Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
November 17, 2018
Case Laws in this Newsletter:
GST
Income Tax
Customs
Insolvency & Bankruptcy
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
TMI SMS
Articles
News
Notifications
Customs
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55/2018 - dated
15-11-2018
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ADD
Seeks to extension of existing anti-dumping on "O-Acid" originating in or exported from China PR and imposed vide notification No. 6/2018-Customs (ADD) dated 12th March, 2018 to the imports originating and exported from China PR of "O-Ester"
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92/2018 - dated
15-11-2018
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Cus (NT)
Tariff Notification in respect of Fixation of Tariff Value of Edible Oils, Brass Scrap, Poppy Seeds, Areca Nut, Gold and Sliver- Reg
GST - States
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26-Leg./2018 - dated
23-10-2018
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Punjab SGST
THE PUNJAB GOODS AND SERVICES TAX (AMENDMENT) ORDINANCE, 2018.
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S.O. 148/P.A.5/2017/S.11/Amd./2018 - dated
15-10-2018
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Punjab SGST
Clarifying the scope and applicability of the Government of Punjab, Department of Excise and Taxation, Notification No. S.O.37/P.A.5/2017/S.11/2017, dated the 30th June, 2017.
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S.O. 146/P.A.5/2017/S.52/2018 - dated
3-10-2018
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Punjab SGST
Notify that every electronic commerce operator, not being an agent, shall collect an amount calculated at a rate of half per cent of the net value of intra-State taxable supplies.
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S.O. 143/P.A.5/2017/S.128/2018 - dated
3-10-2018
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Punjab SGST
Waive the late fee FORM GSTR-3B, FORM GSTR-4, FORM GSTR-6.
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G.S.R. 76 /P.A.5/2017/S.164/Amd.(22)/2018 - dated
3-10-2018
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Punjab SGST
The Punjab Goods and Services Tax (Fourteenth Amendment) Rules, 2018.
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G.S.R. 74/P.A.5/2017/S.164/Amd.(20)/2018 - dated
3-10-2018
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Punjab SGST
The Punjab Goods and Services Tax (Twelfth Amendment) Rules, 2018.
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S.O. 145/P.A.5/2017/S.1/2018 - dated
3-9-2018
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Punjab SGST
Appoint the 1st day of October, 2018, as the date on which the provisions of section 52 of the said Act shall come into force.
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S.O. 144/P.A.5/2017/Ss.1 and 51/2018 - dated
3-9-2018
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Punjab SGST
Supersession of the Government of Punjab, Department of Excise and Taxation, Notification No.S.O.58/P.A.5/2017/Ss. 1 and 51/2017, dated the 01st October, 2017.
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G.S.R.75/P.A.5/2017/S.164/Amd.(21)/2018 - dated
3-9-2018
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Punjab SGST
The Punjab Goods and Services Tax (Thirteenth Amendment) Rules, 2018.
Circulars / Instructions / Orders
Highlights / Catch Notes
Income Tax
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Penalty u/s.271(1)(c) - wrong claim of deduction u/s.80IA(4)(iv)(a) - AO is under obligation to specify the correct limb at the time of initiation as well as at the time of levy of penalty. - No penalty.
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Nature of income - income from renting a properties in Mall - Income from house property or busniss income - the income from renting a properties in Mall to be taxed as business income and not income from house property as well as business loss also to be allowed.
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TDS u/s 194C OR 194J - the service that is referred to in the agreement is the broadcasting and telecasting of TV signals. Tribunal was correct in holding that the assessee was required to deduct tax at source in terms of s. 194C - provisions of section 194J not applicable.
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CIT(A) does not have the power to dispose off the appeal other then on the merits even if the assessee does not want to prosecute the appeal.
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Disallowance on account of bogus purchases - cogency in the submission of the assessee that the gross profit already shown by the assessee and offered to tax should be reduced from the standard 12.5% being directed to be disallowed on account of bogus purchase.
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Disallowance of interest expenditure - assessee failed to show when the land was actually purchased by the assessee against the advances to given - assessee has not charged interest on these advances and has paid huge bank interest - additions confirmed.
Customs
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Tariff Notification in respect of Fixation of Tariff Value of Edible Oils, Brass Scrap, Poppy Seeds, Areca Nut, Gold and Sliver- Reg
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Seeks to extension of existing anti-dumping on "O-Acid" originating in or exported from China PR and imposed vide notification No. 6/2018-Customs (ADD) dated 12th March, 2018 to the imports originating and exported from China PR of "O-Ester"
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Recovery of certain amount from petitioner without any SCN or any demand - Even if demand is confirmed against the petitioner, for hearing of appeal upto the CESTAT, only 10% of the amount is to be deposited - after retaining the amount of ₹ 6,00,000/-, balance amount deposited by the petitioner be refunded to him
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Continuation of ADD imposed on the imports of Ductile Iron Pipes (DI Pipes) originating in or exported from China - sunset review investigation - Respondent or concerned Ministry is directed for initiating sunset review.
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Refund of the export duty - rectification of defects - there is no infirmity in the First Appellate Authority sanctioning the refund while correcting to clerical or arithmetical mistakes in the Shipping Bills.
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Mis-declaration of imported goods - Advertisement Grade Acrylic Type - there is no finding recorded by the original authority, as to how the similar goods are commercially interchangeable when the goods bear different trademarks - demand set aside.
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100% EOU - Valuation - inclusion of loading charges recovered from the buyers in assessable value - Since the transaction value is for delivery at the railway wagon, the duty is to be charged on the said transaction value at this point.
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Import of frost-free refrigerators, consisting of freezer portion and refrigerator portion having separate external doors - benefit of exemption not available.
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Jurisdiction - power of Mumbai Bench to deal with the appeal filed against the Order passed by the Commissioner, Nhava Sheva-III Port - searches have been conducted in their offices at Delhi by DRI - Case transferred to West Zonal Bench Mumbai.
DGFT
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Amendments in Para 2.79A and 2.79B of Handbook of Procedures for issue of export authorization for "Stock and Sale" of SCOMET items.
Service Tax
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Jurisdiction of Service Tax - Central Excise Officers of DGCEI have all India jurisdiction and can issue notices and enquire into the matters relating to service tax against any assessee/ person even if the said person or assessee is registered with one or multiple Commissionerates.
