site plan is factually incorrect. Further it is also important to note that to invoke the rent capitalization method, the period of tenancy has to be considered. Further the termination date of tenancy is also relevant factor to invoke the rent capitalization method. The dispute with tenant is also very relevant aspect which needs consideration while valuing the property. No lease deed was executed with the bank due to dispute in the property. The strong room facility was not constructed due to dispute with the owner. It was only constructed in setback area illegally. Further the stairways were common and other facilities like overhead water tank were also common with part owner of plot, which reduces the fair market value in terms of salable price and also in terms of the rent. It is also important to note that the property was in dispute and the court cases were going on. The assessees were residing outside the Jaipur. It was difficult for them to travel to Jaipur every time to negotiate the deal when they were senior citizens. The structure was very old as it was constructed in 1972. Considering all we hold that the District Valuation Officer has not considered all these various aspects which has direct bearing on the fair market value of the land on the date of transfer. The facts of the case also suggest that it can be termed as distress sale, therefore, the District Valuation Officer was not justified in estimating the fair market value by adopting rent capitalization method, therefore, direct to delete the same.
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2018 (1) TMI 182
Allowing the deduction u/s 54F - The sale consideration was received much after due date of filing of return of income which makes impossible for assessee to make the investments on/before due date of filing of return. - Held that:- On the issue of impossibility of performance to invest the amount in specified assets within 6 months from date of transfer, the CBDT appreciated such situation and has clarified that the period of 6 months for making investments in specified assets has to be reckoned from the date of the sale of such stock-in-trade when the right to collect sale consideration in such cases arose, which was much after the date of transfer as contemplated for the purpose of taxation. - Decided in favour of assessee.
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2018 (1) TMI 181
Estimation of profit on purchase price - determination of N.P. - assessee is engaged in the business of (IMFL) liquor trade - Held that:- The very same issue of estimation of profit in the trade of IMFL was considered by the coordinate bench of the Tribunal in the case of Tangudu Jogisetty [2016 (7) TMI 379 - ITAT VISAKHAPATNAM] and held that estimation of 5% net profit on purchase is reasonable and directed the A.O. to estimate the net profit of 5% on total purchases net of all deductions Unexplained cash credits - Held that:- It is only submitted before the ld. CIT(A) that an amount of ₹ 27,60,000/- was already offered to tax and adjusted against net loss in the capital account. Even before us, the assessee has not filed any details. The argument advanced before the ld. CIT(A) that the amount of ₹ 27,60,000/- was already offered for taxation has been considered by the ld. CIT(A) and he has observed that the impugned credits as unsecured loans, offered to tax has no nexus to the income from liquor business, and therefore the impugned credits offered to tax is part of income, estimated without merits. Ld. CIT(A) rejected the arguments raised by the assessee and confirmed the addition. We find that even before us the assessee is not able to establish that the nexus between unsecured loans and the liquor business and therefore, we are of the opinion that the ld. CIT(A) has rightly confirmed the order passed by the Assessing Officer. Accordingly, this ground of appeal raised by the assessee is dismissed.
