Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
November 8, 2021
Case Laws in this Newsletter:
GST
Income Tax
Customs
Corporate Laws
Securities / SEBI
Insolvency & Bankruptcy
Service Tax
Central Excise
CST, VAT & Sales Tax
Articles
News
Notifications
Central Excise
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9/2021 - dated
3-11-2021
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CE
Seeks to amend Notification No. 04/2019-Central Excise reducing Road and Infratructure Cess (RIC) on Petrol and Diesel.
Customs
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52/2021 - dated
3-11-2021
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Cus
Seeks to amend Notification No. 18/2019-Customs reducing Road and Infratructure Cess (RIC) on Petrol and Diesel
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90/2021 - dated
3-11-2021
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Cus (NT)
Prescribing Rate of exchange of foreign currency equivalent to Indian rupees
DGFT
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40/2015-2020 - dated
3-11-2021
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FTP
Amendment in import policy condition of Urea [Exim Code 31021000] in the ITC (HS) 2017, Schedule - I (Import Policy)
GST - States
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58/GST-2 - dated
26-10-2021
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Haryana SGST
Notification to notify sections 4 and 5 of the HGST (Second Amendment) Act, 2021 w.e.f. 01.08.2021 under the HGST Act, 2017
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57/GST-2 - dated
26-10-2021
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Haryana SGST
Notification to notify section 6 of the HGST (Second Amendment) Act, 2021 w.e.f. 01.06.2021 under the HGST Act, 2017
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(21/2021) FD 16 CSL 2021 - dated
27-10-2021
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Karnataka SGST
Seeks to bring in force sections 4 and 5 of the Karnataka Goods and Services Tax (Amendment) Act, 2021
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(20/2021) FD 16 CSL 2021 - dated
27-10-2021
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Karnataka SGST
Seeks to bring in force section 6 of the Karnataka Goods and Services Tax (Amendment) Act, 2021
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(13/2021) FD 55 CSL 2021 - dated
27-10-2021
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Karnataka SGST
Amendment in Notification No. (01/2017) No. FD 48 CSL 2017, dated the 29th June, 2017
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S. R. O. No. 778/2021 - dated
29-10-2021
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Kerala SGST
Amendment in Notification G.O.(P) No.34/2021/TAXES. dated 5th April, 2021
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S. R. O. No. 777/2021 - dated
29-10-2021
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Kerala SGST
Kerala Goods and Services Tax (Ninth Amendment) Rules, 2021
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S. R. O. No. 775/2021 - dated
28-10-2021
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Kerala SGST
Seeks to extend timelines for filing of application for revocation of cancellation of registration to 30.09.2021, where due date for filing such application falls between 01.03.2020 to 31.08.2021, in cases where registration has been canceled under clause (b) or clause (c) of section 29(2) of the KGST Act.
Income Tax
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130/2021 - dated
2-11-2021
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IT
Central Government hereby specifies the pension fund, namely, the School Employees Retirement System of Ohio
Money Laundering
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S.O. 4603 (E) - dated
3-11-2021
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PMLA
Special courts for Anti corruption - trial of offences punishable u/s 4 of the Prevention of Money laundering Act, 2002 - Courts of Anti-Corruption, C.B.I. Lucknow and Ghaziabad in the State of Uttar Pradesh designated.
Circulars / Instructions / Orders
Highlights / Catch Notes
GST
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Seeking grant of Regular Bail - cheating and forgery - fraudulent and bogus transactions - bogus firms - Keeping in mind, the fact that the trial is yet to commence, no useful purpose would be served by further detaining the petitioners behind bars who have been in custody since last about 2½ years - the petitions merit acceptance and are hereby accepted and the petitioners are ordered to be released on regular bail on their furnishing bail bonds/surety bonds - HC
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Validity of Show cause notice - jurisdiction - Inadmissible transitional credit - Education Cess (E Cess) - Secondary & Higher Education Cess (SHE Cess) - Krishi Kalyan Cess (KK Cess) - Perusal of the impugned show-cause notice would reveal assumption of jurisdiction by the respondent no.3 based on introduction of Explanation 3 to Section 140 of the CGST Act read with Explanations 1 and 2 thereof without showing application of mind as to whether the amended Explanations 1 and 2 have been made operational or not as well as whether Explanation 3 would at all apply to sub-section (1) of Section 140 of the CGST Act. - The present case is one where the impugned show-cause notice suffers from an error going to the root of the jurisdiction of the respondent no.3 in assuming jurisdiction and is, accordingly, indefensible and liable to be set aside - HC
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Refund of excess amount lying to the credit of electronic cash ledger of the petitioner - applicability of proviso to sub-section (1) of Section 54 or sub-section (1) of Section 54 - the stand of the respondents that since the amount collected by ECO under Section 52 of the CGST Act is not paid by the petitioner by himself and therefore, it is not entitled to claim refund of the same, is totally misplaced. As the petitioner is claiming refund balance in electronic cash ledger, it is covered by the proviso to sub-section (1) of Section 54 and would not fall under sub-section (1) of Section 54. - HC
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Refund of IGST - goods exported out of India - zero rated supplies - misdeclaration of description/value before allowing export - The reluctance on the part of the respondents in granting of refund to exporters upon completion of exports would result in taking away the incentive to export and would make the exports from the country unviable due to non-flow of funds in the form of refund assured under the Act. - HC
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Requirement of registration in importing states other than Maharashtra - goods are imported, sold and delivered directly from CFS (Container Freight Station) / DPD (Direct Port Delivery) which is under the Customs Boundaries to customers from those States - Since the applicant will be selling the goods before clearing the same for home consumption from the port of import, the place of supply shall be the place from where the applicant makes a taxable supply of goods which, in this case will be the Maharashtra Office. Hence, the applicant can supply the goods on the basis of invoices issued by the Maharashtra Office and, therefore, they need not take separate registration in the State of Import. - AAR
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Exemption from GST - supply made to HMC - conservancy/solid waste management services as well as garbage collection and dumping services to the Conservancy Department - The applicant receives consideration only in respect of the quantity of the garbage lifted and removed. So, it may be inferred that the applicant's supply to HMC, which is a local authority as defined under section 2(69) of the GST Act, is a pure service. - The applicant's services to HMC is exempt - TDS under GST not required - AAR
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Classification of services - supply of manpower services to his clients on daily/ monthly basis for different jobs as required by his clients - pure agent services as defined in Explanation to Rule 33 of the CGST Rules, 2017 - exclusion of payment of salary/wages by the supplier from the value of supply for the purpose of section 15 of the CGST Act, 2017 - Both the question are answered in the negative, against the assessee - AAR
Income Tax
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Reopening of assessment u/s 147 - notice u/s 142(1) came to be issued in the name of deceased person - the assessee having died on 11.11.2014, claims or proceedings, if any against the deceased assessee ought to be under Section 159(2)(b). As Section 159 does not permit of any ambiguity, any elasticity to the time period fixed under Section 149 and the manner of initiation of proceedings against the deceased assessee as provided under Section 159(2)(b) is impermissible. - HC
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Residence in India - Residential status - Status of the assessee as “Resident” of India - calculation of days of stay in India - inclusion of date of arrival in counting the days of stay in India - The assessee stayed in India during the year under consideration for less than 182 days and finally cannot be considered as the resident of India in the year under consideration - AT
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Computation of Capital Losses - the statutory provisions do not empower Ld. AO to substitute actual consideration received by the assessee with hypothetical sale consideration. The consideration which never accrued or which was never received by the assessee could not be brought to tax as capital gains or business income - AT
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TP Adjustment - Addition of Corporate Guarantee - Matter restored before the AO with the direction that, he will first ascertain the amount of expenditure actually incurred by the assessee in furnishing the five corporate guarantees and thereafter add 0.5% as the service fee for furnishing the guarantee. - AT
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Assessment u/s 153A - Addition u/s 68 - Unexplained receipt of share application/share capital - After a detailed and objective scrutiny of factual & legal position, the CIT(A) has set aside and reversed the additions carried out without showing any iota of incriminating material to support the allegation of accommodation entries in the abated as well as unabated search assessments. The share application money was found to be returned. - The action of CIT(A) deleting the additions sustained - AT
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Penalty u/s 271D/271E - contravention of provisions of sections 269SS/ST - taking or accepting loans otherwise than account payee cheques - book adjustments through journal entries between cross parties - CIT(A) had rightly set-aside the impugned penalty imposed by the Addl. CIT, for the reason, that the same is simpliciter an assignment of receivables or extinguishment of mutual liability of paying/receiving the amounts by the assessee and its sister concerns AND rectification of an error. - AT
Customs
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Undervaluation - Seeking relief and protection from unjustified investigation being carried out by respondent No.4 - import of Mercedes-Benz Engine Oil - It is obvious that the respondents have exceeded the time limit to keep the consignments under seizure and are not entitled to detain the goods any further, hence we have no hesitation in entertaining the present petition under Article 226 of the Constitution of India despite availability of alternate remedy. - The respondents are directed to forthwith release the two consignments of Mercedes-Benz Engine Oil - HC
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Refund of duty paid - Applicability of Section 18 of Customs Act - It is the specific case of the importer that excess duty has been paid at the time of provisional assessment and the same was exhaustively examined by the authorities as well as the CESTAT in the first round of litigation and it is only on the doctrine of unjust enrichment, the refund claim was rejected by the authorities. Since the importer has taken a ground that the principles of unjust enrichment will not be applicable prior to 2006. - The substantial question of law is answered in favour of the assessee and against the revenue. - HC
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Confiscation of imported goods - lubricant oil open gear - hazardous waste liable to confiscation or not - Redemption of the goods against the redemption fine is the option given to the importer/ exporter and it is his choice whether to avail of that option. If the goods are to be re- exported as per Rule 17 (2) of Hazardous Waste Rules, 2008, then such an action could not have been justified, as importer can very well chose not to pay the redemption fine. The approach of the adjudicating authority cannot be upheld in any manner. - AT
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Classification of imported goods - miscellaneous Chemicals: plasticizer - to be classified under CTH 38122090 or not - Advance authorization licence scheme - goods declared as Plasticizers - there is no reason for respondent to mis- declare the classification because even if the correct classification as held by the department is declared by the appellant the same benefit was available to the appellant. Therefore, it is only on the basis of test report which found that aromatic constituents exceed that of non aromatic constituents. The use of the product does not get altered - AT
IBC
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Execution of conveyance deed - moratorium under effect - The bar under Section 14(1)(a) shall not be applicable here and the moratorium enforced shall nowhere come in way of the Applicant for executing the Arbitral award. Since the property in question has already been declared that it is not the asset of the Corporate Debtor, therefore, any proceeding which does not concern the asset of the Corporate Debtor can be continued against the Corporate Debtor - Tri
Central Excise
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Valuation - interface quantity of adopting assessable value of SKO (non Public Distribution System (PDS) at the prevalent rate - As regards MS and HSD, the duty was paid on the transaction value. As regards SKO, since the same was not sold, the duty was paid on the prevailing price of SKO on the basis of sale price prevailing for SKO naturally which is higher than the price of SKO sold under Public Distribution System, therefore, the correct price was adopted by the appellant while clearing the interface quantity of SKO. - AT
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Process amounting to manufacture or not - clearance of ethanol blended motor spirit (EBMS) - First, it is to be tested that activity is whether amount to manufacture and if it is so, then only the application of exemption notification comes into play. Therefore, it is settled law that merely by any product is appearing either in the notification or tariff entry, for this reason it cannot be concluded that the goods are manufactured goods. The process independently to be seen that whether it amounts to manufacture or not - thus, blending of 5% ethanol with 95% motor spirit which made the product EBMS does not amount to manufacture. - AT
Case Laws:
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GST
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2021 (11) TMI 158
Seeking grant of Regular Bail - cheating and forgery - fraudulent and bogus transactions - bogus firms - HELD THAT:- The evidence collected during the course of investigation certainly points towards the complicity of the petitioners, particularly the fact that bogus firms have been registered while furnishing e-mail ID and phone numbers of the accused. Still further, in various of the firms, it is Rajesh Mittal, who is the authorized signatory. Further, transfer of amounts in the personal bank account of the accused from the accounts of the firms would also nail the accused as regards their guilt. In the instant case, the challan was presented about 2 years back and till date even the charges have not been framed. An amount of about ₹ 6 crores has already been recovered by way of compounding, from the owners of the industrial units in Panipat who had allegedly benefited from the forged bills. The petitioners have been behind bars for a substantial period of about 2 years. Conclusion of trial is likely to consume time as the trial has not even commenced till date. Keeping in mind, the fact that the trial is yet to commence, no useful purpose would be served by further detaining the petitioners behind bars who have been in custody since last about 2 years - the petitions merit acceptance and are hereby accepted and the petitioners are ordered to be released on regular bail on their furnishing bail bonds/surety bonds to the satisfaction of learned trial Court/Chief Judicial Magistrate/Duty Magistrate concerned. Petition allowed.
