TMI Tax Updates - e-Newsletter
November 30, 2019

Case Laws in this Newsletter:

GST Income Tax Customs Insolvency & Bankruptcy PMLA Service Tax Central Excise CST, VAT & Sales Tax Indian Laws

Articles

1. Analysis of CBIC Notifications issued in respect of Jammu & Kashmir detailing the Migration Plan from Erstwhile State of J & K to UTs of J & K and Ladakh

   By: Chitresh Gupta

News

1. Rural and Agriculture Finance: Critical Input to Achieve Inclusive and Sustainable Development (Shri. M. K. Jain, Deputy Governor, Reserve Bank of India - November 13, 2019)

2. Advance Pricing Agreement (APA) Programme of India - Annual Report (2018-19)

3. Monthly Review of Accounts of Union Government of India upto the month of October 2019 for the Financial Year 2019-20

4. National Industrial Corridor Development and Implementation Trust

5. Trade Policy Review Report

6. IBBI amends the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016

Notifications

Customs

1. 86/2019 - dated 29-11-2019 - Cus (NT)

Tariff Notification in respect of Fixation of Tariff Value of Edible Oils, Brass Scrap, Poppy Seeds, Areca Nut, Gold and Silver

2. 64/2019-Customs (N.T./CAA/DRI) - dated 28-11-2019 - Cus (NT)

Appointment of CAA by DGRI

3. 63/2019-Customs (N.T./CAA/DRI) - dated 28-11-2019 - Cus (NT)

Appointment of CAA by DGRI

GST - States

4. 37/2019-State Tax - dated 27-11-2019 - Delhi SGST

Seeks to amend Notification No. 29/2019–State Tax, dated the 15th July, 2019

5. S.O.117/P.A.5/2017/S.148/2019 - dated 29-10-2019 - Punjab SGST

Special procedure such that the said persons shall not be required to furnish FORM ITC-04

6. S.O. 121/P.A.5/2017/S.148/Amd./2019 - dated 24-10-2019 - Punjab SGST

Amendment in Notification No. S.O.22 /P.A.5/ 2017/S.148/2018, dated the 27th February, 2018

IBC

7. IBBI/2019-20/GN/REG052 - dated 27-11-2019 - IBC

Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) (Third Amendment) Regulations, 2019.

Income Tax

8. 100/2019 - dated 27-11-2019 - IT

Central Government notifies M/s National Stock Exchange of India Limited, Mumbai as a ‘recognised association’

Circulars / Instructions / Orders

Customs

1. 40/2019 - dated 29-11-2019

Auto Out of Charge under Express Cargo Clearance System (ECCS)

Highlights / Catch Notes

GST

• Protein powder with vitamins classified under HS code 3004 as per GST case laws.

  Case-Laws - AAR : Classification of goods - Protein Powder with Vitamins and Minerals - can be classified under HS code 3004.
  Visit to Get Source

  ---

• Assignment of Natural Resource Rights is a Service Supply; Licensee Must Pay GST via Reverse Charge Mechanism.

  Case-Laws - AAR : Levy of GST - reverse charge mechanism - royalty paid/dead rent on account of mining rights - The activity of assignment of rights to use natural resources is treated as supply of services and the licensee is required to pay tax on the amount of consideration paid in the form of royalty or any other form under reverse charge mechanism.
  Visit to Get Source

  ---

• Flavoured Milk Classified as "Beverage Containing Milk" Under Customs Tariff Act 1975, Subject to 12% GST Rate.

  Case-Laws - AAR : Rate of GST - outward supply of “Flavoured Milk” - 'flavoured milk' is classifiable under tariff item 2202 9930 of the First Schedule to the Customs Tariff Act,1975 as a “beverage containing milk” under HS code 2202. - Taxable @12% of GST
  Visit to Get Source

  ---

• GST on GTA Services: Service Providers Must Pay GST on Entire Amount, Not Just Commission Retained.

  Case-Laws - AAR : Levy of GST - GTA service - whether GST chargeable on actual amount of commission retained by him for arranging transport facility to their customers or he has to pay GST on the entire amount received from his customers without deducting the commission? - As per the lorry receipts issued by the applicant, he is rendering Goods Transport Agency services and liable to tax accordingly.
  Visit to Get Source

  ---

• GST on APSFC Office Construction: 18% Rate Applies Without Proof of Non-Commercial Use.

  Case-Laws - AAR : Classification of services - Rate of GST - construction of office building for APSFC - the applicant did not provide any information or documentary proof evidencing that the construction/ building is for use other than for commerce, industry, or any other business or profession to be eligible for concessional rate of 12% - Taxable @18% of GST.
  Visit to Get Source

  ---

• Court Denies Jurisdiction: Petitioner's Frozen Accounts Stay Due to Misconduct and 'Risky Exporter' Status.

  Case-Laws - HC : Provisional attachment - freezing the bank accounts of the petitioner - Non-existing assessee - the petitioner has not approached this Court with clean hands, and the entirety of the situation, including the fact that the petitioner is also claimed to be a ‘Risky Exporter’, we are not inclined to exercise our discretionary jurisdiction in favour of the petitioner.
  Visit to Get Source

  ---

• Impact of GST on Input Tax Credit: Respondent Gains Additional 3.94% Benefit in Turnover Post-GST Implementation.

  Case-Laws - NAPA : Profiteering - sale of flats - the ITC as a percentage of the turnover that was available to the Respondent during the pre-GST period (April-2016 to June-2017) was 0.14% and during the post-GST period (July-2017 to December-2018), it was 4.08% This confirms that, post-GST. the Respondent has been benefited from additional ITC to the tune of 3 94% (4.08%-0.14%) of his turnover
  Visit to Get Source

  ---

Income Tax

• Court Rules on Income Tax Exemptions for Broader Hindu Religious Activities; No Personal Benefit to GurudevJi Found.

  Case-Laws - HC : Exemption u/s 11 and 12 - religious activities - violation of Section 13(1)(c) - the activities undertaken by the assessee can be included in the broad conspectus of religious activities and in the context of Hindu Religion, such activities cannot be confined to activities incidental to a place of worship like a temple. - There is no evidence on record to construe that the GurudevJi “has derived any personal benefit” which would justify the Revenue to invoke the provisions of Section 13(1)(c)(ii) to deny assessee the benefit of the expenditure.
  Visit to Get Source

  ---

• Expenditure on Non-Convertible Debentures Deductible u/ss 37 or 35D, CBDT Circular Upheld, Claim Approved.

  Case-Laws - HC : Deduction u/s 37 or u/s 35D - expenditure relatable to public issue of non-convertible debentures - scope of circular issued by CBDT - the revenue was unable to point out any perversity in the Board’s Circular - claim of expenditure allowed.
  Visit to Get Source

  ---

• Taxpayer's Wheat Trading Loss Deemed Genuine; Insufficient Evidence from Revenue Authorities Leads to Deletion of Additions.

  Case-Laws - AT : Stock Loss in trading of wheat - genuine loss - CIT(A) failed to appreciate that delivery taken by the “Pakka Arhtias” in the capacity of agent of the assessee is to be construed as actual delivery taken by the assessee. - ld.Revenue authorities have failed to bring conclusive evidence for falsifying the claim of the assessee. - Additions deleted.
  Visit to Get Source

  ---

Customs

• ECCS Introduces "Auto Out of Charge" Feature to Speed Up Express Cargo Clearance and Enhance Trade Efficiency.

  Circulars : Auto Out of Charge under Express Cargo Clearance System (ECCS)
  Visit to Get Source

  ---

• Appellant Cleared of Misdeclaration Charges in Attempted Export to Nepal Due to Lack of Evidence.

  Case-Laws - HC : Misdeclaration of export goods - attempt to export antiques and other goods from India into Nepal - no legal/ admissible evidence had been brought on record to show the involvement of the appellant or that he was guilty of any act or omission or even guilty of abatement of such illegal act so as to fasten the penal liability
  Visit to Get Source

  ---

• Customs Duty Demand Overturned: No Evidence of Higher Payment for Imported Goods Beyond Load Port Documents.

  Case-Laws - AT : Under-valuation of imported goods - Demand of differential customs duty - demand based on load port documents - no other evidence on record showing payment of higher value to the foreign suppliers - Demand set aside.
  Visit to Get Source

  ---

• Coking Coal Import Exemption Under CTH 2701 Challenged; Retest Ordered Due to Inconclusive Ash Content Report.

  Case-Laws - AT : Benefit of exemption - import of Coking Coal of ash content below 12% of CTH 2701 - The parameters in the test report are not conclusive and directed the Adjudicating Authority to get the retest done. In this position, the earlier report become nonest and the same cannot be used again for readjudication of the case.
  Visit to Get Source

  ---

• Imported Inactive Dried Yeast Not Classified with Animal Feed Under Heading 2309 CETA Due to Explanatory Notes.

  Case-Laws - AT : Classification of imported goods - inactive dried yeast– animal feed supplement - they cannot be classified along with animal feed merely by virtue of the inclusive definition given in the explanatory notes for the heading 2309 CETA.
  Visit to Get Source

  ---

• Appeals Must Be Filed Within Timeframe from Bill of Entry Finalization u/s 128 of Customs Act, 1962.

  Case-Laws - AT : Relevant date for appeal in terms of Section 128 of Customs Act, 1962, in the absence of speaking order - the mere finalization of a Bill of Entry itself becomes an order or communication of the order. Therefore, the appeals are required to be filed in such circumstances within a time period from the date of such reassessment / finalization.
  Visit to Get Source

  ---

Indian Laws

• High Court's rejection of arbitration application u/s 11 overturned; tribunal to decide jurisdictional time limits u/s 16.

  Case-Laws - SC : Time limitation - rejection of application filed under Section 11 for reference to arbitration - Doctrine of “KompetenzKompetenz” - the issue of limitation being a jurisdictional issue, the same has to be decided by the tribunal u/s 16 - Order passed by the HC set aside.
  Visit to Get Source

  ---

IBC

• High Court Halts Auction of Corporate Debtor's Property; Parallel Proceedings Barred under Insolvency and Bankruptcy Code.

  Case-Laws - SC : Auction of property of Corporate Debtor - Stay on auction proceedings - CIRP - parallel proceedings with respect to the main issue cannot take place in the High Court. The sale or liquidation of the assets of Respondent No. 4 will now be governed by the provisions of the IBC.
  Visit to Get Source

  ---

Service Tax

• Trusts Offering AP Board-Recognized Courses Exempt from Business Auxiliary Service Tax, Deemed Educational, Not Business Services.

  Case-Laws - AT : Education services - Business Auxiliary Services or not - When admittedly these Trusts are rendering education services and the courses are recognized by Andhra Pradesh Board, it cannot be said that since fees is collected or that fees collected is high, the education services are in the nature of a business.
  Visit to Get Source

  ---

• Assessee eligible for service tax refund after overpayment; tax burden not transferred to customer. Demand set aside.

  Case-Laws - AT : Adjustment of excess paid service tax - assessee has not collected service tax from the customer and therefore not passed on the tax burden to another. This being the case, the appellant would be otherwise eligible for refund. The provision for adjustment is to avoid the hassles of refund - Demand set aside.
  Visit to Get Source

  ---

• Court Rules on Tax Dispute: Contract Deemed Composite, 67% Abatement Denied, Tax Imposed on Gross Value.

  Case-Laws - HC : Benefit of abatement of 67% on value - commercial construction activities - composite contract or mere service contract - no material has been placed on record by the appellant to bifurcate value and nature of work and therefore tax has been imposed on the gross value, which cannot be said to be erroneous - The work cannot be artificially split.
  Visit to Get Source

  ---

• Strict Time Limit for Filing Appeals Before Commissioner: No Extensions Beyond Statute Allowed.

  Case-Laws - HC : Condonation of delay in filing appeal before commissioner (appeals) - the statute stipulates the maximum time limit which could be condoned by the authority concerned. The said power cannot be extended any further, which otherwise would amount to re-writing the statute.
  Visit to Get Source

  ---

Central Excise

• Appellant Wins Refund for Overpaid Central Excise Duty Due to Price Variation Clause; Entitled to Reimbursement.

  Case-Laws - AT : Refund of excess duty paid - price variation clause - Since, the excess amount claimed in the invoices was inclusive of central excise duty, the excess paid duty amount should be available as refund to the appellant inasmuch as such incidence of duty has been borne by the appellant itself.
  Visit to Get Source

  ---

• No Interest on Delayed Refunds from Deposit Date to Realization; Relevant Date Excludes Investigation Period.

  Case-Laws - AT : Interest of delayed refund - relevant date for calculation of such interest - deposit made during the period of investigation - The appellants are not entitled to claim interest on delay refund from the date of deposit till its realization
  Visit to Get Source

  ---

Case Laws:

• GST

• 2019 (11) TMI 1329
  Scope of Advance Ruling application - Sub-section (a) of section 95 of the HPGST/CGST Act - HELD THAT:- Since the applicant is neither supplier of ENA nor he proposes to undertake supply of ENA, therefore the application for advance ruling is not admitted.

  ---

• 2019 (11) TMI 1328
  Classification of goods - Protein Powder with Vitamins and Minerals - whether classifiable under HSN 3004 or not? - HELD THAT:- All the goods being manufactured by the applicant which are mentioned (including the goods mentioned at Sr. No. 20 and 21) in the drug license issued to the applicant by the competent authority and have the labels as per the standards prescribed under the Drugs and Cosmetics Act, 1940 can be classified under HS code 3004.

  ---

• 2019 (11) TMI 1327
  Levy of GST - reverse charge mechanism - royalty paid/dead rent on account of mining rights - Applicant is in the business of mining/ quarrying of broken or crushed stone which is commonly used for concrete aggregates, for road metalling or for railways falling under HSN 2517 - rate of GST - HELD THAT:- The Government provides license to various companies including Public Sector Undertakings for exploration of natural resources like oil, hydrocarbons, iron ore, manganese etc. For having assigned the rights to use the natural resources, the licensee companies are required to pay consideration in the form of annual license fee, lease charges, royalty, etc to the Government. The activity of assignment of rights to use natural resources is treated as supply of services and the licensee is required to pay tax on the amount of consideration paid in the form of royalty or any other form under reverse charge mechanism. The mining lease is governed by the AP Minor Minerals Concession Rules, 2017 (APMMCR). As per provisions of APMMCR, the applicant is required to pay dead rent or royalty (whichever is higher but not both). This activity of payment of dead rent or royalty is on supply of service (Licensing services for the right to use minerals including its exploration and evaluation) wherein the government of Andhra Pradesh is supplier and the applicant is recipient. The said service is classifiable under Licensing services for the right to use minerals including its exploration and evaluation at Serial No. 257, Heading 9973, Group 99733, sub heading 997337 of annexure Scheme of classification of Services to Notification No. 11/2017-CT (Rate) dated 28.06.2017 - the service undertaken by the applicant falls at item (viii) of serial no. 17 of notification no. 11/2017 dt:28-06-2017, further amended vide Notification No. 27/2018-Central Tax (Rate) dt:31-12-2018 and attracts 18% GST (9% CGST+ 9% SGST) w.e.f. 01.01.2019. The applicant is receiving leasing / licensing services from the government of Andhra Pradesh. Hence, provisions of reverse charge mechanism are applicable under the Notification No. 13/2017-CT (Rate), dated 28.06.2017 (as amended from time to time) of the CGST Act, 2017.

