TMI Tax Updates - e-Newsletter
December 26, 2019

Case Laws in this Newsletter:

GST Income Tax Customs Corporate Laws Service Tax Central Excise CST, VAT & Sales Tax

Articles

1. High Court Intervention - Legal Sanctity

   By: CA Akash Phophalia

2. Forms prescribed under main enactment cannot curtail provisions of main enactment

   By: DEVKUMAR KOTHARI

News

1. GST Council to set up grievance redressal mechanism for taxpayers

2. Extension of due date for filing of Income-tax Returns/Tax Audit Reports to 31st January, 2020 in respect of Union Territory of Jammu and Kashmir and Union Territory of Ladakh

Notifications

GST - States

1. G.O. Ms. No. 59 - ORDER No. 08/2018 – State Tax - dated 12-12-2019 - Puducherry SGST

Puducherry Goods and Services Tax (Eighth Removal of Difficulties) Order, 2019

2. G.O. Ms. No. 26/2019 - dated 12-12-2019 - Puducherry SGST

Amendment in Notification G.O. Ms. No. 11/2017-Puducherry GST (Rate), dated the 29th June, 2017

3. G.O. Ms. No.16/2019 - dated 2-10-2019 - Puducherry SGST

Amendment in Notification G.O. Ms. No.3/2017- Puducherry GST (Rate), dated the 29th June, 2017

Circulars / Instructions / Orders

SEBI

1. CIR/CFD/CMD1/168/2019 - dated 24-12-2019

Stewardship Code for all Mutual Funds and all categories of AIFs, in relation to their investment in listed equities

GST - States

2. 127/46/2019 - dated 20-12-2019

Withdrawal of Circular No. 107/26/2019-GST dt.02.08.2019

3. 124/43/2019 - dated 20-12-2019

Clarification regarding optional filing of annual return under notification No. 47/2019-State Tax dated 20th November, 2019

4. 125/44/2019 - dated 10-12-2019

Fully electronic refund process through FORM GST RFD-01 and single disbursement– regarding

DGFT

5. 49/(2015-2020) - dated 24-12-2019

Amendment in Para 2.54 of the Handbook of Procedures, 2015-2020.

Highlights / Catch Notes

GST

• Penalty for E-Way Bill Clerical Error Overturned; Procedures in Circulars Not Considered.

  Case-Laws - Commissioner : Levy of penalty - clerical mistake in generation of E-Way bill - minor mistakes - The orders are set-aside on the ground that the standard operating procedure mentioned in Circulars was not taken into consideration while imposing penalty in the instant case
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• GST Act Section 62: Assessment Order Upheld Due to Non-Filing of Returns Within 30 Days; Petitioner's Appeal Denied.

  Case-Laws - HC : Validity of assessment order - best judgement assessment - Section 62 of GST for non filing of return - For reasons best known to the petitioner, the returns were not furnished by him within the said period of 30 days granted by the statue. Under the said circumstances, the confirmation of assessment orders cannot be said to be illegal or unjustified.
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• Retailer Profiteering: No Price Cuts After Tax Reduction on Baby Care Products, Denying Customers Financial Relief.

  Case-Laws - NAPA : Profiteering - purchase of various consumer goods - baby care products - The Respondent has not commensurately reduced his prices but he has infact increased them by adding the tax costs and the losses - Respondent had no intention of passing on of the above benefit and he has thus denied the benefit of tax reduction to his customers.
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Income Tax

• Deductors entitled to interest on TDS overpayment refunds u/s 244A of Income Tax Act. No denial justified.

  Case-Laws - SC : Entitled to interest on the amount of refund u/s 244A - Refund of excess TDS - there is no reason to deny payment of interest to the deductor who had deducted tax at source and deposited the same with the Treasury.
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Customs

• Customs House Agent License Suspension: Revenue Can Appeal Commissioner's Orders, Appellate Authority's Rejection Was Erroneous.

  Case-Laws - HC : Suspension of CHA License - Right to appeal - right of Department to file an appeal against the order passed by the Commissioner - the Regulations do not prohibit the Revenue from challenging the order - the Appellate Authority has committed an error in rejecting the appeal on the ground that no appeal can be filed by the Revenue against the order passed by the Commissioner of Custom
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• Anti-Dumping Duty Upheld: Confidentiality Claims by Domestic Industry Justified, Authority's Ruling Deemed Error-Free.

  Case-Laws - AT : Levy of definitive anti dumping duty - the claim of confidentiality made by the Domestic Industry was justified - The finding of the Designated Authority in regard to ‘confidentiality’, therefore, does not suffer from any infirmity.
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DGFT

• Deadline Extended for Installing Radiation Monitors and Scanners at Ports per Paragraph 2.54 of Procedures Handbook.

  Circulars : Amendment in Para 2.54 of the Handbook of Procedures, 2015-2020. - The period for installation and operationalisation of Radiation Portal Monitors and Container Scanner in the designated ports extended
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Indian Laws

• Filing Deadline Extended for Section 142(1) Notices Under E-assessment Scheme-2019 to Ease Tax Compliance.

  News : Extension of time limit for filing of response to notices issued under section 142(1) of the Income-tax Act, 1961 under E-assessment Scheme-2019
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SEBI

• Stewardship Code Urges Mutual Funds and AIFs to Engage in Responsible Investment for Better Governance and Performance.

  Circulars : Stewardship Code for all Mutual Funds and all categories of AIFs, in relation to their investment in listed equities
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Service Tax

• Sabka Vishwas Scheme Application Rejected Due to Unquantified Tax Dues; Opportunity for Petitioner to Respond Suggested.

  Case-Laws - HC : Rejection of application under SVLDRS, 2019 - rejection mainly on the ground that tax dues were not intimated, therefore, the same was not quantified for the period involved - it is appropriate to provide an opportunity to the petitioner to put-forth his explanation/reply to the application
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• Cash Refund of CENVAT Credit for 'Intermediary Services' u/r 2(f): Clarification on Export Services and Pre-2014 Sales.

  Case-Laws - AT : Cash refund of accumulated CENVAT Credit - ‘intermediary services’ - Rule 2(f) - export service or not - the definition of intermediary cannot be made applicable to sale of goods for the period prior to 01.10.2014
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• Penalty Refund Granted Despite Initial Rejection Due to Retrospective Exemption Not Covering Penalty Amount.

  Case-Laws - AT : Refund of penalty - retrospective exemption from service tax with interest - refund rejected on the ground that the notification exempted only service tax and interest thereon and not penalty. - Penalty amount directed to be refunded.
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Central Excise

• Manufacturers Can Claim CENVAT Credit with Proper Documents, Even If Unit Isn't Operational or Registered Yet.

  Case-Laws - AT : There is no rule or statutory provision which makes the manufacturing unit to be functional or the registration thereof, a condition precedent for availing credit. The CENVAT Credit shall be available on the documents evidencing receipt of eligible inputs, capita goods or input services even before the date assessee started the manufacturing activity or obtained the service tax registration.
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• Claim for CENVAT Credit Refund Denied: No Saving Clause in Amended Rule 5, Filed 6 Years Late, Beyond 1-Year Limit.