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Cenvat Credit - mobile towers - The towers which are received in CKD condition, are assembled/ erected at the site subsequently giving rise to a structure that remains immovable till its use because of safety, stability and commercial reasons of use. The entitlement of CENVAT credit is to be determined at the time of receipt of goods.
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Job work - Exemption from service tax - Process amounting to manufacture or not - bending, welding, buffing or hard anodizing - demand of service tax is untenable in law.
Central Excise
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SSI Exemption - inclusion of value of clearances of the exempted goods in their total turnover - demand is barred by period of limitation.
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Reversal of credit - capital goods cleared as such - there cannot be any doubt that the appellant is required to reverse CENVAT Credit/discharge duty on the capital goods after allowing depreciation on the value @ 2.5% per quarter of its use.
VAT
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Entitlement to Interest on delayed refund - Section 50 of the Karnataka Value Added Tax Act, 2003 - In case the officers fails to pay interest within 15 days then each of them shall be liable to cost of ₹ 50,000.
Case Laws:
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GST
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2018 (11) TMI 712
Classification of Services - services provided by them under the ICT @ School Project - Applicability of Entry No. 72 of Notification No. 12/2017-Cantral Tax read with Entry No. 72 of Notification bearing SRO No. 306/2017 -Finance Department, Government of Odisha - services provided by them under the ICT @ School Project. Held that:- The Contract is only for supply, installation, maintenance and commissioning of projection system, interactive white board, computer hardware, connected accessories, installation of software and other allied accessories, site preparation, maintenance of equipment and provision of computer education services for 5 years in 591 Govt. and non-Govt. aided high schools of Odisha under ICT @ school project in the state of Odisha - the contract is clearly for supply of goods and services including training - it is a composite supply having distinctly identifiable components. There is no supply of goods either during or after contract period - it is also not a case of transfer of goods without consideration rather a case of supply of goods on consideration payable in instalments agreed between the contracting parties. Ruling:- Recipient of the service OKCL is a body corporate which cannot be regarded as Government. The supply undertaken by the applicant is in the nature of composite supply. It includes supply of goods and services which are not naturally bundled. Each of the components of composite supply are distinctly identifiable both in terms of quantity and value. The service provided or to be provided is not exclusively in the nature of training programme. Though the source of funding for the service is the state government and central government, yet as per the contract the payment responsibility is vested on OKCL. Thus, the activities of the applicant by way of supply of goods and services under the ICT Project are not covered under Entry 72 of the N/N. 12/2017 dated 28-06-2017 to be entitled to the benefit of exemption from GST.
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2018 (11) TMI 711
Release of seized goods - deposit of amount of tax and penalty for release of goods - Held that:- It is not a fit case for exercise of our discretionary jurisdiction in the matter as the petitioner had been transporting the seized goods in contravention of the provisions of the Act - It is open for the petitioner to either get the goods release as directed by the impugned order or to challenge it in appeal or alternatively wait for the final determination of the assessment / penalty - petition dismissed.
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2018 (11) TMI 710
Seizure of goods - goods have been seized on account of the fact that a proper E-way bill was not accompanying the goods - In view of the circular dated 16th August 2017, no proceeding for seizure ought to have been undertaken - Revenue submits that the above circular would not be applicable in view of the amendment in Rule 138 of the Rules with effect from 1.4.2018. The matter requires consideration. Sri Tripathi may file counter affidavit within three weeks.
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2018 (11) TMI 709
Refund of the amount of tax paid before introduction of GST - rejection on the ground that the petitioner has not filed TRAN-1 Form - Held that:- The claim for refund of the tax already paid by the petitioner, was rejected, vide impugned order merely on the ground that TRAN-1 Form was not submitted within time and admittedly, the date for submission of TRAN-1 Form has been extended upto 31.3.2019, the impugned order passed by the Assistant Commissioner dated 18.4.2018 is set aside and the matter is remitted to the Assistant Commissioner for fresh consideration - petition allowed by way of remand.
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2018 (11) TMI 708
Non-availability of the Appellate Forum - Section 129(3) of the Central Goods and Services Tax Act, 2017 - West Bengal Goods and Service Tax Act, 2017 - Held that:- The impugned order being appealable, it would be appropriate to permit the petitioner to exhaust its statutory alternative remedy before the appropriate forum - petition disposed off.
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2018 (11) TMI 707
Enlargement on Bail - Section 132(1)(a),(b) and (c) of the Central Goods and Services Tax Act, 2017 - Held that:- The authority of the opposite party will take endeavour to record or to interrogate the accused/petitioner in custody in the correction home as per the order passed by the learned Additional Chief Judicial Magistrate by recording his statement. So, this application is kept pending as deferred in the next week.
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2018 (11) TMI 706
Registration under CGST Act - petitioner is registered under Section 12AA of Income Tax Act, 1961 - - Held that:- The petitioner is registered under Section 12AA of Income Tax Act, 1961, and that, the Notification dated June 28, 2017 exempts the petitioner from applicability of the provisions of the Central Goods and Services Tax Act, 2017. It would be appropriate to stay the operation of the impugned writing dated October 20, 2017 till September 30, 2018 or until further orders, whichever is earlier - petition disposed off.
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2018 (11) TMI 705
Detention of vehicle with consignment - consignment was not supported by e-way bill - Held that:- This writ petition directing the petitioner to furnish a bank guarantee for an amount ₹ 1,75,354/-, and on the petitioner executing a bond under Rule 140(1) of the CGST Rules - As soon as the bank guarantee is furnished and the bond is executed, the vehicle will be released to the petitioner - petition disposed off.
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2018 (11) TMI 704
Seizure of goods alongwith vehicle - e-way bill-01 has not been produced along with other documents - Held that:- After issuance of notification no. 177 dated 06.02.2018, the notification no.138 dated 30.01.2018 was rescinded which made effective notification no.1359 (4th Amendment) to GST Rules, 2017 with effect from 01.02.2018. The goods were coming from Ahmadabad and are to be delivered at Meerut. Both the parties situated at Ahmadabad and Meerut are registered with their respective Assessing Authority. Goods were accompanied with all the requisite documents including Gujarat e-way bill dated 21.03.2018, therefore, there was no ground to hold that the goods were coming in contravention of the provision of GST Act/Rule and the intention of the petitioner was to evade the payment of Tax - the order of seizure passed by the respondent no.4 is wholly illegal, arbitrary as such, is clearly against the intention of the legislature. The penalty proceedings initiated against the petitioner are the consequential to the seizure proceedings and once the seizure proceedings are quashed/set aside, the consequential proceedings are also liable to be set aside. Petition allowed.
