TMI Tax Updates - e-Newsletter
December 3, 2016

Case Laws in this Newsletter:

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

Articles

• INVOKING WRIT JURISDICTION FOR INCOME TAX MATTERS

News

• Demonetisation, GST to create cleaner economy

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• RBI Reference Rate for US

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• Fifth Bi-monthly Monetary Policy Statement 2016-17 on at 2.30 pm on December 07, 2016

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Notifications

Customs

• 6/2016-Customs (N.T./CAA/DRI) - dated 1-12-2016 - Cus (NT)
  Appointment of Common Adjudicating Authority by DGRI

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• 5/2016-Customs (N.T./CAA/DRI) - dated 1-12-2016 - Cus (NT)
  Appointment of Common Adjudicating Authority by DGRI

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Income Tax

• 111/2016 - dated 1-12-2016 - IT
  Section 10(46) of the Income-tax Act, 1961 – Central Government notifies Bureau of Indian Standards (BIS), set up by the Bureau of Indian Standards Act, 1986 (63 of 1986) in respect of the following specified income arising to that Bureau

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Highlights / Catch Notes

Income Tax

• TDS u/s 195 - FOWC carried on business in India through a PE, at the circuit, it is held that payments made to FOWC, under the RPC were business income and accordingly chargeable to tax, according to the rates applicable in India at that time. - HC
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• Disallowance of Commission paid in respect of exports to Iraq - Explanation to section 37 of the Act cannot be invoked merely on the basis of an unestablished doubt that expenditure incurred could be for infraction of law. - AT
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Customs

• Denial of the benefit of refund of terminal excise duty in relation to capital goods supplied to power projects - since there was a justification and even a strong public interest element in the denial of terminal excise duty benefits, the question of its being arbitrary does not arise - HC
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• Import of vessel ‘MT Navdhenu Sana’ - smuggled goods - the vessel could not be considered as ‘dutiable goods’ - if the goods are not dutiable, and there is no prohibition in importing oil tankers to India - No penalty - AT
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Service Tax

• Nature of activity - Sharing of expenditure under joint venture agreement - By no stretch of imagination, it can be treated as common 'service' provided by GSFC to GACL for which it is charging GACL - the question of service tax does not arise - SC
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• Levy of tax - amount recovered from sale proceed of auction of unclaimed cargo - The activity is of sale of abandoned goods and the proceed of sale of goods does not attract any service tax - AT
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• The availment of credit is derived from rule 3 of CENVAT Credit Rules, 2004 and, as the taxes have been paid on common services used for property that is not in use by the appellant as recipient of service, availament of CENVAT credit is within the scope of the Rules - AT
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Central Excise

• An exemption from duty, if otherwise available on fulfillment of all conditions cannot be denied on the ground that another exemption was wrongly availed by the appellant - AT
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• Classification of manufactured item - Advanced Variable Speed (AVS) Drive Controller - these goods are not meant for electric control or the distribution of electricity and therefore these do not qualify to be classified under heading 8537 claimed by the revenue. - AT
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• Cenvat Credit - supplementary invoice, issued by the registered dealer, on which credit was availed by the main appellant are not the document on which such Credit can be availed - AT
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• Benefit of exemption notification - classification - Solid/Hollow Cement Concrete Blocks - product represent to description used for the marketing of the goods should be accepted and need not to go to the IS specification particularly for the reason that the entry provided in the exemption notification does not carry any IS specifications. - AT
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• Both the inputs i.e. Ceramic Balls and Ethyl Alcohol are used in the manufacturing of final product of the appellant. Therefore the appellant is entitled for the MODVAT credit on the said items - AT
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VAT

• Printing of currency notes for Government of India - Business or not - before selling currency notes to the government, these are merely goods and liable to be taxed accordingly - Central government is not exempt from levy of indirect taxes - HC
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Case Laws:

• Income Tax

• 2016 (12) TMI 123
  Royalty v/s business income - nature of income - whether FOWC had a fixed place permanent establishment (PE) under Article 5(1) of the DTAA - Held that:- FOWC's participation and the undertakings given to it by each of these actors, who are responsible for the event as a whole, brings out its central and dominant role. If Jaypee is the event promoter, which owns the title to the circuit in the sense that it owns the land, FOWC is the commercial rights owner of the event, by virtue of the Concorde Agreement. FIA parted with all its rights over each commercial right it possessed to FOWC. The bulk of the revenue earned is through media, television and other related rights. The terms or the basis of those rights is the event. The conceptualization of the event and the right to include it in any particular circuit, such as Buddh Circuit is that of the FOWC; it decides the venue and the participating teams are bound to it to compete in the race in the terms agreed with the FOWC. All these, in the opinion of the Court, unequivocally, show that the FOWC carried on business in India for the duration of the race (and for two weeks before the race and a week thereafter). Every right, which it possessed was monetized; the US$ 40 million which Jaypee paid was only a part of that commercial exploitation by the FOWC. Consequently, the Court concludes that the FOWC carried on business in India within the meaning of expression under Article 5(1) of the DTAA. It is consequently held that the AAR fell into error of law in holding that FOWC did not function through a PE/carry on business through a fixed place of business in India. Nature of business - Did the FOWC carry on business through its agents under Article 5(4) or Article 5(5)? - Held that:- Article 5(5) has certain preconditions if an entity has to be treated as dependent agent. The agent must have the authority to conclude contracts, which bind the represented enterprise, and it must habitually exercise such authority. If these positive preconditions are met, then only an enterprise shall be deemed to have a PE in that state in respect of any activities, which that person undertakes for the enterprise. The contention that because the three entities were subsidiaries of FOWC, they acted on its behalf and thus become dependent agents is insubstantial. The mere circumstance that the three subsidiaries had a connection with FOWC was not enough; what is to be shown is that the contracts they entered into and the businesses they were engaged in, was for and on behalf of FOWC. Each of the three agreements independently entered into by them with Jaypee contains no pointers to this fact. Nature of payment - Was the payment made by Jaypee to FOWC in the nature of royalty, under the DTAA, for the use of the latter’s trademark? - Held that:- As event promoter and host Jaypee had to publicize the F1 Grand Prix Championship. Therefore, it was bound to use the F1 marks, logos and devices; however, it was not authorized to use the marks on any merchandise or service offered by it. This condition, in the opinion of the court, places the matter beyond the pale of controversy; the use of the trademarks were purely incidental. The conclusion of the AAR is therefore, incorrect. The answer to the question is that the amounts paid to FOWC by Jaypee were not “royalty’ within the meaning of Article 13 of the DTAA, as they were business income and could not be brought to tax under the head of “royalty’. Payment to non-residents and the obligation to deduct tax u/s 195 - Whether the AAR erred in its interpretation of Section 195 in Jaypee’s application - Held that:- As is evident, the object of the provision is to clarify what proportion of the payment made by the payer is liable to tax deduction. In the present case, Jaypee, no doubt, supported FOWC’s argument that payments made to the latter were not by way of royalties; at the same time, because of the doubt entertained, it sought clarification through the application to the AAR. Having regard to the conclusions reached by us that FOWC carried on business in India through a PE, at the circuit, it is held that payments made to FOWC, under the RPC were business income and accordingly chargeable to tax, according to the rates applicable in India at that time.

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• 2016 (12) TMI 122
  Disallowance u/s 14A - mat computation - Held that:- Admittedly, for the purpose of Section 115JB, the book profits assessed by the assessee were accepted and the assessee was brought to tax accordingly. The CIT (Appeals), therefore, wrongly observed that the issue which required consideration is whether the provisions of Section 14A are applicable for determining the book profits under Section 115JB. In view of what we have just said this issue does not arise. The last but one sentence in paragraph 3.3 quoted above would cause difficulties in future. The CIT (Appeals) observed that the disallowance under Section 14A read with Rule 8D for computing book profit under Section 115JB was deleted. While it is possible to restrict this observation for the purpose of Section 115JB alone, it is also possible that in future the same confusion may arise on account of the assessee contending that the disallowance under Section 14A was set aside. The Tribunal has gone a step further in observing that the issue of disallowance under Section 14A was academic. It is not. As we mentioned earlier, it is necessary that the disallowance under Section 14A is also computed for it may have an effect in the future years on account of the benefit accorded to an assessee under Section 115JAA. In these circumstances, the impugned order and judgement is set aside. The matter is remanded to the Tribunal for determining all the issues raised by the assessee especially the issue of disallowance under Section 14A. Needless to clarify that all the contentions of the parties including as to the applicability of Rule 8D are kept open.