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2021 (11) TMI 157
Validity of Show cause notice - jurisdiction - Inadmissible transitional credit - Education Cess (E Cess) - Secondary Higher Education Cess (SHE Cess) - Krishi Kalyan Cess (KK Cess) - petitioner claims that not only on the date of its issuance but even on the date this writ petition was presented, the amendment(s) referred to in the impugned notice had not come into force - HELD THAT:- For sustaining the validity and/or legality of the impugned show-cause notice, the respondent no.3 could not have relied upon Explanation 3 exclusively to contend that cess is not included in eligible duties and taxes . As the law now stands, Explanation 3 does not have any application to sub-section (1) of Section 140. The respondent no.3 while issuing the impugned show cause notice perhaps overlooked this aspect and also that, parts of the amendments in Explanations 1 and 2 to Section 140 of the CGST Act sought to be introduced by sub-clauses (1) each of clauses (b) and (c) of Section 28 of the Amending Act are yet to be brought into force - A reference to Explanations 1 and 2, as it stands now, may be held to be mindless which, in law, would amount to issuance of a notice without due regard to the provisions of law as well as facts requiring existence or non-existence of a material fact for assumption of jurisdiction. We are conscious of the settled law that the High Court in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution of India ought not to interfere with a show-cause notice as a matter of routine or for the mere asking. However, it is only in a case where a show-cause notice is found to be totally non-est in the eyes of law for absolute want of jurisdiction of the authority issuing the notice to even investigate into the facts that the writ court may, instead of relegating the noticee to respond to the show-cause notice, itself examine the point of lack/want of jurisdiction. Perusal of the impugned show-cause notice would reveal assumption of jurisdiction by the respondent no.3 based on introduction of Explanation 3 to Section 140 of the CGST Act read with Explanations 1 and 2 thereof without showing application of mind as to whether the amended Explanations 1 and 2 have been made operational or not as well as whether Explanation 3 would at all apply to sub-section (1) of Section 140 of the CGST Act. There could have been little reason for us to interfere if assumption of jurisdiction by the respondent no.3 on the ground appearing from the impugned show-cause notice were shown to be defensible with reference those provisions of law, which have become operational by due exercise of power in terms of sub-section (2) of Section 1 of the Amending Act - Even otherwise, it has not been shown that upon introduction of Explanation 3 of Section 140 of the CGST Act read with partly un-amended Explanations 1 and 2 thereof, the respondent no.3 did have the jurisdiction to issue the impugned show-cause notice. The present case is one where the impugned show-cause notice suffers from an error going to the root of the jurisdiction of the respondent no.3 in assuming jurisdiction and is, accordingly, indefensible and liable to be set aside - Petition disposed off.
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2021 (11) TMI 156
Grant of regular bail - fraudulent ITC - offence committed under Section 132 (1)(c) of CGST Act, 2017 read with Section 20 (xv) of IGST Act, 2017 - HELD THAT:- This petition is allowed and the order dated 22.09.2021 passed by this Court, granting interim bail to the petitioner, is hereby made absolute.
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2021 (11) TMI 155
Classification of goods - papad of different shapes and sizes - classifiable under Entry No.96 of the exemption notification no.2/2017 Central Tax (Rate) dated 28.6.2017 - Exemption from GST - Section 103(1)(b) of the GST Acts - HELD THAT:- Issue NOTICE returnable on 1st December 2021.
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2021 (11) TMI 154
Refund of Service Tax - Section 54 of TNGST Act - HELD THAT:- There is a balance qua the writ petitioner in the hands of the Department, the impugned order has to necessarily go. As all that the writ petitioner wants is his money back irrespective of the nomenclature under which it is returned to him. The impugned order is set aside recording the stated position of the respondent leaving it open to the writ petitioner to file an application for refund in the aforesaid manner if so advised and if so desired. Though obvious it is made clear that such refund application shall be considered on its own merits and in accordance with law. Petition disposed off.
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2021 (11) TMI 153
Maintainability of the writ petition - Refund of excess amount lying to the credit of electronic cash ledger of the petitioner - applicability of proviso to sub-section (1) of Section 54 or sub-section (1) of Section 54 - HELD THAT:- Once it is held that the amount collected by ECO and paid to the Government under Section 52(3) of the CGST Act is tax to which the supplier is entitled to take credit in his electronic cash ledger under subsection (7) of Section 52, the provisions of Section 54 of CGST Act would apply for claiming refund of the same. The balance amount in the electronic cash ledger till it is appropriated by making payment towards discharge of liability of tax, interest or any other amount to the Government, would be the amount available to the registered person in whose name the said electronic cash ledger is maintained. Therefore, the stand of the respondents that since the amount collected by ECO under Section 52 of the CGST Act is not paid by the petitioner by himself and therefore, it is not entitled to claim refund of the same, is totally misplaced. As the petitioner is claiming refund balance in electronic cash ledger, it is covered by the proviso to sub-section (1) of Section 54 and would not fall under sub-section (1) of Section 54. Maintainability of the writ petition - HELD THAT:- Though an effective remedy of appeal to the Appellate Tribunal is provided under Section 109 of the CGST Act, it is an admitted fact that the said Tribunal has not yet been constituted, though more than 3 years have elapsed after the CGST Act has been introduced. Thus, the petitioner cannot be compelled to wait for eternity to agitate its claim seeking refund of the amount to which it is entitled to under the statute and also blocking its funds affecting its cash flows, merely because of existence of (non functional) alternate forum/remedy on paper, by not invoking the jurisdiction under Article 226 of the Constitution of India. Further, mere existence of alternative remedy is no bar for invoking the jurisdiction under Article 226 of the Constitution of India, when right to carry on business is being impeded, resulting in violation of fundamental right as guaranteed under Article 19(1)(g) of the Constitution of India. The impugned Order-in-Appeal passed by the 4th respondent, cannot be held to be a validly passed order for it to be sustained - Petition allowed.
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2021 (11) TMI 152
Refund of IGST - goods exported out of India - zero rated supplies - misdeclaration of description/value before allowing export - period February, 2021 to May, 2021 - HELD THAT:- The provisions of the CGST Act and the IGST Act do not mandate the petitioner to verify the genuineness of the suppliers of its supplier, inasmuch as enough safeguards/mechanism are provided under the Act to recover the taxes, if not paid or wrong credit is availed by the petitioner s supplier or supplier s supplier - Inasmuch as no discrepancy has been found with regard to the suppliers of the petitioner, the refund claim by the petitioner cannot be denied to be processed on the ground that verification of the suppliers of the petitioner s supplier is pending. The reluctance on the part of the respondents in granting of refund to exporters upon completion of exports would result in taking away the incentive to export and would make the exports from the country unviable due to non-flow of funds in the form of refund assured under the Act. Further, the non-committal stand of the respondents in the counter indicating a time frame for completion of the verification in respect of L2 supplier also cannot be countenanced, since it is not the duty of the exporter, like the petitioner, to get such verification done, more so, when there is no such prescription to cause verification by the exporter, like the petitioner, before purchasing any goods from its supplier. The stand of the respondents in not completing the exercise, even if it is required to be undertaken at their end, is contrary to the instructions contained in internal circular No.20/16/07/2020-GST, dt.20.05.2020, issued by the Board wherein the Board had made changes to the SOP dt.23.01.2020 for verification of IGST refunds and specified that in future, all verifications are to be completed and report sent to the 5th respondent within a maximum period of three weeks of receipt of request for verification. The action of the respondents, and in particular the 2nd respondent, in not granting refund of IGST paid by the petitioner on exports made during the period - 15.02.2021 to 21.05.2021, in a sum of ₹ 14,78,99,959/-, cannot be held to be valid and also the non-grant of All Industry Drawback claimed by the 4th respondent, cannot be sustained. Petition allowed.
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2021 (11) TMI 151
Requirement of registration in importing states other than Maharashtra - goods are imported, sold and delivered directly from CFS (Container Freight Station) / DPD (Direct Port Delivery) which is under the Customs Boundaries to customers from those States - requirement to obtain registration in State where the applicant is proposing to open a warehouse for sale of imported goods from such warehouse - issuing invoices under Maharashtra GSTIN is permissible in law for supply of imported goods from the proposed warehouse located in the State where the Applicant is not registered under GST or not. Whether the Applicant is required to obtain the registration in importing States other than Maharashtra, if goods are imported, sold and delivered directly from CFS (Container Freight Station) / DPD (Direct Port Delivery) which is under the Customs Boundaries to customers from those States? - HELD THAT:- As per the provisions of Section 7(2) of the IGST Act, 2017, supply of goods imported into India shall be treated as supply of goods in the course of inter - state trade or commerce and as per Section 5(1) of the Act, liable to IGST at the point when duties of Customs are levied on the said goods under Section 12 of the Customs Act, 1962. In respect of goods imported into India, as per provisions of Section 11 (a) of the IGST Act, 2017, the place of supply shall be the location of the importer. In the present case since the importer is registered in Mumbai, the place of supply will be Mumbai, Maharashtra. In the present case with respect to import of the goods, the place of supply is the location of the importer situated in Maharashtra. Since the applicant will be selling the goods before clearing the same for home consumption from the port of import, the place of supply shall be the place from where the applicant makes a taxable supply of goods which, in this case will be the Maharashtra Office. Hence, the applicant can supply the goods on the basis of invoices issued by the Maharashtra Office and, therefore, they need not take separate registration in the State of Import. Whether the Applicant is required to obtain registration in State where the applicant is proposing to open a warehouse for sale of imported goods front such warehouse? - HELD THAT:- In respect of goods the subsequent sale after the import is important factor, in respect of which the applicant is not paying attention. The applicant is more focused on import of goods. But there is also a subsequent sale/supply of said goods in the same State where import happens and in that case, registration is to be obtained in that State from where taxable supply originates. It is an origin based provision, requiring the registration to be taken in that State. If the situs of transaction in question is not within the state of Maharashtra, then as per provisions of section 96 of the Central Goods and service Tax Act 2017 (and similar provision under the MGST Act), the Maharashtra Advance Ruling Authority cannot acquire the jurisdiction over the questions raised, hence no ruling can be given on this question - the applicant is proposing to take a new warehouse on the eastern coast of India near a port, may be in Andhra Pradesh. As the proposed activity of taking a warehouse for the purpose of supply of imported goods is outside the state of Maharashtra, therefore, as per the provisions of section 96 of the Central Goods and service Tax Act 2017, the Maharashtra Advance Ruling Authority cannot acquire the jurisdiction over the question raised, hence no ruling can be given on this question. Whether issuing invoices under Maharashtra GSTIN is permissible in law for supply of imported goods from the proposed warehouse located in the State where the Applicant is not registered under GST? - HELD THAT:- As the supply of imported goods is from a state which is outside the state of Maharashtra, therefore, as per the provisions of section 96 of the Central Goods and service Tax Act 2017, this Authority cannot acquire the jurisdiction over the question raised. Further, it is also found that, the said question is whether invoices can be issued under Maharashtra GSTIN. Such question, being a question relating to a procedure to be adopted, does not fall under the purview of Section 97 of the CGST Act and therefore in view of the above, this question is not answered.