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Income Tax
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2018 (11) TMI 703
Validity of order u/s 201(1) - period of limitation - Held that:- The Special Leave Petition is dismissed.
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2018 (11) TMI 702
Exercise u/s 263 undertaken by CIT-A after a full-fledged exercise already been undertaken by the AO u/s 153A - Held that:- Issue notice on the applications for condonation of delay in filing the Special Leave Petitions as well as in the Special Leave Petitions.
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2018 (11) TMI 701
Refund of amount deducted from the petitioner account due to garnishee proceedings - garnishee proceeding initiated against the petitioner on account of income tax dues not of the petitioner but of the respondent District Mining Officer - Exercise of jurisdiction u/s 226 (3) (x) by ITO - Held that:- SLP dismissed.
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2018 (11) TMI 700
Entitlement to deduction u/s 80-IC - whether an “undertaking or an enterprise” (Unit) established after 7th January, 2003, carrying out “substantial expansion” within t he specified window period, i.e. between 7.1.2003 and 1.4.2012, would be entitled to deduction on profits @ 100%, under Section 80-IC? - Held that:- Special Leave Petition is dismissed on the ground of lowtax effect, leaving the question of law open.
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2018 (11) TMI 699
Disallowance of interest expenditure - assessee has not charged the interest on advances given - Held that:- The assessee has merely stated that assessee has given in advance to the two women of ₹ 4 04250/– each for the purchase of land. However, no documentary evidence or any agreement to sale was produced. It was also not shown to us that when the land was actually purchased by the assessee. In view of this, the argument of the learned authorised representative remains unsubstantiated. It is also fact that assessee has not charged interest on these advances and has paid huge bank interest. No infirmity in the order of the lower authorities in confirming the disallowance on account of interest. - Decided against assessee. TDS u/s 194C - non deduction of tds on shipping and IHC charges paid to a foreign shipping company and clearing and forwarding charges and other expenses - whether the high seas purchase of goods purchased by the assessee had the liability of payment of freight and agency charges on the supplier of the goods or on the assessee? - Held that:- Based on the information available before us, it is not clear that whose liability it was to defray all these expenditure. We fully agree with the orders of the law authorities that on these sums tax should have been deducted at source. But the crux of the issue is that we should have deducted tax at source on this payments. Even otherwise, according to the proviso to section 40 (a) (ia) if the recipient of the income has paid tax on these income then the disallowance cannot be made in the hands of the assessee. In view of above facts, we set aside the whole issue back to the file of the learned assessing officer with a direction to the assessee to furnish adequate details before the assessing officer that whose liability it was to incur all these expenditure, on which tax should have been deducted at source. The assessee may place on record the high seas purchase agreements entered into with the supplier - decided in favour of assessee for statistical purposes.
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2018 (11) TMI 698
Disallowance on account of bogus purchases - addition to 12.5% of the bogus purchases - Held that:- In the present case the facts of the case indicate that assessee has made purchase from the grey market. Making purchases through the grey market gives the assessee savings on account of non-payment of tax and others at the expense of the exchequer. In such situation in our considered opinion on the facts and circumstances of the case the 12.5 % disallowance out of the bogus purchases meets the end of justice. As the assessee has prayed that when only the profits earned by the assessee on these bogus purchase transaction is to be taxed the gross profit already shown by the assessee and offered to tax should be reduced from the standard 12.5% being directed to be disallowed on account of bogus purchase. Upon careful consideration we find considerable cogency in the submission of the assessee as otherwise it will be double jeopardy to the assessee. Accordingly we modify the order of learned CIT-A and direct that the disallowance in this case be restricted to 12.5 % of the bogus purchases as reduced by the gross profit rate already declared by the assessee on these transactions. Ld counsel of the assessee fairly accepted this proposition
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2018 (11) TMI 697
Late filing fees u/s 234E while issuing intimation u/s 200A - TDS returns were filed after June, 2015, even intimation was issued after June, 2015 - Held that:- Since the issue arising in the present bunch of appeals is similar to the issue before the Tribunal in the cases of Medical Superintendent Rural Hospital and Junagade Healthcare Pvt. Ltd. [2018 (10) TMI 1587 - ITAT PUNE] and we have decided both the issues in favour of assessee, we hold that the assessee is not liable for levy of late filing charges under section 234E of the Act for the period prior to June, 2015 in the absence of amendment to section 200A of the Act, which was brought on Statute from 01.06.2015. Consequently, we also hold that the appeals filed by assessee were in time since the period has to be reckoned from the date of order under section 154 of the Act and not from the date of issue of intimation under section 200A of the Act. Accordingly, we delete late filing fees levied under section 234E of the Act for the period prior to June, 2015 though the returns of income were filed after June, 2015 and even order levying late filing fees under section 234E of the Act was passed after June, 2015. The grounds of appeal raised by assessee are thus, allowed.
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2018 (11) TMI 696
Reopening of assessment - as per assessee no notice was served to the assessee - non intimation of change of address of the assessee - Held that:- As noted that the assessee has filed revised Form No. 36 which shows the correct address now. The above address is different from the original address shown by the assessee in Form No. 35. The notice were sent by the CIT(A) at the old address. We are of the view that the assessee should have intimated the change of address to the CIT(A) by filing revised Form No. 35 which the assessee has admittedly not done. Further, we noted that the ld CIT(A) has disposed off the appeal stating that the assessee does not want to prosecute the appeal. According to us the ld CIT(A) does not have the power to dispose off the appeal other then on the merits. - Decided in favour of assessee for statistical purposes.
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2018 (11) TMI 695
Short deduction of TDS - TDS u/s 194C OR 194J - Carriage Fees/ Channel Placement Fees - whether these payments are made for use/ right to use of process and are royalty as per explanation 6 under section 9(1)(vi) of the Act and therefore covered under section 194J? - Held that:- There is no dispute that the payment in question was made by the assessee to the cable operators/ MSOs for placing the TV channels in the prime band in order to enhance the viewership and better advertisement revenue. what the assessee has transacted for with the licensor or company certainly includes within its ambit broadcasting and telecasting facility. The essence of the contract is to obtain broadcasting and telecasting of TV channels and thereafter its distribution amongst ultimate customers through the cable network of the assessee. What the assessee subscriber is looking for is to obtain the telecast signals from the licensor, which is enough, to deduce that the impugned contract involves broadcasting and telecasting of TV signals. Moreover, the licensor or the company, as is evident from the specimen agreement on record, in the business of distribution of satellite based TV channels and has exclusive rights to market and distribute said services in India, the service that is referred to in the agreement is the broadcasting and telecasting of TV signals. Tribunal was correct in holding that the assessee was required to deduct tax at source in terms of s. 194C As decided in assessee's own case [2016 (1) TMI 213 - ITAT MUMBAI] provisions of section 194J of the Act are not applied on payment of carriage fees to cable operations hence, the disallowance carriage/ channel placement fees u/s 40(a)(ia) is deleted. - Decided in favour of assessee.