  ---

• 2019 (11) TMI 1326
  Rate of GST - outward supply of Flavoured Milk - HELD THAT:- The applicable rate of GST is 18% (9% CGST and 9% SGST) on all goods except the goods specified in the schedules I, II, IV, V, VI of the said Notification. Further, for interpretation of the said notification, the rules for the interpretation of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) (hereinafter referred to as FS to CTA, 1975 ) are to be applied. The applicant informed that the process of the flavoured milk is standardisation of fresh milk according to the fat contents and then heating at certain temperature followed by filtration, pasteurisation, and homogenisation and then mixing of sugar and various flavours and finally bottling - The applicant did not provide any details what are the flavours they are using in the preparations. As seen from their website [http://www.tirumalamilk.com/flavoured-milk.php] they are preparing flavoured milk of various flavours like strawberry, pista, mango, vanilla, badam, chocolate, rose, saffron, cardamom etc. The applicant stated that (i) adding flavours to milk does not change essential character of milk; (ii) flavoured milk is a substitute for milk (iii) it is a simple preparation of milk; (iv) no manufacturing process is involved nor does milk change its composition in any way and opined that the commodity milk and milk products are enumerated in Chapter 4 and they want clarification that under which tariff item / HSN code is applicable to the above said flavoured milk. Under the GST provisions the interpretation of the said Notification is to be under the rules for the interpretation of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975). Thus, flavoured milk is classifiable under tariff item 2202 9930 of the First Schedule to the Customs Tariff Act,1975 as a beverage containing milk under HS code 2202. The rate of tax applicable for the said tariff item is 12% GST (6% CGST + 6% SGST) under entry no. 50 of Schedule II of Notification No.1/2017 - Central (Rate) dated 28.06.2017 as amended.

  ---

• 2019 (11) TMI 1325
  Levy of GST - GTA service - whether GST chargeable on actual amount of commission retained by him for arranging transport facility to their customers or he has to pay GST on the entire amount received from his customers without deducting the commission? - rate of GST - HELD THAT:- The use of the phrase in relation to has extended the scope of the definition of GTA. It includes not only the actual transportation of goods, but any intermediate/ancillary service provided in relation to such transportation, like loading/unloading, packing/ unpacking, trans-shipment, temporary warehousing, etc. If these services are not provided as independent activities but are the means for successful provision of GTA Service, then they are also covered under GTA. In respect of those who provide agency services in transport, the liability is cast on the recipients in most of the cases or unless option to pay under forward charge has been exercised by the GTA. As per the lorry receipts issued by the applicant, he is rendering Goods Transport Agency services and his tax liability under GST law is The rate of tax on the GTA services is 5% (2.5% CGST + 2.5% SGST) subject to satisfying the conditions as prescribed under notification no. 11/2017 - CT (Rate) dated 28.06.2017 as amended by notification no. 20/2017-CT (Rate) dated 22.08.2017 - In case, the said conditions are not satisfied, the rate of GST is 12% (6% CGST +6% SGST) and the applicant being the provider of Goods Transport Agency service has to pay the said tax.

  ---

• 2019 (11) TMI 1324
  Rate of GST - tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves - applicant purchases tobacco leaves form other dealers who have purchased them from farmers, for the purpose of trading - applicant segregates the tobacco into grades depending upon their size (width), colour /shade, length, texture of the leaf etc., and sells such graded tobacco leaf - tobacco leaves are butted and sold to other dealers - tobacco leaves re-dried without getting them threshed - tobacco leaves threshed and re-dried - tobacco threshed and re-dried on job work basis at others premises and then sells such threshed and re-dried tobacco leaves to others - tobacco leaves threshed and re-dried - tobacco threshed and re-dried on job work basis at others premises and then sells such threshed and re-dried tobacco leaves to others. HELD THAT:- It is felt that the transactions of tobacco from auction platform to the supply made to the exporter are to be interpreted in the light of the relevant notifications and to decide the rate of tax accordingly. As seen from the different stages of commodity i.e., from the leaves stage to the final product (manufactured tobacco), the green leaf plucked from the plant undergoes different types of curing to reduce the level of moisture to the maximum extent for sustainability and to continue as leaf for further process. The tobacco leaf will be entitled as a commercial commodity only after drying (Curing) and normally put to trade in form of bundles. The same will be traded between the farmer and the trader and trader to trader/manufacturer and so on - The commodity tobacco leaves shall be interpreted in the light of the entry 109, Schedule- I of Notification No. 1/2017-Central Tax (Rate) and the entry no 3 inserted under the notification 4/2017 CGST (Rate) issued for liability under reverse charge mechanism and the relevant HSN code mentioned against the description of the commodity i.e., 2401. As observed from the facts, i.e process of tobacco, from the field to final product, the green leaves undergo curing process, and become eligible commercial commodity, for which the transaction takes place in between the farmer and the trader on the auction platform. Further, as per the clarification issued by The Department TRU (Tax Research Unit) vide circular F.No.322/2/2017/Dec.2017, Tobacco Leaves means leaves of tobacco as such or broken leaves Tobacco Leaves stems . It clearly expresses that the leaves as long as they do not loose their basic character as leaves , shall be considered as tobacco leaves only. In the present case the applicant purchases the dried leaves on auction platform and trades the same to other dealers or exporters and further engaged in threshing and re-drying of tobacco leaves on job work basis for other traders or manufacturers. What is the rate of GST applicable on tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves? - HELD THAT:- The GST Rate of tax for the tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves is 5% as per the notification 4/2017-Central Tax (Rate), under Reverse charge . What will be the applicable rate of tax if the applicant purchases tobacco leaves from other dealers who have purchased them from farmers, for the purpose of trading? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule I Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the applicant segregates the tobacco into grades depending upon their size (width), colour /shade, length, texture of the leaf etc., and sells such graded tobacco leaf? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No. 1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the tobacco leaves are butted and sold to other dealers? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What is the applicable rate of tax if the applicant gets the tobacco leaves re-dried without getting them threshed? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the applicant gets the tobacco leaves threshed and re-dried? - HELD THAT:- 28% (14% SGST +14% CGST) as per Sl.No. 13 of Schedule IV Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the applicant gets the tobacco threshed and re-dried on job work basis at others premises and then sells such threshed and re-dried tobacco leaves to others? - HELD THAT:- 28% (14% SGST +14% CGST) as per SI.No. 13 of Schedule IV Notification No.1/2017 Central Tax (Rate), dt.28.06.2017.

  ---

• 2019 (11) TMI 1323
  Classification of services - Rate of GST - construction of office building at Vijayawada for Andhra Pradesh State Financial Corporation - Government Entity or otherwise - HELD THAT:- The activities of M/s. APSFC are business activities and not otherwise. The applicant informed that the said building is for use as office by M/s. APSFC and therefore, it appears that the said construction is for office use for conducting business activities of M/s. APSFC. Moreover, the applicant did not provide any information or documentary proof evidencing that the construction/ building is for use other than for commerce, industry, or any other business or profession to be eligible for concessional rate of 12% (6% CGST + 6% SGST) available under Notification No.24/2017 - CT (Rate) dated 21.09.2017. In this case, the contract entered by the applicant is classifiable under SAC heading No. 9954 under construction services, and it falls under entry no (ii) of serial No. 3 of notification no. 11/2017 Central Tax (Rate) dated 28.06.2017 i.e., Composite Supply of Works Contract as defined in clause 119 of Section 2 of Central Goods and Services Act, 2017 and the applicable rate of tax is 18% (9% under Central tax and 9% State tax).

  ---

• 2019 (11) TMI 1322
  Rate of GST - tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves - applicant purchases tobacco leaves form other dealers who have purchased them from farmers, for the purpose of trading - applicant segregates the tobacco into grades depending upon their size (width), colour /shade, length, texture of the leaf etc., and sells such graded tobacco leaf - tobacco leaves are butted and sold to other dealers - tobacco leaves re-dried without getting them threshed - tobacco leaves threshed and re-dried - tobacco threshed and re-dried on job work basis at others premises and then sells such threshed and re-dried tobacco leaves to others - tobacco leaves threshed and re-dried - tobacco threshed and re-dried on job work basis at others premises and then sells such threshed and re-dried tobacco leaves to others. HELD THAT:- It is felt that the transactions of tobacco from auction platform to the supply made to the exporter are to be interpreted in the light of the relevant notifications and to decide the rate of tax accordingly. As seen from the different stages of commodity i.e., from the leaves stage to the final product (manufactured tobacco), the green leaf plucked from the plant undergoes different types of curing to reduce the level of moisture to the maximum extent for sustainability and to continue as leaf for further process. The tobacco leaf will be entitled as a commercial commodity only after drying (Curing) and normally put to trade in form of bundles. The same will be traded between the farmer and the trader and trader to trader/manufacturer and so on - The commodity tobacco leaves shall be interpreted in the light of the entry 109, Schedule- I of Notification No. 1/2017-Central Tax (Rate) and the entry no 3 inserted under the notification 4/2017 CGST (Rate) issued for liability under reverse charge mechanism and the relevant HSN code mentioned against the description of the commodity i.e., 2401. As observed from the facts, i.e process of tobacco, from the field to final product, the green leaves undergo curing process, and become eligible commercial commodity, for which the transaction takes place in between the farmer and the trader on the auction platform. Further, as per the clarification issued by The Department TRU (Tax Research Unit) vide circular F.No.322/2/2017/Dec.2017, Tobacco Leaves means leaves of tobacco as such or broken leaves Tobacco Leaves stems . It clearly expresses that the leaves as long as they do not loose their basic character as leaves , shall be considered as tobacco leaves only. In the present case the applicant purchases the dried leaves on auction platform and trades the same to other dealers or exporters and further engaged in threshing and re-drying of tobacco leaves on job work basis for other traders or manufacturers. What is the rate of GST applicable on tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves? - HELD THAT:- The GST Rate of tax for the tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves is 5% as per the notification 4/2017-Central Tax (Rate), under Reverse charge . What will be the applicable rate of tax if the applicant purchases tobacco leaves from other dealers who have purchased them from farmers, for the purpose of trading? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule I Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the applicant segregates the tobacco into grades depending upon their size (width), colour /shade, length, texture of the leaf etc., and sells such graded tobacco leaf? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No. 1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the tobacco leaves are butted and sold to other dealers? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What is the applicable rate of tax if the applicant gets the tobacco leaves re-dried without getting them threshed? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the applicant gets the tobacco leaves threshed and re-dried? - HELD THAT:- 28% (14% SGST +14% CGST) as per Sl.No. 13 of Schedule IV Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the applicant gets the tobacco threshed and re-dried on job work basis at others premises and then sells such threshed and re-dried tobacco leaves to others? - HELD THAT:- 28% (14% SGST +14% CGST) as per SI.No. 13 of Schedule IV Notification No.1/2017 Central Tax (Rate), dt.28.06.2017.

  ---

• 2019 (11) TMI 1321
  Rate of GST - tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves - applicant purchases tobacco leaves form other dealers who have purchased them from farmers, for the purpose of trading - applicant segregates the tobacco into grades depending upon their size (width), colour /shade, length, texture of the leaf etc., and sells such graded tobacco leaf - tobacco leaves are butted and sold to other dealers - tobacco leaves re-dried without getting them threshed - tobacco leaves threshed and re-dried - tobacco threshed and re-dried on job work basis at others premises and then sells such threshed and re-dried tobacco leaves to others - tobacco leaves threshed and re-dried - tobacco threshed and re-dried on job work basis at others premises and then sells such threshed and re-dried tobacco leaves to others. HELD THAT:- It is felt that the transactions of tobacco from auction platform to the supply made to the exporter are to be interpreted in the light of the relevant notifications and to decide the rate of tax accordingly. As seen from the different stages of commodity i.e., from the leaves stage to the final product (manufactured tobacco), the green leaf plucked from the plant undergoes different types of curing to reduce the level of moisture to the maximum extent for sustainability and to continue as leaf for further process. The tobacco leaf will be entitled as a commercial commodity only after drying (Curing) and normally put to trade in form of bundles. The same will be traded between the farmer and the trader and trader to trader/manufacturer and so on - The commodity tobacco leaves shall be interpreted in the light of the entry 109, Schedule- I of Notification No. 1/2017-Central Tax (Rate) and the entry no 3 inserted under the notification 4/2017 CGST (Rate) issued for liability under reverse charge mechanism and the relevant HSN code mentioned against the description of the commodity i.e., 2401. As observed from the facts, i.e process of tobacco, from the field to final product, the green leaves undergo curing process, and become eligible commercial commodity, for which the transaction takes place in between the farmer and the trader on the auction platform. Further, as per the clarification issued by The Department TRU (Tax Research Unit) vide circular F.No.322/2/2017/Dec.2017, Tobacco Leaves means leaves of tobacco as such or broken leaves Tobacco Leaves stems . It clearly expresses that the leaves as long as they do not loose their basic character as leaves , shall be considered as tobacco leaves only. In the present case the applicant purchases the dried leaves on auction platform and trades the same to other dealers or exporters and further engaged in threshing and re-drying of tobacco leaves on job work basis for other traders or manufacturers. What is the rate of GST applicable on tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves? - HELD THAT:- The GST Rate of tax for the tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves is 5% as per the notification 4/2017-Central Tax (Rate), under Reverse charge . What will be the applicable rate of tax if the applicant purchases tobacco leaves from other dealers who have purchased them from farmers, for the purpose of trading? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule I Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the applicant segregates the tobacco into grades depending upon their size (width), colour /shade, length, texture of the leaf etc., and sells such graded tobacco leaf? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No. 1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the tobacco leaves are butted and sold to other dealers? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What is the applicable rate of tax if the applicant gets the tobacco leaves re-dried without getting them threshed? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the applicant gets the tobacco leaves threshed and re-dried? - HELD THAT:- 28% (14% SGST +14% CGST) as per Sl.No. 13 of Schedule IV Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the applicant gets the tobacco threshed and re-dried on job work basis at others premises and then sells such threshed and re-dried tobacco leaves to others? - HELD THAT:- 28% (14% SGST +14% CGST) as per SI.No. 13 of Schedule IV Notification No.1/2017 Central Tax (Rate), dt.28.06.2017.