  Case-Laws - AT : Refund of CENVAT Credit - closure of factory - The appellant was not entitled to refund as there was no saving clause when Rule 5 of CCR, 2004 was amended - Further, the period of limitation of one year for filing the refund claim has also been violated as refund claim was filed more than six years after alleged closure of the factory.
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• Appellant wins refund of unutilized education cess credit post-merger with excise duty under Notification No. 15/2015-CE.

  Case-Laws - AT : Refund of the credit which arouse on the ground of Notification No. 15/2015-CE wherein the education cess and higher education cess was merged with the excise duty - The appellant is entitled for the refund of unutilised credit pertaining to education cess and higher education cess.
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• Refund of CENVAT Credit for Exports Not Admissible After March 1, 2015, u/r 5; Prior Refunds to EOUs Allowed.

  Case-Laws - AT : Refund of accumulated CENVAT Credit - export or goods or not - the refund under Rule 5 may not be admissible after 01.03.2015 which is further make it explicit that prior to this amendment refund in respect of export made to 100% EOU was permissible.
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VAT

• Debate on Tax Status of Vitrified Tiles: Are They Stock in Trade for Dealers? VAT Implications Explored.

  Case-Laws - HC : Demand of tax - dealer - stock in trade or not - purchase for other purposes - the Vitrified Tiles are for the purpose of flooring of the hotel - the said tiles form part of the immoveable property - Therefore, it cannot be said that he is a dealer so far as Vitrified Tiles are concerned.
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Case Laws:

• GST

• 2019 (12) TMI 1089
  Levy of penalty - clerical mistake in generation of E-Way bill - minor mistakes - relied as provided vide circular - circular No 64/38/2018 and the HP circular no.12-25/2018-19-EXN-GST-(575)-6009-6026 - supply of taxable goods falling under chapter 24 of GST Tariff Act - bidis - detention order as per section 129(1) of the CGST/HPGST Act. - HELD THAT:- The circular clearly states that, in case a consignment of goods is accompanied with an invoice or any other specified document and also an e-way bill, proceedings under section 129 of the CGST Act may not be initiated in case of minor mistakes like error in one or two digits/characters of the vehicle number. Further Para 6 of the said circular states that in case of minor errors mentioned in Para 5, penalty to the tune of Rs. 500/- each under section 125 of the CGST Act and the respective HPSGST Act should be imposed (Rs. 1000/- under the IGST Act) in FORM GST DRC-07 for every consignment. The said circular and the subsequent notification under the HPGST Act have to be followed and the benefit cannot be denied to the appellant for paltry errors of two digits in the vehicle number. The e-way bill has been duly generated and no mistake has been found in all other information entered in the EWB. The respondents have also not been able to prove beyond doubt nor submit any substantial evidence that the appellant was adopting the system of wrong mentioning of vehicle numbers in the EWB as their modus operandi to evade taxes. The orders of ACST E, Chamba are set-aside on the ground that the standard operating procedure mentioned in Circular No 64/38/2018 dated 14th September, 2018 and the HP circular no. 12-25/2018-19-EXN-GST-(575)-6009-6026 dtd 13th March 2019 valid from 14-09-2018 was not taken into consideration while imposing penalty in the instant case - The additional demand deposited by the appellant may be refunded and the penalty of Rs. 500/- under SGST and Rs. 500/- under CGST under section 125 of CGST/HPGST Act, 2017 is imposed on the taxpayer in accordance to GST Circular.

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• 2019 (12) TMI 1088
  CENVAT Credit - carry forward the tax paid on purchase of goods during the VAT regime to the GST regime - migration to GST regime - Sections 139 to 143 of the Act and Rule 117 of the SGST Rules - HELD THAT:- Since it is not in dispute that the petitioner herein did attempt to upload the necessary details in the system maintained by the respondents, and it cannot be disputed, based on a perusal of the system log, that the petitioner did attempt to log into the system, the mere fact that the petitioner cannot establish that the inability to upload the required details or revise the same was on account of a system error that was occasioned by the respondents, cannot be a reason for denying him the substantive benefit of carrying forward the credit earned by him under the erstwhile regime. This writ petition is allowed by quashing the impugned communications, and directing the respondents to permit the petitioner to revise his TRAN-1 Forms either electronically or manually on or before 31.12.2019 - petition allowed.

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• 2019 (12) TMI 1087
  Validity of assessment order - best judgement assessment - Section 62 of GST for non filing of return - returns were not furnished by him within the said period of 30 days granted by the statue - HELD THAT:- The assessments were completed under Section 62 of the GST Act and the assessment orders contained a clear indication therein that if the petitioner filed the returns within a period of 30 days from the date of service of the assessment orders, the orders would be deemed to have been withdrawn and the assessment re-done based on the materials furnished by the petitioner. For reasons best known to the petitioner, the returns were not furnished by him within the said period of 30 days granted by the statue. Under the said circumstances, the confirmation of Ext.P1 series of assessment orders cannot be said to be illegal or unjustified. The recovery proceedings are directed for recovery of amounts confirmed against the petitioner by Ext.P1 series of assessment orders shall be kept in abeyance for a period of one month, so as to enable the petitioner to move the Appellate Authority in the meanwhile.

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• 2019 (12) TMI 1086
  Filing of Form GST TRAN-1 - transition to GST regime - HELD THAT:- The writ petition is disposed of in terms of the judgment rendered by this Court in the case of JODHPUR TRUCK PVT. LTD. VERSUS UNION OF INDIA, CHAIRMAN, GSTIN, GST, COUNCIL, THE COMMISSIONER, CENTRAL GOODS AND SERVICE TAX COMMISSIONRATE, JODHPUR [ 2019 (11) TMI 820 - RAJASTHAN HIGH COURT ] where it was held that Notification dated 10.9.2018 a new proviso sub-rule (1A) was introduced, while the provision contained in sub-rule (1) remained unaltered. A careful reading of sub-rule (1A) shows that it is not an extension of time of furnishing return or GST TRAN-1; it is rather an enabling provision providing further opportunity to the registered person who could not submit the said declaration by the due date on account of technical difficulties on the common portal. Application disposed off.

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• 2019 (12) TMI 1085
  Reopening of portal for filing of Form TRAN-I - transitional input tax credit - HELD THAT:- Admittedly, if the Nodal Officer decides the matter in favour of the petitioner, the time has been extended for acceptance of the Form TRAN-I till 31st December 2019. The Nodal Officer are directed to whom the matter of the petitioner has been preferred, to see that the Form TRAN-I submitted by the petitioner is accepted in the portal within the due date, and still due to the technical glitch, if the Form TRAN-I is not accepted in the portal, the form shall be accepted manually and necessary scrutiny shall be made, whether the claim of the petitioner is acceptable or not - application disposed off.