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2021 (11) TMI 150
Exemption from GST - supply made to HMC - conservancy/solid waste management services as well as garbage collection and dumping services to the Conservancy Department - Eligibility under SI No 3 or 3A of the Exemption Notification - pure service or a composite supply - functions entrusted to a municipality under article 243W of the Constitution of India or not - HELD THAT:- In the instant case, the work order issued to the applicant describes the nature of the work as lifting and removing of daily garbage etc. accumulated from the vats, dumping yards, containers and other places on the roads, lanes and bye-lanes of HMC area - the term pure services has not been defined under the Act. However, a bare reading of the description of services as specified in entry serial number 3 of the Exemption Notification denotes supply of services which does not involve any supply of goods can be regarded as pure services. It appears that in the instant case, the supplies do not involve any supply of goods. The applicant receives consideration only in respect of the quantity of the garbage lifted and removed. So, it may be inferred that the applicant's supply to HMC, which is a local authority as defined under section 2(69) of the GST Act, is a pure service. Whether the said services are in relation to any functions entrusted to a municipality under article 243W of the Constitution of India? - HELD THAT:- It transpires from above that the functions entrusted to a municipality as listed in the Twelfth Schedule include the functions like sanitation conservancy and solid waste management. The applicant's services to HMC is exempt under entry serial number 3 of the Exemption Notification. Section 51(1) of the GST Act provides that the Government may mandate inter alia a local authority to deduct TDS while making payment to a supplier of taxable goods or services or both. As the applicant is making an exempt supply to the HMC, the provisions of section 51 and, for that matter, the TDS Notifications do not apply to his supply.
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2021 (11) TMI 149
Classification of services - supply of manpower services to his clients on daily/ monthly basis for different jobs as required by his clients - pure agent services as defined in Explanation to Rule 33 of the CGST Rules, 2017 - exclusion of payment of salary/wages by the supplier from the value of supply for the purpose of section 15 of the CGST Act, 2017 - HELD THAT:- The applicant supplies manpower services for which he enters into an agreement with the recipient of services. It is submitted that the recipient of services authorizes the applicant to make payment of salary, wages and all allowances on behalf of him thereby the applicant makes such payment in the capacity of an agent of the service recipient. Further, payment of salary, wages and allowances made by the applicant is clearly and separately shown in the invoice raised by the applicant. For the purpose of supplying manpower services as per requirement of his clients, the applicant also enters into Employment Agreement with different work-men specifying the terms and conditions to be followed by the work-men and the wages/salary to be paid against services provided by them - the applicant maintains Register of Wages in Form XVII under rule 78(1) (i) of the Contract Labour (Regulation and Abolition) Central Rules, 1971 in respect of such supply of work-men. The applicant thus engages contract labour towards supply of manpower services as requited by his clients (recipient of services). Rule 33 of the CGST/WBGST Rules, 2017 clearly speaks that one of the conditions that has to be satisfied for exclusion of expenditure or costs from the value of supply which has been incurred by a supplier as a pure agent if the services procured by the service provider, as a pure agent of the recipient of service, from the third party are in addition to the services which he provides on his own account - Admittedly, in the instant case, the applicant first enters into an agreement to his client for supplying of manpower services and subsequently engages different work-men (third party) at the place of business of his clients and thereby supplies manpower services only. It is found that no other services other than manpower services are provided by the applicant to his client. In the instant case, undisputedly the applicant is the person who is liable to pay salary/wages to the work-men employed by him under Employment Agreement to provide manpower services to his clients and just showing such amount in a separate manner in the invoice doesn t shift his liability on the recipient of services and makes him qualify as a pure agent in terms of rule 33 of the CGST/WBGST Rules, 2017 - The contention of the applicant that the recipient of services authorizes him to make payment of salary, wages and all allowances on behalf of him doesn t hold water on the same ground that such amount is actually payable by the applicant himself - the argument that the applicant makes payment of such amount on behalf of his client i.e., the service recipient, cannot be accepted.
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Income Tax
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2021 (11) TMI 148
Reopening of assessment u/s 147 - notice u/s 142(1) came to be issued in the name of deceased person - Whether notice issued to the deceased assessee on 28.03.2018 within the time prescribed could save the reassessment order passed in the name of the legal representatives who are the petitioners herein? - HELD THAT:- In the present case while the notice at its inception to Kurkal Gopal Shetty who is dead is invalid insofar as any claim by the department as against the dead assessee should be only by issuance of notice to the legal representatives in terms of Section 159(2)(b) and except this procedure, there can be no other procedure envisaged. This would flow from the premise that any act which is required to be done in a particular manner must be done in that manner or not at all which is a settled legal proposition. In the present case, it also ought to be noted that though notice was issued to the dead assessee, the contention that as there is no abatement, and proceedings must be permitted to be continued against the legal representatives, is an argument that is liable to be rejected as the question of continuation of proceedings of an assessment against the legal representatives is only in the scenario as contemplated under Section 159(2)(a) i.e., where the assessee is alive at the initiation of proceedings and has subsequently died. In the case on hand, the assessee having died on 11.11.2014, claims or proceedings, if any against the deceased assessee ought to be under Section 159(2)(b). As Section 159 does not permit of any ambiguity, any elasticity to the time period fixed under Section 149 and the manner of initiation of proceedings against the deceased assessee as provided under Section 159(2)(b) is impermissible. Assessment proceedings initiated against Kurkal Gopal Shetty under Section 148 is sought to be continued and concluded as against the legal representatives not by way of any fresh notice to the legal representatives under Section 148 but by way of notice to furnish return under Section 142 which again relates to a subsequent stage of reassessment proceedings. The judgment in the case of Alamelu Veerappan [ 2018 (6) TMI 760 - MADRAS HIGH COURT] provides that notice issued to the legal representatives beyond the period of limitation prescribed is without jurisdiction and unenforceable in law. The judgment in the case of Rajendra Kumar Sehgal [ 2018 (12) TMI 697 - DELHI HIGH COURT] is also on the same lines. The other circumstance that is required to be noticed is that the legal representatives in the present case were not issued with any notice regarding proceedings under Section 148 and it is only under Section 142 notice was issued to the legal representatives which fact is also taken note of while refusing to reserve liberty to the authority by remanding the matter to the Assessing Authority to initiate proceedings. It must also be noted that exercise of power under Article 226 is not made out in the present case as granting of any relief would be contrary to the statutory period available to initiate proceedings against the legal representatives in terms of Section 159(2)(b) read with Section 149(1)(b) as discussed above. The position of law regarding invalidity of the notice vitiating the proceedings pursuant thereto being settled as noticed from the judgment in the case of Kurban Hussain [ 1971 (9) TMI 9 - SUPREME COURT] and in light of the discussions made above and in the absence of any notice under Section 148 in terms of Section 149(1)(b) of the Act, the assessment order passed in the names of the petitioners enclosed at Annexure-E for the assessment year 2011-12 passed under Section 144 read with Section 147 of the Act is set aside. - Decided in favour of assessee.
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2021 (11) TMI 147
Penalty u/s 271(1)(c) - Defective notice - non specification of charge - HELD THAT:- From the notice produced by the Ld. AR during the hearing, it can be seen that the Assessing Officer was not sure under which limb of provisions of Section 271 of the Income Tax Act, 1961, the assessee is liable for penalty. Besides that the Assessment Order also did not specify the charge as to whether there is concealment of income or furnishing of inaccurate particulars of income in assessee s case. Thus, there is no particular limb mentioned in the notice issued under Section 271(1)(c) r.w.s. 274 of the Act. This issue is squarely covered by the decision of the Hon ble Supreme Court in case of M/s SSA Emerald Meadow. [ 2016 (8) TMI 1145 - SC ORDER] Since in the instant case the inappropriate words in the penalty notice has not been struck off and the notice does not specify as to under which limb of the provisions, the penalty u/s 271(1)(c) has been initiated, therefore, we are of the considered opinion that the penalty levied u/s 271(1)(c) is not sustainable and has to be deleted. - Decided in favour of assessee.
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2021 (11) TMI 146
Disallowance of depreciation on goodwill - whether the payment made over and above the net asset value, while acquiring a business concern, shall constitute good will or not? - HELD THAT:- As discussed in the preceding paragraph about the observation made by Chennai bench in the above said case in respect of the decision rendered in the case of Toyo Engineering India P Ltd [ 2012 (7) TMI 686 - ITAT, MUMBAI] i.e., the assets acquired by the above said assessee predominantly consisted of huge land and building. In the instant case, we notice that no land/building has been purchased and hence the facts prevailing in the Toyo Engineering India Pvt. Ltd were different from the facts of the present case. Accordingly, we are of the view that the decision rendered in the case of Toyo Engineering India Pvt. Ltd. will not apply to the facts of the present case. Accordingly, following the decision rendered by Hon ble Delhi High Court in the case of Truine Energy Services Pvt. Ltd. [ 2015 (11) TMI 1218 - DELHI HIGH COURT] , we hold that the amount paid in excess of the net asset value for acquiring a business concern shall constitute goodwill. Applicability of proviso to sec.32 (1) - It is not the case of the revenue that this transaction is between two related parties. Hence this purchase would not fall under the categories of succession, amalgamation and demerger. We have noticed that the tax authorities have observed that the spirit of the above said provisions should be applied to the present case. We are unable to agree. It is well settled proposition of law that the Income tax provisions should be construed strictly. Hence the scope of the above said proviso cannot be extended to the transaction of purchases between two unrelated parties. Eligibility of the assessee to claim depreciation on Goodwill cannot be decided unless the above said factual aspects are clarified. We have held, following the decision rendered in Truine Energy Services Pvt. Ltd. [ 2015 (11) TMI 1218 - DELHI HIGH COURT] , that the excess amount paid over and above the net asset value on acquiring a business concern shall constitute goodwill. However, the said legal principle can be applied only if the facts relating to the case are clear. We have noticed that the facts are not clear in the instant case. Accordingly, in the interest of natural justice, we are of the view that the assessee should be provided with an opportunity to present the relevant facts. Accordingly, we set aside the order passed by Ld. CIT(A) on this issue and restore the same to the file of the A.O. for examining afresh in the light of observations made (supra). After considering the information and explanations furnished by the assessee and also after affording adequate opportunity of being heard, the A.O. may take appropriate decision in accordance with law. Disallowance of interest paid u/s 201(1A) - assessee had paid interest u/s 201(1A) for the delay in payment of TDS - assessee claimed the same as deduction. The AO disallowed the above said claim and the Ld CIT(A) also confirmed the same - HELD THAT:- Identical issue has been considered by Delhi bench of Tribunal in the case of New Modern Bazaar [ 2021 (4) TMI 395 - ITAT DELHI] and it was decided against the assessee Disallowance of interest on bank overdraft u/s 40(a)(ia) - HELD THAT:- Admittedly, the interest paid on bank loans is not liable to TDS deduction and hence disallowance u/s 40(a)(ia) is not called for. However, we notice that the Ld CIT(A) has confirmed the disallowance only for want of evidence. Accordingly, in the interest of natural justice, we are of the view that the assessee should be provided with an opportunity to produce evidences in support of its claim. Accordingly, we set aside the order passed by Ld CIT(A) on this issue and restore the same to the file of AO for examining it with the evidences that may be furnished by the assessee. After hearing the assessee, the AO may take appropriate decision in accordance with law.
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2021 (11) TMI 145
Addition u/s 68 - addition on account of unsecured loan - HELD THAT:- As decided in assessee's own case [ 2021 (7) TMI 1120 - ITAT MUMBAI ] AO has never disputed these factual aspects. Therefore, once the assessee has discharged its initial burden by filing necessary evidences in order to prove identity, genuineness of transactions and creditworthiness of the parties, then there is no reason for AO to suspect the transactions between the parties only on the ground that the person who gave unsecured loan had admitted in his statement u/s 132(4) of the Act that these transactions are accommodation entries, more particularly when the person who gave the statement retracted his statement by filing affidavit. AO failed to carry out further enquiries in light of evidences gathered during the course of search and survey to establish the fact that in fact these transactions are non-genuine, but merely relied upon the statement of Shri Bhanwarlal Jain to make additions u/s 68 of the Act No doubt, the AO is having every right to suspect the transactions but, that by itself would not give rise an occasion for the AO to make additions u/s 68 of the Act, when the evidences filed by the assessee clearly proves the facts that these transactions were genuine transactions which are undertaken under normal commercial business circumstances. Therefore, we are of the considered view that the AO was erred in making additions towards unsecured loan taken from companies controlled and managed u/s 68 - Decided in favour of assessee.