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• 2016 (12) TMI 121
  Depreciation on investment in Government Securities - Held that:- Tribunal dismissed the Revenue's Appeal before it by following a decision of the Coordinate Bench of the Tribunal in DCIT v/s. Nashik Merchant Cooperative Bank Ltd. [2013 (4) TMI 769 - ITAT PUNE ]allowing depreciation on investment in Government Securities when the securities held as stockintrade

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• 2016 (12) TMI 120
  Admitting Additional Evidence - Contravention of the provisions of Rule 46A(3) of the Income Tax Rules, 1962 by the learned Commissioner of Income Tax (Appeals) - Held that:- The Tribunal has found that the so called fresh evidence was already on record before the Assessing Officer. Therefore no fresh evidence was filed. This finding is not shown to be perverse in any manner. In the above view, no question of law arises for our consideration, much less any substantial question of law.

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• 2016 (12) TMI 119
  Validity of reopening of assessment - income from collection of parking fee from the trucks attribution - Held that:- The reason to believe to conclude that tax has escaped assessment is not at all reflected, in the order passed by the assessing officer. The Assessing Officer has not said that income from collection of parking fee from the trucks is attributable to building and not to the parking facility provided for the trucks. Even if the order recorded by the assessing officer on 10.04.2007 is liberally construed, we do not find the requisite material or the nexus on the basis of which, the reasonable belief is reached, for ordering the reassessment proceeding. Therefore in our understanding, the action initiated against the assessee under Section 147/148 appears to be without any jurisdiction and it is declared so accordingly. Thus the substantial questions of law are answered in favour of the assessee and we further declare that the Gotanagar Truck Terminus is a plant and not building, for the purpose of claiming depreciation under Section 32 read with Section 43 of the IT Act. Consequently the assessee is held entitled to depreciation at the rate of 25% as prescribed for plant and not at 10%, as applicable for building.

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• 2016 (12) TMI 118
  Validity of reopening of assessment - Held tat:- There is no justification in issuing the impugned notice and the power of issuance of such notice would not arise by virtue of Section 150(1) read with Explanation 2 of Section 153 of the Act. In the circumstances, we find that the petitioner is entitled to the relief claimed in the petition. - Decided in favour of assessee

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• 2016 (12) TMI 117
  Validity of reopening of assessment - transaction with Ahmedabad Stock Exchange - Held that:- The condition as provided under Section 147 of the IT Act to reopen the completed assessment beyond the period of four years are not satisfied. Even there is no allegation in record reopening of the assessment that there was any non disclosure on the part of the assessee, which has resulted into escapement of the income. At this stage, it is required to be noted that even in the objection against the reasons recorded it was the specific case on behalf of the assessee that since August, 2004 it was not having any transaction with Ahmedabad Stock Exchange and more particularly during the year under consideration. In the reasons recorded, there is nothing on record that the Assessing Officer on facts formed an opinion that during the year under consideration the assessee was having the transaction with Ahmedabad Stock Exchange. In that view of the matter, even Bye Law No.218 of the Ahmedabad Stock Exchange, upon which reliance has been placed, shall not be attracted and / or applicable at all. In any case, as stated hereinabove, there does not appear to be any non disclosure on the part of the assessee in not disclosing true and correct facts, and therefore, the conditions stipulated under Section 147 to reopen the assessment beyond 4 years are not satisfied. On the aforesaid ground alone, the impugned notice and reassessment proceedings deserves to be quashed and aside - Decided in favour of assessee

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• 2016 (12) TMI 116
  Rectification application - Held that:- The impugned order while disposing of the rectification application states that the factual matrix was considered and conclusion was arrived at on the basis of the facts placed before them. The attempt on the part of the petitioner is to seek a review of the order so as to ensure that the Tribunal takes a look at the documents which were part of the record and may not have emphasized by the petitioner during the course of the hearing. All this must be considered in the context of the Tribunal recording in its order that the primary submissions of the petitioner was inadequate opportunity to present its case before the lower Authorities. This fact has not in terms been disputed in the rectification application. Moreover, it needs to be pointed out that today we have by a separate order in Notice of Motion have condoned the delay in filing the appeal under Section 260A of the Act from order dated 26th October, 2015 of the Tribunal. In that appeal before the Tribunal we note that an additional ground taken up viz. of not being afforded sufficient opportunity by the lower authority to explain its case. In the above view, the impugned order dated 17th June, 2016 passed by the Tribunal rejecting the petitioner's application for rectification cannot on the present facts be found fault with.