  ---

• 2019 (11) TMI 1320
  Rate of GST - tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves - applicant purchases tobacco leaves form other dealers who have purchased them from farmers, for the purpose of trading - applicant segregates the tobacco into grades depending upon their size (width), colour /shade, length, texture of the leaf etc., and sells such graded tobacco leaf - tobacco leaves are butted and sold to other dealers - tobacco leaves re-dried without getting them threshed - tobacco leaves threshed and re-dried - tobacco threshed and re-dried on job work basis at others premises and then sells such threshed and re-dried tobacco leaves to others - tobacco leaves threshed and re-dried - tobacco threshed and re-dried on job work basis at others premises and then sells such threshed and re-dried tobacco leaves to others. HELD THAT:- It is felt that the transactions of tobacco from auction platform to the supply made to the exporter are to be interpreted in the light of the relevant notifications and to decide the rate of tax accordingly. As seen from the different stages of commodity i.e., from the leaves stage to the final product (manufactured tobacco), the green leaf plucked from the plant undergoes different types of curing to reduce the level of moisture to the maximum extent for sustainability and to continue as leaf for further process. The tobacco leaf will be entitled as a commercial commodity only after drying (Curing) and normally put to trade in form of bundles. The same will be traded between the farmer and the trader and trader to trader/manufacturer and so on - The commodity tobacco leaves shall be interpreted in the light of the entry 109, Schedule- I of Notification No. 1/2017-Central Tax (Rate) and the entry no 3 inserted under the notification 4/2017 CGST (Rate) issued for liability under reverse charge mechanism and the relevant HSN code mentioned against the description of the commodity i.e., 2401. As observed from the facts, i.e process of tobacco, from the field to final product, the green leaves undergo curing process, and become eligible commercial commodity, for which the transaction takes place in between the farmer and the trader on the auction platform. Further, as per the clarification issued by The Department TRU (Tax Research Unit) vide circular F.No.322/2/2017/Dec.2017, Tobacco Leaves means leaves of tobacco as such or broken leaves Tobacco Leaves stems . It clearly expresses that the leaves as long as they do not loose their basic character as leaves , shall be considered as tobacco leaves only. In the present case the applicant purchases the dried leaves on auction platform and trades the same to other dealers or exporters and further engaged in threshing and re-drying of tobacco leaves on job work basis for other traders or manufacturers. What is the rate of GST applicable on tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves? - HELD THAT:- The GST Rate of tax for the tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves is 5% as per the notification 4/2017-Central Tax (Rate), under Reverse charge . What will be the applicable rate of tax if the applicant purchases tobacco leaves from other dealers who have purchased them from farmers, for the purpose of trading? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule I Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the applicant segregates the tobacco into grades depending upon their size (width), colour /shade, length, texture of the leaf etc., and sells such graded tobacco leaf? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No. 1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the tobacco leaves are butted and sold to other dealers? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What is the applicable rate of tax if the applicant gets the tobacco leaves re-dried without getting them threshed? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the applicant gets the tobacco leaves threshed and re-dried? - HELD THAT:- 28% (14% SGST +14% CGST) as per Sl.No. 13 of Schedule IV Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the applicant gets the tobacco threshed and re-dried on job work basis at others premises and then sells such threshed and re-dried tobacco leaves to others? - HELD THAT:- 28% (14% SGST +14% CGST) as per SI.No. 13 of Schedule IV Notification No.1/2017 Central Tax (Rate), dt.28.06.2017.

  ---

• 2019 (11) TMI 1319
  Rate of GST - tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves - applicant purchases tobacco leaves form other dealers who have purchased them from farmers, for the purpose of trading - applicant segregates the tobacco into grades depending upon their size (width), colour /shade, length, texture of the leaf etc., and sells such graded tobacco leaf - tobacco leaves are butted and sold to other dealers - tobacco leaves re-dried without getting them threshed - tobacco leaves threshed and re-dried - tobacco threshed and re-dried on job work basis at others premises and then sells such threshed and re-dried tobacco leaves to others - tobacco leaves threshed and re-dried - tobacco threshed and re-dried on job work basis at others premises and then sells such threshed and re-dried tobacco leaves to others. HELD THAT:- It is felt that the transactions of tobacco from auction platform to the supply made to the exporter are to be interpreted in the light of the relevant notifications and to decide the rate of tax accordingly. As seen from the different stages of commodity i.e., from the leaves stage to the final product (manufactured tobacco), the green leaf plucked from the plant undergoes different types of curing to reduce the level of moisture to the maximum extent for sustainability and to continue as leaf for further process. The tobacco leaf will be entitled as a commercial commodity only after drying (Curing) and normally put to trade in form of bundles. The same will be traded between the farmer and the trader and trader to trader/manufacturer and so on - The commodity tobacco leaves shall be interpreted in the light of the entry 109, Schedule- I of Notification No. 1/2017-Central Tax (Rate) and the entry no 3 inserted under the notification 4/2017 CGST (Rate) issued for liability under reverse charge mechanism and the relevant HSN code mentioned against the description of the commodity i.e., 2401. As observed from the facts, i.e process of tobacco, from the field to final product, the green leaves undergo curing process, and become eligible commercial commodity, for which the transaction takes place in between the farmer and the trader on the auction platform. Further, as per the clarification issued by The Department TRU (Tax Research Unit) vide circular F.No.322/2/2017/Dec.2017, Tobacco Leaves means leaves of tobacco as such or broken leaves Tobacco Leaves stems . It clearly expresses that the leaves as long as they do not loose their basic character as leaves , shall be considered as tobacco leaves only. In the present case the applicant purchases the dried leaves on auction platform and trades the same to other dealers or exporters and further engaged in threshing and re-drying of tobacco leaves on job work basis for other traders or manufacturers. What is the rate of GST applicable on tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves? - HELD THAT:- The GST Rate of tax for the tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves is 5% as per the notification 4/2017-Central Tax (Rate), under Reverse charge . What will be the applicable rate of tax if the applicant purchases tobacco leaves from other dealers who have purchased them from farmers, for the purpose of trading? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule I Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the applicant segregates the tobacco into grades depending upon their size (width), colour /shade, length, texture of the leaf etc., and sells such graded tobacco leaf? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No. 1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the tobacco leaves are butted and sold to other dealers? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What is the applicable rate of tax if the applicant gets the tobacco leaves re-dried without getting them threshed? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the applicant gets the tobacco leaves threshed and re-dried? - HELD THAT:- 28% (14% SGST +14% CGST) as per Sl.No. 13 of Schedule IV Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the applicant gets the tobacco threshed and re-dried on job work basis at others premises and then sells such threshed and re-dried tobacco leaves to others? - HELD THAT:- 28% (14% SGST +14% CGST) as per SI.No. 13 of Schedule IV Notification No.1/2017 Central Tax (Rate), dt.28.06.2017.

  ---

• 2019 (11) TMI 1318
  Rate of GST - tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves - applicant purchases tobacco leaves form other dealers who have purchased them from farmers, for the purpose of trading - applicant segregates the tobacco into grades depending upon their size (width), colour /shade, length, texture of the leaf etc., and sells such graded tobacco leaf - tobacco leaves are butted and sold to other dealers - tobacco leaves re-dried without getting them threshed - tobacco leaves threshed and re-dried - tobacco threshed and re-dried on job work basis at others premises and then sells such threshed and re-dried tobacco leaves to others - tobacco leaves threshed and re-dried - tobacco threshed and re-dried on job work basis at others premises and then sells such threshed and re-dried tobacco leaves to others. HELD THAT:- It is felt that the transactions of tobacco from auction platform to the supply made to the exporter are to be interpreted in the light of the relevant notifications and to decide the rate of tax accordingly. As seen from the different stages of commodity i.e., from the leaves stage to the final product (manufactured tobacco), the green leaf plucked from the plant undergoes different types of curing to reduce the level of moisture to the maximum extent for sustainability and to continue as leaf for further process. The tobacco leaf will be entitled as a commercial commodity only after drying (Curing) and normally put to trade in form of bundles. The same will be traded between the farmer and the trader and trader to trader/manufacturer and so on - The commodity tobacco leaves shall be interpreted in the light of the entry 109, Schedule- I of Notification No. 1/2017-Central Tax (Rate) and the entry no 3 inserted under the notification 4/2017 CGST (Rate) issued for liability under reverse charge mechanism and the relevant HSN code mentioned against the description of the commodity i.e., 2401. As observed from the facts, i.e process of tobacco, from the field to final product, the green leaves undergo curing process, and become eligible commercial commodity, for which the transaction takes place in between the farmer and the trader on the auction platform. Further, as per the clarification issued by The Department TRU (Tax Research Unit) vide circular F.No.322/2/2017/Dec.2017, Tobacco Leaves means leaves of tobacco as such or broken leaves Tobacco Leaves stems . It clearly expresses that the leaves as long as they do not loose their basic character as leaves , shall be considered as tobacco leaves only. In the present case the applicant purchases the dried leaves on auction platform and trades the same to other dealers or exporters and further engaged in threshing and re-drying of tobacco leaves on job work basis for other traders or manufacturers. What is the rate of GST applicable on tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves? - HELD THAT:- The GST Rate of tax for the tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves is 5% as per the notification 4/2017-Central Tax (Rate), under Reverse charge . What will be the applicable rate of tax if the applicant purchases tobacco leaves from other dealers who have purchased them from farmers, for the purpose of trading? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule I Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the applicant segregates the tobacco into grades depending upon their size (width), colour /shade, length, texture of the leaf etc., and sells such graded tobacco leaf? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No. 1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the tobacco leaves are butted and sold to other dealers? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What is the applicable rate of tax if the applicant gets the tobacco leaves re-dried without getting them threshed? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the applicant gets the tobacco leaves threshed and re-dried? - HELD THAT:- 28% (14% SGST +14% CGST) as per Sl.No. 13 of Schedule IV Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the applicant gets the tobacco threshed and re-dried on job work basis at others premises and then sells such threshed and re-dried tobacco leaves to others? - HELD THAT:- 28% (14% SGST +14% CGST) as per SI.No. 13 of Schedule IV Notification No.1/2017 Central Tax (Rate), dt.28.06.2017.

  ---

• 2019 (11) TMI 1317
  Rate of GST - tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves - applicant purchases tobacco leaves form other dealers who have purchased them from farmers, for the purpose of trading - applicant segregates the tobacco into grades depending upon their size (width), colour /shade, length, texture of the leaf etc., and sells such graded tobacco leaf - tobacco leaves are butted and sold to other dealers - tobacco leaves re-dried without getting them threshed - tobacco leaves threshed and re-dried - tobacco threshed and re-dried on job work basis at others premises and then sells such threshed and re-dried tobacco leaves to others - tobacco leaves threshed and re-dried - tobacco threshed and re-dried on job work basis at others premises and then sells such threshed and re-dried tobacco leaves to others. HELD THAT:- It is felt that the transactions of tobacco from auction platform to the supply made to the exporter are to be interpreted in the light of the relevant notifications and to decide the rate of tax accordingly. As seen from the different stages of commodity i.e., from the leaves stage to the final product (manufactured tobacco), the green leaf plucked from the plant undergoes different types of curing to reduce the level of moisture to the maximum extent for sustainability and to continue as leaf for further process. The tobacco leaf will be entitled as a commercial commodity only after drying (Curing) and normally put to trade in form of bundles. The same will be traded between the farmer and the trader and trader to trader/manufacturer and so on - The commodity tobacco leaves shall be interpreted in the light of the entry 109, Schedule- I of Notification No. 1/2017-Central Tax (Rate) and the entry no 3 inserted under the notification 4/2017 CGST (Rate) issued for liability under reverse charge mechanism and the relevant HSN code mentioned against the description of the commodity i.e., 2401. As observed from the facts, i.e process of tobacco, from the field to final product, the green leaves undergo curing process, and become eligible commercial commodity, for which the transaction takes place in between the farmer and the trader on the auction platform. Further, as per the clarification issued by The Department TRU (Tax Research Unit) vide circular F.No.322/2/2017/Dec.2017, Tobacco Leaves means leaves of tobacco as such or broken leaves Tobacco Leaves stems . It clearly expresses that the leaves as long as they do not loose their basic character as leaves , shall be considered as tobacco leaves only. In the present case the applicant purchases the dried leaves on auction platform and trades the same to other dealers or exporters and further engaged in threshing and re-drying of tobacco leaves on job work basis for other traders or manufacturers. What is the rate of GST applicable on tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves? - HELD THAT:- The GST Rate of tax for the tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves is 5% as per the notification 4/2017-Central Tax (Rate), under Reverse charge . What will be the applicable rate of tax if the applicant purchases tobacco leaves from other dealers who have purchased them from farmers, for the purpose of trading? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule I Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the applicant segregates the tobacco into grades depending upon their size (width), colour /shade, length, texture of the leaf etc., and sells such graded tobacco leaf? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No. 1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the tobacco leaves are butted and sold to other dealers? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What is the applicable rate of tax if the applicant gets the tobacco leaves re-dried without getting them threshed? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the applicant gets the tobacco leaves threshed and re-dried? - HELD THAT:- 28% (14% SGST +14% CGST) as per Sl.No. 13 of Schedule IV Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the applicant gets the tobacco threshed and re-dried on job work basis at others premises and then sells such threshed and re-dried tobacco leaves to others? - HELD THAT:- 28% (14% SGST +14% CGST) as per SI.No. 13 of Schedule IV Notification No.1/2017 Central Tax (Rate), dt.28.06.2017.

  ---

• 2019 (11) TMI 1316
  Rate of GST - tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves - applicant purchases tobacco leaves form other dealers who have purchased them from farmers, for the purpose of trading - applicant segregates the tobacco into grades depending upon their size (width), colour /shade, length, texture of the leaf etc., and sells such graded tobacco leaf - tobacco leaves are butted and sold to other dealers - tobacco leaves re-dried without getting them threshed - tobacco leaves threshed and re-dried - tobacco threshed and re-dried on job work basis at others premises and then sells such threshed and re-dried tobacco leaves to others - tobacco leaves threshed and re-dried - tobacco threshed and re-dried on job work basis at others premises and then sells such threshed and re-dried tobacco leaves to others. HELD THAT:- It is felt that the transactions of tobacco from auction platform to the supply made to the exporter are to be interpreted in the light of the relevant notifications and to decide the rate of tax accordingly. As seen from the different stages of commodity i.e., from the leaves stage to the final product (manufactured tobacco), the green leaf plucked from the plant undergoes different types of curing to reduce the level of moisture to the maximum extent for sustainability and to continue as leaf for further process. The tobacco leaf will be entitled as a commercial commodity only after drying (Curing) and normally put to trade in form of bundles. The same will be traded between the farmer and the trader and trader to trader/manufacturer and so on - The commodity tobacco leaves shall be interpreted in the light of the entry 109, Schedule- I of Notification No. 1/2017-Central Tax (Rate) and the entry no 3 inserted under the notification 4/2017 CGST (Rate) issued for liability under reverse charge mechanism and the relevant HSN code mentioned against the description of the commodity i.e., 2401. As observed from the facts, i.e process of tobacco, from the field to final product, the green leaves undergo curing process, and become eligible commercial commodity, for which the transaction takes place in between the farmer and the trader on the auction platform. Further, as per the clarification issued by The Department TRU (Tax Research Unit) vide circular F.No.322/2/2017/Dec.2017, Tobacco Leaves means leaves of tobacco as such or broken leaves Tobacco Leaves stems . It clearly expresses that the leaves as long as they do not loose their basic character as leaves , shall be considered as tobacco leaves only. In the present case the applicant purchases the dried leaves on auction platform and trades the same to other dealers or exporters and further engaged in threshing and re-drying of tobacco leaves on job work basis for other traders or manufacturers. What is the rate of GST applicable on tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves? - HELD THAT:- The GST Rate of tax for the tobacco leaves procured at tobacco auction platforms or directly from farmers, which are cured and dried by farmers themselves is 5% as per the notification 4/2017-Central Tax (Rate), under Reverse charge . What will be the applicable rate of tax if the applicant purchases tobacco leaves from other dealers who have purchased them from farmers, for the purpose of trading? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule I Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the applicant segregates the tobacco into grades depending upon their size (width), colour /shade, length, texture of the leaf etc., and sells such graded tobacco leaf? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No. 1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the tobacco leaves are butted and sold to other dealers? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What is the applicable rate of tax if the applicant gets the tobacco leaves re-dried without getting them threshed? - HELD THAT:- 5% (2.5% SGST + 2.5%CGST) as per Sl.No.109 of schedule 1 Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the applicant gets the tobacco leaves threshed and re-dried? - HELD THAT:- 28% (14% SGST +14% CGST) as per Sl.No. 13 of Schedule IV Notification No.1/2017-Central Tax (Rate) dated 28.06.2017. What will be the applicable rate of tax if the applicant gets the tobacco threshed and re-dried on job work basis at others premises and then sells such threshed and re-dried tobacco leaves to others? - HELD THAT:- 28% (14% SGST +14% CGST) as per SI.No. 13 of Schedule IV Notification No.1/2017 Central Tax (Rate), dt.28.06.2017.