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2021 (11) TMI 144
Residence in India - Residential status - Status of the assessee as Resident of India - calculation of days of stay in India - inclusion of date of arrival in counting the days of stay in India - HELD THAT:- As already held by different benches that while counting days of stay in India for considering the status of Resident the days of arrival has to be excluded, the Ld. CIT(A) while counting days of stay in India purportedly counted the date of arrival of the assessee in India without giving any cogent reason thereon which in our considered opinion having no basis. No reason to deviate from the ratio laid down in case of MANOJ KUMAR REDDY [ 2009 (4) TMI 551 - ITAT BANGALORE] and relying upon the identical facts in the case in hand we exclude the date of arrival in counting the days of stay in India in the case of the assessee. The assessee stayed in India during the year under consideration for less than 182 days and finally cannot be considered as the resident of India in the year under consideration. In that view of the matter the impugned assessment made against the assessee considering him as the resident of India is not sustainable in the eye of law and thus deleted. - Decided in favour of assessee.
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2021 (11) TMI 143
Exchange Fluctuation gain on the GDR - Nature of receipt - revenue or capital gain - real income theory - HELD THAT:- Even if the assesse had treated one receipt as an income and in real situation the said receipt was not an income, it was the duty of the A.O. being a quasi judicial authority to tax the real income and not what had been offered by the assessee. Whether the exchange rate fluctuation gain was a revenue receipt or the capital receipt in the hands of the assessee? - Assessee company issued the GDRs with the objectives to finance ongoing expansion of capital investment, it was a onetime activity and it was not the intention of the assessee to park the money abroad solely with the aim of gaining out of such funds and it was also not the intention of the assessee to keep money in foreign banks and that its liquidity position was bad as alleged by the A.O. In the present case, we have earlier mentioned in the former part of this order that no documentary evidence was placed on record by the Department which substantiate that the assessee company was facing any liquidity crunch during the period under consideration. As assessee raised money through GDR s and issued the equity share capital which was treated to be a share capital, therefore the gains on account of foreign exchange fluctuation on such share capital collected in foreign exchange was only the capital receipt - A.O. had not disputed the fact that the money was raised by the assessee by way of GDRs against capital equity therefore the exchange gain which had arisen on account of holding the GDR proceeds, was capital in nature and not liable to tax - Decided in favour of assessee.
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2021 (11) TMI 142
Estimation of business profits of sale of land - profits from construction activities - Conversion of land into stock-in-trade - recognized method of accounting - HELD THAT:- Assessee converted its land into stock-in-trade and thus computed the capital gains as provided in Sec. 45(2) of the Act. The land stood converted into stock-in-trade and the assessee constructed premises / buildings on this land. During the year, the assessee entered into agreement for sale of these premises. For the purpose of revenue recognition, the assessee followed percentage completion of method of accounting. Since project was completed to the extent of 11% during the year as certified by the Architect, the assessee recognized projected revenues to that extent in its books of accounts. The said method was recognized method of accounting as per Accounting Standards issued by ICAI and this method was consistently followed in subsequent years to recognize the revenue. This method was accepted in earlier years also. Therefore, Ld. AO, in our considered opinion, was not justified in rejecting the methodology adopted by the assessee and estimating the business profits on sale of land as well as profits from construction activities separately since the land merged into the stock-in-trade and the premises including the undivided share in the land was sold to various buyers during the year. The perusal of chart placed before us would show that finally, the project has been completed in AY 2010-11 and revenue has been recognized from AYs 2005-06 to 2010-11 based on percentage of completion method of accounting. Therefore, finding no infirmity in the impugned order on this issue, we dismiss ground no.1 of revenue s appeal. LTCG on conversion of land into stock-in-trade - computation of LTCG on conversion of land into stock-in-trade - FMV as on 01/04/1981 as well as FMV on 24/12/2003 i.e. the date of conversion - HELD THAT:- Viewed from any angle, the substitution of FMV as on 01/04/1981 by Ld.AO cannot be held to be in accordance with law. Therefore, finding no infirmity in the impugned order, in this respect, we dismiss ground no.2 of revenue s appeal. Disallowance of Professional fees - HELD THAT:- We find that the assessee has furnished name of payees, nature of expenses and the amount paid to each of them - No defect has been pointed out in these details. The expenses are in the nature of certification work, management consultancy, fees for appearance before Tax Authorities, company secretarial work and these expenses are incurred for business purposes of the assessee. Therefore, no fault could be found in the impugned order deleting the estimated disallowance as made by Ld.AO. Deferred revenue expenditure u/s 35DDA - assessee disallowed VRS expenses amortized in books for ₹ 1143.92 Lacs but claimed VRS expenses of ₹ 1866.34 Lacs u/s 35DDA - HELD THAT:- Provisions of Sec.35DDA entitle the assessee to amortize the expenses incurred on voluntary retirement scheme and allow 1/5th of such expenditure starting from the year in which the expenditure has been incurred by the assessee. The perusal of computation of income would show that VRS expenditure has been incurred by the assessee during FYs 2000-01 to 2003-04 and the same are claimed as per the mandate of Sec.35DDA. The same has been claimed to the extent of 1/5th of expenditure incurred in earlier years. The deduction of the same has been allowed to the assessee in past assessments. Therefore, there could be no occasion to disallow the same in this year. Hence, the disallowance of ₹ 1866.34 Lacs has rightly been deleted in the impugned order. So far as the balance expenditure of ₹ 558.65 Lacs is concerned, the perusal of above table would show that majority of these payments are in the nature of wages, ex-gratia payment, leave encashment, gratuity, VRS expenses etc. paid by the assessee. Upon perusal of the same, it could be seen that these are normal business liability of the assessee paid during normal conduct of the business. Therefore, these are incurred wholly and exclusively for the purpose of business and thus qualify for deduction u/s 37(1). This being so, we confirm the stand of Ld. CIT(A) in deleting the same. Computation of Capital Losses - HELD THAT:- As rightly observed by Ld. CIT(A), merely on the basis of intention, a valid claim made within the four corner of the Act, could not be disallowed unless established to the contrary. AO has not conducted any independent enquiry to prove that the above mentioned claims of capital losses were not bona-fide or lacked credentials. Concurring with the same, we would hold that the allegations of Ld. AO and conclusion drawn there-from has no legs to stand. We also concur that the statutory provisions do not empower Ld. AO to substitute actual consideration received by the assessee with hypothetical sale consideration. The consideration which never accrued or which was never received by the assessee could not be brought to tax as capital gains or business income - similar allegations were leveled by Ld. AO in assessment order for AY 2004-05 and few of these allegations have merely been reproduced in the assessment of this year. However, all such allegations as well as disallowances as made in AY 2004-05 stood settled in assessee s favor by the cited decision of Tribunal for AY 2004-05. We find no reason to deviate from the same. Disallowance of various expenses - disallowance of various expenses, viz. Power and Fuel, Deferred Revenue Expenses, Rent, rates and taxes, Miscellaneous Expenses - CIT-A restricted addition to 25% as against ad-hoc disallowance made by the AO of 75% - HELD THAT:- As rightly observed by Ld. CIT(A), merely on the basis of intention, a valid claim made within the four corner of the Act, could not be disallowed unless established to the contrary. The Ld. AO has not conducted any independent enquiry to prove that the above mentioned claims of capital losses were not bona-fide or lacked credentials. Concurring with the same, we would hold that the allegations of Ld. AO and conclusion drawn there-from has no legs to stand. We also concur that the statutory provisions do not empower Ld. AO to substitute actual consideration received by the assessee with hypothetical sale consideration. The consideration which never accrued or which was never received by the assessee could not be brought to tax as capital gains or business income. It could further be seen that similar allegations were leveled by Ld. AO in assessment order for AY 2004-05 and few of these allegations have merely been reproduced in the assessment of this year. However, all such allegations as well as disallowances as made in AY 2004-05 stood settled in assessee s favor by the cited decision of Tribunal for AY 2004-05. We find no reason to deviate from the same.
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2021 (11) TMI 141
Allowability of business expenditure - Disallowance of amount expended towards Corporate Social Responsibility - HELD THAT:- Assessee has incurred the expenditure at the behest of the Deputy Commissioner, Bellary which was necessary to be incurred for the purposes of business, in public interest. Respectfully following the aforesaid view, we direct the Ld.AO to delete the disallowance.Decided against revenue. Disallowance of deduction by Central Empower Committee (CEC) towards Reclamation and Rehabilitation expenses - HELD THAT:- As relying on M/S VEERABHADRAPPA SANGAPPA CO. [ 2020 (12) TMI 1145 - ITAT BANGALORE] we direct the Ld.AO to allow the same as business expenditure for year under consideration.Decided against revenue. Disallowance of the legal fees incurred by assessee to protect and defend the claim made against the assessee by third parties - HELD THAT:- As relying on SHRI B. KUMARA GOWDA AND VICE-VERSA [ 2014 (8) TMI 1112 - ITAT BANGALORE] assessee concerned was resisting a suit for protecting its business and not with a view get a new lease. Hon'ble Apex Court in the case of Sree Meenakshi Mill Ltd., has clearly held that taxability of expenditure must depend on the purpose of the legal proceeding, in relation to the business and cannot be computed by the final outcome of the proceedings. We are therefore, of the opinion that the CIT(A) was justified in holding that legal expenses incurred by assessee for litigation deserves to be deleted. - Decided against revenue.
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2021 (11) TMI 140
Disallowance of expenditure u/s. 40(a)(i) of the Act on Employees Secondment charges and Reimbursement of expenses - HELD THAT:- Obsolescence in the inventory was qua the value of stock as on 31-03-2013 and the assessee incorporated the effect of such reduction in the value of inventory by giving an appropriate note as an extraordinary event . The reduction has the effect of representing the condition of stock existing as on 31-03-2013 at its realizable value. It is a case of the existing condition of diminution in the value of inventory as on 31-03-2013. As the exercise of valuing the obsolescence in stock took place after close of the year but before the signing of the balance sheet on 28.5.2013, the assessee depicted it as an extraordinary item by way of a note to accounts and reduced the value of closing stock accordingly - the obsolescence affects the value of inventory as on 31-03-2013, the same was required to be taken into consideration for reflecting true and fair state of affairs of the company as on the balance sheet date - direction of the DRP that the loss should be written off in the F.Y. 2013-14 on the raison d'etre that it was quantified after 31-03-2013, cannot be countenanced. The relevant factor to be considered is the date with reference to which the value of stock is determined and not the date when the exercise of such value determination is carried out. Had it been a case of the assessee valuing its inventory on any date after 31-03-2013 but giving effect in the balance sheet as on 31.3.2013, that would have warranted addition. we are confronted with a situation in which depletion has taken place with reference to the value of inventory on 31-03-2013. We, therefore, hold that the AO was not justified in making addition - Decided in favour of assessee. TP Adjustment - Addition of Corporate Guarantee - HELD THAT:- As the assessee own case [ 2021 (3) TMI 1162 - ITAT PUNE] Tribunal determined the Arm's Length fee from furnishing of the corporate guarantee at 0.5% as further increased by any expenditure actually incurred by the assessee in furnishing the guarantee. The ld. DR was fair enough to concede the position in this regard. Having regard to the rival but common submissions and respectfully following the order of the Tribunal for the immediately succeeding assessment year, we set aside the impugned order on this score and remit the matter to the file of AO/TPO for recomputing the ALP of the transaction. In doing so, he will first ascertain the amount of expenditure actually incurred by the assessee in furnishing the five corporate guarantees and thereafter add 0.5% as the service fee for furnishing the guarantee. Needless to say, the assessee will be allowed a reasonable opportunity of hearing in this regard.