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• 2019 (12) TMI 1084
  CENVAT Credit - carry forward the tax paid on purchase of goods during the VAT regime to the GST regime - migration to GST regime - Sections 139 to 143 of the Act and Rule 117 of the SGST Rules - HELD THAT:- Since it is not in dispute that the petitioner herein did attempt to upload the necessary details in the system maintained by the respondents, and it cannot be disputed, based on a perusal of the system log, that the petitioner did attempt to log into the system, the mere fact that the petitioner cannot establish that the inability to upload the required details or revise the same was on account of a system error that was occasioned by the respondents, cannot be a reason for denying him the substantive benefit of carrying forward the credit earned by him under the erstwhile regime. This writ petition is allowed by quashing the impugned communications, and directing the respondents to permit the petitioner to revise his TRAN-1 Forms either electronically or manually on or before 31.12.2019 - petition allowed.

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• 2019 (12) TMI 1083
  Maintainability of petition - efficacious remedy of an appeal under Section 107 of the Central Goods and Services Act of 2017 available - submission of appellant is that Sections 129 and 130 of the Central Act of 2017 start with a non obstante clause - HELD THAT:- Sub-Section (1) of Section 107 of the Central Act of 2017 provides that any person aggrieved by any decision or order passed under the Act or the State Goods and Services Act or the Union Territory Goods and Services Tax Act by an Adjudicating Authority may appeal to the Appellate Authority within the time specified therein - We fail to understand how the non obstante Clauses in both Sections 129 and 130 of the Central Act of 2017, will affect the remedy of an appeal under Section 107 of the Central Act of 2017, in any manner, in as much as, Section 107 of the Central Act of 2017, provides for an appeal against any decision or order. Section 121 of the Central Act of 2017, which starts with a non obstante clause provides that in certain category of cases, no appeal shall lie - However, it is not permissible to read something in Section 121 of the Central Act of 2017, which is not expressly provided by the Legislature. Appeal dismissed.

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• 2019 (12) TMI 1082
  Profiteering - purchase of various consumer goods - baby care products - allegation that benefit of reduction in the rate of GST not passed on - contravention of section 171 of CGST Act - penalty - HELD THAT:- The Respondent has taken in to account the price of a particular product description sold to a particular customer in the last invoice prior to 15.11.2017 as the base price prior to 15.11.2017 and where such a price was not available till 01.07.2017 he has taken the price available in the price list as on 14.11.2017. However. the Respondent has considered one invoice having the maximum base price for computing the base price whereas he should have taken average of the base prices which he had charged to his different customers making purchase from him through different channels. Taking the maximum base price from an invoice or from the price list has resulted in reducing the amount of benefit when compared with the post GST base price. the DGAP has computed the average pre rate reduction base prices after taking in to account all the invoices issued to different customers which gives more representative measure of the base prices than the prices computed by the Respondent. The Respondent has not commensurately reduced his prices but he has infact increased them by adding the tax costs and the losses w.e.f. 15.11.2017 on the base prices which he was already charging on 14.11.2017 as is apparent from the perusal of column L and M of Annexure-13 submitted by him. It is also clear that the Respondent has arbitrarily computed the pre rate reduction base prices of his products by taking in to consideration the highest selling base prices instead of the average base selling prices although he was admittedly selling his products to different customers at different prices. It is absolutely clear that the Respondent had no intention of passing on of the above benefit and he has thus denied the benefit of tax reduction to his customers. Therefore, it is established that he has committed violation of the provisions of Section 171 (1) of the above Act - It is also established that the methodology adopted by the Respondent while computing the benefit of tax reduction was illogical, unreasonable, arbitrary, illegal and incorrect and hence the same cannot be accepted. The profiteered amount is determined as Rs. 2,30,40,74,132/-as per the provisions of Rule 133 (1) of the above Rules as has been computed vide Annexure-13 of the Report dated 24,06.2019. Accordingly, the Respondent is directed to reduce his prices commensurately in terms of Rule 133 (3) (a) of the above Rules. The Respondent is also directed to deposit an amount of Rs. 2,30,40,74,132/-in the CWF of the Central and the concerned State Government, as the recipients are not identifiable, as per the provisions of Rule 133 (3) (c ) of the above Rules alongwith 18% interest payable from the dates from which the above amount was realised by the Respondent from his recipients till the date of its deposit. The above amount shall be deposited within a period of 3 months from the date of passing of this order failing which it shall be recovered by the concerned Commissioners CGST/SGST. Penalty - HELD THAT:- The Respondent has denied the benefit of tax reduction to the customers in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and has thus profiteered as per the explanation attached to Section 171 of the above Act. Therefore, he is apparently liable for imposition of penalty under Section 171 (3A) of the CGST Act, 2017 - Therefore, a SCN be issued directing him to explain why the penalty prescribed under the above sub-Section should not be imposed on him.

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• Income Tax

• 2019 (12) TMI 1081
  Entitled to interest on the amount refunded by the Department u/s 244A - HELD THAT:- As relying on nion of India Vs. Tata Chemicals Ltd. [2014 (3) TMI 610 - SUPREME COURT] there is no reason to deny payment of interest to the deductor who had deducted tax at source and deposited the same with the Treasury. In our opinion, this observation squarely applies to the appellant. As a result, we allow this appeal and direct the Department to pay interest as prescribed under Section 244-A of the Income Tax Act as applicable at the relevant time at the earliest.

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• 2019 (12) TMI 1080
  Permission by ITAT to raise additional grounds - HELD THAT:- All that the Tribunal has done is to permit the respondent to raise the additional ground. The same does not tantamount to acceptance of the additional ground on its merits. The petitioner would have the right to assail the interlocutory order, whereby additional ground has been admitted as well as the finding that the Tribunal may return on the said additional ground, in case the petitioner is aggrieved by the final order that the Tribunal may pass in the pending appeal while preferring an appeal under Section 268 of the Income Tax Act. We are, therefore, not inclined to entertain the present writ petition to assail the impugned order. We dispose of the writ petition while directing the Tribunal to advert to the written submissions filed by the petitioner at the time of final adjudication of the pending appeal, including additional ground permitted to be raised before it.

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• 2019 (12) TMI 1079
  Applications for selection to the post of Member, Income Tax Appellate Tribunal ( ITAT ) - Applications not considered as valid since all their APARs were not received before the stipulated date i.e. 30.08.2018 - HELD THAT:- No infirmity in the decision of the Committee since for any selection process a cut-off date must be fixed, failing which there would be no finality to the recruitment process; and subsequent documents would be furnished by various candidates from time-to-time, especially in view of the fact that in this case, the Committee found 287 incomplete applications. Mr. Datar submits that since the department has been unable to give any reason for not sending the complete application of respondent no.1; and since furnishing of the APAR for the year 2016 2017 was only in the control of the department, respondent no.1 should not be made to suffer. In the circumstances however, he says that respondent no.1 would make a representation to the Committee to enable it to examine the grievance of respondent No.1 since otherwise a competent departmental candidate would lose-out in the recruitment process. Accordingly, we dispose of the writ petition with the observation that if a representation is made within 3 days, the Committee would examine the same.