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2018 (1) TMI 180
Revision u/s 263 - disallowance u/s 40A(3) - Held that:- On verification of the cash book and ledgers of the assessee, the ld AO had disallowance u/s 40A(3) of the Act for making payments exceeding ₹ 20,000/- otherwise than by an account payee cheque or account payee bank draft. This has been done by the ld AO after verifying the transactions in all the parties account as could be evident from the list furnished in the assessment order by him. Hence the entire aspect of purchases had been duly verified by the ld AO from all angles and the ld AO had taken one of the plausible views on the said issue. Admittedly, the assessee had challenged the said disallowance u/s 40A(3) of the Act before the ld CITA which is pending. We hold that the very same issue cannot be the subject matter of revision proceedings u/s 263 of the Act looking the same from different perspective. This in our considered opinion, only tantamounts to ld CIT trying to substitute his own opinion, in the opinion already framed by the ld AO, which is not permissible u/s 263 of the Act. Moreover, we find that the ld CIT had not brought on record how the order passed by the ld AO was erroneous. He had only directed the ld AO to make further enquiries by expanding its scope, to find out whether error had crept in in the earlier order. This, in our considered opinion, is not permissible in the revisionary proceedings u/s 263 of the Act by the ld CIT. - Decided in favour of assessee
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Customs
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2018 (1) TMI 178
Benefit of N/N. 2/2007 - duty payable on edible oil - non-speaking order - Held that: - the respondent should pass a speaking order on the request made by the petitioner or else the petitioner would be left without a remedy. If the petitioner is not entitled for the relief sought for, the respondent should say so by passing a speaking order - this Court is inclined to issue appropriate directions to the respondents, however, not inclined to issue any positive direction at this juncture. Writ Petition is disposed of, by directing the respondents to consider the petitioner's representation dated 22.11.2008 and pass a speaking order on merits and in accordance with law.
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2018 (1) TMI 177
Redemption fine - penalty - import of old and used digital multifunctional printer - Held that: - amendment made in the FTP on 28.2.2013 has mandated that these impugned items can only be imported after obtaining a license and in the present cases, the appellant had not obtained the license for importing the impugned goods - the Bill of Entry was filed on 15.11.2012 and 12.2.2013 which is prior to the amendment of FTP dated 28.2.2013. The import is after the amendment and therefore, the import is in violation of the Policy and therefore, there is no infirmity in the impugned order imposing redemption fine and penalty. Appeal dismissed.
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2018 (1) TMI 176
Principles of Natural Justice - impugned order not in accordance with the directions of Tribunal - Held that: - on perusal of the directions given in the said Final Order dated 23.03.2004 and finding recorded by Original Authority as pointed out by the learned Counsel for appellant, I find that the impugned Order-in-Original is not passed in accordance with the directions of this Tribunal in the said Final Order dated 23.03.2004 and therefore present impugned order is bad in law - appeal allowed.
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2018 (1) TMI 175
Refund of SAD - N/N. 102/2007-Cus. as amended - denial on the ground that no VAT/CST was paid against the imported goods at the time of sale, hence condition 2(d) was not fulfilled - Held that: - similar issue decided in the case of M/s. Kubota Agricultural Machinery India Pvt. Ltd. And M/s. Acer India Pvt. Ltd. Versus Commissioner of Customs, Chennai-IV [2017 (6) TMI 565 - CESTAT CHENNAI], where it was held that if the appropriate rate of Sales Tax/VAT was Nil, then the appropriate Sales Tax / VAT will also to be Nil and the importers concerned would be very much eligible for the refund in such cases - appeal allowed - decided in favor of appellant.
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2018 (1) TMI 174
Classification of various types of imported coals - benefit of N/N. 21/2002 - Held that: - this Bench in the case of JSW Steel Ltd Versus CC, Vijayawada [2017 (11) TMI 1584 - CESTAT HYDERABAD], had held that the coal imported by the respondent during the period 01.03.2009 to 31.03.2010 would be eligible for the benefit of exemption N/N. 21/2002-Cus. - importer M/s JSW Steel Ltd., are eligible for benefit of N/N. 21/2002 on the coal imported by them - appeal dismissed - decided against Revenue.
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2018 (1) TMI 173
Benefit of N/N. 21/2002 dated 01.03.2002 - Import of soft coking coal and Jellinbah PCI coal - N/N. 21/20011 and 77/2011 - Held that: - It is undisputed that the goods which were Imported by the respondents were coking coal kind of a coal which were used they them in corex technology which does not require the conversation of coal into coke; that specifications provided under N/N. 77/2011 and the corrigendum there to are complied by the goods imported - the First Appellate Authority has correctly interpreted the provisions of Notification No.77/2011 as applicable to the goods imported in the case in hand - appeal dismissed - decided against Revenue.