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2018 (11) TMI 694
Disallowance of claim of exemption u/s.10(38) - long term capital gains arising out of sale of 5500 equity shares of one M/s.Lifeline Drugs & Pharma Ltd. and treating the consideration received on such sale under the head "income from other sources" - whether transactions claimed by the assessee were real or sham? - Held that:- Before relying on such Investigation reports and statement of a third party, it should have been put to an assessee for rebuttal. Rules of natural justice requires that evidence which is used against the assessee is first put to it and explanation sought, before reliance is placed on such evidence. Therefore of the opinion that the matter requires a fresh look by the AO. Set aside the orders of the lower authorities and remit the question regarding genuineness of the claim of long term capital gains from alleged sale of shares of M/s.Lifeline Drugs & Pharma Ltd., back to the AO for consideration afresh in accordance with law. Assessee has to be given all records relied on by the ld. Assessing Officer so that it can offer its explanation. AO is also to keep in mind the spirit of the direction given by the Tribunal in the case of Heerachand Kanunga [2018 (6) TMI 1329 - ITAT CHENNAI] while coming to a conclusion. - Decided in favour of assessee for statistical purpose.
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2018 (11) TMI 693
Nature of income - income from renting a properties in Mall - Income from house property or busniss income - allowance of busniss loss - appellant contended that it had set up its business during the year and Mall under construction was capitalized and contended that loss was required to be allowed - CIT(A) held that income of the appellant to be taxed under the head income from house property - Held that:- In similar circumstances, Hon’ble Supreme Court in the matter of Chennai Properties & Investments Ltd. [2015 (5) TMI 46 - SUPREME COURT] decided matter in favour of the assessee holding that income from renting a property of Mall to be treated as business income and in those circumstances, appellant case is fully covered by the aforesaid judgment. ITAT Bench of Mumbai in the matter of Hagwood Commercial Developers Pvt. Ltd.[2017 (2) TMI 626 - ITAT MUMBAI] has also given finding in favour of assessee. To the effect that even if Mall had not commenced business till end of relevant year, assessee had rightly debited general overhead expenses being indirect expenses incurred, in profit and loss account. Thus, we are considered opinion, that in assessee’s case, the income from renting a properties in Mall to be taxed as business income and not income from house property as well as business loss also to be allowed. - Decided in favour of assessee.
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2018 (11) TMI 692
Penalty u/s.271(1)(c) - wrong claim of deduction u/s.80IA(4)(iv)(a) - Held that:- As evident that at the time of initiation of penalty proceedings in the assessment, AO held that penalty u/s.271(1)(c) is initiated for making wrong claim of deduction u/s.80IA(4)(iv)(a). But at the time of levying penalty qua in penalty order, AO held that the assessee has committed a default within the meaning of Explanation-1(B) to Section 271(1)(c) by furnishing inaccurate particulars of income by claiming wrong deduction of ₹ 64,88,107/-. Thus, this manner of recording of satisfaction suggests the existence of ambiguity with reference to applicability of specific limb. Therefore, we are of the opinion that considering the above referred binding judgments such penalty order is unsustainable in law legally. AO is under obligation to specify the correct limb at the time of initiation as well as at the time of levy of penalty. In view of the above deliberation on this issue, we are of the opinion that the penalty order is liable to be quashed on this legal issue. Thus, the order of CIT(A) is set-aside and direct the AO to delete the penalty. Accordingly, the legal grounds of appeal raised by the assessee are allowed on technicalities. In view of the same, we find, adjudication of the merits of penalty, become an academic exercise. Hence, merits-linked grounds are dismissed as such.
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2018 (11) TMI 691
Penalty u/s 271(1)(c) - violation of Section 13(1)(d) r.w.s. 13(3) and 11(5) - advances made to specified persons - interest free loan given - Held that:- It is an admitted fact that the Auditor duly mentioned in the Audit Report u/s 12A(b) of the Act in Form No. 10B that the loans and advances had been provided to the persons referred to in Section 13(3) of the Act, so it was a good case for making the addition particularly when in the preceding year also, the interest was charged but it cannot be said that the assessee did not disclose all the particulars. However, it made a computation error in its return of income. We, therefore, by keeping in view the ratio laid down in the aforesaid referred to case of CIT Vs Pricewaterhouse Coopers Pvt. Ltd.[2012 (9) TMI 775 - SUPREME COURT], deem it appropriate to delete the impugned penalty levied by the AO and sustained by the ld. CIT(A). - Decided in favour of assessee
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Customs
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2018 (11) TMI 689
Continuation of ADD imposed on the imports of Ductile Iron Pipes (DI Pipes) originating in or exported from China - sunset review investigation under Rule 23(1B) of the Custom Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 - Held that:- It is expected of the Ministry of Finance, Government of India to take follow-up action immediately as directed and if the order dated 26.09.2018 passed by Special Civil Application No. 12368 of 2018 is not complied with and notification in this regard is not issued from concerned officer in-charge will be held responsible for non-compliance of the order issued by this Court which may include proceedings under the Contempt of Courts Act also. Respondent or concerned Ministry is directed in his absence to comply with Order dated 26.09.2018 passed in Special Civil Application No. 12368 of 2018 by initiating sunset review well before 09.10.2018 - Respondent or the concerned Ministry is directed to comply with Order dated 26.09.2018 passed in Special Civil Application No. 12368 of 2018 by requesting Ministry of Finance for extending duties under Notification No. 23/2013-Customs (ADD) dated 10.10.2013 well before 09.10.2018 - application allowed.