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• 2019 (12) TMI 1078
  Undisclosed business income - deference in income declared in ITR after survey and income surrendered during survey u/s.133A - unexplained expenditure and receipts - CIT(A) sustained the addition at Rs. 14.00 lakh thereby deleting the addition of remaining amount on account of undisclosed income - HELD THAT:- In the instant case, we are confronted with the facts which are germane to the second situation, in which some undisclosed business income was admitted to have been earned and simultaneously some undisclosed expenditure was also incurred for the incurring of income. In such a scenario, it is only the excess of one over the other, which can be charged to tax. Adverting to the facts of the instant case, it is seen that there is net outflow of Rs. 1.00 lakh which calls for addition in as much as the assessee received business receipt of Rs. 25.00 lakh outside the books of account and also spent business expenses of Rs. 26.00 lakh outside of the books of account. The payment of commission to certain persons for fetching customers has direct relation with the running of Hotel business from which unaccounted receipts of Rs. 25.00 lakh were earned. Further, the payment of commission is a normal incidence of business and is not hit by Explanation 1 to section 37(1) of the Act. Once this is the position, we fail to appreciate as to how any addition other than Rs. 1.00 lakh on this score can be made, apart from addition of Rs. 10,71,000/- on account of investment in flat and Rs. 5,00,000/- towards additional income offered by the assessee on account of omissions and commissions. When these three amounts are added up, the total comes to Rs. 16,71,000/-. As against that, the assessee offered Rs. 17.00 lakh as additional income. In this view of the matter, there is no reason for making or sustaining any addition over and above this amount. We, therefore, order to delete the addition of Rs. 14.00 lakh sustained by the ld. CIT(A). - Decided in favour of assessee.

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• 2019 (12) TMI 1077
  Claim of deduction u/s 54 made by the assessee on a property the assessee - Admission of additional ground for reference to the Valuation Officer - HELD THAT:- Since the additional ground raised by the assessee is for reference to the Valuation Officer and the assessee had already raised the said objection before the CIT (A), as deem it fit and proper to admit the same and adjudicate as under. Since the assessee had raised its objection to the adoption of the SRO value u/s 50C of the Act, by pointing out certain deficiencies in the property, we deem it fit and proper to set aside the order of the CIT (A) and remand the issue to the file of the AO with a direction to refer the valuation of the property to the valuation cell and recompute the capital gain after giving the assessee a fair opportunity of hearing including claim of deduction u/s 54 made by the assessee on a property the assessee.

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• Customs

• 2019 (12) TMI 1076
  Import of Gold Coins - confiscation of the gold coins and imposition of penalty. - Notifications 24/2015-2020 and 25/2015-2020, dated 25th August, 2017, issued by the Director General of Foreign Trade (DGFT) - Public Notice No. 20/201-2020, dated 25th August, 2017 - HELD THAT:- The confusion appears to have arisen owing to the challenging by the petitioner of Notifications 24/2015-2020 and 25/2015-2020, dated 25th August, 2017, and Public Notice 20/2015-2020, also dated 25th August, 2017, vide one writ petition, and the Show Cause Notice, issued in terms of the said notifications and Public Notice, vide the present writ petition - It was owing to this duplication of proceedings that this Court, under the impression that the Show Cause Notice dated 8th September, 2017 was not challenged, expressed its inability to quash the same. Mr. Amit Bansal, learned Senior Standing Counsel appearing for the Custom Authorities, very fairly does not oppose the prayer and acknowledges that, in fact, Show Cause Notice dated 8th September, 2017 has been challenged by the petitioner as well, in the present WP (C) 8204/2017. Impugned SCN is quashed - review petition allowed.

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• 2019 (12) TMI 1075
  Import of Gold Coins - confiscation of the gold coins and imposition of penalty. - Notifications 24/2015-2020 and 25/2015-2020, dated 25th August, 2017, issued by the Director General of Foreign Trade (DGFT) - Public Notice No. 20/201-2020, dated 25th August, 2017 - HELD THAT:- The confusion appears to have arisen owing to the challenging by the petitioner of Notifications 24/2015-2020 and 25/2015-2020, dated 25th August, 2017, and Public Notice 20/2015-2020, also dated 25th August, 2017, vide one writ petition, and the Show Cause Notice, issued in terms of the said notifications and Public Notice, vide the present writ petition - It was owing to this duplication of proceedings that this Court, under the impression that the Show Cause Notice dated 8th September, 2017 was not challenged, expressed its inability to quash the same. Mr. Amit Bansal, learned Senior Standing Counsel appearing for the Custom Authorities, very fairly does not oppose the prayer and acknowledges that, in fact, Show Cause Notice dated 8th September, 2017 has been challenged by the petitioner as well, in the present WP (C) 8205/2017. Impugned SCN is quashed - review petition allowed.

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• 2019 (12) TMI 1074
  Effect of the order of stay in a pending appeal - Declaration of law - HELD THAT:- Issue Notice, returnable on 19.12.2019. By way of ad-interim relief, further proceedings pursuant to the impugned show cause notice dated 10.10.2019 (Annexure-D to the petition) are hereby stayed. The respondents shall not take any coercive recovery against the petitioner for recovery of any amount under the impugned show-cause notice.

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• 2019 (12) TMI 1073
  Suspension of CHA License - Right to appeal - right of Department to file an appeal against the order passed by the Commissioner under the provisions of the Customs House Agents Licensing Regulations, 2004 - Regulation 22(8) of the CHALR, 2004 - Section 129A and 129D of the Customs Act, 1962 - HELD THAT:- As could be seen Section-129A of the Customs Act, provides for a substantial right of appeal. The right of appeal cannot be taken away or curtailed, since the Regulations have been framed under the Act. The Regulations cannot stipulate conditions or procedures contrary to those stated in the Act. The Regulations are intended only to instruct on the applicability of the Act. It cannot grant or reduce what has been granted or otherwise by the Act. Even otherwise, the Regulations for the Customs Act, does not speak about the applicability or otherwise of Section-129A of the Customs Act. Therefore, the provisions contained under Section-129A of the Customs Act must prevail over the Regulations. Even otherwise, the Regulations do not prohibit the Revenue from challenging the order. When this court has already taken a view that the order passed under Regulation 23 of the Regulations of 2013 is an appealable order under Section 129A of the Act read with Regulation 21 of the Regulations of 2013, the Appellate Authority, without considering the law laid down by this court in the aforesaid judgments, has committed an error in rejecting the appeal on the ground that no appeal can be filed by the Revenue against the order passed by the Commissioner of Customs. The findings of the Appellate Authority is contrary to the law. The appeal filed by the Revenue is maintainable under Section 129A of the Act read with Regulation 21 of the Regulations of 2013. Accordingly, the substantial questions of law are answered in favour of the Revenue.

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• 2019 (12) TMI 1072
  Confiscation - import of used dialysis machine - violation of Basel No.1110 of the Hazardous and Other Wastes (Management and Transboundary Movement) Rules 2016 - penalty - time limitation - HELD THAT:- The only restriction imposed by the learned Judge in the matter is against the appellant raising contention based on the question of limitation. Therefore, it is evident that the appellant will get an opportunity to oppose the proposal for confiscation on all the grounds available, except the question of limitation - we do not think that the appellant would have any grievance about the judgment. He will be at liberty to raise all the contention before the adjudicating authority, including the contention that the proposal itself is not maintainable on its merits. Appeal dismissed.