  ---

• 2019 (11) TMI 1315
  Order passed by the National Anti-Profiteering Authority - Appealable order or not - adjudicating authority or not - Section 107 of the CGST Act - HELD THAT:- The provision under Section 107(1) which provides for an appeal by the aggrieved party in respect of an order passed by an Adjudicating Authority . Section 2(4) of the CGST Act defines the term an Adjudicating Authority to mean any authority, appointed or authorized to pass any order or decision under the Act but does not include several authorities which are specifically enumerated in the said sub-Section. National Authority for Anti-Profiteering is not one of the authorities which are excluded from the definition of an Adjudicating Authority . List on 25.11.2019.

  ---

• 2019 (11) TMI 1314
  Provisional attachment - freezing the bank accounts of the petitioner - Non-existing assessee - Risky Exporters - Local Commissioner has tendered in Court the report prepared by her - on perusal of the said report that upon physical verification, the premises in question, was not found in occupation of the petitioner, as claimed by the petitioner - HELD THAT:- We had appointed the Local Commissioner, since the petitioner had categorically asserted despite being confronted with the submissions of Mr. Aditya Yadav, that the petitioner is very much present at, and running its office from the said address viz. 130, Plot No. 8, Mangalam Paradise Mall, Magalam Palace, Sector-3, Rohini, New Delhi-110085. Looking to the fact that the petitioner has not approached this Court with clean hands, and the entirety of the situation, including the fact that the petitioner is also claimed to be a Risky Exporter , we are not inclined to exercise our discretionary jurisdiction in favour of the petitioner. Petition dismissed.

  ---

• 2019 (11) TMI 1313
  Release of conveyance with the goods - Despite a clear order passed by this court directing the respondents to forthwith release the conveyance together with the goods contained therein subject to the petitioner paying the amount of proposed tax and penalty, the respondents have not released the truck and the goods in question and they are insisting upon payment of fine in lieu of confiscation of goods and conveyance. HELD THAT:- It appears that the respondents have deliberately flouted the orders of this court - Issue Notice, returnable at 2:30 today.

  ---

• 2019 (11) TMI 1312
  Filing up of Form GST TRAN-I - transition to GST regime - transitional credits - HELD THAT:- All these writ applications are disposed of with the direction that if the petitioners have already preferred such applications before the Nodal Officer, the same shall be forwarded by the Nodal Officer to the Information Technology Grievances Redressal Committee - if such application has not been preferred by any of the petitioners, they shall prefer the applications for getting the transitional input tax credit by filling up the Form GST TRAN-I and submitting the same to the Nodal Officer, within a period of three weeks from today, and thereafter, the Nodal Officer shall forward the claims of the petitioners to the Information Technology Grievances Redressal Committee, within a further period of four weeks thereafter. Application disposed off.

  ---

• 2019 (11) TMI 1311
  Profiteering - supply of construction services related to purchase of an apartment in the project al Navkar Darshan of a Flat - benefit of Input Tax Credit (ITC) by way of commensurate reduction in the price of the apartment purchased by him, on implementation of GST w.e.f. 01. 07.2017 not passed on - contravention of section 171 of CGST Act - penalty - HELD THAT:- It is clear from the plain reading of Section 171(1) mentioned above that it deals with two situations one relating to the passing on the benefit of reduction in the rate of tax and the second pertaining to the passing on the benefit of the ITC. On the issue of reduction in the tax rate, it is apparent from the DGAP s Report that there has been no reduction in the rate of tax in the post GST period hence the only issue to be examined is as to whether there was any net benefit of ITC with the introduction of GST. It has been revealed from the DGAP s Report that the ITC as a percentage of the turnover that was available to the Respondent during the pre-GST period (April-2016 to June-2017) was 0.14% and during the post-GST period (July-2017 to December-2018), it was 4.08% This confirms that, post-GST. the Respondent has been benefited from additional ITC to the tune of 3 94% (4.08%-0.14%) of his turnover and the same was required to be passed on to the Applicant and the other flat buyers. The DGAP has calculated the amount of ITC benefit to be passed on to all the flat buyers as Rs. 5,83,593/- which was availed by the Respondent vide Table- C Supra on the basis of the information supplied by the Respondent, which the Respondent has not challenged and hence the amount of profiteering computed by the DGAP is hereby accepted as correct - Therefore, we take the view that the provisions of Section 171 (1) of the CGST Act, 2017 have been contravened in the present case as the Respondent had been benefited from additional IT in the post-GST regime. Further, it has been revealed from the record that the Respondent has profiteered an amount of Rs. 5,83,593/- for the period of investigation. Therefore, in view of the above facts this Authority under Rule 133(3)(a) of the CGST Rules, 2017 orders that the Respondent shall reduce the price to be realized from the buyers of the flats commensurate with the benefit of ITC received by him - The profiteered amount alongwith applicable interest shall be paid by the Respondent within a period of 3 months from the date of this order, failing which the same shall be recovered by the concerned Commissioner CGST/SGST as per the provisions of the CGST/SGST Act, 2017, under the supervision of the DGAP. A Report confirming the action taken on the directions passed vide this order shall be submitted by the concerned Commissioner CGST/SGST within a period of 4 months from the date of this order. Penalty - HELD THAT:- The Respondent has denied benefit of ITC to the buyers of the fiats being constructed by him in his Project Navkar Darshan in contravention of the provisions of Section 171 (1) of the CGST Act 2017 and has committed an offence under Section 171 (3A) of the above Act and therefore, he is liable for imposition of penalty under the provisions of the above Section - a SCN be issued to him directing him to explain as to why the penalty prescribed under Section 171 (3A) of the above Act read with Rule 133 (3) d) of the CGST Rules, 2017 should not be imposed on him. Application disposed off.

  ---

• Income Tax

• 2019 (11) TMI 1310
  Determination of the tax to be paid in terms of the Kar Vivad Samadhan Scheme 1998 (KVSS) - calculation of the disputed income with reference to the unpaid tax - HELD THAT:- Since the tax effect in the present matter is 1.03 crores, which is less than the limit prescribed in the latest CBDT Circular dated 8.8.2019, we see no reason to interfere in the matter. The special leave petition is dismissed leaving all questions of law open. Pending applications, if any, also stand disposed of.

  ---

• 2019 (11) TMI 1309
  Reopening of assessment u/s 147 - HELD THAT:- There is no failure on the part of the Petitioner to make true and full disclosure of all material facts necessary for assessment. Thus, on this ground, it is beyond jurisdiction, as the notice is hit by the first proviso to Section 147 of the Act. Allowability of expenditure of renovation expenses - From the order under Section 143(3) of the Act, on this issue, the Petitioner has filed Appeal to the Commissioner of Income Tax (Appeals) who allowed the Petitioner s appeal. This by holding that the expenses of Rs. 77 lakhs are also be allowed as Revenue expenses. The Revenue is now in appeal before the Tribunal. Therefore, it is submitted that there is no failure on the part of the Petitioner to disclose fully and truly all material facts necessary for Assessment. Thus, the notice is without jurisdiction as being hit by the first proviso to Section 147 of the Act. Besides, it is also, prima facie, hit by the third proviso to Section 147 of the Act i.e. this very issue has been decided in appeal for the subject Assessment Year. Prima facie, we find some merit in the contention.Revenue seeks time to take instructions and file affidavit in reply, if necessary. At the request of Mr. Walve, Petition is adjourned to 13th January, 2020. In the meantime, there shall be ad-interim stay of the impugned notice dated 30th March, 2019.

  ---

• 2019 (11) TMI 1308
  Maintainability of tax appeal - tax effect - whether tax effect means the difference between the tax on the total income assessed i.e. assessed by the AO and the tax that would have been chargeable had such total income been reduced by the amount of income in respect of the issues against which appeal is intended to be filed? - HELD THAT:- Since the ITAT has deleted the additions made by the Assessing Officer, not only in respect of the advances received towards AMC, but in respect of other advances received by the assessee towards supply and installation of lifts and modernisation of lifts, the tax effect would have to be computed cumulatively and, therefore, appeals against the orders passed by the Tribunal both in the appeal preferred by the assessee, as well as the appeal preferred by the revenue would be maintainable. She also submits that merely because the appellant had preferred separate appeals in terms of Section 260A in relation to a different ITA preferred by the respondent, it does not mean that the tax effect has to be examined ITA wise only. We find merit in this submission of Ms. Malhotra. Since no cross objections have been preferred in the present case, before the Tribunal, in our view paragraph 12 is of no relevance since these cases are squarely covered by paragraph 4 of the said circular. Revenue is aggrieved by deletion of all the additions, as aforesaid. Therefore, the cumulative value of the tax effect would have to be computed in terms of paragraph 4 of the Circular. The submission of learned counsel for the respondent assessee is rejected.

  ---

• 2019 (11) TMI 1307
  TP Adjustment - comparable selection - HELD THAT:- Alphageo India Pvt. Ltd. is engaged in seismic surveys, whereas the assessee is engaged in the manufacture, distribution, sale of digital switching and telecommunication equipments, and that for the Assessment Year in question, the segment was only for installation of such equipments. Even on the basis of functional dissimilarities, the exclusion of Alphageo India Pvt. Ltd. from the comparables was called for. In view of the aforesaid, no question of law arises in the present appeal.

  ---

• 2019 (11) TMI 1306
  Reopening of assessment u/s 147 - as alleged no failure on the part of the Assessee to disclose the truly and fully all facts necessary for assessment - change of opinion - HELD THAT:- The reasons recorded in support of the impugned notice make no reference to any fresh tangible evidence but is based on examination of the record by the Assessing Officer. Thus prima-facie the impugned notice is hit by the proviso to Sections 147 of the Act. The reason to believe that income chargeable to tax has escaped assessment is two fold i.e. one the interest income ought to have been taxed as income from other sources and not as business income and second that the expenses debited under the head other expenses were disproportionate. Both these issues were not only disclosed by the Petitioner in its profit and loss account but were examined by the AO during the regular assessment proceedings. The same is evidenced according to the Petitioner by letter dated 3 August 2016 submitted during the regular assessment proceedings. However, the same is disputed by the Revenue. It may be pointed out that the AO has not disputed by affidavit the affidavit, of the Chartered Accountant who attended the hearing before the then Assessing Officer stating that he had submitted the letter giving these details to the Assessing Officer during the course of the hearing. Thus, prima-facie, the impugned notice appears to be without jurisdiction as there was no failure on the part of the Assessee to disclose the truly and fully all facts necessary for assessment and on account of change of opinion.

  ---

• 2019 (11) TMI 1305
  Exemption u/s 11 and 12 - religious activities - HELD THAT:- As regards the findings pertaining to withdrawal of exemption under Section 11 of the Act is concerned, it has been observed that the reasons assigned by the AO were based on presumption, and the basis of invoking Section 13(1)(c)(ii) was completely misplaced and contrary to the scheme of the Act relating to the taxation of charitable or religious organisations. The addition of Rs. 50 lacs as undisclosed income, being unexplained expenditure of samagams has been held to be contrary to the provisions of the Act as Section 68 has no application on taxation of religious and charitable organisation, because of a specific provision Section 115BBC, which governs taxation of all anonymous donations. On a perusal of the order of this Court in [ 2015 (9) TMI 558 - DELHI HIGH COURT] it emerges that after verifying the objects of the Trust and the activities carried out by the assessee, this Court held that the activities undertaken by the assessee can be included in the broad conspectus of religious activities and in the context of Hindu Religion, such activities cannot be confined to activities incidental to a place of worship like a temple. The findings of the Tribunal on this aspect, do not call for any interference. The observations of the Tribunal vis-a-vis disallowances of 1/3rd expenditure for telecast of samagams, are reasonable and they do not warrant any interference. There is no evidence on record to construe that the GurudevJi has derived any personal benefit which would justify the Revenue to invoke the provisions of Section 13(1)(c)(ii) of the Act to deny assessee the benefit of the expenditure.

  ---

• 2019 (11) TMI 1304
  Correct head of income - income from the sale of gala (real estate / land and construction of structure) - capital gains u/s 45 or business income u/s 28 - Tribunal confirming the order of CIT(A) assessing the income as capital gains - HELD THAT:- All the three authorities have assessed the evidence on record. The foundation of the Appellant s assertion that the income is to be treated as a business income is that the agreement in question was only in respect of development rights and ownership did not pass on the the Appellant. Commissioner (Appeals) and the Tribunal, after examining the terms of the agreement in question dated 1 November 2007, rendered a finding that the Assessee had purchased the land along with right and whatever be the nomenclature, it was an outright purchase. There was no argument made in the alternative by the Appellant before the Tribunal as sought to be urged before us. It has been the consistent stand of the Appellant that the agreement in question is only a development agreement. In the circumstances, the issue being a question of fact, question (a) does not give rise to any substantial question of law. Valuation of the gala to the valuation officer as per section 50C(2) - HELD THAT:- As regards this question, we do not find that any submission made before the Tribunal in this regard. There is no submission nor any ground taken in the appeal memo before the Tribunal that the Assessing Officer should have referred the valuation of gala to the Valuation Officer as per section 50C (2) of the Act. Allowable business expenses - expenses included in the cost of construction of the said gala - HELD THAT:- Commissioner (Appeals) and the Tribunal have examined the claim of the Appellant towards business expenditure by examining the material produced by the Appellant. The Commissioner (Appeals), after examining the evidence, has rendered a finding that in the absence of confirmation from the parties, the contention of the Appellant was not acceptable. This finding has been confirmed by the Tribunal. This is a possible view which can be taken on the assessment of evidence. We do not find any perversity in the view taken by the Commissioner (Appeals) and the Tribunal in coming to this conclusion. This finding of fact will equally apply to a claim for cost of improvement of capital asset under section 48 of the Act. No substantial question of law.