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2018 (11) TMI 688
Recovery of certain amount from petitioner without any SCN or any demand - case of respondents is that the petitioner has paid his amount voluntarily - Held that:- In Century Metal Recycling Pvt. Ltd [2008 (10) TMI 96 - PUNJAB AND HARYANA HIGH COURT] it was held that unless there is assessment and demand, the amount deposited by the petitioners cannot be appropriated. Another fact which deserves to be noticed is that show cause notice was issued to the petitioner on 24.04.2017 and more than one year has already been elapsed but no order has been passed. Even if demand is confirmed against the petitioner, for hearing of appeal upto the CESTAT, only 10% of the amount is to be deposited, whereas the proceedings in the present case have not been concluded yet - after retaining the amount of ₹ 6,00,000/-, balance amount deposited by the petitioner be refunded to him within a period of four weeks from the date of receipt of copy of the order. Petition disposed off.
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2018 (11) TMI 687
Release of seized vehicle with goods - power of police authorities and the local Government to either search, seize or confiscate the vehicle - Held that:- It is a case wherein an unauthorized and illegal manner usurping the power which was not available to them either under the Customs Act of 1962 or under the Foreign Trade (Development and Regulation) Act, 1992 the vehicle in question along with its 11 cartons of chocolates and candies, 6 bundles of cloths and 6 bundles of shoes and slippers have been seized by the authorities. This is an illegal seizure and this cannot be permitted under law. The Respondent Nos. 3 and 6 directed to immediately release the vehicle in question along with all the goods to the petitioner within 24 hours of production of a certified copy of this order - petition disposed off.
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2018 (11) TMI 686
Refund of the export duty - rectification of defects - rejection of refund claim on the ground that the initial assessment order had reached the finality and it has not been challenged in the appeal proceedings - Held that:- As was the established practice during the relevant period as confirmed by the CBEC Circular No. 18/2008-Cus the respondent was entitled to the benefit of cum duty value during the relevant period. On the question of reassessment being necessary for claiming the refund, it is found that in this case there is no requirement of reassessment as there were only clerical and arithmetical errors in the shipping bill namely (a) taking the wet MT iron ore instead of the dry MT and (b) taking the transaction value for calculating export duty instead of taking this as the cum duty value. Both these defects can be easily corrected under Section 154 Customs Act, 1964 - there is no infirmity in the First Appellate Authority sanctioning the refund while correcting to clerical or arithmetical mistakes in the Shipping Bills. Appeal rejected - decided against Revenue.
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2018 (11) TMI 685
Jurisdiction - power of Mumbai Bench to deal with the appeal filed against the Order passed by the Commissioner, Nhava Sheva-III Port - searches have been conducted in their offices at Delhi by DRI - Held that:- No seizure has been affected within New Delhi, giving cause to appeal before Delhi Bench of Tribunal. The show Cause notice has been issued for the extension of time for issuing of the show cause notices in respect of goods seized at Nhava Sheva Mumbai, and therefore, it will be the jurisdiction of Mumbai Bench to deal with the appeal filed against the Order passed by the Commissioner in the instant case. SCN has been issued correctly by the DRI, and is not without jurisdiction. The Registry is directed to transfer this appeal to West Zonal Bench Mumbai, after seeking approval from the Hon ble President.
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2018 (11) TMI 684
Attachment of Bank Account - validity of contempt proceedings - no opportunity of hearing has been granted - Held that:- On perusal of the date chart together with annexed documents, it is found that before freezing the amount of the appellant, the department has duly taken steps by intimating such action as well as for necessary compliance with the statutory provisions - the respondent Commissioner has complied with due process of law for initiating action for recovery of the Government dues against the appellant. The contempt proceedings cannot be initiated against the respondent - appeal disposed off.
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2018 (11) TMI 683
Benefit of N/N. 85/2004-Cus dated 31st August 2004 - Import of frost-free refrigerators, consisting of freezer portion and refrigerator portion having separate external doors - Held that:- This Tribunal in the case of HITACHI HOME AND LIFE SOLUTION LTD VERSUS COMMISSIONER OF CUSTOMS (IMPORT), NHAVA SHEVA [2012 (12) TMI 554 - CESTAT, MUMBAI], after analyzing the relevant entries and the conditions of the exemption notification, held that benefit of exemption Notification No. 85/2004-Cus dated 31st August 2004-Cus cannot be extended to the appellant - appeal dismissed - decided against appellant.
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2018 (11) TMI 682
100% EOU - Valuation - inclusion of loading charges recovered from the buyers in assessable value - Held that:- An identical issue for an earlier period has came up before the Tribunal in M/S MIDEAST INTEGRATED STEELS LTD. VERSUS CCE, BHUBANESWAR [2017 (9) TMI 343 - CESTAT KOLKATA], where it was held that Since the transaction value is for delivery at the railway wagon, the duty is to be charged on the said transaction value at this point - appeal dismissed - decided against appellant.
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2018 (11) TMI 681
Mis-declaration of imported goods - whether the respondents-importer have mis-declared the description and value of the imported goods attracting confiscation etc.? - Held that:- So far as declaration in respect of the description of the imported goods is concerned which was made by the importer in the bill of entry, It is found that it was correctly declared by the appellant. It is only the view of the Department that description of the goods, as declared by the importer is not correct, rather the goods actually imported are known as per condition, “Reflective Sheet adhesive same type/Acrylic Reflective Sheet". Further, it was observed that the adjudicating authority has simply endorsed his view that the imported goods are “Reflective Sheet adhesive type/Acrylic Reflective sheet” without having any documentary evidences, which is not maintainable. Also, there is no finding recorded by the original authority, as to how the similar goods are commercially interchangeable when the goods bear different trademarks - Further, it is observed that the charge of undervaluation should be proved by the Department on the basis of strong documentary evidence which is absent in the instant case. Rejection of value of goods earlier re-imported and cleared - Held that:- The goods earlier imported by the appellant cannot be taken for the determination of the value, in view of the findings recorded with respect to the current import under dispute. Accordingly, it was held that the demand of differential duty of ₹ 12,00,875/- is not sustainable. Appeal dismissed - decided against Revenue.