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• 2019 (12) TMI 1071
  Principles of natural justice - no SCN issued - Confiscation - penalty - imported used dialysis machine - prohibited item or not - alleged violation of Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 - HELD THAT:- The respondents would submit that a show cause notice can be issued to the petitioner and the matter re-adjudicated after hearing the petitioner. Writ Petition disposed off by quashing Ext.P7 order and directing the 2nd respondent to issue a show cause notice to the petitioner outlining the proposals for confiscation and the grounds therefor, and then proceed to adjudicate the matter afresh. Petition allowed by way of remand.

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• 2019 (12) TMI 1070
  Provisional release of seized goods - consignment of defatted coconut powder - release of the consignment for their appropriate classification - It is the contention of the Appellant that the said goods is appropriately classified under Customs Tariff Item 2306 50 90 against the Department claim under Customs Tariff Heading 0801 1100 - HELD THAT:- The Department has drawn the samples and obtained the test report for the live consignment vide Bill of Entry No. 39 59 788 dated 06.07.2019. Further, the same has not been made available to the Appellant. Regarding the test report of other consignment the same has not been mentioned in the provisional release of the order. The Appellant is agreed upon, that the conditions set forth for the provisional release is very harsh and not in conformity with the findings of the various case laws - The Appellant has already deposited a sum of Rs. 40 Lakhs with the Department, which should be sufficient for the provisional release of the seized goods The seized goods released - appeal allowed - decided in favor of appellant.

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• 2019 (12) TMI 1069
  Levy of definitive anti dumping duty - appeal by the two exporters from Thailand - import of Non-Plasticized Industrial Grade Nitrocellulose excluding Nitrocellulose Damped in Ethanol and Waterwet - contention of the learned Senior Counsel for the Appellants is that the price of the product under consideration in the domestic market is distorted because of the strict licensing requirements imposed by the Thailand Government - contention of the Domestic Industry is that the Appellants failed to substantiate that there was any distortion in the domestic selling price and mere existence of license regulations cannot lead to a conclusion that there is a distortion in price. HELD THAT:- The Arms Act merely seeks to regulate the use of the product in Thailand and has been enacted to ensure public safety as well as law and order. Section 15 of the Arms Act provides that no person shall order, import, produce or possess arms without a license granted by the Permanent Secretary for Defence. Section 16 bars issuance of a licence to any person convicted of an offence or to a person not of age or to a person of unsound mind. Thus, the consideration for issuance of a license has no connection with the domestic requirement or import of the article - Section 26 provides that the licence shall be valid through the period specified therein, but not exceeding one year from the date of its issuance or renewal. The restriction is, therefore, on the period and not on the quantity. There is no restriction on the quantity or value of import nor does it contain any mechanism for fixing of a selling price in the domestic market. A user has to obtain a license whether the article is imported or procured from domestic market. The contention of the Appellant that there is a distortion because of the regulations in the domestic market price as a result of which normal value has not been correctly arrived at, cannot, therefore, be accepted. Clause (2) of Annexure 1 of the 1995 Rule provides that sales of the product in the domestic market of the exporting country may be treated as not being in the ordinary course of trade by reason of price and the Designated Authority may disregard these sales in determining the normal value, provided the factors enumerated therein exist. The Appellants have not been able to substantiate that these factors exist. The Designated Authority had, however, conducted the ordinary course of trade test in respect of sales made in Thailand. It found that Nitro Chemicals had sold 4193 MT of the subject goods in the domestic market and 99.96% of the sales were profitable. The alternative methods for determination of the normal value as provided for in Clause (ii) of Explanation to Section 9A(1) of the Tariff Act can be resorted to only when there are no sales of the article in the ordinary course of trade in the domestic market. Thus, when substantial sales have been made by the exporter in the domestic market and in the absence of any good reason for reduction of the domestic sale price, the normal value would be the comparable price, in the ordinary course of trade, for the like article when destined for consumption in the exporting country. The alternative methods for determination of the normal value as provided for in Clause (ii) of Explanation to Section 9A(1) of the Tariff Act can be resorted to only when there are no sales of the article in the ordinary course of trade in the domestic market - Thus, when substantial sales have been made by the exporter in the domestic market and in the absence of any good reason for reduction of the domestic sale price, the normal value would be the comparable price, in the ordinary course of trade, for the like article when destined for consumption in the exporting country - it is not possible to accept the contention of learned Counsel for the Appellants that normal value should not have been fixed in relation to the comparable price for the like article when destined for consumption in the exporting country and should have been the comparable representative price of the like article when exported from the exporting country to an appropriate third country or should have been the cost of production of the said article in the country of origin. What has to be seen is, whether the satisfaction of the Designated Authority regarding confidentiality was proper and whether the Domestic Industry was justified in not providing summarization under Rule 7 of the 1995 Rules. The Designated Authority, in the present case, on being satisfied about the claims of confidentiality made by the Domestic Industry, did not call upon the Domestic Industry to make any further disclosure. It has been found in the preceding paragraphs of this order that the claim of confidentiality made by the Domestic Industry was justified - The finding of the Designated Authority in regard to confidentiality , therefore, does not suffer from any infirmity so as to call for any interference in this appeal. Appeal dismissed - decided against appellant.

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• Corporate Laws

• 2019 (12) TMI 1068
  Maintainability of petition - memebership in a club - permanent membership sought, as petitioner is son of a permanent member - whether the EGM ought to be permitted to be held? - HELD THAT:- The holding of a EGM is inherent for the functioning of any company including the Respondent Club. All decisions regarding the manner in which the Club is to be run first vests with the members and then the governing bodies. The Court s intervention ought to be minimal. Unless there is complete perversity or fraud or illegality in the functioning, there ought to be no interference. Moreover, the entertaining of a petition at the instance of a person who is not a member is a serious issue of maintainability that will have to be determined by the Court. Whether prior approval by the Government is required for placing the amended MOA and AOA before the EGM? - HELD THAT:- Whenever the EGM is conducted, the members who are present would be considering the amendments which are proposed and the EGM would pass a resolution, amending, modifying, excluding or adding clauses to the MOA and AOA. After the EGM passes a resolution, the final MOA and AOA would become available to the Club and the Club would then have to submit the same for approval to the Ministry of Corporate Affairs, under Section 8(4) the Companies Act, 2013 - The Explanatory Statement is clear that once the Resolution is passed by the EGM, the same shall be submitted for approval. If the MCA directs any modification or other change in the MOA and AOA, the Resolution shall stand modified accordingly. Thus, it is only after the amended MOA and AOA is approved by the MCA that the amended MOA and AOA would come into effect. The Club is quite clear in its stand that it first places the MOA and AOA before the EGM, after which, it would be seeking approval of the Central Government. Once the EGM s approval is received and approval is sought from the Central Government. The Government is to look into the entire issue, including the issue of membership etc. - Application disposed off.