  ---

• 2019 (11) TMI 1303
  Revision u/s 263 - allowability of rebate, de-compounding fee etc - HELD THAT:- Liability of rebate, decompounding and waiver of interest etc has arisen due to the agreements executed by the assessee with its clients and it is certainly allowable liability as the assessee duly claimed the same and the Assessing Officer was not justified in rejecting the claim of the assessee that the assessee is now following the cash system of accounting and the rebate on interest etc meted to the period when the assessee was following the mercantile system of accounting. In light of the aforesaid, as the issue has already been decided by this court, the question of law framed on 12.3.2003, which has already been reproduced above, is answered in favour of the assessee. The ITAT was certainly justified in allowing the rebate, de-compounding fee etc and in quashing the order passed under Section 263 of the Income-Tax Act, 1961.

  ---

• 2019 (11) TMI 1302
  Deduction u/s 37 or u/s 35D - expenditure relatable to public issue of non-convertible debentures - scope of circular issued by CBDT - deduction u/s 37(1) where specific provisions of section 35D exists - HELD THAT:- We have heard counsel for the revenue, whose contention is that the judgments of the Hon ble Supreme Court in India Cements Ltd. Vs. Commissioner of Income Tax, [ 1965 (12) TMI 22 - SUPREME COURT ] and of Commissioner of Income Tax Vs. Modi Industries, [ 1992 (10) TMI 74 - DELHI HIGH COURT ] pertain to the assessment years 1950-51 and 1965-66, respectively whereas section 35D was inserted in the Income Tax Act, 1961 with effect from 01.04.1971 and was applicable from assessment year 1971-72 onwards and therefore had rightly been applied by the AO in the present case which pertained to assessment year 1995-96. Revenue further argued that the expenses which come under the ambit of specific provisions of section 35D cannot be allowed under the residuary provisions of section 37 of the Act. But the counsel for the revenue was unable to point out any perversity in the Central Board of Direct Taxes s Circular No.56 dated 19.03.1971, ( date inadvertently mentioned as 19.03.1997 by the CIT(A) and ITAT ) which was relied upon by the CIT(A) and the ITAT, and contains Explanatory Notes on various sections of Income Tax Act, 1961, including section 35D of the Act. Para 45 of the Circular says provisions for amortization is not intended to supersede any other provision in the income-tax law under which the expenditure is allowable as a deduction against profits. Where any expenditure has been included for the purpose of amortization u/s 35D on a claim being made by the assessee in that behalf, such expenditure will not qualify for deduction under any other provision of the Act for the same or any other assessment year vide sub-s. (6) of s. 35D. Revenue could not point out any illegality or perversity in the above mentioned C.B.D.T s Circular and the reliance thereon by the appellate authorities below, which may warrant interference by this Court. No question of law much less a substantial question of law arises in these appeals.

  ---

• 2019 (11) TMI 1301
  Disallowance of the assessee s claim of exemption in respect of profit on sale / redemption of investments - Addition u/s 14A - HELD THAT:- Appeal admitted on substantial of law. Disallowance of 25% of Bogus Risk Inspection Survey Expenses after necessary calculation, as the assessee has failed to substantiate its expense and there is absence of evidence of services being rendered, generation of bogus bills etc . - HELD THAT:- Inspection and survey charges claimed by the Assessee which is an insurance company. AO, on the basis of statement of the Surveyor recorded by him, came to the conclusion that some of the persons had not actually discharged any duty for the Assessee Company but had merely provided accommodation entries. Tribunal, by the impugned Judgment, restricted the disallowance to 25% on the ground that there was evidence only with respect to part of the claim namely in relation to the inspection charges. The entire issue is based on appreciation of evidence and no question of law arises. This additional question, therefore, is not entertained.

  ---

• 2019 (11) TMI 1300
  Estimation of gross profit - HELD THAT:- A.O. did not verify the fact of cash discounts, which as per the assessee was one of the reason for variance of profit at Indore and Ujjain respectively. Further, the A.O. also failed to make independent enquiry from the market at Indore and Ujjain. It is settled principle of law that the estimation of profit should be made after considering the factors that influenced the profit. In a given market condition, if competition is high, the natural consequence would be lower profit margins and where there is no such competition, naturally the traders would fetch desired margins. This is the reason why it is expected from the A.O. that he should consider the factor that might influence the margins before making a fair estimation of the profit. A.O. did not make necessary enquiry, which would have enabled him to make a fair estimation of profit. Hence, action of the A.O. cannot be sustained. A.O. is therefore directed to delete the addition. Disallowance of excess commission - HELD THAT:- Admittedly, payment of commission is not treated as a bogus. The A.O. has not brought any adverse material suggesting that the commission was not paid or payment so made was received back by the assessee. It is also not the case that the payments have been made to the related parties. The decision in respect of quantum of commission to be paid would certainly be an issue to be decided by the business men. There is no law regulating the payment of commission or restricting the payment of commission by trader to its dealers. Merely because manufacturing company is not making payment of commission to the assessee cannot be the sole ground for disallowing the claim of expenditure related to payment of commission. At same time, the business men, to have a dominant position in market, makes such kind of commission or discounts, which is not prohibited by any law. It is the businessmen who can decide that what percentage of commission is required to be paid considering the commercial expediency. In the absence of material, merely a statement is made that assessee made excessive commission to reduce its tax liability which is not sufficient to reject claim of the assessee - Decided in favour of assessee.

  ---

• 2019 (11) TMI 1299
  Penalty u/s 271(1)(c) - Defective notice - non specification of charge - HELD THAT:- As relying on MANJUNATHA COTTON AND GINNING FACTORY OTHS., M/S. V.S. LAD SONS, [ 2013 (7) TMI 620 - KARNATAKA HIGH COURT] and M/S SSA S EMERALD MEADOWS [ 2016 (8) TMI 1145 - SC ORDER] and M/S. SAHARA INDIA LIFE INSURANCE COMPANY, LTD. [ 2019 (8) TMI 409 - DELHI HIGH COURT] when the notice issued by the AO is bad in law being vague and ambiguous having not specified under which limb of section 271(1)(c) of the Act, the penalty proceedings initiated u/s 271(1)(c) are not sustainable. So, initiating penalty proceedings on the basis of vague and ambiguous notice is bad in law and as such not sustainable. - Decided in favour of assessee.

  ---

• 2019 (11) TMI 1298
  Disallowance u/s. 14A r.w.s. Rule 8D - HELD THAT:- Admittedly, interest on borrowed funds used for business purposes cannot be computed for disallowance u/s. 14A of the I.T. Act r.w. Rule 8D(2)(ii) of the I.T. Rules. It is the duty of the assessee to prove that interest was incurred on borrowings are used for the specific business purpose and non-interest bearing funds were utilized for making investments which has given rise to exempted income. The assessee to prove that it is having its own funds to make investment which had yielded exempted income, necessarily has to furnish cash flow statement. The cash flow statement would disclose as on the date of making investments, which had given rise to the exempted income, that the assessee had interest free funds available with it. In the interest of justice and equity, we deed it fit to remand the case to the Assessing Officer for fresh consideration. the AO shall afford a reasonable opportunity of hearing to the assessee. The assessee shall prove its case that it is having interest free funds for making investments, by furnishing cash flow state for the respective assessment years. Disallowance u/s. 36(1)(iii) on account of funds having been diverted for non business purposes - disallowing the portion of interest paid by the assessee as huge amount had been lent by the assessee to its partners - HELD THAT:- The contention of the assessee is that since the assessee was following the cash system of accounting, the interest receivable from partners on the amount lent to the partners cannot be offered to tax and it would be offered to tax only on receipt basis which was not actually received by the assessee in the year under consideration. Hence, it was not offered for tax. For this purpose, he relied on the judgment of the Jurisdictional High Court in the case of CIT vs. Muthoot Finance Corporation [ 2018 (10) TMI 1773 - ITAT COCHIN] . In the present case, we observe that the Assessing Officer disallowed the portion of interest paid by the assessee as the interest bearing borrowings were diverted by the assessee by lending money to the partners without any interest and had not used for the purpose of the assessee s business. Assessing Officer had not brought to tax the notional interest receivable from the partners. As such, the judgment of the High Court in the case of CIT vs. Muthoot Finance Corporation cited supra cannot be applied to the assessee s case. More so, the High Court has not given any findings on this issue and it was remitted to the file of the Assessing Officer for fresh consideration and there is no ratio deceindi . Hence, we do not find any infirmity in the order of the CIT(A) and the same is confirmed. This ground of appeals of the assessee for both the assessment years is dismissed. Treatment of interest income earned from Banks - income from other sources OR income from business - HELD THAT:- The assessee is engaged in the business of money lending and investments. The money is the stock in trade of the assessee and any income earned by the assessee by rotating that money, i.e. stock in trade is nothing but income from business only and it cannot be considered as income from other sources. Being so, we decide this issue in favour of the assessee and against the revenue. Hence, this ground of appeals of the assessee for both the assessment years is allowed.

  ---

• 2019 (11) TMI 1297
  Stock Loss in trading of wheat - genuine loss - HELD THAT:- Suspicion however may be strong, but only on the basis of the suspicion claim of the assessee cannot be rejected. For buttressing this aspect, we would like to refer decisions of Hon ble Supreme Court in the case referred by the ld.counsel for the assessee in his synopsis viz. Omar Salay Mohamed Sait Vs. CIT, [ 1959 (3) TMI 2 - SUPREME COURT] AND CIT Vs. Daulat Ram Rawatmull [ 1972 (9) TMI 9 - SUPREME COURT] . In both these decisions, Hon ble Supreme Court propounded that claim of the assessee cannot be rejected on surmises, suspicion and conjecture. It is for the Assessing Officer to prove that apparent is not real. Similarly, as far as finding of the CIT(A) that the alleged loss is speculative loss, we are of the view that the ld.CIT(A) has based his finding on the ground that actual delivery was not taken. CIT(A) failed to appreciate that delivery taken by the Pakka Arhtias in the capacity of agent of the assessee is to be construed as actual delivery taken by the assessee. Therefore, in view of the above discussion, we are of the view that ld.Revenue authorities have failed to bring conclusive evidence for falsifying the claim of the assessee. We allow the appeal of the assessee and direct the Assessing Officer to accept the loss disclosed by the assessee on stock-loss of wheat, and thereafter compute the income of the assessee. - Decided in favour of assessee.

  ---

• 2019 (11) TMI 1296
  Exemption u/s 11 - Registration u/s 12AA(1)(b)(ii) denied - HELD THAT:- In this case as the appellant at the initial stage failed to disclose the relevant franchise agreement and relation with franchiser to the CIT(E) and has also not produced the details qua franchise agreement on the relation of the franchiser, therefore, this issue requires fresh consideration by the Ld. CIT(E). CIT(E) has also reasoned that the applicant society has been claiming exemption u/s 10(23C) (iiiad) of the Act till F.Y. 2013- 14, however from 2013-14 and 2015-16 claimed exemption u/s 10(23C) (vi) of the act without having any approval of the prescribed authority. From the Paper Book dated 25.06.2019 it appears that the Co-ordinate Bench in the case of applicant society [ 2018 (2) TMI 49 - ITAT AMRITSAR] directed the CIT(E) to grant registration to the applicant society u/s 10(23C)(vi) of the Act. Though, from the order it does not clear from which date and Financial Year, the order passed by the Co-ordinate Bench shall be applicable, therefore, this issue is also requires determination by the Ld. CIT(E) with regard to the claim of the appellant society u/s 10(23C)(vi) of the Act for the F.Y. 2013-14 to 2015-16. Applicant society has over the years, shifted to acquiring of buses and as evident from the financial statements of the record that the assessee has earned income of Rs. 30,43,010/- in the form of transportation fee during the financial year 2015-16 and the expenses under the head transportation charges was Rs. 16,00,236/- only i.e. almost 50% of the fees charged exemplifies the profit motive - In view of the law laid down by the Hon ble Apex Court in Queen s Educational Society vs. CIT [ 2015 (3) TMI 619 - SUPREME COURT] CIT(E) has to determine the quantum of the surplus amount and its utilization and is also at liberty to put any condition in accordance with law for utilization of the surplus amount and/or fixing the charges of buses/transportation on charitable basis. On the aforesaid analyzations and reasons, it would be proper to set aside the order passed by the Ld. CIT(E) and to remand the case to the file of the Ld. CIT(E) for decision afresh while taking into consideration the observation made above by us and law laid down by the Hon ble Apex Court in the case of Queen s Educational Society (supra) and Delhi Public School Society s case [ 2018 (4) TMI 714 - DELHI HIGH COURT] within six months, suffice to say while affording reasonable opportunities of being heard to the assessee.

  ---

• 2019 (11) TMI 1295
  Addition on account of VAT refund income not shown in return of income - HELD THAT:- With the assistance of ld. representatives, we have gone through the material on record and it is noticed that assessee company has credited the Vat refund of Rs. 79,78,941/- to the Vat payable account (F.Y. 2013-14) instead of adjusting the same against the duties and taxes (F.Y. 2013-14 Account) outstanding balance of Rs. 2,86,63,940/-. After adjusting the Vat refund received of Rs. 79,78,941/- credited outstanding balance in the receivable account shall be Rs. 20,68,999/-. Considering the forgoing facts, the addition is deleted and the appeal of the assessee is allowed on this issue. Disallowance of various expenses - HELD THAT:- It is noticed that during the course of assessment and appellate proceedings, the assessee has failed to produce the supporting bill and voucher in support of its claim of incurring various expenses as cited above. Under these circumstances, we observed that ld. CIT(A) is justified in sustaining disallowance of all the expenditure except foreign travelling expenses for want of proper verification on account of not furnishing the bill and voucher by the assessee. In the case of foreign travelling expenses, the assessing officer has disallowed expenses of Rs. 50,000/- out of 1,42,000/- and this disallowance is 30% of the total expenses. We observed that it will be reasonable to restrict the disallowance out of foreign travelling expenditure to the extent of 20% of such expenses which comes to 28,400/- as against Rs. 50,000/- disallowed by the assessing officer. Accordingly, this ground of appeal of the assessee is partly allowed.

  ---

• 2019 (11) TMI 1294
  Penalty u/s 271(1)(c) - disallowance of expenses - proof of concealment of income and furnishing inaccurate particulars - HELD THAT:- It is clear from the submission of the assessee that the assessee has disclosed apposite particulars of above referred various expenses and the circumstances under which these expenses were incurred. After considering these material facts and nature of expenses and the circumstances under which the impugned expenses were incurred, we do not find any substance in the decision of the ld. CIT(A) that the assessee has concealed the particulars of income. Therefore, we delete the impugned penalty levied u/s. 271(1)(c) - Decided in favour of assessee.

  ---

• 2019 (11) TMI 1293
  Disallowance of 10% miscellaneous expenses on estimation basis - non producing complete details and vouchers - HELD THAT:- In the instant case, the assessee has not produced the complete details and vouchers. The assessee produced some self-made vouchers from which the AO found that the personal expenses were also debited to the P L account. Having failed to furnish the complete details and the relevant evidences, AR agreed for the addition. In the facts and circumstances and in all fairness, assessee ought not to have agitated the same in appeal. Instead, the assessee ought to have produced the complete details and proved expenses. In the instant case, we observe from the order of the AO that the assessee failed to furnish the complete details and prove the genuineness of expenditure, hence agreed for disallowance of expenditure on estimation basis. This being the case, we find no merit in the appeal of assessee. Accordingly, we dismiss the Grounds of appeal raised by assessee.