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• 2016 (12) TMI 115
  Eligibility for the benefit of section 80P(2)(a)(i) - interest received from members - Assessee is a Co-operative Marketing Society - whether the Tribunal was right holding that the assessee society engaged in selling of agricultural produce of the members is eligible for the benefit of section 80P(2)(a)(i)? - Held that:- view of our concurrence that the Assessee is a mere Co-operative Credit Society but not a Co-operative Bank, we are of the view that the order passed by the Assessing Officer as well as the Appellate Authority and the conclusion arrived at by the Tribunal are not erroneous and hence there is no merit in these appeals and accordingly the appeal stands rejected - Decided against revenue

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• 2016 (12) TMI 114
  Disallowance of Commission paid in respect of exports to Iraq - Held that:- It is not Revenue’s case that no services have been rendered to the assessee by the agent. Further, nothing has been brought on record by Revenue to show that the transactions relating to the payment of commission by the assessee are either non genuine or are excessive or unreasonable. The Volcker Committee Report, cited by Revenue, had discussed about the utilization of money by the recipient of the commission in paying of such commission so received to the Government of Iraq illicitly, which was objected to by the Volcker Committee. From a casual perusal of the details on record and in the orders of the authorities below it has not been proved that the assessee company was involved in illicit payments of commission to the Iraqi Government. Therefore it cannot be concluded that commission payments were not made for the purpose of assessee’s business. Explanation to section 37 of the Act cannot be invoked merely on the basis of an unestablished doubt that expenditure incurred could be for infraction of law. - Decided in favour of assessee

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• 2016 (12) TMI 113
  Unexplained investment made in recurring deposits and interest thereon - Held that:- Revenue is not denying the fact that the recurring deposit account is in the name of both the assessee and his wife and the deposit is only of ₹ 67,500/-. The assessee has shown withdrawals of ₹ 1,08,835/-. Even if we consider that this amount is entirely used for the house hold expenses still deposit could have been presumed to be made out of the income of the assessee’s wife who earned income of ₹ 2,63,930/- and taxable income of ₹ 73,930/- during the current year which is more than the investment of ₹ 67,500/- made in recurring deposits. Hence, we hold that the assessee has sufficient source of income for the deposits of ₹ 67,500/- made in the recurring deposits account jointly held with his wife. Hence, we delete the addition - Decided in favour of assessee Adition towards unexplained cash credit - Held that:- We are of the view that the assessee has not substantiated his claim with evidences before the lower authorities or even before us. Hence, we sustain the orders of the lowers authorities - Decided against assessee Addition of gift received by assessee from his father - genuity of gift - Held that:- It is not denied by the revenue that the parents of the assessee are owning agricultural land to the extent of 10 acre (39 hectors without water facilities 12 hectors with water facility). Therefore, it cannot be completely brushed aside that there is no creditworthiness to the donor to give the gift. We agree with the assessee that the gift deed declaration of gift made by his mother cannot be treated as non genuine since the contention of the assessee that this gift was given by his father as his last wish and the cash was not proved to be false. Coming to the creditworthiness of the creditor /donor since donor is having sufficient wet land and dry land it cannot be doubted earning of agricultural income. The creditworthiness cannot be doubted. Both the parents of the assessee are passed away and therefore the assessee may not be in a position to establish the fact of the parents cultivating the land when they were alive. Therefore, taking the totality of facts and circumstances into consideration and in view of the smallness of the gift we cannot hold that the gift is not genuine. In the circumstance, we hold that the gift is genuine and addition on account of gift is deleted. - Decided in favour of assessee