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Insolvency & Bankruptcy
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2018 (11) TMI 690
Corporate Insolvency Resolution Process - default in payment of dues - non repayment of the outstanding loan amount - Held that:- The applicant 'financial creditor' has placed on record voluminous and overwhelming evidence in support of the claim as well as to prove the default. It is pertinent to mention here that the Code requires the adjudicating authority to only ascertain and record satisfaction in a summary adjudication as to the occurrence of default before admitting the application. The material on record clearly goes to show that respondent had availed the loan facilities and has committed default in repayment of the outstanding loan amount. In the case on hand, it is seen that respondent corporate debtor has committed default in repayment of the outstanding financial debt. On a bare perusal of Form - I filed under Section 7 of the Code read with Rule 4 of the Rules shows that the form is complete and there is no infirmity in the same. Accordingly, it is seen that the application of the financial creditor is complete and there is no disciplinary proceeding pending against the proposed IRP. We are satisfied that the present application is complete and the applicant financial creditor is entitled to claim its outstanding financial debt from the corporate debtor and that there has been a default in payment of the financial debt. As a sequel to the above discussion and in terms of Section 7(5)(a) of the Code, the present application is admitted.
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Service Tax
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2018 (11) TMI 714
Jurisdiction - power of DGCEI to conduct inquiry/investigation - issuance of summons to be preceded by an enquiry - service tax evasion by all branches of NBCC - power of DG, DGCEI direction to investigate against Petitioner on all India basis - Scope of Rule 5A of the Service Tax Rules, 1994 - change of opinion. Held that:- There could be more than one show cause notice over-lapping the same period of time for distinct issues and subject matters. The Fin Act does not bar and prohibit different show cause notices on different issues, facts and subject matter. Each show cause notice being independent has to be adjudicated and decided. Once decided the decision under Section 73(2) of the Fin Act would be binding unless challenged and questioned as per procedure prescribed. Repeated or multiple show cause notices under Section 73(1) of the Fin Act can result in harassment and inconvenience and also reflect on the governance and administration of the Fin Act. Every attempt should be made to issue consolidated show cause notices even on divergent issues and subject matters. In addition, because of delay and limitation period prescribed under Section 73(1) of the Fin Act recoveries could lapse. Pendency of proceeding of recovery under Section 73(1) of the Fin Act or any other statutory proceedings is not a condition precedent for issue of notice under Section 14 of the CE Act. Notice or summons under Section 14 of the CE Act can be issued by the Central Excise Officer when required and necessary for any enquiry relating to service tax. Rule 5A no doubt vests and authorises the Central Excise Officers with power to access registered premises of a person for scrutiny, verification and check but this would not show that the Central Excise Officer does not have power and cannot take recourse to investigation and issue summons for collection of evidence and documents under Section 14 of the CE Act. The power conferred in the form of Section 14 of the CE Act, like conduct of Special Audit under Section 72A or access to the registered premises under Rule 5A(1) have the same object and purpose i.e. empower the Central Excise Officer to ascertain facts and also collect material and evidence - Similarly the power to direct Special Audit under Section 72A of the Fin Act is certainly more intrusive and compelling. These arguments have to be rejected as power under Section 14 of the CE Act and other powers relating to investigation and enquires cohabit and exist together and also independently. It may not be appropriate to exercise power under Rule 5A, when direction to produce documents and furnish information would be appropriate and suffice. Whether officers of DGCEI are Central Excise Officers and have all India jurisdiction? - Held that:- The question of ‘jurisdiction’ relates to the subject matter i.e. jurisdiction of an officer to exercise power. A person who is not the Central Excise Officer, lacks subject matter jurisdiction and consequently any action, act or order would suffer from lack of ‘jurisdiction’ in a sense that it cannot be waived. Lack of jurisdiction by way of subject matter can be challenged at any time, even in the execution proceedings and cannot be waived by consent. Lack of jurisdiction by ‘venue’ can be waived by consent or when not raised within reasonable time by applying principle of estoppel. No assessee has a vested right to be assessed at a particular location and ‘venue’ - the Board has wide discretion in power while fixing the local limit assigned to a Central Excise Officer. Local limit can be pan or all India. This position must be accepted as in cases of centralized registrations all India jurisdiction is exercised. We leave it to the Central Excise Officer to decide how to go about and proceed while deciding and exercising discretion whether or not he or she would invoke the power under Rule 5A(1) or seek enforcement of directions by production of documents and papers by recourse to Section 14 of the CE Act. While deciding on the said option, due regard would be given to any representation or submission made by the petitioner-assessee. Further, in case papers and documents can be supplied by post or other means or by hand, the said option should be given. Repeated notices, one after the other, should be avoided unless for some reason examination of earlier documents requires furnishing of further particulars and papers. Central Excise Officers of DGCEI have all India jurisdiction and can issue notices and enquire into the matters relating to servicetax against any assessee/ person even if the said person or assessee is registered with one or multiple Commissionerates. Notice under Section 14 of the CE Act i.e. Central Excise Act can be issued even if proceedings under Section 73 of the Fin Act i.e. Finance Act, 1994 are not pending. However the notice should relate to matters and issues relating to provisions of services and imposition of service tax - The petitioner should comply with the notices issued or would be issued by the Central Excise Officers, DGCEI to furnish evidence and documents pertaining to the PMC charge i.e. Project Management Consultancy Charge in respect of Commissionerate/ registration except those subject matter of show cause notice dated 13th March, 2015 issued by the Commissionerate of Central Excise and Service Tax, Patna. Petition dismissed.
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2018 (11) TMI 713
Cenvat Credit - towers, shelter and accessories used for providing telecom services - whether immovable property or not - towers, shelter to be treated as accessories either as capital goods or input goods or not - installation after receipt of such towers and shelters at their premises (i.e. tower sites) - Held that:- the debate mainly centers round the definition of capital goods in clause (a) of Rule 2 of the Credit Rules. - all components, spares and accessories of such capital goods falling under chapter 85, would also be treated as Capital goods. The towers and shelters support the BTS in effective transmission of the mobile signals and therefore, enhance their efficiency. The towers and shelters plainly act as components/ parts and in alternative as accessory to the BTS and would are covered by the definition of capital goods . Inputs or not - Held that:- There is actual use of the tower and shelters in conjunction with the Antenna and the BTS equipment in providing the output service, which also includes provision of the Business Support Service. The CESTAT has failed to appreciate that the towers and the parts thereon and the pre-fabricated shelters are inputs, in accordance with the provisions of Rule 2(k) of the Credit Rules. Credit on inputs such as MS Angles and channels - Held that:- clearly goods in question have gone into the making of such towers which in turn are used for providing infra-support service/ telecom service. It is therefore, held that the CESTAT erred in applying the nexus test and therefore, credit has to be extended to the duty paid MS angles and channels. Immovable property or not - Held that:- the definition of input does not contain any condition relating to emergence of immovable property to be ineligible for taking credit. The eligibility of credit must be determined at the time of receipt of the goods in terms of Rule 4(1) of the Credit Rules. Credit cannot be denied so as long as the goods are used for the provision of the output service. The towers which are received in CKD condition, are assembled/ erected at the site subsequently giving rise to a structure that remains immovable till its use because of safety, stability and commercial reasons of use. The entitlement of CENVAT credit is to be determined at the time of receipt of goods. Emergence of immovable property in the intermediate stage - Held that:- several High Courts in different contexts have taken a view that credit of excise duty and service tax paid would be available irrespective of the fact that inputs and input services were used for creation of an immovable property at the intermediate stage, if it was ultimately used in relation to provision of output service or manufacturing of final products. The conclusion of CESTAT, denying the assessee CENVAT credit on the premise that the towers erected result in immovable property, is erroneous and plainly contrary to Solid and Correct Engineering [2010 (4) TMI 15 - SUPREME COURT] - If the goods that are received qualify as inputs or capital goods, the fact that they are later fixed/fastened to the earth for use would not make them a non-excisable commodity when received. Credit allowed - Decided in favor of assessee.