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2018 (1) TMI 172
Refund claim - forced recovery - amount paid by the respondent during the pendency of investigation - Held that: - the First Appellate Authority in the impugned order has held that, on the date of filing of the refund as filed by the respondent, there was no duty liability assessed and hence the refund claim needs to be allowed and subsequent initiation of SCN proceedings and determination of duty cannot validate illegal recovery made during the investigation. Appeal dismissed - decided against appellant.
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Service Tax
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2018 (1) TMI 171
Rent a cab services - distinction between 'renting' and 'hiring' - appellant pleaded that he is not renting the cabs to GAIL rather the GAIL is hiring cabs for its use from the appellant - whether such a distinction between 'renting' and 'hiring' is necessary for deciding the taxibility of the above service? - Held that: - what is sought to be taxed under the Act is the service provided by a person under a rent-a-cab scheme. It makes no distinction between renting or hiring. The two terms have not been specifically defined under the Act and as such they have to be assigned the meaning which is acceptable in common parlance. Ordinarily, in common usage, there is hardly any distinction between 'renting' or 'hiring' and both the terms are usually used as synonym. The appellant indulges in providing service under a rent-a-cab scheme in relation to a cab and therefore irrespective of whether he retains possession and control of the vehicle or passes it to the consumer, the service so rendered by him would fall within the taxable service as defined under Section 65 (105) (o) of the Act and is chargeable to tax under Section 66 of the Act. The “rent-a-cab scheme” 1989 formulated by the Central Government in exercise of powers under Section 75 of the Motor Vehicles Act, 1988 providing for obtaining a licence by the operator of the scheme has nothing to do with the provisions relating to the imposition/chargebility of service tax. Therefore notwithstanding the above scheme, any person providing service of renting a motor cab would be amenable to service tax under the Act. Appeal dismissed - decided in favor of revenue.
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2018 (1) TMI 170
Banking and other Financial Services - profits earned on Foreign Exchange remuneration - whether the profit earned by the appellant on Foreign Exchange remuneration is a taxable service or not? - Held that: - The taxability of the same stands considered by the adjudicating authority in the adjudication, relatable to the refund claim filed by the appellant and the same stands upheld by the adjudicating authority and having not been appealed against holds the field - It may not be out of place once again to mention that the provision of Rule 6 (3) of STR, 1994, do not relate to dispute on the taxability and simplicitor allow the credit of the service tax already paid in respect of the services which are subsequently not provided by an assessee. The assessee s refund claim filed under Section 11 B of Central Excise Act, 1944, having been rejected and not challenged the appellant s claim of suo motto credit involved in the present appeal cannot be accepted - appeal dismissed.
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2018 (1) TMI 169
Port services - CHA service - Business Auxiliary Services - Held that: - the respondents are not engaged in port services. Further, the first issue they are not engaged in providing any service to the shipper by paying wharfage charges on actual basis. These are port charges and are getting reimbursed on actual basis from shipper lines. In any case, these charges are typically port services for which CHA is not authorized or involved - demand upheld. Valuation - Crane hire charges - Held that: - hire charges are paid by the appellant on actual basis and reimbursed from the shipping lines - There is no element of services to the shipping lines as there is no payment over and above the reimbursable charges, which can be attributed to any taxable service. Business Auxiliary services - Held that: - the Tribunal in the case of Bhuvaneswari Agencies Pvt. Ltd. Vs. CCE, Bangalore [2007 (7) TMI 665 - CESTAT BANGALORE], held that the activity of rendering services of arranging shipment of export cargo and negotiating the same with shipping lines on behalf of the clients will not fall under tax liability. Appeal dismissed - decided against Revenue.