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• 2016 (12) TMI 112
  Adhoc disallowance out of expenses - Held that:- Perusal of the order passed by the learned CIT(A) in A.Y. 2008-09 would show that the assessee has filed details of expenses as additional evidence under Rule 46A and the same was forwarded to the Assessing Officer by the learned CIT(A). Since the Assessing Officer did not comment upon the additional evidence, the learned CIT(A) deleted entire additional made by the Assessing Officer. We noticed that the learned CIT(A) has not recorded such kind of facts in the impugned order, meaning thereby assessee did not file details of expenses before the learned CIT(A) during the year under consideration. Accordingly, we are of the view that the addition of part of expenses claimed by the assessee is justified. However, considering the nature of business carried on by the assessee, we are of the view that the addition of 5% of the expenses, which approximately works out to ₹ 1.80 lakhs is on the higher side. Accordingly, we modify the order passed by the learned CIT(A) and direct the Assessing Officer to restrict the addition to ₹ 1 lakh only. We order accordingly. Assessment of advance received against sale of asset - Held that:- The amount of ₹ 3 lakhs received by the assessee was advance amount received against sale of property. The assessee has furnished evidence to show that the above said advance amount of ₹ 3 lakhs has been returned back to the party in the subsequent period. Manner of treatment of advance money received is prescribed u/s. 51 of the Act as per which, advance money shall be reduced from the cost of the asset, if the same had been forfeited. In the instant case, it is not the case of the tax authorities that the assessee had retained the advance amount of ₹ 3 lakhs. On the contrary the assessee has proved that the above said amount had been returned back to the buyer in the subsequent period. Hence, we are of the view that there was no scope for assessing advance amount of ₹ 3 lakhs as income of the assessee during the year under consideration. Accordingly, we set aside the order passed by the learned CIT(A) on this issue and direct the Assessing Officer to delete the addition of ₹ 3 lakhs that was confirmed by the learned CIT(A).

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• 2016 (12) TMI 111
  Disallowance u/s 14A - Held that:- We find from the balance sheet on 31.3.2010 that the assessee’s own interest free funds were ₹ 3,44,28,517/- against the investment in shares and securities of ₹ 1,77,34,233/-. We are of the considered opinion that the case of the assessee is squarely covered by the ratio laid down in the case of HDFC BANK LTD (2014 (8) TMI 119 - BOMBAY HIGH COURT) in which the Hon’ble High Court has held that in case interest free funds are more than the investments made in the shares and securities which yielded exempt income then the presumption would be that investments were made in the shares and securities out of interest free funds. In view of the facts and circumstances of the case, we are of the considered opinion that the case of the assessee is squarely coved by the decision of the Hon’ble jurisdictional High Court and accordingly, we set aside the order of the ld. CIT(A) and direct the AO to delete the addition as made under rule 8D(2(ii) of the Rules.

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• 2016 (12) TMI 110
  Penalty u/s 271(1)(c) - whether the AO can initiate penalty on the charge of furnishing of inaccurate particulars of income and levy on both charges of concealment of income and furnishing of inaccurate particulars of income? - Held that:- There must be a precise charge and imposition of penalty must be on that footing only. In our view , before levying penalty on the assessee, the AO must apprise the assessee of the precise charge levelled against him. He must be told vividly whether he is guilty of concealment of income or for furnishing inaccurate particulars of income. Section 271(1)(c) r.w.s. 274 provides for a reasonable opportunity to be given to the assessee so that he can avail the opportunity to defend himself. Where the penalty proceedings are initiated on a particular footing or charge of concealment of income but final conclusion of levy of penalty is based upon some different footing altogether of concealment of income and also furnishing of inaccurate particulars of income, in that case it can not be presumed that the assessee has been given a reasonable opportunity of being heard before order imposing penalty is passed. In such case the imposition is not justified. Accordingly we set aside the order of CIT(A) and direct the AO to delete the penalty - Decided in favour of assessee

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• 2016 (12) TMI 109
  Addition on disbelieving gift received - assessment u/s 143(3) r.w.s. 153A - Held that:- Addition made qua the gift received by the assessee de hors any material found during the course of search, cannot be roped in the assessment made under section 143(3) r.w.s. 153A of the Act by the AO. Accordingly, the addition of ₹ 2.25 crores made by the AO u/s 68 is to be deleted as the AO has no jurisdiction u/s 153A of the Act and the additional ground filed by the assessee is allowed. In view of our findings given above, we are not going into the merits of the case and addition as discussed by the AO as well as by the ld.CIT(A) as they have become purely academic. - Decided in favour of assessee