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2018 (11) TMI 678
Removal of defects within one week - Held that:- It would be open to the petitioner to approach the High Court. If the petitioner files an application in this behalf within two weeks from today the same shall be considered on its own merits - SLP dismissed.
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2018 (11) TMI 677
Reopening of assessment - alleged tax liability under the Finance Act, 1994 - Held that:- A notice to reopen assessment has been issued invoking the provisions of the Act of 2017. The issues raised by the parties are yet to be decided. In such scenario, it would be appropriate to direct the authorities to complete the assessment in accordance with law. Such assessment, however, will abide by the result of the writ petition - Petition disposed off.
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2018 (11) TMI 676
100% EOU - Penalty - GTA Service - reverse charge mechanism - liability of service tax - Held that:- The demand of ₹ 39,58,406/- was raised which was reduced to ₹ 2.74 lakhs in the Order-in-Original. While reducing the demand to ₹ 2.74 lakhs the calculation shown in para 4.7 and 4.8 of the Order-in-Original does not match. While the total differential duty payable as per para 4.7 of the Order-in-Original works out to ₹ 88,084/- + 41,553/- + 14,812/- = ₹ 1,4,449/- whereas the demand confirmed is ₹ 2,74,302/-. Penalty u/s 77(1) of the Finance Act, 1994 - Held that:- The appellant was registered as Service Tax assessee from 2005 onwards. The new unit came into existence in 2008. In these circumstances, the provisions of Rule 4(3) will have no application as the said provisions apply only to units which were already availing the benefit of common registration prior to 2.11.2006 - quantum of penalty reduced. Appeal allowed in part.
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2018 (11) TMI 675
Job work - Exemption from service tax - Process amounting to manufacture or not - bending, welding, buffing or hard anodizing - After carrying out the said processes, the intermediate product was sent back to the principal manufacturer to carry out further processes on the said product - Held that:- Undisputedly the appellant undertaken the process of bending, welding, buffing etc. on the SS Laser Cut Sheet as prescribed under Section 2(f) of Central Excise Act, 1944 sent by the principal manufacturer for undertaking necessary job-work - Besides, the intermediate product was subjected to further processes at the principal manufacturer’s end to convert it into finished excisable goods - appeal allowed - decided in favor of appellant.
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Central Excise
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2018 (11) TMI 674
Clandestine removal - shortages of raw material and excess of final products - violation of Rule 10 of Central Excise Rule, 2002 - confiscation - redemption fine - penalty - Held that:- The decision in the case of COMMISSIONER OF C. EX., KANPUR VERSUS SARADA STEEL INDUSTRIES PVT. LTD. [2010 (7) TMI 596 - CESTAT, NEW DELHI] needs to be followed - the Original Adjudicating Authority has upheld the confiscation by imposing redemption fine of ₹ 13.18 lakhs and penalty of ₹ 6.78 lakhs. The same is required to be upheld but fine & penalty needs to be reduced - appeal allowed in part.
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2018 (11) TMI 673
CENVAT Credit - input services - outward transportation of the final product directly to the customer on door delivery basis - Held that:- Idetical issue decided in the case of COMMISSIONER OF CUSTOMS CENTRAL EXCISE AND SERVICE TAX, GUNTUR VERSUS M/S. THE ANDHRA SUGARS LTD. [2018 (2) TMI 285 - SUPREME COURT OF INDIA], where it was held that Once it is accepted that place of removal is the factory premises of the assessee, outward transportation ‘from the said place’ would clearly amount to input service. That place can be warehouse of the manufacturer or it can be customer’s place if from the place of removal the goods are directly dispatched to the place of the customer. Once such outbound transportation from the place of removal gets covered by the definition of input service - credit allowed - appeal allowed - decided in favor of appellant.
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2018 (11) TMI 672
Rectification of Mistake - typographical error in the cause title - Held that:- The mistake is purely typographical error which can be corrected by the successor to the office since the application for Rectification of Mistake is filed within the stipulated period of six months - The cause title is accordingly amended with inclusion of names Dawood & Co, Samurai Footwear Pvt. Ltd., Sadruddin Daya, Shauheen Daya as respondent no. 2, 3, 4 and 5 and at page 2 of the final order under Sr. No. 6, "and others" be affixed after Dawood Shoes Pvt. Ltd. - the Rectification of Mistake petition is allowed.
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2018 (11) TMI 671
Classification of goods - Nylon Twine - classification under erstwhile Tariff Item 68 and on introduction of Central Excise Tariff Act, 1985, as per the new schedule - Held that:- The product of the appellant namely, twine yarn was liable to duty under erstwhile Tariff Item 18 prior to 01.3.1986, hence, the appellants are not eligible to retrospective exemption during the relevant period. But, from the submission of the learned Advocate for the appellant and on going through the pleadings advanced in the appeal, we find that prior to 01.3.1986, the product twine yarn proposed to be classified by the Department under Tariff Item 68, whereas the claim of the appellant was under Tariff Item 18. Denying the benefit of retrospective benefit of the amendment to the appellant through the exemption Notification No. 271/86-CE dated 24.4.1986, for the period 1.3.1986 to 23.4.1986 on the assumption that duty was charged @ ₹ 4 per kg on the Nylon Twine yearn manufactured by the appellant prior to 1.3.1986 is without merit and contrary to the facts on record and beyond scope of the show-cause notice and hence cannot be sustained. Appeal allowed - decided in favor of appellant.