  ---

• 2019 (11) TMI 1292
  Levy of penalty u/s 271(1)(c) - HELD THAT:- Since the co-ordinate Bench of Tribunal in the quantum appeal has restored disputed issue to the file of Assessing Officer for verification and examination, we are of the opinion that penalty levied on the basis of assessment under Section 143(3) r.w.s. 147 of the Act cannot be sustained. Accordingly we set aside the order of CIT(Appeals) and direct the Assessing Officer to delete the penalty and allow the grounds of appeal of assessee.

  ---

• Customs

• 2019 (11) TMI 1291
  Suspension of CHA license - petition pending before High Court - extension of interim stay - HELD THAT:- The Tribunal appears to have proceeded assuming that W.P.No.25727 of 2018 is still pending before High Court, without perusing the order of the High Court in WP No.25727 of 2018, by which, the learned Single Judge of this Court dismissed the writ petition by giving liberty to the appellant to approach the Tribunal and the writ petition was dismissed as withdrawn. Therefore, the very premise of the order of Tribunal as given in paragraph 7 is not correct. Therefore, the present appeal deserves to be allowed. Appeal allowed - decided in favor of appellant.

  ---

• 2019 (11) TMI 1290
  Carriage and smuggling of contraband item - Confiscation of vehicle alongwith the goods - Misdeclaration of export goods - attempt to export antiques and other goods from India into Nepal - On perusal of the bills of export filed with respect to the goods loaded inside the said truck and entered for export to Nepal, it transpired that the major part of the goods inside i.e 19 out of 35 packets including the said female statue, were not declared - HELD THAT:- From perusal of the records, we do not find any reference been made to the Director General, Archaeological Survey of India in terms of section 24 of the Antiquities and Art Treasures Act, 1972. However, in the facts of the instant case, since the appellant has denied any knowledge or role in loading of the antique idols, whatever be their value, we do not deem it necessary to proceed any further in the matter of valuation. Denial of cross-examination - HELD THAT:- We certainly are not impressed nor find merit in the contentions of the appellant that he did not get the opportunity to cross-examine the driver and that the show cause notice issued to him did not mention about the consequences on his failure to submit the defence reply - From a reading of the statement of the driver of the truck, it does not transpire that any allegation either direct or indirect, had been made against the appellant. It is also not pointed out by learned counsel for the appellant as to what prejudice has been caused to the appellant on denial of opportunity to cross examine the said driver. Another allegation that the show cause notice issued to the appellant did not contain the consequences in case, the defence reply did not find favour with the authorities - HELD THAT:- Since the show cause notice was issued under Section 124 of the Customs Act, 1962, the statute itself takes care of the consequences of rejection. From a perusal of the materials that was laid before the Commissioner, Patna and the Appellate Tribunal at Kolkata for their opinion, it would transpire that there is no material whatsoever against the appellant in so far as the seizure of the truck on 28.08.2001 and the undeclared goods, is concerned. The driver of the truck Sheikh Ahmed in his statement on 29.08.2001 has clearly stated that the goods were loaded on the truck on 28.08.2001 on the directions of Ishwar Chand Goel, the Manager and the truck was bound for Nepal. With respect to the appellant it was simply stated that he sits in Kolkata - from the materials that has transpired including the statements/defence reply of the Customs House Agent A.K. Sinha, Manager Ishwar Chand Goel@Pappu and the driver of the truck Sheikh Ahmed, it is clearly evident that no legal/ admissible evidence had been brought on record to show the involvement of the appellant or that he was guilty of any act or omission or even guilty of abatement of such illegal act so as to fasten the penal liability of Rs. 10 lacs under Section 114 of the Customs Act 1962. The other lacuna in the proceeding is that while holding the appellant guilty on grounds that he was overall in-charge of the partnership firm, the respondents did not choose to proceed against the other partner of the transport company namely, Rajesh Goel who is said to reside at A/23 Model Town, Delhi. The instant is a case of no evidence, so far as the appellant herein is concerned - With respect to the discussions made by the Commissioner, Customs, Patna and the Appellate Tribunal at Kolkata in the impugned order(s) is concerned, it stands long settled that suspicion, howsoever grave, cannot be a basis for imposing penalty and the same could not have been done in absence of any legal and admissible evidence to confirm the guilt of the appellant. Confiscation as well as penalties set aside - appeal allowed.

  ---

• 2019 (11) TMI 1289
  Under-valuation of imported goods - Demand of differential customs duty - demand based on load port documents - HELD THAT:- It is undisputed fact that the said documents were not authenticated by either the overseas exporters or the Overseas Customs Organizations - in view of the finding of this Tribunal in the case of RAMKRISHNA SALES PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS, AHMEDABAD [ 2007 (5) TMI 233 - CESTAT AHMEDABAD] the impugned order is not sustainable in respect of goods imported through 13 Bills of Entries where allegations were made on the basis of load port documents. In the present case also there is no other evidence on record showing payment of higher value to the foreign suppliers. Further, the value has been enhanced on the basis of photocopies of documents obtained from the overseas shipping lines - the findings of Original Authority in respect of goods imported through 13 Bills of Entry are not sustainable - the impugned order in respect of goods imported through the 13 Bills of Entry set aside. Demand of differential duty - Goods imported through 365 Bills of Entries - it appeared to revenue that in respect of 365 consignments imported by the present appellants during the above stated period there was undervalued and by adopting the value discovered during the investigation in respect of goods imported by Shri Vishal Madan differential Customs duty appeared to be recoverable from the present appellants was computed - HELD THAT:- There is no discussion as to how the goods imported by Shri Vishal Madan are similar goods to the goods imported by present appellants - It is very clear through the allegations made in the show cause notice and findings of Original Adjudicating Authority that Revenue nowhere established that the goods imported by Shri Vishal Madan and the goods imported by the appellants were similar goods since no such description and discussion has been recorded in the impugned order. The findings of Original Authority in respect of consignments cleared through said 365 Bills of Entry are not sustainable since the same are not based on evaluation of evidence - the impugned order in so far as the same is concerned with imports through said 365 Bills of Entry in respect of enhancement of value, confirmation of differential Customs duty, order to pay interest, confiscation of said goods and penalties imposed including personal penalties is set aside. Appeal allowed - decided in favor of appellant.

  ---

• 2019 (11) TMI 1288
  Benefit of Nil rate of Basic Customs Duty under Notification No. 21/2002-Cus dated 01.03.2002 - Coking Coal of ash content below 12% of CTH 2701 - respondent had purchased two consignments of Coking Coal (Ash content below 12%) from the original importer on High Sea basis - case of Revenue is that the Chemical Examiner report is very clear that the goods tested by the Chemical examiner is other than coking coal - HELD THAT:- The parameters in the test report are not conclusive and directed the Adjudicating Authority to get the retest done. In this position, the earlier report become nonest and the same cannot be used again for readjudication of the case. The only option left with the Adjudicating Authority was to get the retest done and since it was not possible, the earlier test report could not have been relied upon for passing the de novo adjudication order. Needless to say that the first appellate order dated 27/07/2009 whereby the matter was remanded to the Adjudicating Authority was accepted by the Revenue and no appeal was filed against that. The entire adjudication order is not sustainable only on the grounds that the same was passed only by relying the earlier test report and the opinion of the Chemical Examiner. As we opined that the test report after the first appellate order became nonest and the same could not have been relied upon. We also point out that the Chemical Examiner s report showing the CSN less than 3 is absolutely without any basis. There is absolutely no infirmity in the impugned order - Appeal dismissed - decided against Revenue.

  ---

• 2019 (11) TMI 1287
  Issuance of speaking order in terms of Section 17 (5) of the Customs Act, 1962 - relevant date for appeal in terms of Section 128 of Customs Act, 1962, in the absence of speaking order - Classification of imported goods - inactive dried yeast animal feed supplement - to be classified under CTH 23099020 or under CTH 21022000? - duty was paid under protest - provisional assessment was made but order under Section 17 (5) of Customs Act, 1962 was not issued - time limitation. Issuance of Speaking Order - Whether in the facts and circumstances of the case, the lower adjudicating authority was required to issue a speaking order in terms of Section 17 (5) of the Customs Act, 1962? - HELD THAT:- In terms of Section 17 (5) where any reassessment done under sub-section (4) is contrary to the self-assessment done by the importer or exporter regarding valuation of goods, classification, exemption or concessions of duty availed consequent to any notification issued therefor under this Act and in cases other than those where the importer or exporter, as the case may be, confirms his acceptance of the said re-assessment in writing, the proper officer shall pass a speaking order on the re-assessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be. Relevant date for appeal - In the absence of such speaking order what could be the relevant date for appeal in terms of Section 128 of Customs Act, 1962? - HELD THAT:- It is crystal clear that in cases where the reassessment is done contrary to the assessment done by the importer and where the assessee does not accept such reassessment in writing, the proper officer shall pass a speaking order under reassessment; in the instant case, the appellants have claimed classification under CTH 23099090 whereas the department has assessed under CTH 21022000; therefore, it is evident that the assessment has been done contrary to the claim of the appellant; the appellants have registered protest also; it is not the case of the department that the appellants have accepted the reassessment in writing; therefore, in terms of Section 17 (5) of Customs Act, 1962, the department was under obligation to issue a speaking order. To this extent, we find that the appellant s submissions are sustainable - the provision of Section 128 (1) themselves take care and by virtue of the provisions, the mere finalization of a Bill of Entry itself becomes an order or communication of the order. Therefore, the appeals are required to be filed in such circumstances within a time period from the date of such reassessment / finalization. Classification of Enzymes imported by the appellant - What is the correct classification of the impugned goods whether under Chapter 21 as contended by the department or under Chapter 23 as contended by the appellant? - HELD THAT:- CTH 2102 covers yeasts (active or inactive); other single cell micro organisms, dead (but not including vaccines of Heading 3002); prepared baking powders and under 8 digit heading 21022000 inactive yeasts, other single-cell micro-organisms dead - Going by the test reports of CRCL, impugned goods are inactive yeast; in view of the explanatory notes to chapter 21 dried yeast is also known as inactive yeast and for that reason inactive yeast is to be considered as dried yeast. It is clear that the entire heading 2309 talks of preparations of a kind used in animal feeding. By no stretch of imagination the impugned products imported by the appellants are preparations of a kind animal feeding. At the best, they may be used for preparation of animal feeds that is to say that they are raw material used for preparation of animal feed. Therefore, they cannot be classified along with animal feed merely by virtue of the inclusive definition given in the explanatory notes for the heading 2309 CETA. Thus, classification of impugned goods i.e. yeast is correctly arrived by the Revenue under CTH 21022000. The appellant s submissions on the issue of time bar loose relevance in the instant case - to extent of classification of the impugned goods is concerned; the order of the Ld. Commissioner (Appeals) does not require to be interfered with - Appeal dismissed - decided against appellant.

  ---

• 2019 (11) TMI 1286
  Refund of SAD - nil rate of VAT at the time of sale - goods are imported by the assessee after paying Special Additional Duty (SAD) of customs at the rate of 4% and sold thereafter under a tax/VAT invoice but where the rate of VAT applicable is nil - N/N. 102/2007-CUS or otherwise - HELD THAT:- In their own case with respect to the earlier appeals AGARWAL BROTHERS VERSUS COMMISSIONER OF CENTRAL TAX [ 2019 (10) TMI 180 - CESTAT HYDERABAD] an order was passed in their favour holding that they are entitled to refund of SAD relying on the order of Principal Bench of CESTAT in the case of M/S GAZAL OVERSEAS, M/S MAYANK ENTERPRISES, M/S ANAND ASSOCIATES VERSUS COMMISSIONER OF CUSTOMS, NEW DELHI [ 2015 (12) TMI 427 - CESTAT NEW DELHI] . Appeal allowed - decided in favor of appellant.

  ---

• 2019 (11) TMI 1285
  Recovery of Customs Duty short/not paid - imposition of penalties - Advance License for duty free import of various goods including 4464 pieces of Ball Bearings - import of various type of bearings, which were never used for the manufacture of export goods - HELD THAT:- Accept for making a bald and vague assertion that adjudicating authority had failed to give any findings on facts or case laws on the basis of which he had arrived at the conclusion in para 34(f) of the impugned order, that the respondents were bonafide transferee, revenue has failed to state the fact and case laws which were to be considered and have not been considered by the adjudication commissioner - Commissioner has in his order at para 26C recorded that there was some collusion between the person procuring and getting the licenses amended fraudulently and the importer but has still concluded in para 34(f) against holding them they were bonafide transferees. In the appeal memo we do not find anything stated by which this finding of the Commissioner can be challenged. No appeal could be considered on the basis of such vague statements made in the appeal memo. Appeal dismissed - decided against Revenue.

  ---

• 2019 (11) TMI 1284
  Grant of Bail - offence punishable u/s.135 (1)(a), 135 (1)(b) and 135 (1) (A) r/w. 104 of the Customs Act 1962 - smuggling - valuable wrist watches brought from Bangkok - case of Revenue is that the said wrist watch has been brought by the applicant by non declaring and evading the custom duty chargeable on it - HELD THAT:- Section 135 of Customs Act states that any person, in relation to any goods in any way mainly concerned in any fraudulent evasion or attempt at the evasion of any duty chargeable thereon shall be punished with imprisonment for a term which may extend to seven years and with fine. In the case of offence relating to any goods is the market price of which exceeds Rs. 1 crore. The wrist watch found in the possession of the applicant that has been seized by the AIU officer. The statement of the applicant u/s. 108 of the Customs Act has been recorded. Applicant alongwith application filed receipt Ex.A. of seized watch. It appears from the receipts, the value of watch is US $ 13,895.00 below Rs. 10 lakhs. Except say AIU has not filed any documentary evidence about the value of Wrist watch is Rs. 2,71,89,000/-, Therefore, primafacie receipt disclosed value of watch is below Rs. 10 lakhs - As per the provisions the good value below Rs. 1 crore imported by evading the tax, the offence punishable under this Act is bailable. Since 16.10.2019 he is in JC. In such circumstances, there is no need to keep the applicant behind bar. The applicant Kavinkumar Chandresh Mehta shall be released on bail subject to conditions imposed - application allowed in part.

  ---

• 2019 (11) TMI 1282
  Refund claim - assessment order not challenged - can the refund application go behind an assessment, which has attained finality? - applicability of doctrine of merger - it was held in the case that While setting aside the orders of the assessment authority and the appellate authority, the Tribunal has applied the Doctrine of Merger, which is not applicable to the facts of this case - HELD THAT:- There is no reason to entertain this petition - SLP dismissed.

  ---

• 2019 (11) TMI 1277
  Stay of order - effect of the order of stay in a pending appeal before the Apex Court - HELD THAT:- Issue Notice, returnable on 4th December 2019 - By way of ad-interim relief, further proceedings pursuant to the impugned show cause notice dated 02.09.2019 (Annexure-E to the petition) are hereby stayed.