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• Service Tax

• 2019 (12) TMI 1067
  Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - rejection of application under SVLDRS, 2019 - rejection mainly on the ground that the designated committee after due consideration of the definition of the word quantified as provided under Section 121(r) of the Finance Act (No.2), 2019 observed that as the tax dues were not intimated, therefore, the same was not quantified for the period involved - principles of natural justice - HELD THAT:- It is not in dispute that the order impugned dated 24/10/2019 is the unilateral decision taken by respondent No.2 sans providing an opportunity of hearing to the petitioner. Any order passed by the quasi judicial authority adversely affecting the rights of the parties should be strictly in adherence to the principles of natural justice. Hence, it is appropriate to provide an opportunity to the petitioner to put-forth his explanation/reply to the application - The matter is restored to the file of the respondent No.2 to re-consider the matter - petition allowed by way of remand.

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• 2019 (12) TMI 1066
  Cash refund of accumulated CENVAT Credit - intermediary services - Rule 2(f) - export service or not - providing taxable output services namely, Business Auxiliary Service viz. marketing and sale promotion of chemicals to their overseas counterpart M/s Chevron Philips Chemicals Global FZE (CPC Global) - POPOS rules - credit denied alleging that the service provided by the appellant is not an export service since they acted as an intermediary defined under Rule 2(f) of the Place of Provision of Services Rules, 2012 (POPS Rules in short), consequently as per Rule 9 of the said Rule the service provider is deemed to be situated in India, hence there can be no export. HELD THAT:- The appellant by an agreement with overseas company CPC Global agreed to provide service of sales promotion of the chemicals in the territory specified in the said agreement. The detailed of services required to be rendered in connection with sales promotion in defined territory are stated under the clause (3) of the said agreement. A plain reading of the same reveals that it is an agreement between the Appellant and the CPC Global and no mention of rendering of service to the clients of CPC Global or any other third party. For rendering such services, the appellants are entitled to commission stipulated under clause (5) of the agreement - It is the contention of the appellant that they did not act as an intermediary between the CPC Global and any other person while rendering the service of promotion of sale of the goods in the defined territory. The Appellant are neither concerned the fixation of selling price of the goods and their role is an independent contracting as stipulated under clause (10) of the said agreement. There is merit in the contention of the appellant that since goods was not covered under the scope of definition of intermediary , therefore, for the period prior to 1.10.2014 confirmation of demand is bad in law. I find that the definition of intermediary cannot be made applicable to sale of goods for the period prior to 01.10.2014 in view of the principle law laid down by the Tribunal in CRODA INDIA COMPANY PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX-VII MUMBAI [ 2019 (5) TMI 1139 - CESTAT MUMBAI] . Period after 1.10.2014 - HELD THAT:- On merit also, the appellant cannot be called as an intermediary . On a simple reading of the agreement analyzed as above, it is clear that the appellants are appointed by their overseas counterpart CPC Global for sales promotion of the goods for their client in the defined territory. The appellant has no role in fixation of price nor they negotiate in any manner between CPC Global and their clients relating to sales promotion of the goods sold - Therefore, the appellant cannot be called as an intermediary. consequenlty, fall outside the amended definition of intermediary under Rule 2(f) and Rule 9 of the POPS Rules, 2012. Denial of credit on various input services - HELD THAT:- The finding of the learned Commissioner (Appeals) that it is not an input service is contrary to the principles of law laid down by this Tribunal in various judgments as submitted by the Advocate for the Appellant. No contrary decision has placed by the Revenue. Therefore, on this count also the order of the learned Commissioner (Appeals) is unsustainable. Appeal allowed - decided in favor of appellant.

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• 2019 (12) TMI 1065
  Refund of penalty - retrospective exemption from service tax with interest - refund rejected on the ground that the notification exempted only service tax and interest thereon and not penalty. - whether the amount of penalty which was paid by the appellant in terms of the provisions of Finance Act is required to be refunded in view of issuance of the exemption N/N. 9/2017 dated 28.2.2017, by which the service tax and interest has been waived? HELD THAT:- Since the service tax and interest itself have been exempted by the issuance of the notification under Section 11C of the Excise Act, there is no question of payment of any penalty on service tax. Even if it is presumed that the penalty is governed by the provision of 11B, that would not be appropriate and proper. At the best, it can be treated as the duty collected without the authority of law for which prescribed time limit under Section 11B is not applicable. Therefore, the refund of penalty amount paid by the appellant is justified and required to be granted to them. Renting of immovable property service - demand of service tax - HELD THAT:- This issue has to be read along with the provisions of Section 11C in the circumstances which six months from date of issue of notification dated 28.2.2017. If the value portion service rendered by the appellant is excluded by the issuance of the notification the appellant falling within the threshold limit of the N/N. 33/2012 dated 20 June, 2012. Thus the duty of service tax which is otherwise not leviable in view of exemption notification will be without authority of law and the provision of Section 11B of Excise Act would not be applicable. The Assistant Commissioner is hereby directed to sanction refund within three months from the issuance of this order - Appeal allowed - decided in favor of appellant.

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• 2019 (12) TMI 1064
  Commercial or Industrial Construction - Works Contract Services - services for Construction of 3.2 MLD Sewerage Treatment Plant at Bhiwadi as sub-contractor to M/s. Enviro Engineers - Commissioner bifurcated the period of demand in two parts i.e. prior and post 01.07.2012 i.e. after introduction of negative list vide notification no.25/2012 dated 20.06.2012 - extended period of limitation. HELD THAT:- The demand stands confirmed under a category different than the one proposed in the show cause notice. In the absence of any proposal in the notice to confirm the demand under the category of erection commissioning and installation services, it was not open to the Revenue to go beyond the show cause notice - This was so held by the Tribunal in the case of GAMBHIR CONSTRUCTION COMPANY VERSUS C.C.E. S.T. -LUCKNOW [ 2017 (6) TMI 1107 - CESTAT ALLAHABAD ], which stands followed in the case of COMMISSIONER OF CENTRAL EXCISE SERVICE TAX, LUCKNOW VERSUS M/S SONU CONSTRUCTION (VICE-VERSA) [ 2018 (9) TMI 1364 - CESTAT ALLAHABAD ] - As such, there are no reasons to uphold the impugned demand. Extended period of limitation - HELD THAT:- As per facts on record, after the audit objection, a lot of correspondence was exchanged between the Appellant and the Revenue in the month of December, 2010. In such a scenario raising of demand in September, 2014 by invoking the longer period of limitation, cannot be held to be proper and justifiable - the demand is barred by limitation also. Appeal is allowed on merits as also on limitation.