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2018 (1) TMI 168
Demand of service tax - Health Services which was in force for a limited period from 1.7.2010 to 30.4.2011 - The expenses incurred for treatment was paid directly by the insurance company namely Star Health and Allied Insurance Co. Ltd. The appellants paid service tax under the said category of services after making some deductions. - Held that: - similar issue decided in the case of M/s. Arvinth Hospitals Versus The Additional Commissioner Central Excise, The Joint Commissioner Central Excise [2016 (11) TMI 238 - MADRAS HIGH COURT], where it was held that unless and until the Scheme has been examined in full, the respondent cannot come to a conclusion that the nature of transaction done by the petitioner would fall within the definition of Section 65(105)(zzzzo) of the Finance Act. Therefore, this Court is of the view that such an exercise is required to be done before coming to the conclusion as to what is the nature of service rendered and whether it is an Insurance Policy or it is a Welfare Scheme - the services rendered by the appellant would fall under taxable category of health service, has to be given reconsideration - matter remanded to the adjudicating authority who will reconsider the issue whether the services are taxable or not. Extended period of Limitation - Held that: - As the main issue is remanded to the adjudicating authority, we leave this issue open with a direction to the adjudicating authority to decide the issue of limitation also in the denovo adjudication. Penalty - Held that: - the issue being an interpretational one, also since the services were taxable for a limited period and as there was considerable confusion as to whether the services rendered under a scheme floated by the Government would fall within the category of Health Services for levy of service tax, we find that the appellant has put forward reasonable cause for not discharging service tax on the entire value raised in the Bill. It is a fit case to invoke section 80 of the Finance Act - penalty set aside. Appeal allowed by way of remand.
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2018 (1) TMI 167
Commercial Training and Coaching Services - education services by imparting various diploma courses in management and engineering through correspondence / distance education mode - Held that: - The Tribunal in the case of Commissioner of Service Tax, (Delhi) Versus Ashu Exports Pvt. Ltd. [2014 (3) TMI 863 - DELHI HIGH COURT] referring to the definition of vocational training institute observed that such institutes would fall within the ambit of the exemption notification - appeal dismissed - decided against Revenue.
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2018 (1) TMI 166
Refund of unutilized CENVAT credit - time limitation within one year of the raising of the invoices for export services or otherwise? - Held that: - the refund claims which are filed within one year from the date of the FIRCs needs to the appellant - appeal allowed. CENVAT credit - various input services - whether CENVAT credit availed by the appellants on various services are right or otherwise? - Held that: - All the above services were received by the appellant in their premises is not disputed. We find that there is no dispute as to the fact that appellant had exported all their services and it is settled law if there is export of services, refund of the tax paid on input services needs to be allowed - appeal allowed. Whether the First Appellate Authority was correct in remanding the matter as regards the issue of classification is correct or otherwise? - Held that: - there is no necessity to remand the matter back as the classification of the services. We find that even if it is in any of the services i.e. BAS, MCS, BSS the fact being the services are exported being not disputed appellants are eligible for the refund of the service tax paid on various input services. Appeal allowed - decided in favor of appellant.
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2018 (1) TMI 165
Refund claim - Terminal Handling charges - GTA by Road - CHA service - Supply of Intangible goods service - Port services - EC and SHEC - Held that: - the Tribunal in the case of CCE, Belapur v. Pratap Re-rolling Pvt. Ltd. [2014 (9) TMI 814 - CESTAT MUMBAI] dismissed the appeal filed by the Revenue and allowed the refund of service tax on terminal handling charges (THC) incurred in respect of goods exported. In the case of Sesa Goa Ltd. v. CCE Goa [2014 (12) TMI 785 - CESTAT MUMBAI], the Tribunal had allowed the refund claim on port service. In the case of Chidambaram Ship Care Pvt. Ltd. v. CESTAT [2014 (2) TMI 1181 - MADRAS HIGH COURT], the Hon’ble Madras High Court held that statutory provisions relating to ports in allied acts cannot override taxation provisions. It has also been held that stevedoring services in a major or minor port is liable to service tax as port service. In the case of Tumkar Minerals Pvt. Ltd. v. Commissioner of Central Excise, Goa [2015 (12) TMI 21 - CESTAT MUMBAI] allowed the refund of Education Cess and Secondary and Higher Education Cess paid during export of goods. The appellant is entitled to refund of service tax paid on all the issues except the issues relating to GTA service and Supply of Intangible goods service which are required to be verified by the lower authority - appeal allowed in part and part matter on remand.