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2021 (11) TMI 139
Disallowance of miscellaneous expenditure - nature of expenditure location and scale of operations - CIT-A sustaining half (50%) of the ad hoc disallowance of 25% made in respect of miscellaneous expenditure - HELD THAT:- When both the parties have failed to justify their respective stands in entirety, we deem it appropriate that a lumpsum estimated disallowance of 8% only than that in issue @25% would be just and proper. We order accordingly. The assessee succeeds in part in its instant identical former substantive ground in all these years involving varying sums subject to a rider that it shall not be treated as a precedent in any other case. Necessary computation shall follow as per law. Nature of expenditure - Expenditure on rail tracks and conveyor belt systems - revenue or capital expenditure - HELD THAT:- Assessee's case records as well as photographs of the corresponding rail tracks and conveyor belt systems and submits that both the lower authorities have erred in law and on facts in treating the assessee's revenue expenditure items as capital in nature despite the fact that the same were meant to be kept abandoned at sites for the use of the owner of the business only than that incurred for deriving enduring benefits in its own hands. We are also taken to the necessary factual position emanating from the relevant photographs. DR fails to dispute that the foregoing clinching facts have nowhere been considered either in the course of assessment as well as in the CIT(A)'s detailed discussion extracted in preceding paragraphs. We therefore deem it appropriate to restore the assessee's instant latter identical issue in all the four instant appeals back to the Assessing Officer for his afresh factual verification as per law within three effective opportunities of hearing subject to the condition that it shall be the burden of the taxpayer only to place on record all the relevant facts; at its own risk and responsibility.
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2021 (11) TMI 138
Deduction of educational Cess (including Secondary Higher Education Cess) - Admission of additional ground -.DR opposing the additional ground of appeal of the assessee contended that the assessee has not claimed deduction of Cess before the AO and therefore, should not be allowed - HELD THAT:- Hon'ble Bombay High Court in the case of M/s. Sesa Goa Ltd. [ 2020 (3) TMI 347 - BOMBAY HIGH COURT] .and Chambal Fertilizers Chemicals Ltd. [ 2018 (10) TMI 589 - RAJASTHAN HIGH COURT] have held that educational Cess is an allowable expense. Thus we allow this additional ground of appeal and direct the AO to allow deduction of educational Cess (including Secondary Higher Education Cess) in the revised computation of income. Addition of provision made for leave encashment in the current assessment year on the basis of actuarial valuation - HELD THAT:- Hon'ble Supreme Court has decided this issue against the assessee in the case of UOI Vs. Exide Industries Ltd .[ 2020 (4) TMI 792 - SUPREME COURT] .we are inclined to uphold the order of the Ld. CIT(A) and dismiss this ground of appeal of the assessee.
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2021 (11) TMI 137
Addition u/s 68 - Unexplained loan received from 11 parties - HELD THAT:- As assessee has old running accounts with the aforesaid parties - alleged report of the inspector in respect of the three parties was never confronted to the assessee. The assessee was never asked to produce any other information by the Ld. AO before arriving at the conclusions. The statement recorded of some persons/parties relied on by the Ld. AO was never confronted to the assessee. Even the alleged statements recorded in some other cases were allegedly recorded in the year 2014, whereas, the assessee had taken loan in the FY 2015-16 from the said parties, hence, the alleged statement relied upon by the Ld. AO was prior to the said loan transactions - persons on whose statement has been relied upon by the Ld. AO were neither operating nor controlling the said concerns at the time of the transactions done by the assessee. The Ld. Counsel in this respect has also relied upon the balance sheets and submitted that the creditors had sufficient net worth to advance loans to the assessee - CIT(A) considering the entire facts and circumstances of the case has rightly deleted the addition so made by the ld. AO. Having gone through the impugned order of the ld. CIT(A) and considering the submissions of the ld. Counsel of the assessee, which the ld. DR could not rebut, we do not find any justification to interfere in the order of the ld. CIT(A) on this issue, the same is accordingly upheld. This ground of revenue s appeal is dismissed. Delayed payment of interest on service tax and TDS holding the same as penal in nature - CIT-A deleted the addition - HELD THAT:- We find that the ld. CIT(A) has relied upon the decision of the Hon ble Apex Court in the case of Lachmandas Mathura [ 1997 (12) TMI 16 - SUPREME COURT] and further on the decision of Tribunal in the case of DCIT vs. Narayani Ispat Pvt. Ltd [ 2017 (10) TMI 67 - ITAT KOLKATA] wherein it has been held that the delayed payment of interest on service tax was compensatory in nature and the same was an allowable deduction. The Ld. DR could not point out any infirmity in the above observations of the ld. CIT(A). The order of the ld. CIT(A) on this issue is accordingly upheld. This ground of revenue s appeal is dismissed.
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2021 (11) TMI 136
Taxability of interest received on enhanced compensation paid by the State of Uttar Pradesh for compulsorily acquiring of the agricultural land of the assessee - interest on the enhanced compensation paid by the NOIDA on which TDS u/s.194A has been duly deducted - AO allowed 50% of the interest received on the enhanced compensation and taxed an amount - whether the interest on enhanced compensation partake the character of compensation or interest? - HELD THAT:- As decided in case of Inderjit Singh Sodhi (HUF) [ 2020 (6) TMI 697 - ITAT DELHI ] interest received by the assessee during the impugned year on the compulsory acquisition of its land u/s 28 of the Land Acquisition Act, is in the nature of compensation and not interest which is taxable under the head income from other sources u/s 56 of the Act as held by the authorities below. The compensation being exempt u/s 10(37) of the Act is not disputed. In view of the same the order passed by the CIT(Appeals) upholding the addition made by the AO on account of interest on enhanced compensation is, not sustainable. Further the issue under consideration regarding the taxability of interest on enhanced compensation is a debatable issue and do not constitute a mistake apparent on record. In view of the limited and restricted powers of rectification u/s 154 or u/s 254 as the case may be, it cannot be said that any mistake apparent on record had occurred in the order of the Tribunal. In view of the above discussion, these appeals of the assessee are hereby allowed.
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2021 (11) TMI 135
Penalty u/s 271(1)(c) - non specific mention in the show-cause notice issued u/s 274 - whether the assessee is guilty of having furnished inaccurate particulars of income or of having concealed particulars of such income , the initiation of penalty proceedings itself was bad in law - HELD THAT:- Whether the assessee is guilty of having furnished inaccurate particulars of income or of having concealed particulars of such income , the initiation of penalty proceedings itself was bad in law and the penalty order passed in pursuance thereof is liable to be quashed being invalid. He has invited our attention to the relevant penalty notice to point out that the irrelevant portion, viz. furnished inaccurate particulars of income or concealed particulars of such income was not struck off by the AO. It is observed that the Coordinate Bench of this Tribunal in the case of Suvaprasanna Bhattacharya [ 2015 (12) TMI 43 - ITAT KOLKATA ] had an occasion to consider a similar issue in the identical fact situation and the order passed by the AO imposing penalty u/s 271(1)(c) was held to be invalid by the Tribunal relying on the decision of the Hon'ble Karnataka High Court in the case of CIT Another -vs.-Manjunatha Cotton Ginning Factory [ 2013 (7) TMI 620 - KARNATAKA HIGH COURT ] In our opinion, the decision of the Coordinate Bench of this Tribunal rendered in the case of Suvaprasanna Bhattacharya [ 2015 (12) TMI 43 - ITAT KOLKATA ] by relying on the decision of the Hon'ble Karnataka High Court in the case of CIT Another -vs.-Manjunatha Cotton Ginning Factory [ 2013 (7) TMI 620 - KARNATAKA HIGH COURT ] is squarely applicable in the present case.- Decided in favour of assessee.
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2021 (11) TMI 134
Assessment u/s 153A - Addition u/s 68 - Unexplained receipt of share application/share capital - HELD THAT:- Additions/disallowances made by the AO are clearly beyond the scope of authority vested under s.153A of the Act without discharging the burden to show presence of any incriminating material or evidence deduced as a result of search in so far as completed assessments are concerned. Additions made in assessments framed under s.153A of the Act in respect of captioned assessee pertaining to AYs. 2006-07 2009-10 are thus required to be struck down on this score itself. However, the assessments/re- assessments pending on the date of search i.e. AY 2010-11 AY 2011-12 in question which stood abated by operation of law will continue to be governed by ordinary powers of assessment under s.153A of the Act in accordance with law. Addition u/s 68 - The money has been taken from a group co. of a very sound financial standing, which was also returned without subscription. In contrast, the AO has failed to bring any positive evidence against the assessee for assailing the bonafides of share application money received from a sister concern holding a very high net worth. A reference was also made to PCIT vs. Himachal Fibers Ltd [ 2018 (8) TMI 873 - SC ORDER] to submit that where the identity of share applicant was fully revealed and the AO did not conduct any enquiry thereon, he was not justified in resting his conclusions on surmises. It is thus the case of assessee that the Revenue is neither justified on facts nor on the touchstone of law to embark upon the impugned additions under s.68. After a detailed and objective scrutiny of factual legal position, the CIT(A) has set aside and reversed the additions carried out without showing any iota of incriminating material to support the allegation of accommodation entries in the abated as well as unabated search assessments. The share application money was found to be returned. The action of CIT(A) is in consonance with the binding precedent of Jurisdictional High Court. Hence, we see no reason to depart from the rationale of the decision of the CIT(A) on reversal of additions under s.68 of the Act pertaining to A.Y. 2006-07; 2009-10; 2010-11 2011-12 in question. Decided in favour of assessee.
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2021 (11) TMI 133
Disallowance of 50% of bad debts - addition towards disallowance of bad debts u/s.36(1)(vii) r.w.s. 36(2) on the ground that the assessee has failed to file any evidences to show debts really become bad and has made sufficient efforts to recover the outstanding debts - HELD THAT:- Assessee has not placed any evidences to prove that income pertains to debt or part thereof has been taken into account in computing the income of the assessee of the previous year in which the amount of such debt or part thereof is written off or of an earlier previous year, or represents money lent in the ordinary course of the business of banking or money-lending which is carried on by the assessee. On the other hand, the AO had also not examined the issue in light of provisions of Section 36(1)(vii) r.w.s. 36(2) because the AO has made adhoc disallowance of 50% debt The issue needs to go back to the file of the AO to decide the issue afresh in accordance with provisions of Section 36(1)(vii) r.w.s 36(2) of the Act. We further direct the AO while deciding the issue, he must take into account the ratio laid down in the case of T.R.F. Limited [ 2010 (2) TMI 211 - SUPREME COURT] where it has been clearly held that once debt has been written off in books of accounts as irrecoverable, then the assessee need not to prove that said debt become really bad debts. Accordingly, we set aside the issue to the file of the AO and direct him to reconsider in light of our observations given herein above. Appeal allowed for statistical purpose.
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2021 (11) TMI 132
Revision u/s 263 by CIT - AO made the detailed inquiry by issuing not only notice u/s 143(2) but also u/s 142(1) - HELD THAT:- AO has adopted one of the courses permissible in law and even if it has resulted in loss to the revenue, the said decision of the Assessing Officer cannot be treated as erroneous and prejudicial to the interest of the revenue as in Malabar Industries Ltd. vs. CIT [ 2000 (2) TMI 10 - SUPREME COURT] - Since the order of the AO cannot be held to be erroneous as well as prejudicial to the interest of the revenue, in the facts and circumstances narrated above, the usurpation of jurisdiction exercising revisional jurisdiction by the Principal CIT is null in the eyes of law and, therefore, we are inclined to quash the very assumption of jurisdiction to invoke revisional jurisdiction u/s 263 by the Learned Principal CIT. Therefore, we quash the revision order of the ld Principal CIT dated 23.03.2017 being ab initio void. - Decided in favour of assessee.
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2021 (11) TMI 131
Penalty u/s 271D/271E - contravention of provisions of sections 269SS/ST - taking or accepting loans otherwise than account payee cheques - book adjustments through journal entries between cross parties - CIT-A deleted the addition on reasonable cause u/s 273B for entering on transaction to transaction basis - Whether CIT(A) is justified in holding that the journal entries should enjoy equal immunity on par with account payee cheques and bank drafts? - HELD THAT:- As given a thoughtful consideration and are of the considered view that the issue involved in the present appeal pertains to levy of penalty u/s 271E of the Act as regards the assignment of receivables or extinguishment of mutual liability of paying/receiving the amounts by the assessee and its sister concerns AND rectification of an error. We, thus, going by the reasoning adopted by us for vacating the penalty u/s 271D of the Act, on the same footing uphold the order of the CIT(A) who had rightly set-aside the impugned penalty imposed by the Addl. CIT, for the reason, that the same is simpliciter an assignment of receivables or extinguishment of mutual liability of paying/receiving the amounts by the assessee and its sister concerns AND rectification of an error. Accordingly, finding no infirmity in the view taken by the CIT(A), we uphold his order. - Decided in favour of assessee.