  ---

• 2019 (11) TMI 1276
  Principles of natural justice - finalization of provisionally assessed bills of entries - case of petitioner is that no hearing was granted to the Petitioner before finalising the bills of entries which were provisionally assessed - HELD THAT:- The impugned communications dated 28 September, 2013, 27 June 2014 and 8 October 2014 are quashed and set aside - Needless to state that the Respondent, Superintendent (Preventive) of Customs or any other officer so authorised by the Commissioner of Customs, would pass fresh orders only after following the principles of natural justice. Petition disposed off.

  ---

• 2019 (11) TMI 1271
  Condonation of delay of 48 days in filing the present appeal - whether CESTAT was justified and correct in law in passing an order of remand to the original adjudicating authority to first decide the issue of jurisdiction, after decision of the Supreme court in Civil Appeal preferred against the decision of Delhi High court in Mangli Impex Limited v. Union of India [ 2016 (5) TMI 225 - DELHI HIGH COURT ]? HELD THAT:- The impugned order is hereby set aside and the matter is remitted to the CESTAT, which shall proceed to examine and decide the merits of the appeal. The respondent/assessee s right to contend that the show cause notice issued in this case were legally untenable, in view of the decision of this Court in Mangli Impex are kept intact. Appeal allowed in part.

  ---

• Insolvency & Bankruptcy

• 2019 (11) TMI 1280
  Auction of property of Corporate Debtor - Stay on auction proceedings - CIRP - recovery of the workmen s dues by sale of the assets of Respondent No. 4 Company through a public auction - HELD THAT:- In view of the provisions of the IBC, the High Court ought not to have proceeded with the auction of the property of the Corporate Debtor Respondent No. 4 herein, once the proceedings under the IBC had commenced, and an Order declaring moratorium was passed by the NCLT. The High Court passed the impugned Interim Orders dated 14.08.2019 and 05.09.2019 after the CIRP had commenced in this case. The moratorium having been declared by the NCLT on 04.06.2019, the High Court was not justified in passing the Orders dated 14.08.2019 and 05.09.2019 for carrying out auction of the assets of the Respondent No. 4 Company i.e. the Corporate Debtor before the NCLT. The subject matter of the auction proceedings before the High Court is a vast chunk of land admeasuring about 330 acres, including Railway lines and buildings. The impugned Interim Orders dated 14.08.2019 and 05.09.2019 passed by the Odisha High Court is set aside, as parallel proceedings with respect to the main issue cannot take place in the High Court. The sale or liquidation of the assets of Respondent No. 4 will now be governed by the provisions of the IBC.

  ---

• 2019 (11) TMI 1279
  Imposition of penalty against resolution professional - restriction on taking new assignments - clearance of pending bills - filing an action for impugning the circular dated 12.6.2018 - HELD THAT:- The respondent no.2/COC is directed to deposit Rs. 12,09,90,185/- with the Registry of this Court without prejudice to its rights and contentions. The money will be deposited on or before 14.12.2019 - Learned counsel for the petitioner informs me that pursuant to the order dated 19.11.2019, the petitioner has deposited Rs. 29,24,167/- with the Registry of this Court. The statement of the counsel is taken on record. The operation of the impugned order, insofar as it prevents the petitioner from accepting a new assignment as an Interim Resolution Professional (IRP) or Resolution Professional, is stayed. Renotify the matter on 28.2.2020.

  ---

• PMLA

• 2019 (11) TMI 1283
  Enhancement of the period of police remand - offence of money laundering - siphoning of funds - proceeds of crime - refusal of police custody - petitioner submitted that the Judge has not applied its mind while refusing the police custody for the purpose of custodial interrogation of the respondents and passed the order which is bereft of any sound reasoning - Principles of natural justice - whether the Judge has properly applied his mind regarding the material available on record and has given sufficient reasons in the impugned order or not while rejecting the police remand of the respondents? - HELD THAT:- The remand, admittedly, is a fundamental judicial function of a Magistrate; the Magistrate has to satisfy himself/herself that there are reasonable grounds and that the material placed before him justify the police remand of the accused. There may be circumstances in which the accused may provide intimation leading to discovery of material facts. It may be necessary to detain a person in order to conduct investigation without hindrances and to protect witnesses and persons connected with the victim of the crime. Sometimes, it may be required even to maintain law and order in the locality. The investigating agency is required to bring to the notice of the Court the material collected against an arrested accused to persuade the Court to remand him into police custody for the purpose of further investigation and it is the duty of the Magistrate to satisfy itself that there are reasonable grounds and that the material placed before him, as discussed hereinabove, justify the police remand of the accused - After satisfying himself regarding the adequacy of the grounds for the purpose of police detention or remand before passing the order of detention or remand, the Magistrate shall pass necessary orders only thereafter. The Magistrate authorising remand under Section 167 of the Cr.P.C. can only examine the record to see whether there exists some material to justify the remand, however, the Magistrate cannot conduct a roving enquiry to test the sufficiency of material at this stage for the obvious reason that investigation would be at a nascent stage and the police are yet to file a report either under Section 169 or Section 170 of the Cr.P.C. - here is no doubt that while exercising jurisdiction to remand under Section 167 Cr.P.C., the Magistrate is not required to write an elaborate order granting or refusing remand. However, as the Magistrate acts judicially in deciding an application for remand, he is required to briefly set out his reasons. The practice of passing nonspeaking order of police remand and mechanically extending or refusing the same is illegal and must be avoided. The case of the petitioner, in nut-shell, is that the Judge has not applied its mind while refusing the police custody for the purpose of custodial interrogation of the respondents and passed the order which is bereft of any sound reasoning. The custodial interrogation of the respondents could not be completed during the period of 9 days when the accused/respondents were in police custody in view of voluminous record and documents as well as the statements which were required to be confronted to them and the time was not sufficient to confront all the material collected and required to be confronted to them - The offence stated to have started way-back in 2008 and the offence of money laundering is complicated in nature requiring investigation of various aspects and the money trail. During the course of the investigation/interrogation, some of the proceeds of crime are, allegedly, found to be linked and siphoned off to foreign companies. The money trail which is found during investigation is required to be confronted and further investigated. In view of the voluminous record, documents and the nature of transactions in the present matters, the Judge ought to have granted police custody of the respondents to the petitioner for the purpose of custodial interrogation till 28.11.2019. In view of the clear, cogent, valid and weighty reasons stated by the petitioner for the enhancement of the period of police remand, alleged gravity of the offences and to unearth the conspiracy in the matter, the existing facts and circumstances prima facie justify the police remand of the respondents/accused. The police remand, all the more, is essential in the matter for the purpose of proper investigation, failing which the investigation may hamper. The application, to my mind, discloses and assigns convincing reasons why investigation cannot proceed further without seeking police remand of the respondent/accused - Hence, this Court is of the opinion that the custodial interrogation of the respondents is required for the purpose of further investigation in the matter. The impugned orders dated 23.11.2019 are set aside and the respondents are remanded to the custody of the Directorate of Enforcement till 28.11.2019. The Jail Superintendent concerned is directed to handover the custody of the respondents to the Investigating Officer of the case for custodial interrogation - Petition allowed.

  ---

• Service Tax

• 2019 (11) TMI 1330
  Availment and utilization of CENVAT Credit - input services availed in the R D units of the appellants and distributed by the Head Office - Department was of the view that R D activities are not integrally connected to the manufacturing process of finished products - HELD THAT:- The said issue is discussed by the Allahabad Tribunal in the case of Jubilant Life Sciences Ltd [ 2017 (8) TMI 358 - CESTAT ALLAHABAD ] as upheld by the Hon ble Supreme Court in Appeal allowed - decided in favor of appellant.

  ---

• 2019 (11) TMI 1274
  Commercial construction activities - Benefit of abatement of 67% on value available vide Notification No.18/2005/ST dated 7.6.2005 - composite contract or mere service contract - Demand of service tax education cess - HELD THAT:- Appellant though entered into contract with ISL and received huge amount against the service provided by him, he deliberately did not submit the contract agreement before the authority concerned. Submission of learned counsel for the appellant with regard to composite contract, can be verified from the contract agreement executed between the appellant and the ISL, which the appellant failed to bring on record - In absence of contract agreement on record, the claim of the appellant that he is entitled for abatement of 67% on value available as per Notification dated 1.3.2006 is not sustainable. There was no material before the authorities to accept the submissions of appellant that the contract entered between him and the ISL was a composite contract. Similarly, the appellant has not produced any document before the Adjudicating Authority to substantiate his submissions. The authorities below have rightly held that no material has been placed on record by the appellant to bifurcate value and nature of work and therefore tax has been imposed on the gross value, which cannot be said to be erroneous - The burden to proof that which part of his work amounts to service and which not, was upon the appellant and not on the revenue, which the appellant utterly failed to discharge. The work cannot be artificially split. As the appellant has not produced any document even to prove the facts pleaded in reply to show cause notice, therefore, no question of law much less any substantial question of law is involved in this case warranting interference by this Court in exercise of its appellate jurisdiction - appeal dismissed.

  ---

• 2019 (11) TMI 1270
  Condonation of delay in filing appeal before commissioner (appeals) - appeal dismissed for inordinate delay - Section 35G of the Central Excise Act, 1944 - it is the case of appellant that the original order passed by the adjudicating authority was never served to the appellant till 07.02.2012 and immediately on receipt of the same, Annexure A/6 appeal was preferred before the Commissioner (Appeals) on 12.03.2012 with an application for condoning the delay. HELD THAT:- With regard to service of the order, first of all, it is to be noted that the original order was sent by registered post on 04.04.2007. A copy of the order was requested for by the appellant way back in the year 2008 and the same was served to them, on more than one occasion, as conceded by them in Annexure A/4 and A/5. Despite this, the appeal was admittedly preferred only in the year 2012 with a petition for condoning the delay as shown in Annexure A/6, which we have already extracted above. The acceptability of the explanation was considered by the Commissioner (Appeals), who held it against the appellant, which came to be affirmed by the Tribunal as well. We are aware of the ruling rendered by the Apex Court as per decision in N Balakrishnan Vs M Krishnamurthy [ 1998 (9) TMI 602 - SUPREME COURT ] to the effect that extent of delay is not the matter which weighs much, but the explanation . The explanation offered by the appellant as per Annexure A/6 is virtually regarding shifting of the office or transfer of some of the employees, which cannot be considered as proper explanation, much less any satisfactory explanation. The learned counsel representing the respondent submits that the mandate of Section 85 of the Finance Act, 1994 is very clear and that the appeal had to be preferred within three months. It is also stated that the statute stipulates the maximum time limit which could be condoned by the authority concerned. The said power cannot be extended any further, which otherwise would amount to re-writing the statute. Appeal dismissed.

  ---

• 2019 (11) TMI 1267
  Refund of service tax - time limitation - refund claim was rejected as barred by limitation of time limit prescribed under Section 11B of CEA, 1944 applicable to service tax - N/N. 25/2012-ST dated 20.06.2012 - whether the appellant is claiming the refund of service tax or an amount paid by them mistakenly? HELD THAT:- It is an admitted position in the facts of the case that during the period March 2015, the service provided by the appellant to MES was exempt from payment of service tax. Therefore, the amount paid by the appellant is not service tax. In that circumstances, the time limit prescribed under Customs Act or Central Excise Act is not applicable and the time limit prescribed as per the decision of the Hon ble Apex Court in the case of ASSISTANT COLLR. OF CUS. VERSUS ANAM ELECTRICAL MANUFACTURING CO. [ 1997 (1) TMI 80 - SUPREME COURT] is applicable i.e. 3 years. Admittedly, the appellant has filed refund claim within 3 years from the date of payment of the service tax, in that circumstances, the refund claim filed by the appellant is not barred by limitation - appeal allowed - decided in favor of appellant.

  ---

• 2019 (11) TMI 1266
  Adjustment of excess paid service tax - appellant had adjusted the excess payment made by them during the period April 2015 to June 2016 in September 2016 - Revenue objected to the adjustment made on the ground that as per Rule 6(4A) of Service Tax Rules, 1994, the excess service tax paid could be adjusted only in the immediate succeeding month or quarter - HELD THAT:- From Rule 6(4A) of Service Tax Rules, 1994, it can be seen that the word immediate is absent in the Rule. The Rule says that the assessee can adjust the excess amount paid by him against the service tax liability for the succeeding month or quarter, as the case may be. In September 2016, appellant realized the excess payment made during April 2015 to June 2016 and adjusted it in September 2016 while filing returns. The excess amount paid by appellant during April 2016 to June 2016 has been allowed by department to be adjusted in September 2016, holding the view that it is adjusted in the immediate succeeding quarter. However, the excess payments made by appellant from April 2015 till March 2016 was not allowed to be adjusted for which the present demand has been made. The demand therefore does not arise out of short-payment of tax. In the present case, the period for which excess payment has been disallowed is from April 2015 to March 2016. Even if the assessee files a refund claim in September 2016, when he realized that there is excess payment, the claim would be well within the time limit under section 11B. Further, it is also brought out from the record that the assessee has not collected service tax from the customer and therefore not passed on the tax burden to another. This being the case, the appellant would be otherwise eligible for refund. The provision for adjustment is to avoid the hassles of refund - The adjustment made by the assessee in the month of September 2016 can be said to be adjustment in accordance with Rule 6(4A) of the Service Tax Rules, 1994. Appeal allowed - decided in favor of appellant.

  ---

• 2019 (11) TMI 1264
  Refund of CENVAT credit - input services used for export of the goods - refund rejected on the ground that the Cenvat credit should be reversed while filing Service Tax return - Rule 5 of Cenvat Credit Rules, 2004 read with N/N. 27/2012-ST dt.18.6.2012 - HELD THAT:- In similar set of facts in the case of M/S. GLOBAL ANALYTICS INDIA PVT. LTD. VERSUS THE COMMISSIONER OF G.S.T. CENTRAL EXCISE [ 2019 (7) TMI 1185 - CESTAT CHENNAI] , the CESTAT bench of this Tribunal has allowed the refund claim. The refund claim cannot be denied to the appellant - Appeal allowed - decided in favor of appellant.

  ---

• 2019 (11) TMI 1261
  Reverse charge mechanism - demand of service tax - man power recruitment or supply agency services - commercial training or coaching services - demands have been raised under reverse charge mechanism under Section 66A of the Finance Act, 1994 on the ground that they had availed these services from their overseas partners and paid for the same - HELD THAT:- The appeal by way of remand to the adjudicating authority for the sole purpose of verification of the documents and determining if the personnel deployed and the appellant had an employee-employer relationship. Needless to say, principles of natural justice must be followed and adequate opportunity must be afforded to the appellant to present their documents. Appeal allowed by way of remand.