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Central Excise
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2018 (1) TMI 164
CENVAT credit - whether the appellants are eligible to avail credit of Cenvat credit/Customs duty paid on courier bills of entry? - Held that: - when there is no dispute with regard to duty paid on the receipt of goods, the credit cannot be denied for the reason that the bill of entry is a photocopy when the import is by courier - reliance placed in the case of Precision Electronics Ltd. Versus Commissioner of Central Excise, Noida [2015 (7) TMI 1228 - CESTAT NEW DELHI] - credit allowed - appeal allowed - decided in favor of appellant.
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2018 (1) TMI 163
Classification of goods - whether the packing box for packing of goods, i.e. vials, ampoules, etc. is made of corrugated boards and it qualifies as corrugated box classifiable under Chapter 4819.19 or 4819.12? - Held that: - as per the facts of the present case, the box in question is not made up of corrugated paper or paper board but it is made of plain duplex boards. Therefore, it is correctly classifiable under Chapter heading 4819.19 - the documents submitted to the department contain different description as compared to copies of the same letters/declaration provided by the department under a cover of letter. Extended period of limitation - Held that: - since the packing box is not manufactured out of corrugated paper or paperboard, declaration by the appellant as corrugated rondo trays is misleading to the department. Therefore, there is a clear suppression of fact on the part of the appellant, accordingly, demand for extended period is also clearly sustainable. Appeal dismissed.
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2018 (1) TMI 162
Demand of differential duty - it was revealed that the said goods were sold at a higher price in wholesale trade as compared to the value on which Central Excise duty was paid by the appellant - Held that: - the very same issue in the appellant's own case CCE, Panchkula Versus M/s Ballarpur Industries Ltd. [2011 (4) TMI 800 - CESTAT, NEW DELHI], where it was held that Since, the price of paper reels at the depot at the time of removal was available and the duty had been paid only on that price, there is no short payment of duty - the differential value on that account cannot be included in the assessable value of the appellant's goods - appeal allowed.
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2018 (1) TMI 161
Time limitation - recovery of duty liability due of the predecessor from the successor - section 11 of the CEA, 1944 - Held that: - it emerges that the new registration was obtained by M/s. Palmetto Industries on 14.9.2007, on which date, there were no duty or sums recoverable or due. In respect of AWBI, even though the show cause notice was issued on 20.9.2007, the amount would become recoverable or due only at the time of determination of the liability by the original authority, which was on 25.4.2008. From the sale agreement, it does not spell out that M/s. Palmetto Industries would be responsible for any central excise dues that may arise in respect of AWBI. Also, the proceedings per se are hit by limitation, since the show cause notice for the period December 2004 to April 2005, was issued only on 20.9.2007. Demand set aside - appeal allowed - decided in favor of appellant.
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2018 (1) TMI 160
Valuation - removal of goods for delivery to different independent buyers as well as to their own units - It was observed that the prices shown in the invoices for delivery to their own units were much less than the price charged for similar / comparable goods removed to the independent buyers - Held that: - the benefit of CAS-4 valuation can and should be extended even to clearances which have occurred before the Board introduced the same vide Circular dated 13.2.2003 - In the circumstances, benefit of CAS-4 guidelines cannot be denied to the impugned clearances - for the limited purpose of recalculating the duty liability, based on the CAS-4 guidelines and Chartered Accountant's certificate submitted by the appellant vide their letter dated 10.8.2010, the matter is being remanded to the adjudicating authority. Penalty - Held that: - in view of the confusion that have occurred during the entire period of this dispute and also considering the decisions / judgments cited above, we hold that the penalty cannot sustain and for which reason the penalty imposed under Rule 173Q is set aside. Appeal allowed by way of remand.