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2021 (11) TMI 130
Revision u/s 263 - As per CIT Assessee, in the garb of conversion from loan to equity, was irregularly allowed Long-Term Capital losses - HELD THAT:- The assessee had made strategic investment in RLS Inc. in earlier years. The investment was in the shape of share application as well as loans. As per the agreement, the loan was convertible into share capital. Accordingly, entire share application money as well as loan was converted into share capital / capital surplus as on 31/03/2011 - Long-Term Capital losses have been computed by the assessee as per the provisions of Sec.46 by deducting the indexed cost of acquisition from sale consideration. These transactions were duly reflected in the computation of income and necessary disclosures were made at appropriate places in the financial statements. These transactions were also reflected in Form No.3CEB which has been subjected to benchmarking before Ld. TPO. Not only this, specific enquiries were made by Ld. AO by issuance of notice u/s 142(1) wherein elaborate information was sought from the assessee with respect to this claim. The assessee responded to the queries comprehensively along with requisite information and documentary evidences. Allegation of Ld. Pr. CIT that the assessment order was passed without making requisite enquiries do not have any sound basis rather the same is based more on surmises and conjectures without appreciating material facts on record and without considering detailed response filed by the assessee during assessment proceedings as well as during revisional proceedings. As per settled legal position, the revisionary proceedings could not be held to be valid where Ld. AO had made enquiries and adopted the claim with due application of mind. Merely because the issue has not been discussed in the assessment order, the same would not lead to a conclusion that assessment was made without application of mind. On the facts and circumstances of the case, we are of the opinion that revisional jurisdiction as exercised by Ld. Pr. CIT u/s 263 is bad in law and is liable to be quashed in terms of settled legal position . Allowability of interest - As the interest was taxable u/s 56 to 59 as Income from Other Sources , the claim made u/s 36(2) could not be made and therefore, incorrect grant of the deduction has made the assessment order erroneous - We find that the allegations made by Ld. Pr. CIT are without any sound basis. The interest income was offered as well as accepted as Business Income which is evident from the assessment order framed by Ld. AO. Not only this, the assessment orders for AYs 2009-10 to 2014-15 has been placed by the assessee on record, the perusal of which would show that interest income has always been accepted as Business Income only. The opinion that interest would be taxable as Income from Other sources is nothing more than an opinion of Ld. Pr. CIT and is one of the possible views. However, it is a fact on record that Ld. AO has chosen to accept the interest income as business income in all the earlier years as well as in this year and accordingly, the write-off would be allowable business expenditure to the assessee as claimed in the Profit Loss Account. This view is an equally possible view keeping in mind the fact that the investments were strategic investments in subsidiary and out of commercial expediency. This stand of the assessee was always accepted by the revenue in earlier years as well as in this year. The rule of consistency would debar the revenue to take different stand on similar factual matrix which is supported by the decision of Hon ble Bombay High Court in the case of Pr.CIT V/s Quest Investment Advisors Pvt. Ltd[ 2018 (7) TMI 479 - BOMBAY HIGH COURT] After going through the assessment proceedings, it could be seen that the claim was well examined by Ld. AO and specific queries were raised with respect to the claim. The same were duly responded to by the assessee along with requisite documentary evidences. After considering the same, the claim was allowed with due application of mind. The view taken by Ld.AO could not be said to be contrary to the law. Therefore, the assessment order could not be held to be erroneous and prejudicial to the interest of the revenue. Assessee appeal allowed.
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Customs
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2021 (11) TMI 129
Seeking relief and protection from unjustified investigation being carried out by respondent No.4 - import of Mercedes-Benz Engine Oil - undervaluation - import is from related parties or not -tri-Partite Agreement - HELD THAT:- As for the aspect of undervaluation it is for the petitioner to make out a case before the adjudicating authority in the first instance in support of the contention that the duty has been correctly paid by them on the transaction value. We do not find it appropriate or any reason to interdict with the investigation being carried out by the respondent No.4 into the aspect of undervaluation at this stage, as it is always open for the petitioner to resort to appropriate remedies under the Act, for satisfying the authorities that the duty has to be paid on the transaction value and not on the basis of the MRP label affixed on the retail packs. It is for the petitioner to place all the materials including the Tri-Partite Agreement, invoices before the respondent No.4, in support of its case. Whether the continuance of the seizure is in accordance with the provisions of the said Act and whether the petitioner is entitled to a direction to the respondent No.4 for release of the consignments seized? - HELD THAT:- The first consignment which is seized was imported vide Bill of Entry dated June 1, 2020. The other consignment was imported vide Bill of Entry dated October 7, 2020. Both these consignments were placed under seizure by respondent No.4. The seizure memo dated October 19, 2020 in respect of goods imported vide Bill of Entry dated June 1, 2020 records that based on the examination and investigation initiated, it appeared that goods were mis-declared with respect to value. Therefore, under the reasonable belief that the above mentioned goods have been imported into India in contravention of Customs Act, 1962, and appear to be liable for confiscation under 111(m) of the Customs Act, 1962, in exercise of the powers conferred on me under section 110(1) of the Customs Act, 1962. The amendment to sub-section 2 of Section 110 of the said Act gives power to the appropriate authority to extend the period for issuing show cause notice in the case of seized goods by a further period of six months and also to provide exemption from application of time limit of six months to cases in respect whereof an order of provisional release of seized goods has been passed - the rigors of sub-section (2) of Section 110 of the said Act will continue to apply as the character of the goods continue to be goods seized under sub-section (1). The proper officer then is obliged to follow the procedure prescribed in sub-section (2) of Section 110 of the said Act, in that he has to issue notice under clause (a) of section 124 of the said Act within six months of the seizure of the goods. We have already observed that the notice under clause (a) of Section 124 within six months of the seizure is not issued and therefore the consequence of release must follow. It is obvious that the respondents have exceeded the time limit to keep the consignments under seizure and are not entitled to detain the goods any further, hence we have no hesitation in entertaining the present petition under Article 226 of the Constitution of India despite availability of alternate remedy. The respondents are directed to forthwith release the two consignments of Mercedes-Benz Engine Oil imported vide Bill of Entry No.7801383 dated June 1, 2020 and Bill of Entry No.9094841 dated October 7, 2020 on completion of necessary legal formalities and in any case within the period of two weeks from date of compliance of all legal formalities - Petition allowed in part.
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2021 (11) TMI 128
Provisional assessment of duty - Refund of duty paid - Applicability of Section 18 of Customs Act - no difference between the provisional assessment and the final assessment - failure on the part of importer to prove that the excess duty had not been passed on to their customers - applicability of principles of unjust enrichment - HELD THAT:- The Co-ordinate Bench of this Court in MANGALORE REFINERY AND PETROCHEMICALS LTD. VERSUS COMMISSIONER OF CUSTOMS, MANGALORE [ 2015 (5) TMI 768 - KARNATAKA HIGH COURT] has held that Section 18 of the Act, which deals with the provisional assessment of duty, opens with a non-obstante clause and the only exception being Section 46. It provides for provisional assessment and a proper officer directing the assessee to pay the duty leviable on such goods, be paid on provisional assessment, subject to the condition that the assessee shall pay the duty as may be finally assessed. In terms of sub-section (2), the obligation is cast on the Revenue to make refund of the excess duty paid and collected. Section 27 of the Act provides for claiming of refund of duty which relates to a claim for refund of duty or interest paid by the assessee or borne by him in a case not falling under the provisional assessment. The provision of unjust enrichment was conspicuously missing in Section 18 of the Act - it has been further held in the said case, that the refund claims consequent upon finalization of provisional assessment does not attract the bar of unjust enrichment for the period prior to the amendment of 2006. The argument of the revenue that the refund claim made by the importer was not on account of finalization of the provisional assessment but on account of excess payment of customs duty for the wrong invoices raised from the supplier was rejected for the reason that the refund claim originally made by the importer on 21.04.1997 was returned to them by the departmental officers with the direction to re-file it after the finalization of the provisional assessments. Once an assessment is provisional, it is provisional for all purposes - the arguments advanced by the revenue that Section 18 of the Act is not at all applicable to the facts of the case is only misconceived, having directed the importer to re-file the refund claim subsequent to finalization of the provisional assessment now cannot take a stance that there is no difference in provisional assessment and final assessment. It is the specific case of the importer that excess duty has been paid at the time of provisional assessment and the same was exhaustively examined by the authorities as well as the CESTAT in the first round of litigation and it is only on the doctrine of unjust enrichment, the refund claim was rejected by the authorities. Since the importer has taken a ground that the principles of unjust enrichment will not be applicable prior to 2006. The substantial question of law is answered in favour of the assessee and against the revenue.
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2021 (11) TMI 127
Confiscation of imported goods - lubricant oil open gear - hazardous waste liable to confiscation or not - imported goods found as hazardous waste shall be re- exported by the importer at his own expense in view of the provisions of Rule 17 of Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008 or not - levy of redemption fine and penalty - HELD THAT:- Entire dispute revolves around the test reports dated 09.02.2015 in respect of the three samples drawn by the department and sent to CRCL for testing. Undisputedly as has been admitted by the Chemical Examiner CRCL during cross examination, CRCL was not having the capability to test the hazardous waste, and hence the test was conducted by one private laboratory, M/s Avon Food Labs Pvt Ltd. For justifying the same Commissioner (Appeal) has referred to the CBEC Circular No 09/2009-Customs - From perusal of the test reports, it is quite evident that, the report do not disclose the name of laboratory where the samples were tested and also the report of the said laboratory has not been disclosed in the opinion furnished by the Chemical Examiner, CRCL. At this point it is relevant to look into the questions that were put to Shri A K Maurya Chemical Examiner during the cross examination. We do not find ourselves in agreement with the order of the adjudicating authority, whereby he confiscates the goods and imposes the redemption fine and directs the goods to be re-exported. Redemption of the goods against the redemption fine is the option given to the importer/ exporter and it is his choice whether to avail of that option. If the goods are to be re- exported as per Rule 17 (2) of Hazardous Waste Rules, 2008, then such an action could not have been justified, as importer can very well chose not to pay the redemption fine. The approach of the adjudicating authority cannot be upheld in any manner. Impugned order of Commissioner (Appeal) is totally silent on this vital aspect of permitting the goods to be re- exported against payment of redemption fine. Since the issue involves the hazardous good we would not be in position to permit the clearance of the goods without the active consideration of the same by the SPCBs/ PCCs who are the designated authority in terms of the rule 17 (2) of the Hazardous Waste Rules, 2008 and also as per the Board Circular of 2009 - the revenue authorities should make a proper and justifiable opinion in the matter as to the nature of the goods after retesting of the same and in consultation with the concerned SPCB. On the basis of the said opinion, the appellant should be either permitted to clear the goods in DTA or re-export the same as per Rule 17 (2) of the Hazardous Waste Rules, 2008. In case importer do not intend to opt for the said options the said goods, needs to be dealt in the manner as prescribed by the Hazardous Waste Rules, 2008 for disposal. The matter is remanded back to the original authority to get the samples of the impugned goods re-tested by CRCL or any appropriately notified laboratory to determine the hazardous nature of the goods - appeal allowed by way of remand.