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2018 (11) TMI 670
Taxability/Excisability - residue arising during the course of manufacture - N/N. 67/95-CE dated 16.3.1995 - Held that:- Tribunal in appellant own case BOMBAY DYEING & MFG. CO. LTD. VERSUS COMMISSIONER OF C. EX., RAIGAD [2011 (1) TMI 807 - CESTAT, MUMBAI] has held that Since duty on DMT was paid, exemption to DMT-Residue was undisputedly available to the Appellants, during the disputed period - appeal allowed - decided in favor of appellant.
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2018 (11) TMI 669
Non-payment of jute cess leviable under Section 3 of Jute Manufactures Cess Act, 1983 - differential quantity of 7385.446 MT of jute goods - Revenue submits that the documents in respect of difference of 127.840 MT was not produced before the adjudicating authority - Held that:- This Tribunal in the case of Tinplate Company of India Ltd. v. CCE, Jamshedpur [2010 (3) TMI 459 - CESTAT, KOLKATA] held that the assessee filed the monthly returns regularly showing clearances of impugned goods and therefore the department cannot allege suppression of facts with intent to evade duty and extended period of limitation cannot be invoked - appeal allowed - decided in favor of appellant.
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2018 (11) TMI 668
Non-Compliance with pre-deposit - Section 35F of the Central Excise Act, 1944 - Held that:- The appellant pursuant to direction of this Tribunal had deposited ₹ 10.00 lakhs. Since the issue has not been decided on merit, we remand the matter to the learned Commissioner (Appeals) for deciding the issue afresh on merit, without insisting for any pre-deposit - appeal allowed by way of remand.
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2018 (11) TMI 667
SSI Exemption - inclusion of value of clearances of the exempted goods in their total turnover - Time Limitation - Held that:- The provisions of N/N. 8/2003 dated 01/03/2003 under para-3A are very clear that the except the clearances as mentioned under para-3A all other clearances need to be included in the aggregate value of turnover for deciding the SSI eligibility under N/N. 8/2003 - Since the clearances of SHASHTROKTA medicines have not been included in the total turnover by the appellant for the relevant financial years and therefore they have failed to pay central excise duty as per law. Time Limitation - Held that:- The appellant did not have any intention of evading central excise duty, at the same time it is found that the charges of suppression, mis-declaration or fraudulent intention with the purpose of evading central excise duty, as is required for invoking the extended time proviso under Section 11A of Central Excise Act are not available in the in the facts of the matter - demand is barred by period of limitation. Appeal allowed - decided in favor of appellant.
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2018 (11) TMI 666
Reversal of credit/discharge of duty on the capital goods - capital goods cleared as such - Held that:- The Larger Bench in Navodhaya Plastic Industries Ltd.’s case [2013 (12) TMI 82 - CESTAT CHENNAI] has held that after use of the capital goods for many years, credit is required to be reversed by reducing its value @ 2.5% per quarter of use of the said machinery. Thus, there cannot be any doubt that the appellant is required to reverse CENVAT Credit/discharge duty on the capital goods after allowing depreciation on the value @ 2.5% per quarter of its use - matter is remanded to arrive at the quantum of credit required to be reversed by the appellant - appeal allowed by way of remand.
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CST, VAT & Sales Tax
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2018 (11) TMI 665
Entitlement to Interest on delayed refund - Section 50 of the Karnataka Value Added Tax Act, 2003 - Held that:- Section 50 of the Act does not envisage of any reasons for not computing the interest on the refund due to the Assessee while giving effect to the orders of the Appellate Authorities - The words “shall pay such persons simple interest at 6%” are mandatory and no discretion is allowed to the lower Authorities to not to compute award with interest for such refund admittedly due, which in the present case, stands paid to the Assessee. The Respondent-Department is directed to immediately compute the interest on the refund due to the Petitioner - petition allowed.
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2018 (11) TMI 664
Inaction on the part of the first respondent in taking a decision on Exts..P1, P2 and P5 applications - Right of the assessees to submit revised returns - Held that:- It is seen that in terms of Circular No.14 of 2017, the Commissioner of the State Goods and Services Taxes Department has clarified the issues relating to the right of the assessees under the Act to submit revised returns - petition is disposed of directing the first respondent to take a decision on Exts.P1, P2 and P5 applications.
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Indian Laws
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2018 (11) TMI 680
Dishonor of Cheque - recovery of loan given - proof of debt - Section 138 of the Negotiable Instruments Act, 1881 - prayer for grant of unconditional leave to defend - Held that:- In case the defence is found to be frivolous or vexatious or not raising a triable issue, thus leave to defend cannot be granted. In any case, the respondent/plaintiff has stated in the cross-examination in the case under Section 138 of N.I. Act that he had arranged amount by himself and also that he borrowed some amounts from his father and a close friend, and which in my opinion is sufficient justification for the respondent/plaintiff to have moneys for being granted as a loan to the appellant/defendant. In fact the appellant/defendant seems to have a belief that money borrowed is money earned. Appeal dismissed - decided against appellant.
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2018 (11) TMI 679
Anti-competitive conduct of the OP - grievance of the Informant is the alleged denial of access by the OP to all files/ documents/ information necessary for enabling the Informant to design/ develop and manufacture its own Server-Boards which are compatible with the Micro-Processors manufactured by the OP, in a discriminatory manner. Held that:- The Commission is of the opinion that there exists a prima facie case of contravention of the provisions of Section 4 of the Act by the OP in the matter. The Commission holds that the OP being in a dominant position in the market for “Processors for Servers in India” has, by refusing to provide access in a non-discriminatory manner to the complete set of files/ information necessary for the Informant to design its own Server-Boards which are compatible with the Micro-Processor manufactured by the OP, prima facie, denied market access to the Informant in contravention of Section 4 (2) (c) of the Act. Further, the OP through its conduct has also prima facie, limited and restricted the production of Servers and the market therefor and has also limited the technical/ scientific development relating to Servers in the market in violation of Section 4 (2) (b) of the Act. The DG is directed to cause an investigation into the matter to ascertain whether the OP has abused its dominant position in contravention of the provisions of Section 4 of the Act by denying to the Informant access to its reference design files for Server-Boards and/ or simulation files for the same, in a discriminatory manner, not at par with the ODMs/ OEMs, without any reasonable justification for the same.
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