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2018 (1) TMI 159
Manufacture - Appellants carried out fabrication activity across all parts of the country and offered complete structure and execution and installation of the structure - Held that: - the appellants have no workshop to carry out the fabrication like cutting, welding, grinding etc. The appellants gave the work to a sub-contractor who assembles structure at the customer site. The structure constructed at the customer's site has no marketability except to the customer concern - in the case of Executive Engineer, Fabrication Workshop MPSEB v. CCE [2004 (7) TMI 228 - CESTAT, NEW DELHI], the Tribunal observed that the activity of cutting, punching etc. from MS Rods, MS Channels, etc. for producing transformed structure does not amount to manufacture - appeal allowed.
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2018 (1) TMI 158
Benefit of N/N. 6/2002-CE dated 1.2.2006 - denial on the ground that the conditions laid in the Notification in respect of the certificate as required under definition has not been complied with - whether the appellant has furnished the required certificate? - Held that: - As seen from the N/N. 49/2006-Cus. dated 28.5.2006, the said condition under Sl. No. 86 has been substituted by providing with the requirement as producing a certificate that the power purchasing State undertakes to privatize distribution in all cities in that State. The appellant has produced the certificate issued by Joint Secretary, Ministry of Power, Government of India to this effect - it is very much clear that the appellant has satisfied the requirement of the certificate as per the notification. Whether the goods have been supplied under International Competitive Bidding to M/s. BHEL? - Held that: - the issue has been settled in the case of CST Vs. Commissioner of Central Excise, Hyderabad [2008 (2) TMI 755 - CESTAT, BANGALORE], wherein it has been held that goods supplied by sub-contractor to main contractor who has executed mega power project to International Competitive Bidding was also eligible for benefit of exemption 6/2000. The denial of exemption is unjustified - appeal allowed - decided in favor of appellant.
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2018 (1) TMI 157
Clandestine removal - case of appellant is that the entire Order-in-Original is based upon only the statements and the panchnama recorded by the investigating Officers during the course of investigation and visit. It is his submission that the adjudicating authority has not followed the provisions of Section 9(d) of Central Excise Act, 1944 - Held that: - the Central Excise law being a law which specifically follows the precedence cited by the higher Judicial Forum vis-a-vis the provisions of Central Excise Act, 1944, I find that the claim of Ld. Counsel that provisions of Section 9(D) has to be followed scrupulously as per the directions of Hon'ble High court of Punjab & Haryana in the case of Jindal Drugs Pvt. Ltd [2016 (6) TMI 956 - PUNJAB & HARYANA HIGH COURT], needs to be addressed by this Tribunal - Hon'ble High Court of Punjab & Haryana in the case of Jindal Drugs Pvt. Ltd has specifically interpreted the provisions of Section 9(D) of Central Excise Act, 1944 and came to a conclusion that unless the provisions of Section 9(D) are scrupulously followed, reliance cannot be placed on the statements which were recorded during the investigation of a case. Matter remanded back to the adjudicating authority to reconsider the issue afresh - appeal allowed by way of remand.