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2021 (11) TMI 126
Classification of imported goods - miscellaneous Chemicals: plasticizer - to be classified under CTH 38122090 or not - Advance authorization licence scheme - goods declared as Plasticizers -Shell Flavex 595 B - willful and deliberate misdeclaration and suppression of factual description of the goods or not - conditional exemption under N/N. 96/2009-Cus dated 11.09.2009 - time limitation - HELD THAT:- As per the impugned order the learned Adjudicating Authority has decided the classification as Rubber Processing oil under CTH 27079900 however, maintaining the benefit of Notification No 96/2009-Cus dropped the proceeding of the SCN. It is found that even though the classification of the goods has been changed from 38122090 to 270799000 but the goods imported by the appellant even though as per the test report due to the reason that the product s Aromatic Constituent exceeds Non Aromatic Constituents but the goods were admittedly used by the appellant in the manufacture of their export final product as Plasticizer only. Therefore, as per the use the respondent has correctly mentioned the description as Plasticizer. As per the Notification No. 96/2009 all the raw materials are exempted if it is used in the manufacture of export goods. In the present case there is no dispute that the goods imported by the respondents are used in the manufacture of their final export product this has been established on the basis of verification conducted by the Assistant Commissioner of Central Excise and Service Tax, Bhiwadi Rajasthan vide letter dated 31.12.15 wherein it was stated that the subject goods imported under Advance Authorization by the noticee during last 5 years has been used by them for the manufacture. With this undisputed fact substantive requirement of FTP and the Notification No 96/2009-Cus was complied with. Further, there is no reason for respondent to mis- declare the classification because even if the correct classification as held by the department is declared by the appellant the same benefit was available to the appellant. Therefore, it is only on the basis of test report which found that aromatic constituents exceed that of non aromatic constituents. The use of the product does not get altered therefore only because the appellant has not declared the classification correctly that too under their Bonafide belief the benefit of Advance Authorization and notification issued there under cannot be denied - This issue has been considered by this tribunal in the case of M/S. PSL LIMITED, SHRI MANOJ SANGHVI, M/S. RATNAMANI METALS TUBES LIMITED AND OTHERS VERSUS COMMISSIONER OF CUSTOMS, KANDLA [ 2014 (5) TMI 789 - CESTAT AHMEDABAD] wherein the similar issue has been considered. In that case the appellants imported Hot Rolled Steel coils/Plates which were used for making steel pipes for export under Advance Authorization. All the appellants described the goods as Primer HR Coils and classified under CTH 72083690. The Learned Adjudicating Authority rightly extended the benefit of exemption notification despite the change in classification. It is also observed that even though the SCN was issued, EODC were issued and Customs Bond have been discharged, it clearly indicates that there is no non observance of any condition, for this reason also benefit of notification cannot be denied. Though the department is not precluded for investigating a matter as related to classification but EODC was issued on the ground that the goods imported have been used for the intended purpose therefore, the benefit cannot be denied. Time Limitation - HELD THAT:- There are force in this submission of the respondent therefore, there is no willful mis declaration of the goods. Hence, no malafide can be attributed to the respondent even if the declaration made there is not found acceptable in as much as it is the matter of the interpretation and onus to correctly classify the goods is upon the revenue. Therefore the demand for the extended period is also not sustainable on limitation. The impugned order is liable to be sustained - Appeal dismissed - decided against Revenue.
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Corporate Laws
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2021 (11) TMI 125
Approval of the Scheme of Arrangement by way of Demerger - Section 230 to 232 of Companies Act, 2013 read with the Companies (Compromise, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- Considering the approval accorded by the Members and Creditors of both Companies to the proposed Scheme and no sustainable objections having been raised by the Office of the Regional Director, income Tax Department, Official Liquidator or any other interested party, there does not appear to be any impediment in granting sanction to the Scheme. Accordingly, in sequel to the above, sanction is hereby granted to the Scheme of Arrangement proposed by the Petitioner Companies under Section 230 to 232 of the Companies Act, 2013. The sanctioned Scheme of Arrangement shall be binding on the Transferor Company and Transferee Company (the Applicant/Petitioner Companies) and their Shareholders and Creditors. The Petitioner Companies shall remain bound to comply with the statutory requirements in accordance with law - Application allowed.
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2021 (11) TMI 124
Restoration of the name of the struck-off company - Section 252 of the Companies Act, 2013 - HELD THAT:- It is noted that the company is owing Terrace development rights and inventory of flats constructed by it, which needs to be disposed of so as to discharge its liability. There is sufficient evidence on record to consider the prayer of revival in view of immovable property as well as pending disputes. Considering submission and documents on record, this appeal is allowed and the name of the company is restored in the Register of Companies from the date of its striking off subject to payment of cost for non-compliance of rules relating to filing the Statutory Returns and Audited Financial Statements - appeal allowed.
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2021 (11) TMI 123
Sanction of the Scheme of Amalgamation - Sections 230 and 232 of the Companies Act, 2013 read with Rule 16 of the Companies (Compromises, Arrangements and Amalgamations) - HELD THAT:- There are no objections to the Scheme and hence there is no impediment in the sanction of the Scheme. Therefore, the Scheme (Annexure-A) is hereby approved - While approving the Scheme, it is clarified that this order should not be construed as an order in any way granting exemption from payment of any stamp duty, taxes, or any other charges, if any, and payment in accordance with law or granting permission in respect of any compliance with any other requirement which may be specifically required under any law. With the sanction of the Scheme, the Transferor Companies No. 1 to 3, shall stand transferred to and vested in the Transferee Company. Application allowed.
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Securities / SEBI
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2021 (11) TMI 122
Collective Investment Schemes - Petitioners seeking quashing of the show cause notices issued to the petitioners calling upon them to adduce evidence and clarifications in support of their contentions - HELD THAT:- SAT condemned the conduct of the petitioners on several grounds. It was observed that the petitioners have made misleading statements in the information memorandum only to lure the small time investors to remain invested in the Scheme and the petitioners continue to operate its Collective Investment Schemes even after the SAT passing the interim order. The petitioners successfully dragged the matter regarding the submission of the information memorandum from 2006 to 2014. The contention that Annexures-H and H1 are the show cause notices deserve no merit on the apparent reading of those documents. After receiving Annexures-H and H1, the petitioners approached this Court in the above matter and by virtue of the interim order passed in this case, they have dragged the matter for another seven years. From the above facts, it becomes clear that the petitioners with an intention to avoid hearing of the matter before WTM have indulged in these proceedings. If according to the petitioners, the notice of information memorandum to the investors under RPAD is not required, it is open to them to appear before WTM and convince on the said aspects. If their contention is not accepted, they can avail whatever remedy is open to them. Since no right of the petitioners is affected by the notices Annexures-H and H1, no interference of this Court is required in the matter invoking Articles 226 and 227 of the Constitution of India. In the light of the above discussions, this Court does not find it necessary to refer to several judgments relied upon by both side. The contention that WTM has made up its mind to pass an order against the petitioners is a prematured contention.
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Insolvency & Bankruptcy
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2021 (11) TMI 121
Execution of conveyance deed - moratorium under effect - Whether the RP can be directed to Execute the conveyance deed in respect of property in question as prayed by the Applicant or the RP can be directed to join in the execution of the conveyance deed and other required documents to sell, transfer, convey and assign the decreed property to the applicant in the pending Execution Application before the Hon'ble High Court of Bombay in spite of enforcement of moratorium? - HELD THAT:- The Property in question cannot be considered as an asset of the Corporate Debtor where the court of competent Jurisdiction has directed to transfer the title in favour of the Applicant. Section 14(1)(b) is not applicable on the property which are not the assets of the Corporate Debtor. Further the same property cannot be included as an estate of the Corporate Debtor by the RP - although there is a bar on continuation of proceedings against the Corporate Debtor, including the execution proceedings. However, when we see the real intent of enforcing the moratorium, we observe that the same is introduced with the intention to preserve the assets of the Corporate Debtor. The moratorium cannot be used as a shield by the Corporate Debtor to make its illegal acts as legal. The bar under Section 14(1)(a) shall not be applicable here and the moratorium enforced shall nowhere come in way of the Applicant for executing the Arbitral award. Since the property in question has already been declared that it is not the asset of the Corporate Debtor, therefore, any proceeding which does not concern the asset of the Corporate Debtor can be continued against the Corporate Debtor - Since, the execution proceeding is already sub-judice before the Hon'ble High Court of Bombay and this Adjudicating Authority has already held that the moratorium shall not come in between the proceedings which does not relates to the Assets of the Corporate Debtor. Application disposed off.
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2021 (11) TMI 120
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - application will come in the purview of multiple proceeding with respect to the same debt or not? - Creditor-Debtor relationship between the Financial Creditor and Corporate Debtor herein - HELD THAT:- It is seen that the defaults under the loan accounts are continuing defaults, and therefore, the objection of limitation would not be of any avail more so when the loan was recalled only in the year 2019 and the admission of such defaults was reduced in writing vide the Deed of settlement dated 04.09.2019. Suffice it to conclude that there is no substance even in the second ground urged by the Corporate Debtor regarding the maintainability of the application filed by the Financial Creditor under Section 7 of the Code on the ground of being barred by limitation. Hence, the contentions regarding maintainability/limitation will not stand for scrutiny and are to be rejected. Whether this application will come in the purview of multiple proceeding with respect to the same debt? - HELD THAT:- The Corporate Debtor mentions that the Application cannot be maintained against M/s. Koyenco Autos Private Limited Private Limited, the Corporate Debtor/Co-borrower, for the same debt arising out of identical loan in IBA/25/KOB/2020, in the matter of M/s. Platino Classic Motors (India) Private Ltd. This Bench takes note of the contention and is of the view that the present application IBA/37/KOB/2020 has been filed by M/s. BMW India Financial Services Private Limited is only against Corporate Debtor herein i.e., Koyenco Autos Private Limited and not against M/s. Platino Classic Motors (India) Private Ltd. - Since this application has been filed by the Financial Creditor against the Co-borrower, M/s. Koyenco Autos Private Limited and not against M/s. Platino Classic Motors (India) Private Limited, there is no bar in admitting the present application against the Corporate Debtor. Whether there is a Creditor-Debtor relationship between the Financial Creditor and Corporate Debtor herein? - HELD THAT:- From the records filed by both the parties we could find that there is a Creditor- Debtor relationship between the Financial Creditor and Corporate Debtor, since the Corporate Debtor admitted that they received money from the Financial Creditor through various documents produced before this Tribunal and the Corporate Debtor has no case that they have repaid the money received from the Financial Creditor. As there is a default in the payment of the financial debt, which has been confirmed by them in the counter affidavit that the Financial Creditor paid the money to the Corporate Debtor, this Tribunal is of the view that, the present application filed by the Financial Creditor satisfies all the definitions of Financial Creditor , Default and Financial Debt and qualifies for filing an application under Insolvency and Bankruptcy Code. By mentioning various technical snags the Corporate Debtor cannot wash its hands in repaying the amount borrowed, which is a financial debt owed by them. Hence, there is a Creditor-Debtor relationship with them. The documents produced on record prove the disbursement of various loan facilities granted by the Financial Creditor to the Corporate Debtor - the Corporate Debtor committed default in repayment of the loan amount to the Financial Creditor, and hence its Loan Account was declared as NPA. In the light of above facts and circumstances, the existence of debt and default is reasonably established by the Financial Creditor as a major constituent for admission of an application under Section 7(4) of the I B Code. The Application under Sub-Section (4) of Section 7 of I B Code, 2016 is complete in all respects - the application filed under Section 7 of the Insolvency and Bankruptcy Code for initiation of Corporate Insolvency Resolution Process against the Corporate Debtor deserves to be admitted - application admitted - moratorium declared.
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Service Tax
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2021 (11) TMI 119
Rebate of Service Tax - Export of services - non-compliance with the prescription in Notification No. 41/2012 - HELD THAT:- This is a case where, rebate of service tax paid on Manpower Supply Agency, Sampling/Analysis and Survey, Port Services, Port Services Barging and Loading, etc., used by the appellant for exporting their goods, was claimed. From the fact that the appellants chose not to participate in adjudication proceedings, it becomes clear that place of services has not been placed on record. The appellants have failed in discharging their responsibilities, at least bringing actual facts on record, which is their duty. The Adjudicating Authority was left with no choice other than passing the order, based on materials on record. The appellants have, in any case, no documentary evidences to rebut the findings of the Adjudicating Authority - there is no dispute that a legal ground can be urged at any point of time, but however, in the factual matrix, the lower authorities have not discussed nor had they any chance to go into the claims for refund of CENVAT Credit by analysing the appellants claims vis- -vis Rule 5 of the CENVAT Credit Rules. This issue is remanded to the file of the Adjudicating Authority, who shall only verify the claim of refund of the appellants under Rule 5 ibid. and pass a speaking order thereafter, after affording reasonable opportunity to the appellants - Appeal allowed by way of remand.