  ---

• 2019 (11) TMI 1259
  CENVAT Credit - construction services w.e.f. 01/07/2012 - exempt services or not - denial of credit credit to the extent not used in construction of unsold flats on which completion certificate was already issued - input service for which payment of service tax was not made within the stipulated time period - flats for which completion certificate was issued delayed / short payment of service tax was noticed - Rule 6(1) of CCR - N/N. 13/2016- CE(NT) dt. 01/03/2016 - HELD THAT:- The issue involved in the present case is no more res integra and has been settled by various decisions of the Tribunal cited supra wherein it has been consistently held that during the relevant period, Rule 6 was not applicable. In this case, the period involved is prior to the amendment in the Rule 6(1) of CCR, 2004 - This Tribunal in the case of M/S. TPL DEVELOPERS VERSUS COMMISSIONER OF CENTRAL TAX, BANGALORE NORTH [ 2019 (3) TMI 37 - CESTAT BANGALORE] has held that the assessee was not legally required to reverse any credit which was availed by them during the period 2010 till obtaining completion certificate i.e. during the period when output service was wholly taxable in their hand, merely because later on, some portion of the property was converted into immovable property on account of receipt of completion certificate and on which no service tax would be paid in future. Credit allowed - appeal allowed - decided in favor of appellant.

  ---

• 2019 (11) TMI 1258
  Classification of services - Business Auxiliary Services or not - education services rendered by service recipients - the services rendered are in the nature of business or not? - Whether prior to 01.07.2012 the services rendered by appellants-assessee is taxable under Business Support Services as held by Hon ble Member (Technical) or not taxable as held by Hon ble Member (Judicial)? - difference of opinion confines to the period prior to 1.7.2012. HELD THAT:- Notification No. 14/2004-ST provided exemption to organizations providing Business Auxiliary Services in relation to education services. So also in the case of commercial or industrial construction services and works contract services when the buildings are constructed for use by educational institutions or hospitals, etc., was clarified by Board to be not subject to levy of service tax as these buildings were not used for commercial or industrial purposes. It can be seen that prior to 2012, there has been several exemptions in relation to education services. After 2012, the classification of various services has been given away with and there is more clarity as to the services which are intended to be taxed. Even a cursory perusal of the mega notification 25/2012 would show that legislature intends to keep away essential services and public utility services from the burden of tax. There is no dispute that the educational institutions run by these Trusts are recognized by Andhra Pradesh Board. Merely because the schools run by these trusts collect fees from the students and also engage in providing integrated intermediate education, it cannot be said that they are not rendering education services. Moreover, the said integrated intermediate coaching is also recognized and conducted on instructions of the Board - The State is duty bound to provide education services to its subjects. Article 21A recognizes education as a fundamental right. As per the said Article, the State shall provide free and compulsory education to children between 6 and 14 years of age. When the State does not have necessary wherewithal to fulfill this obligation, it uses the machinery of private sector to render these services. Thus the fees collected by an institution cannot change the nature of the services rendered by them. In Para 3 to 6, brother Member (Technical) has analyzed the issue of levy of service tax for the period prior to 01.07.2012 and observed that the service recipient are rendering services on an industrial scale and the revenue running into thousands of crores of rupees is not a charity and therefore service recipients are running business - I am not able to agree with this view for the reason that profits made or turnover cannot be a yardstick for deciding the classification of services. For a particular activity to be subject to levy of service tax, it has to fall within the four corners of the definition. When admittedly these Trusts are rendering education services and the courses are recognized by Andhra Pradesh Board, it cannot be said that since fees is collected or that fees collected is high, the education services are in the nature of a business. I agree with the view taken by brother Member (Judicial) that prior to 1.7.2012, the services rendered by the assessee is not taxable under Business Support Services. Time Limitation - HELD THAT:- The point of difference referred to me by the Hon ble President is only as to the taxability of services for the period prior to 1.7.2012 and there are no other points of reference. The third Member can either agree or disagree with the Members and cannot enter into any point which is not referred to by the Hon ble President - the said argument raised by the ld. counsel for the appellant before me on the ground of limitation being outside the scope of reference, does not require to be addressed.

  ---

• Central Excise

• 2019 (11) TMI 1275
  Permission for withdrawal of petition - declaration under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - HELD THAT:- The permission for withdrawal of petition granted - The petition is disposed of as withdrawn.

  ---

• 2019 (11) TMI 1269
  Interest of delayed refund - relevant date for calculation of such interest - Whether the appellants are entitled to claim @ 12@ of the deposit made during the period of investigation or as per the direction of the Tribunal while entertaining their appeal till its realization or not? - section 35FF of the Central Excise Act,1944 - HELD THAT:- The said issue has been examined by this Tribunal in the case of Tribunal in the case of M/S. FUJIKAWA POWER AND M/S. KENZO INTERNATIONAL VERSUS CCE ST, CHANDIGARH-I [ 2019 (11) TMI 1197 - CESTAT CHANDIGARH] where it was held that the appellants are entitled to claim the interest on delayed refund from the date of deposit till its realization. The appellants are not entitled to claim interest on delay refund from the date of deposit till its realization - Appeal allowed - decided in favor of appellant.

  ---

• 2019 (11) TMI 1268
  Utilization of CENVAT credit - whether the appellant can utilize the Cenvat Credit of basic Excise Duty for payment of National Calamity Contingent Duty (NCCD)? - HELD THAT:- Hon ble UttaraKhand High Court in the case of M/S HERO MOTOCORP LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE, DEHRADUN [ 2018 (1) TMI 770 - UTTARAKHAND HIGH COURT] has held that NCCD CESS are part of levies under rule 3(1) of Cenvat Credit Rule, 2004 making an aggregate of Cenvat Credit hence, assessee could make use of Basic Excise Duty for payment of NCCD CESS. As regard the sole reliance of the Revenue on the Judgment of Sikkim High Court in the case of UNICORN INDUSTRIES VERSUS UNION OF INDIA [ 2012 (5) TMI 621 - SIKKIM HIGH COURT] , it is found that issue involved in such case was on exemption from payment of NCCD whereas the issue before us is whether the appellant is entitled to utilize Cenvat Credit of Basic Excise Duty for payment of NCCD - Therefore the judgment of the Sikkim High Court in the case of Unicorn Industries vs. Union of India being on entirely different issue is not applicable. The order passed by the Lower Authority is proper and legal which do not require any interference - Appeal dismissed - decided against Revenue.

  ---

• 2019 (11) TMI 1265
  CENVAT Credit - new constructions - credit denied on the ground that these are new constructions and as per Rule 2(l) Cenvat Credit Rules, 2004 with effect from 01.04.2011, they are not entitled to avail Cenvat credit on new constructions - HELD THAT:- As the contents stated in the affidavit are non controverted by the revenue with sufficient evidence, in that circumstances, without examining the site the Cenvat credit cannot be denied to the appellant, therefore, the services are availed by the appellant for renovation and maintenance of their conference room, canteen and amenity block and cenvat credit cannot be denied to them. Appeal allowed - decided in favor of appellant.

  ---

• 2019 (11) TMI 1263
  Refund of accumulated CENVAT credit - claim for refund was rejected by the original authority, as the respondent failed to submit documentary evidence SOFTEX Form - Rule 5 of the Cenvat Credit Rules, 2004 read with the relevant Notification No. 27/2012-CE (NT) dated 18.06.2012 - HELD THAT:- The Bench enquired from the learned Authorised Representative if Revenue has filed any appeal, to inform accordingly. In response thereto, by communication dated 29.03.2019 signed by the Additional Commissioner, CGST CE Hqrs. Indore, have informed that both the Final orders referred to hereinabove passed by this Tribunal have been accepted by the competent authority, on monetary ground only - no merits found in the appeal. Appeal dismissed - decided against Revenue.

  ---

• 2019 (11) TMI 1262
  Recovery of CENVAT Credit - credit on sulphur lump - denial of credit on the ground that the process carried out by the Appellant on sulphur lump does not result into manufacture within the definition of manufacture as prescribed under Section 2(f) of Central Excise Act, 1944 - HELD THAT:- Undisputedly the appellant had discharged appropriate Central Excise duty after undertaking the process of repacking, relabeling of the inputs on which credit has been availed by them. Thus, it is incorrect to allege that the appellants are not eligible to avail CENVAT Credit on inputs that has been utilized in the manufacture (repacking, relabeling etc.) of resultant product, on which appropriate excise duty was paid and accepted by the Revenue. The issue is no more res integra and covered by the judgment of Hon ble Bombay High Court in the case of THE COMMISSIONER OF CENTRAL EXCISE, PUNE VERSUS AJINKYA ENTERPRISES [ 2012 (7) TMI 141 - BOMBAY HIGH COURT] where it was held that once the duty on final products has been accepted by the department, CENVAT credit availed need not be reversed even if the activity docs not amount to manufacture. Appeal allowed - decided in favor of appellant.

  ---

• 2019 (11) TMI 1260
  Refund of excess duty paid - price variation clause - HELD THAT:- On perusal of the central excise invoices issued by the appellant, I find that it had separately mentioned the central excise duty amount on ad valorem basis therein. I also find that for accounting purpose, the appellant had issued the credit note dated 30.03.2012 to the buyer of goods M/s NDPL, showing the differential amount claimed in the invoices vis- -vis the price indicated in the purchase order. Since, the excess amount claimed in the invoices was inclusive of central excise duty, the excess paid duty amount should be available as refund to the appellant inasmuch as such incidence of duty has been borne by the appellant itself and had not been passed to the buyers or any other person. The impugned order passed by the learned Commissioner (Appeals) in allowing the appeal filed by Revenue cannot be sustained - Appeal allowed - decided in favor of appellant.

  ---

• 2019 (11) TMI 1257
  Clandestine removal - shortages/excesses found in the stock - demand along with penalty - confiscation of goods - HELD THAT:- The demand on the company is based on presumptions of clandestine removal without there being any instance of clandestine activity detected and/or found - It is further held that demand based on apparent shortage and excess of goods does not lead to the inevitable conclusion of clandestine removal even though the appellant company and its personnel have admitted the shortage and deposited the duty along with interest and penalty as applicable. The penalty on the appellant - director under Rule 26 is set aside. Appeal allowed - decided in favor of appellant.

  ---

• CST, VAT & Sales Tax

• 2019 (11) TMI 1278
  Condonation of delay in filing appeal - Time limitation - maintainability of appeal - allegation that appeal was instituted beyond the period of one year from the date of the receipt of the impugned order - HELD THAT:- The petitioner, in this case, has admitted that the intimation with regard to the order was received by it on 22/05/2012. On the same date, certified copy was applied for and such certified copy was delivered on 24/05/2012. The appeal has been filed on 26/04/2013 i.e. within the period of one year from the date of receipt of the order by the petitioner. Accordingly, the Appellate Authority was duty bound to consider the cause shown by the petitioner and to determine whether the same constitutes sufficient cause. The matter was required to be remanded in order to enable the Appellate Authority to appreciate the cause shown - However, we find that the petitioner has stated that its old consultant was not keeping good health and suffering from heart ailment. The consultant, in fact, underwent bypass surgery as well. Accordingly, the papers were handed over to another consultant. However, this consultant also fell sick and virtually lost his eyesight due to diabetic retinopathy. According to us, in the peculiar facts of the present case, this constitutes sufficient cause for non instituting the appeal within the prescribed period. It is true that the petitioner, should have acted with little greater diligence. Therefore, whilst condoning the delay, the petitioner will have to be put to terms. Revision petition allowed.

  ---

• 2019 (11) TMI 1273
  Compliance with the pre-deposit - Validity of assessment order - petitioner would submit that Ext.P3 is a conditional order which does not give any reason for the direction to pay 20% of the disputed amount pending disposal of the appeal - HELD THAT:- Ext.P3 order was passed after recording the fact that the authorized representative/appellant did not appear before the Deputy Commissioner (Appeals) when the stay petition was posted for hearing. If, under the said circumstance, the stay application had been dismissed by the appellate authority, then this Court would not have been inclined to interfere with such dismissal order, taking note of the absence of the petitioner at the time of hearing before the appellate authority. Notwithstanding the absence of the authorised representative/appellant, the first appellate authority directed a payment of only 20% of the disputed demand as a condition for stay of recovery of the balance amount pending disposal of the appeal. There are no erroneous exercise of discretion by the first appellate authority - The writ petition in its challenge against Ext.P3 order therefore fails and is accordingly dismissed - petition dismissed.

  ---

• 2019 (11) TMI 1272
  Condonation of delay of 5 days caused in filing the captioned appeal - Gujarat VAT Act - sufficient reason for delay - HELD THAT:- Considering the averments made in the memorandum of application, the court is of the view that the delay of 5 days that has occasioned in preferring the captioned appeal has been sufficiently explained. Application allowed - The delay caused in filing the captioned appeal is hereby condoned.

  ---

• Indian Laws

• 2019 (11) TMI 1281
  Time limitation - rejection of application filed under Section 11 for reference to arbitration - whether the High Court was justified in rejecting the application filed under Section 11 for reference to arbitration, on the ground that it was barred by limitation? - Doctrine of KompetenzKompetenz - HELD THAT:- In view of the legislative mandate contained in Section 11(6A), the Court is now required only to examine the existence of the arbitration agreement. All other preliminary or threshold issues are left to be decided by the arbitrator under Section 16, which enshrines the Kompetenz Kompetenz principle. The doctrine of KompetenzKompetenz , also referred to as Comp tenceComp tence , or Comp tence de la recognized , implies that the arbitral tribunal is empowered and has the competence to rule on its own jurisdiction, including determining all jurisdictional issues, and the existence or validity of the arbitration agreement. This doctrine is intended to minimize judicial intervention, so that the arbitral process is not thwarted at the threshold, when a preliminary objection is raised by one of the parties - The doctrine of kompetenzkompetenz is, however, subject to the exception i.e. when the arbitration agreement itself is impeached as being procured by fraud or deception. This exception would also apply to cases where the parties in the process of negotiation, may have entered into a draft agreement as an antecedent step prior to executing the final contract. The draft agreement would be a mere proposal to arbitrate, and not an unequivocal acceptance of the terms of the agreement. Section 7 of the Contract Act, 1872 requires the acceptance of a contract to be absolute and unqualified. In view of the provisions of Section 16, and the legislative policy to restrict judicial intervention at the pre-reference stage, the issue of limitation would require to be decided by the arbitrator. Subsection (1) of Section 16 provides that the arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement - In the present case, the issue of limitation was raised by the Respondent Company to oppose the appointment of the arbitrator under Section 11 before the High Court. Limitation is a mixed question of fact and law. If the tribunal finds that the claim is a dead one, or that the claim was barred by limitation, the adjudication of these issues would be on the merits of the claim. Under subsection (5) of Section 16, the tribunal has the obligation to decide the plea; and if it rejects the plea, the arbitral proceedings would continue, and the tribunal would make the award. Under subsection (6) a party aggrieved by such an arbitral award may challenge the award under Section 34 - In M/s. Indian Farmers Fertilizers Cooperative Ltd. v. Bhadra Products [ 2018 (1) TMI 1137 - SUPREME COURT ] this Court held that the issue of limitation being a jurisdictional issue, the same has to be decided by the tribunal under Section 16, which is based on Article 16 of the UNCITRAL Model Law which enshrines the Kompetenze principle. In view of the aforesaid discussion, we set aside the impugned judgment and order dated 11.01.2018 passed by the High Court, and direct that the issue of limitation be decided by the arbitral tribunal.

  ---