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2018 (1) TMI 156
100% EOU - CENVAT credit - reverse charge mechanism - Held that: - appellant have paid back the amount utilized by them for discharging the Central Excise Duty on the goods cleared from their 100% EOU unit. They have also made good the interest part - discharge of Central Excise/Customs Duty to the tune of ₹ 10,04,379/- in cash would mean that Revenue has already received the amount twice. Looking at the entire case from that angle and as also that as an EOU, appellant is eligible to avail the Cenvat credit and could have claimed the refund of such credit, I find that it is fair and just and appellant be allowed to take the credit of ₹ 10,04,379/- which was debited, first towards duty and subsequently paid in cash as per the direction of the lower authorities. Penalty u/s 112 - Held that: - the penalties so imposed under section 112 of Customs Act, 1962 for violation of the conditions of notification, though on the lower side, needs to be modified and I hold that a penalty of ₹ 15,000/- is just in the interest of justice as a deterrent. Penalty u/s 25 of CER, 2002 and u/r 15(1) of CCR, 2004 - Held that: - both these penalties are unwarranted on the fact of the records that appellant had not cleared the goods without payment of duties and has not availed any improper cenvat credit. Penalties imposed under these two heads are also set aside. Penalty u/r 27 of CER, 2002 - Held that: - the said penalty has been correctly imposed and no interference is called for. Penalty u/s 76 of FA - Held that: - appellant could have misunderstood the provision of Section 76 of Finance Act inasmuch, he had availed the credit of the service tax paid under reverse charge mechanism and utilized the same for making the payment - this is a fit case wherein provisions of Section 80 of Finance Act, 1994 are invokable - penalty set aside. Appeal disposed off.
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2018 (1) TMI 155
CENVAT credit - various steel structural materials such as M.S. Plates, Angles, Channels etc. which were used in the construction of capital goods such as Dry Heater, Calcyne, Storage Tanks, silos etc. - Held that: - The issue is covered by the earlier decision of the Tribunal in the case of Singhal Enterprises Pvt. Ltd. Vs. Commissioner of Customs & Central Excise, Raipur [2016 (9) TMI 682 - CESTAT NEW DELHI], where it was held that applying the “User Test” to the facts in hand, we have no hesitation in holding that the structural items used in the fabrication of support structures would fall within the ambit of ‘Capital Goods’ as contemplated under Rule 2(a) of the Cenvat Credit Rules, hence will be entitled to the Cenvat Credit - credit allowed. Liability of interest - Held that: - appellant is not liable to pay interest since the CENVAT Credit availed by them, wrongly reversed before utilisation of the same. Appeal allowed - decided in favor of appellant.
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2018 (1) TMI 154
CENVAT credit - credit availed on the basis of photocopies which are not having full details - Held that: - the fact of payment of service tax by the service provider stands verified by the Jurisdictional Central Excise Authorities and as such denial of the same on the technical ground that it was only the photocopy invoices which was produced, cannot be appreciated - matter remanded to Original Adjudicating Authority for verification of the subsequent details filed and produced by the assessee with the invoices issued by M/s Global Weighing Technologies. Clandestine removal - loss of sugar - Held that: - Inasmuch as in the present case the Revenue has not produced any evidence that the said processing loss was not actual and the appellant had removed such sugar from their factory without payment of duty - I uphold the said confirmation of demand - forthe plea of limitation, which has not been adverted to, the appeal is partly allowed and partly remanded in the above manner. Appeal allowed in part and part matter on remand.
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2018 (1) TMI 153
CENVAT credit - rented godown situated outside the factory premises - denial on the ground that the invoices raised against the appellants were not having proper registration numbers - Held that: - the appellants have also produced a Certificate on record by the service provider indicating registration number, in which case, the lower authorities should have accepted the same instead of observing that the invoices have not been rectified. Rectification of the invoices would have also included the same registration number, which stands mentioned in the Certificate - credit allowed. Apart from the credit, the stand for denial of the credit is on the ground that during the relevant period, the appellant had not stored non-duty paid sugar in the said godown - Held that: - Inasmuch as the godown was taken on rent by the appellant for the purpose of storing of sugar, the fact of non-use of the same during the initial period, cannot lead to denial of credit to the appellants. Appeal allowed - decided in favor of appellant.
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2018 (1) TMI 152
CENVAT credit - capital goods - Pig Moulds, MS Plates, Channels, MS Rounds, TMT Bars, Lancing Pips - MS Plates, Channels, TMT Bars etc. - Held that: - the First Appellate Authority in the impugned order in Paragraph 7, 8 & 9 has given detailed reasoning as to why according to him CENVAT credit on Central Excise Duty on this items needs to be allowed - It can be seen from the above reproduced findings this factual matrix is not contradicted in any form by the Revenue - credit allowed - appeal dismissed - decided against Revenue.