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• Central Excise

• 2019 (12) TMI 1063
  Refund of excise duty - unjust enrichment - allegation that the appellant has not passed on the duty to the buyers, as such is entitled to refund - rejection on the ground that the invoices issued by the appellant between 11.09.2003 to 30.01.2004 clearly show that the Central Excise Duty @ 16% separately was charged from the customers/buyers - Presumption of incidence of duty. Whether the Tribunal was under obligation to consider all the material evidence available before it and while discarding the same, it was incumbent upon the Tribunal to record reasons? HELD THAT:- From the bare perusal of Section 12 (B) of the Act, 1944, the intention of the legislature is crystal clear that it is the duty of the concerned to prove that he has not passed on the excise duty to the buyer. From the material placed, particularly two sets of invoices and letters written by the appellant to the buyers and the relevant portion of the order dated 10.12.2009, the position which emerges out is to the effect that the Tribunal has not considered the invoices placed by the appellant before it along with the letters of appellant written to the buyers and after considering both the material evidence viz. invoices and letters written by the appellant to the buyers, the Tribunal has not recorded reasons for coming to the conclusion that the appellant is not entitled for refund of the amount in issue. A judgment is the expression of the opinion of the Court arrived at after due consideration of the evidence and the arguments, it means a judicial determination. Thus, the law can by summarised that the judgment means a decision adjudicating upon the legal rights and liabilities of the parties after appreciating the evidence on record in a particular fact-situation, and that has to be duly supported by reasons - the Tribunal was under obligation to consider all the material evidence available before it and while discarding the same, it was incumbent upon the Tribunal to record reasons and in not doing so, the Tribunal erred in law and fact both. Considering the undisputed submissions made by the learned counsel for the appellant that certain documents were filed by the appellant before the Tribunal through supplementary affidavit and the Tribunal failed to consider the same, we are of the view that the matter may be remanded back to the Tribunal to decide the same afresh - appeal allowed by way of remand.

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• 2019 (12) TMI 1062
  CENVAT Credit - capital goods/input services - rails utilised in the construction of railway-line from Muddanur Railway Station to the factory premises of the appellant which was to run for merely 10 kms - input services used for the construction of the appellants manufacturing units - HELD THAT:- The goods which are used in the manufacture of capital goods which are further used in the factory of the manufacture are inputs. Therefore, the input is not necessarily to be used in the manufacture of final product. By virtue of explanation goods used in the manufacture of capital goods which are further used in the factory of the manufacturer of capital goods also falls within the definition of input. In 2009, this explanation has been amended to the effect as recorded above. Also definition of capital goods is not confined to cl. of Rule 2(a) CCR, 2004 but extends to all other clauses therein. As per clause (iii) thereof it is clear that if anything is component, spare accessories to such input as may full under cl (i) of Rule 2(a) CCR, 2004, same also becomes capital goods - the goods which are denied CENVAT Credit in these appeals are such without which the capital goods/inputs relevant to manufacture the final product cannot function. Thus, the goods under question also became the capital goods. There is no denial for the rails/sleepers to partly within the manufacturing unit/factory of appellant. Irrespective it extends outward but admittedly is used for the transport of rawmaterial inside the factory for manufacturing final product. Thus is the part and parcel for the manufacturing unit composed of capital goods which cannot function without these rails - further, there is no evidence on record to show that any of the capital goods as that of pipes, pumps etc. or other steel structures as mentioned in the above tables to have been used in construction of factory shed or for laying of the foundation. Those rather appear to have been used in connecting the machinery installed in the factory premises of the appellant which is meant for manufacture of the final product or are such as have been used as an integral part thereof. Hon ble Apex Court in the case of VIKRAM CEMENT VERSUS CCE, INDORE [ 2006 (2) TMI 1 - SUPREME COURT] has held that the repair and maintenance of pumps and pipes outside the factory premises having nexus with the manufacture of final products even if utilised outside the factory premises would be eligible for CENVAT Credit. No evidence found by the department that rails/sleepers and other goods have no nexus with the manufacture of cement, the final product of the appellant, we are of the opinion that the adjudicating authority has wrongly denied the availment of CENVAT Credit to the appellants while confirming the reversal of the credit already availed - credit on rails allowed. Input services used for the construction of the appellants manufacturing units - HELD THAT:- The said issue also stands no more res-integra as was held by Tribunal, Bombay in COMMISSIONER OF C. EX., NAGPUR VERSUS ULTRATECH CEMENT LTD. [ 2010 (7) TMI 302 - CESTAT, MUMBAI] that the input services with respect to the Thermal Power though situated outside the factory premises are Cenvatable due to the nexus thereof with the manufacture of the final product Credit also denied on the ground that manufacturing activity not started - HELD THAT:- The fact that manufacturing activity has not yet been started, is also not sustainable to deny the CENVAT Credit to the appellant. There is no rule or statutory provision which makes the manufacturing unit to be functional or the registration thereof, a condition precedent for availing credit. The CENVAT Credit shall be available on the documents evidencing receipt of eligible inputs, capita goods or input services even before the date assessee started the manufacturing activity or obtained the service tax registration. The credits can very well be adjusted after the manufacturing is started or registration is taken - Hon ble High Court of Karnataka in the case of COMMISSIONER OF SERVICE-TAX VERSUS TAVANT TECHNOLOGIES INDIA PVT LTD [ 2016 (3) TMI 353 - KARNATAKA HIGH COURT] , while relying upon its previous decisions in the case of MPORTAL INDIA WIRELESS SOLUTIONS (P.) LTD. VERSUS COMMISSIONER OF SERVICE TAX [ 2011 (9) TMI 450 - KARNATAKA HIGH COURT] , Karnataka has held that for availing as well as refund of untilized credit registration of Service Tax is not required. The adjudicating authority below has wrongly denied the CENVAT Credit to the appellant - Credit allowed - appeal allowed - decided in favor of appellant.

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• 2019 (12) TMI 1061
  Finalisation of assessment of petitioner - direction to respondent to finalise the assessment of the petitioner-Industrial Unit as directed by the Hon ble Supreme Court in its decision UNION OF INDIA VERSUS SUPREME STEELS AND GENERAL MILLS [ 2001 (10) TMI 90 - SUPREME COURT] with consequential relief of refund with interest. HELD THAT:- The respondents may pass appropriate order in terms of the above ratio of the Hon ble Supreme Court within a period of 3 months from the receipt of this order and finalize the pending proceedings in accordance with law - Petition disposed off.

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• 2019 (12) TMI 1060
  Refund of CENVAT Credit - closure of factory - period of limitation - goods cleared to the SEZ units without payment of duty - rejection of refund on the ground that the SEZ supplies were not to be treated as export of goods and that refund applications were not filed within the time limit - whether the application for refund of Cenvat credit under Rule 5 of CCR, 2004 could be sanctioned after 01.04.2012 on the ground that the factory has been closed after a period of six years from the closure of such factory or otherwise? HELD THAT:- When the Rule 5 of CCR, 2004 was amended w.e.f. 01.04.2012 there is no saving clause indicating that with respect to credits which were accumulated prior to this date the new provisions do not apply - The General Clauses Act allows continuation of any right, privilege, obligation or liability acquired or accrued under any Act or enactment so repealed and also affects the previous operation of any Act or enactment so repealed. In this case, refund claims were filed prior to 01.04.2012 and these claims did not include refund claim on the ground that factory has been closed. The issue was raised before this Tribunal in the first round of litigation which has been rejected by this Tribunal in M/S LATA S HYDROCARBON RESOURCES PRIVATE LTD., VERSUS CC, CE ST, HYDERABAD-IV [ 2016 (12) TMI 321 - CESTAT HYDERABAD] . The order of this Tribunal has not been set aside by any higher judicial forum. In pursuance of the remand by this final order, the original authority has sanctioned the refund claim. Therefore, all proceedings which had begun prior to 01.04.2012 have concluded unimpeded by the unamended Rule 5 of CCR, 2004 for a different amount on a different ground. A separate refund claim was filed after 01.04.2012 which is the issue in dispute. The appellant was not entitled to refund as there was no saving clause when Rule 5 of CCR, 2004 was amended - Further, the period of limitation of one year for filing the refund claim has also been violated as refund claim was filed more than six years after alleged closure of the factory. Appeal dismissed - decided against appellant.