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Central Excise
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2021 (11) TMI 118
Maintainability of petition - availability of alternative remedy of appeal - seeking direction to the respondents to consider the application for remission - HELD THAT:- There is no explanation forthcoming for not availing statutory remedy available under the Act against the impugned two actions within the prescribed period of limitation. That apart, the petitioner has made a vain attempt to club the impugned order dated 29.11.2018 passed under Section 11-A of the Central Excise Act and the order dated 23.9.2021 rejecting the application for remission of excise duty though both the orders besides being appealable under Section 35(1) and 35-B of the Excise Act respectively give rise to independent cause of action. Under the pretext of challenging the order rejecting remission of duty, the challenge to impugned order of assessment of excise duty cannot be entertained under Article 226 of the Constitution of India. The course of action adopted by the petitioner tantamounts to misuse of process of law disentitling to invoke equitable jurisdiction under Article 226 of the Constitution of India. Even otherwise, the contentions advanced in fact and in effect are in realm of facts including that of the alleged challenge to the authority to decline remission and require adjudication on facts. The same could be addressed by the adjudicating authority and not by this Court in extraordinary constitutional jurisdiction. Petition dismissed.
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2021 (11) TMI 117
CENVAT Credit - melting scrap imported under concessional rate in terms of Customs Notification - offence under Section 9 of the Central Excise Act - HELD THAT:- Since the statutory appeals are pending before the Customs, Excise and Service Tax Appellate Tribunal, against the order dated 22.05.2008, the petitioners are at liberty to pursue the litigation before the Tribunal and as such, this criminal petition is not maintainable. Petition dismissed.
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2021 (11) TMI 116
Demand of differential duty - upward revision of price - price variation/escalation clause - Cenvat credit available at the time of raising supplementary invoices - appellant alleged that the supplementary invoices were raised and, therefore, they are relatable to the clearances already made during the previous months - Vires of proviso to Rule 3 (4) of Cenvat Credit Rules, 2004 - interest under Section 11AB of CEA - HELD THAT:- The question as to whether the supplementary invoices relate to the date of original clearance or the date on which the supplementary invoice was raised has been decided by the Supreme Court in M/S. STEEL AUTHORITY OF INDIA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIPUR [ 2019 (5) TMI 657 - SUPREME COURT] . Accordingly, interest under Section 11AB needs to be paid by the appellant on the differential amount of duty. Whether Cenvat credit can be utilized for payment of duty in view of the proviso to Rule 3 (4) of the Cenvat Credit Rules, 2004? - HELD THAT:- The High Court of Gujarat in ADVANCE SURFACTANTS INDIA LTD VERSUS UNION OF INDIA [ 2017 (8) TMI 594 - GUJARAT HIGH COURT] has held that this proviso is ultravires. No judgment of any other High Court or Supreme Court has been produced before us to show that a contrary view has been taken in respect of this proviso. Therefore, the appellant was correct in utilizing the Cenvat credit for payment of the excise duty. Levy of penalty - HELD THAT:- The assessee has not violated any provision of the Act or the Rules to attract penalty under Rule 25 of the Central Excise Rules, 2002. The appellant on its own had paid the differential duty on the supplementary invoices which were raised - the penalty imposed under Rule 25 of the Central Excise Rules, 2002 is set aside. Appeal allowed in part.
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2021 (11) TMI 115
Levy of Redemption Fine in lieu of Confiscation - clearance of goods under payment of CVD - revenue neutral situation - HELD THAT:- Not only the appellant s staff during investigation but appellant through its synopsis submitted on 17/03/2020 admitted that in few cases where there was upward revision in MRP, the appellant on their own paid the differential CVD. This admission is sufficient to establish that there was manufacturing activity undertaken by the appellant like upward revision of MRP and its affixture on repacked goods. It is a settled rule that CVD is paid to counter balance the central excise component, so as to protect the indigenous manufacturer and it is refunded after the imported goods are sold in the local market upon payment of VAT/GST. Therefore, it is mainly a level playing event and not a tax collection activity. Appellant being not a registered concern is liable for penal action only on this count. In view of admission of appellant itself which needs no further proof in view of Section 56 of the Indian Evidence Act, that in some cases the MRP has been charged with upward revision - Appeal dismissed.
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2021 (11) TMI 114
Valuation - interface quantity of adopting assessable value of SKO (non Public Distribution System (PDS) at the prevalent rate - case of the department is that the appellant, instead of paying excise duty on the interface quantity of SKO as per rate prevalent for SKO, they should have paid excise duty higher of the two duties, after determining the duty payable on SKO and duty payable on MS/HSD - applicability of CBEC Circular No. 636/27/2002-CX dated 22.04.2002 - HELD THAT:- The issue is no longer resintegra as in the appeals in the appellant s own case only for a different period, this Tribunal has already decided the matter in the M/S. INDIAN OIL CORPORATION LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE ST, VADODARA [ 2018 (9) TMI 24 - CESTAT AHMEDABAD] where it was held that the duty on these products is payable as per price of the respective product prevailing at the time of removal of the goods. As regards MS and HSD, the duty was paid on the transaction value. As regards SKO, since the same was not sold, the duty was paid on the prevailing price of SKO on the basis of sale price prevailing for SKO naturally which is higher than the price of SKO sold under Public Distribution System, therefore, the correct price was adopted by the appellant while clearing the interface quantity of SKO. T he issue is no more res-integra - Appeal allowed - decided in favor of appellant.
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2021 (11) TMI 113
Process amounting to manufacture or not - clearance of ethanol blended motor spirit (EBMS) - exempt goods or not - period 01.07.2004 to 07.08.2004 - scope of Circular F.No.366/5/2002-TRU dated 02.01.2003 - when the appellant paid the duty on ethanol blended motor spirit on its value of clearance that whether the activity of blending of motor spirit with ethanol is amount to manufacture or otherwise? - whether the appellant once again required to pay duty on motor sprit unblended? HELD THAT:- Even after blending of 5% ethanol with 95% motor spirit, the product EBMS remains motor spirit as per the chemical nature of product as well as use thereof. It is also the fact that whether it is a unblended motor spirit or ethanol blended motor spirit, both falls under same BIS specification 2796, it is also established that whether it is unblended or blended product fall under the same class. There is no different product arise only by activity of blending with 5% ethanol. Blending of ethanol with 95% motor spirit does not amount to manufacture as envisaged in section 2(f) of Central Excise Act, 1944. The contention of the adjudicating authority that the circular mention about methanol not ethanol, there are no difference whether it is methanol or ethanol since the property of both are same and the purpose of mixing is also same which is evident from the above Para 4.1 of IS 2796-2000. The only issue is that whether the blending of either ethanol or methanol with motor spirit amount to manufacture. This is abundantly made clear as per the above opinion of the chemical examiner and the same was accepted by the Central Board of Excise Customs. Therefore, this circular being binding on the adjudicating authority should have scrupulously followed the same and ought not to have been held that blending of ethanol with motor spirit is amount to manufacture. In the case of HINDUSTAN PETROLEUM CORPN. LTD. VERSUS COMMR. OF C. EX, DELHI ROHTAK [ 2008 (9) TMI 154 - CESTAT, NEW DELHI] it was held that mere blending of motor spirit with small quantities of additives to improve the quality of motor spirit and to reduce emission levels does not amount to manufacture. Since even after addition motor spirit continues to be used as motor spirit. In the present case not only it is supported by the aforesaid judgments but there is a clear board circular according to which the blending of ethanol and motor spirit cannot be held as amount to manufacture. The adjudicating authority has also made reliance on Notification No.62/2002- CE, 63/2002-CE 64/2002-CE all dated 31.12.02 and contended that since by these notifications EBMS is exempted that shows that the EBMS is a manufactured goods. We completely disagree with this proposition of the learned adjudicating authority that merely because a product is exempted by itself cannot be a manufacture goods. First, it is to be tested that activity is whether amount to manufacture and if it is so, then only the application of exemption notification comes into play. Therefore, it is settled law that merely by any product is appearing either in the notification or tariff entry, for this reason it cannot be concluded that the goods are manufactured goods. The process independently to be seen that whether it amounts to manufacture or not - thus, blending of 5% ethanol with 95% motor spirit which made the product EBMS does not amount to manufacture. Payment of duty on the value of EBMS by the appellant - HELD THAT:- It is settled law that excise duty needs to be paid on the product in the form it is cleared at a value from the factory. This issue has been settled by the Hon ble Supreme Court in the case of SIDHARTHA TUBES LTD. VERSUS COLLECTOR OF CENTRAL EXCISE [ 1999 (11) TMI 69 - SUPREME COURT] . The appellant has correctly paid the duty on the EBMS and they were not required to pay duty on motor spirit. It is also to be noted that the appellant had paid duty on EBMS instead of motor spirit that they paid higher duty as compared to the duty payable on motor spirit therefore, there is no loss of revenue by paying the duty on EBMS - the payment of duty by the appellant on EBMS is correct and legal and they are not required to pay any duty again on the motor spirit. Appeal allowed - decided in favor of appellant.
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2021 (11) TMI 112
Revision of rates of excise duty of Motor Spirit (Petrol) and High Speed Diesel (HSD) upward - effective date of exemption notification - date of its issue or from the date of its publication in the official gazette as per Section 5A of the Central Excise Act, 1944 - when the sale price remained unchanged even after increase in the rate of duty and the price of the commodity was controlled by the government - principles of natural justice - Sub-section (5) of Section 5A of Central Excise Act, 1944 - HELD THAT:- It is clear that the notification No.22/2014 was published on 22nd November, 2014 and notification no. 24/2014 was published on 11th December, 2014 therefore, both the notifications will be effective from the date of its publication i.e.22nd November, 2014 11 th December, 2014 respectively therefore, the contention of the lower authority that the notification will be effective from the date of its issue of notification is absolutely incorrect. Therefore, refund on this ground is admissible to the appellant. Principles of unjust enrichment - HELD THAT:- Since the same was not raised before the learned Commissioner (Appeals), no finding was given by the learned Commissioner (Appeals) and as requested by the appellant this issue needs to be reconsidered. The matter needs to be remanded to the adjudicating authority for passing a fresh order - Appeal is allowed by way of remand.
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2021 (11) TMI 111
Rectification of mistake - error apparent on the face of record or not - grievance of the appellant is that they had raised the following specific grounds, which were not decided by this Tribunal and hence there is mistake apparent on record - HELD THAT:- The grounds had been taken by the appellant, and the same have not been adjudicated by this Tribunal in the Final Order. Thus, there is a mistake apparent on the face of record. The impugned order is set aside and appeals are allowed, and this order shall be treated as Final Order. Thus, the order-in-appeal is set aside and order-in-original is restored. Appeal allowed.
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CST, VAT & Sales Tax
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2021 (11) TMI 110
Service of assessment order - invocation of the provisions of RR Act for recovery of tax dues on the ground of non-payment - assessment orders for the periods 2005-06 to 2008-09 and 200910 and 2010-11 - HELD THAT:- It is a trite law that no liability can be fastened on a person without communicating the proceeding or order under which such liability is claimed as having arisen or being claimed as due. Any such action initiated would be contrary to the basic canons of justice and in violation of principles of natural justice and cannot stand the judicial scrutiny - In the facts of the present case, since the respondents are unable to show to this Court as to when and how the service of orders of assessment for the year 2009-10 and 2010-11 giving rise to a demand of ₹ 2,38,84,812/- and ₹ 1,21,83,884/- respectively has been effected on the petitioner, the resort made by the respondent in issuing notices in Form IV and V of RR Act, claiming arrears of ₹ 5.58 crores covering the period 2005-06 to 2008-09 and 2009-10 to 2010-11 cannot be held to be valid. The impugned proceedings initiated by invoking the provisions of Section 27 of VAT Act and issuance of notices in Form IV and V under RR Act, attaching the properties of the petitioner by showing the arrears of tax due for the period 2009-10 and 2010-11, cannot be sustained - the impugned notice of attachment issued in Form V dated 20.02.2018 for recovery of a sum of ₹ 5,59,58,758/- is hereby set aside. Petition allowed.
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