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2018 (1) TMI 151
CENVAT credit - taxable as well as exempt services - trading activity - Rule 6 (3) of CCR 2004 - the appellant contended that they have already reversed the proportionate credit involved in respect of exempted activities - Held that: - If an assessee has reversed the cenvat credit attributable to the input services used for trading activity, the provisions of Rule 6 (3) would not be applicable - it is required to be verified that the amount reversed by the assessee is correct or not - matter on remand. CENVAT credit - copper strip cleared directly to the premises of their buyers located in SEZ area - Held that: - The use of the copper strips is required to be ascertained i.e. whether the assessee's factory or in the SEZ factory - Inasmuch as the facts are not clear, the matter remanded to the original adjudicating authority. Appeal allowed by way of remand.
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2018 (1) TMI 150
CENVAT credit - forged documents - redemption fine - penalty - Held that: - On investigation conducted at the end of Shiv Traders, he clarified that the invoice in question, has not been issued by their firm and the same has been forged by them. Further investigations were conducted at the end of the transporter and it came to light that even the GR stands forged by the assessee. - confiscation justified. The total duty involved in the matter was to the extent of ₹ 97,000/-, thus, not justifying the redemption fine of ₹ 2,00,000/- - Appreciating that the duty was on the lower side, redemption fine reduced from ₹ 2,00,000/- to ₹ 1,00,000/-. Penalty - Held that: - the same stands imposed under the provisions of Rule 26 of the Central Excise Rules, which provide maximum penalty equivalent to the duty amount involved. As such imposition of penalty of ₹ 3,00,000/- on the appellant is neither warranted nor justified. The same is accordingly reduced to ₹ 97,445/-. Appeal allowed in part.
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2018 (1) TMI 149
CENVAT credit - time limitation - Held that: - the denial of the credit on the ground of limitation, would not be justified, especially when there is no dispute about the receipt of the inputs and their utilization in the manufacture of the final product and duty paid character of the inputs. The non-availment of ACD paid on the inputs, while availing the credit of basic excise duty and cess paid on the same inputs, can be said to be a result of inadvertent mistake on the part of the assessee. As soon as the said mistake was brought to their notice, by the audit, they availed the credit immediately - credit allowed - appeal allowed - decided in favor of appellant.
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2018 (1) TMI 148
Classification of goods - Micronutrient - whether classified under Chapter No.38 of the Central Excise Tariff or otherwise? - Held that: - the products which are manufactured by the assessee/appellants and described as Micronutrients will be classified under Chapter Heading No.3105 and all the appeals filed by the appellant on this point succeed - reliance placed in the case of CCE & ST, Hyderabad-IV Versus M/s Aries Agrovet Industries Ltd [2017 (7) TMI 289 - CESTAT HYDERABAD], where it was held that In view of presence of nitrogen, and also considering that they are mixtures and not separate chemically defined compounds, the said goods would therefore come under the ambit of micronutrient fertilisers and will then required to be classified as in other fertilisers in CETH 31.05 - the Adjudicating Authority was correct in classifying the product under Chapter 31051000 and holding it has dutiable. Appeal disposed off.
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CST, VAT & Sales Tax
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2018 (1) TMI 147
Rate of tax - Pre-painted Galvanized Steel Metal Sheets - whether taxable at the residuary rate of 14.5% under Section 4(1)(b)(iii) of the KVAT Act, 2003 or otherwise? - declared goods or not? - Held that: - it is open to the petitioner to seek requisite clarification from the Respondent-Commissioner of Commercial Taxes himself with regard to the effect of clause (vi) of Section 14 of the CST Act, 1956 in the first instance - petition disposed off.
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