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• 2019 (12) TMI 1059
  Refund of the credit which arouse on the ground of Notification No. 15/2015-CE wherein the education cess and higher education cess was merged with the excise duty - inability to utilise this amount for the discharge of the excise duty in future - N/N. 15/2015-CE dated 01.03.2015 - rejection of refund claim on the ground that there is no such provisions under Rule 5 of the Credit Rules, which stated that a manufacturer who clears a final product or any intermediate product for export without payment of duty under bond or letter of undertaking (LUT) for a service provider, who provides an output service, which is exempted without payment of service tax shall be allowed the refund of Cenvat Credit as per the prescribed formula. HELD THAT:- The same situation has come up before Hon ble Supreme Court in case of M/S. SRD NUTRIENTS PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE GUWAHATI [2017 (11) TMI 655 - SUPREME COURT] wherein the refund of not utilised credit was permitted to be refunded and Hon ble Supreme Court held that the EC and HEC is part of the excise duty, and therefore, the refund can be granted to him under the provisions of Section 11B of the Central Excise Act. The appellant is entitled for the refund of unutilised credit pertaining to education cess and higher education cess - appeal allowed - decided in favor of appellant.

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• 2019 (12) TMI 1058
  100% EOU - insecticide procured by the appellant was sent to farmers and the produce viz. gherkins were brought back to the EOU and later exported after undertaking further processing - applicability of N/N. 22/2003-CE dated 01.03.2003 - HELD THAT:- It is not disputed that the appellant was a 100% EOU engaged in the manufacture and export of gherkins (vegetables). The said item in question viz. Neemazol TS 1% was procured without payment of duty in terms of Notification 22/2003 which is covered in Sl. No. 26 of Annexure I of the said Notification. Further as per Clause (a) of the Notification, items falling under Sl. No. 14 to 26 of Annexure-I were permitted to be taken out of EOU to fields and farms of contract farmers of the EOU for production and bring back the produce to the unit for export subject to fulfillment of certain conditions - Further, in the present case, the insecticides procured by the appellant was sent to the farmers and the produce viz. gherkins were brought back to the EOU and later exported after undertaking further processing. The Commissioner (Appeals) has wrongly held that the appellant is required to take the permission of the Development Commissioner for procurement of the item in question. During the relevant period duty free goods from local manufacturers could be procured only against CT-3 certificate issued by the Range Officer having jurisdiction over the EOU and in the present case also the appellants have procured the insecticide against CT-3 certificate issued by the jurisdictional Range Officer. Further, we find that the original authority has rightly held that the items procured by the appellant were covered by Sl. No. 26 appearing in Annexure-I to Notification No. 22/2003-CE dated 01.03.2003 read with Clause (a) (i) read with Clause 5 of the said Notification - Further, the item procured by the appellant in terms of the Notification was ultimately used for export of goods and therefore the appellants are clearly entitled to the exemption. Appeal allowed - decided in favor of appellant.

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• 2019 (12) TMI 1057
  Refund of accumulated CENVAT Credit - export or goods or not - input used in the manufacture of final product which has been supplied to 100% EOU considering the same as export or otherwise - whether the supply to 100% EOU is considered as export for the purpose of refund under Rule 5 of Cenvat Credit Rules, 2002? HELD THAT:- The very same issue has been considered by the Hon ble Gujarat High Court in the case of COMMISSIONER - CENTRAL EXCISE AND CUSTOMS VERSUS NBM INDUSTRIES [ 2011 (9) TMI 360 - GUJARAT HIGH COURT] where it was held that clearances made by one 100% EOU to another 100% EOU which are deemed exports are to be treated as physical exports for the purpose of entitling refund of unutilized Cenvat credit contemplated under the provisions of Rule 5 of the Cenvat Credit Rule, 2004. Thus, there is no dispute that refund under Rule 5 is admissible in respect of the supply made to 100% EOU - It is also observed that the definition of export of goods has been given in Rule 5 has been amended and as per the new definition only those exports where the goods are taken out of country is considered as an export of goods, therefore, at the most the refund under Rule 5 may not be admissible after 01.03.2015 which is further make it explicit that prior to this amendment refund in respect of export made to 100% EOU was permissible. Appeal allowed - decided in favor of appellant.

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• CST, VAT & Sales Tax

• 2019 (12) TMI 1056
  Demand of tax - dealer - petitioner runs a vegetarian restaurant and purchased Vitrified Tiles - stock in trade or not - purchase for other purposes - Rule 135 of the Karnataka Value Added Rules, 2005 - HELD THAT:- There are no error committed by the learned Single Judge in passing the impugned order. The order is in accordance with law and on facts. When admittedly, the writ petitioner is running a restaurant, the goods purchased by him namely, the Vitrified Tiles are for the purpose of flooring of the hotel. Therefore, consequently the said tiles form part of the immoveable property. Therefore, it cannot be said that he is a dealer so far as Vitrified Tiles are concerned. Under these circumstances, there are no good ground to interfere. Appeal dismissed - decided against appellant.

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• 2019 (12) TMI 1055
  Validity of pre-revision notices - case of respondent is that the pre-revision notices, though based wholly on VSI-3 proposals of the Enforcement Wing, merely call upon the petitioner to file objections to the issues set out therein and the present Writ Petitions are thus pre-mature - HELD THAT:- The Assessing Authority, in the matter of framing of assessments has to apply his mind to the issues that arise from the return of turnover filed by a dealer/assessee. However, orders of assessment are routinely passed based wholly on the proposals received from the Enforcement Wing and this case is no different. Though the impugned notice itself does not state so, the respondents in their common counter dated 12.10.2018, admit in paragraph 4 that the preassessment notices were issued to implement the VSI-3 proposals received from the Enforcement Wing (Group-V) Coimbatore . The purpose of pre-revision notices/preassessment proposal is not for implementing Enforcement Wing proposals but for putting forth issues that arise from the returns of turnover filed by a dealer/assessee, to the dealer/assessee for response and rebuttal. Such issues are to be identified by an officer by independent application of mind only. No doubt, it is incumbent upon the Officer to study the enforcement proposals and he is permitted to deviate from the same where he believes that the same do not give rise to an assessable issue. The first respondent will issue pre-assessment proposals/pre-revision notices after due and independent application of mind within a period of three (3) weeks from date of receipt of a copy of this order and after hearing the petitioner and considering its reply, orders of assessment shall be passed within a period of four (4) weeks from date of conclusion of personal hearing. Petition allowed.

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