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• 2016 (12) TMI 108
  Consideration received for relinquishing of rights in the land by the assessee - business income or capital gain - owners of the land subsequently entered into MOU with M/s. Esteem Construction Private Ltd. in respect of same land on as is where as basis. M/s. Esteem Construction Private Ltd. agreed to settle/negotiate with the earlier purchasers of land i.e. assessee and other 11 persons - Held that:- In case of all the assessees the amount received on relinquishing of rights in land situated at Mundhwa has been declared as capital gain. The Department has accepted the same. In such situation, we do not find any reason as to why in the case of present assessee alone, the Department has taken a different view. The case of the assessee is at par with all the other aforementioned persons. The Revenue should have taken a consistent view while treating the income of assessee which is arising from identical set of facts and from same series of transaction. The ld. DR has not been able to show any distinguishing feature in the case of assessee. The authorities below should have taken a consistent view while treating the income arising from the same series of transaction. It is not the case of Revenue that the assessee has indulged in sale-purchase of land/property on regular basis. The contention of the assessee that the transaction in question was the sole transaction remains unrebutted. Without going into the other arguments raised by the ld. AR we accept the appeal of the assessee on the ground of consistency alone. - Decided in favour of assessee

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• 2016 (12) TMI 107
  Disallowance of remuneration computed appellant u/s 40(b) - Held that:- The assessee during the course of survey is to be assessed as ‘business income’ and the assessee is entitled to the claim of remuneration as interest in capital under the provisions of section 40(b) of the Act on such additional income. The Assessing Officer is directed to re-compute the income in the hands of assessee. Hence, the grounds of appeal and additional ground of appeal raised are decided in favour of assessee.

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• 2016 (12) TMI 106
  Entitlement to deduction under Section 80IA - Held that:- SLP dismissed. HC order confirmed [2015 (12) TMI 1602 - MADRAS HIGH COURT] the provisions of section 80-IA(5) treating undertaking as a separate sole source of income cannot be applied to a year prior to the year in which the assessee opted to claim relief under section 80-IA for the first time. Depreciation and carry forward loss relief to the unit which claims deduction under section 80-IA, cannot be notionally carried forward and set off against the income from the year in which the assessee started claiming deduction under section 80-IA - Decided in favour of the assessee and against the Revenue

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• 2016 (12) TMI 105
  Block assessment u/s 158BA r.w 113 – Source of investment not properly explained - Addition u/s 69 - Held that:- High Court [2014 (8) TMI 43 - ANDHRA PRADESH HIGH COURT e ] ought to have framed the substantial question(s) of law arising in the appeal before answering the same. The High Court having not done that, we set aside the order passed by the High Court and remand the matter to the High Court for a de novo consideration after formulating the substantial question(s) of law arising, if any.

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• 2016 (12) TMI 104
  Unaccounted sales - variation in stock at the time of search - HC held there is no dispute with regard to the seizure of documents and the assessee as well as the Chartered Accountant were given sufficient opportunity to substantiate their claim but they miserably failed justify their stand. [2015 (7) TMI 1167 - KARNATAKA HIGH COURT] - Held that:- There is a delay of 323 days in filing these Special Leave Petitions and we do not find any justifiable reason to condone this huge delay. The Special Leave Petitions are, accordingly, dismissed on the ground of delay.

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• Customs

• 2016 (12) TMI 77
  Denial of the benefit of refund of terminal excise duty in relation to capital goods supplied to power projects - vires of of the Foreign Trade (Development and Regulation) Act, 1992 - Held that: - It is quite clear that firstly the eligibility called entitlement by the petitioner to the refund and terminal duty as a deemed export benefit was introduced for the first time through an amendment of the Hand Book of Procedures. Thus, the question of its being ultra vires the Act or the Policy would not arise. Secondly, paragraph 10.11 which spelt out the eligibility to receive refund of terminal excise duty itself established the linkage i.e. payment of excise duty as an existing condition and further restricted the quantum to 3%. In this case, the question is whether the withdrawal of benefit under 10.3, i.e., of refund of terminal excise duty is arbitrary or violates the principle of promissory estoppel. As noticed earlier, the linkage between payment of excise by the supplier and entitlement of the deemed export for duty refund was clearly established even before the entering into of contractual bargain and issuance of the letter of intent. In other words when the petitioner issued the letter of intent on 26.4.1999, it was fully aware of the fact that the benefit was introduced on 22.4.1999 and further that this was conditioned upon the existence of the excise duty incidence that could be refunded to the tune of 3% - if any additional custom duty was imposed, the terminal excise duty refund had to be denied. The Committee was informed by the Department of Revenue that in the power sector, countervailing duty had been increased from 0 to 16 % and, therefore, terminal excise duty could not be given. In the present case, therefore, since there was a justification and even a strong public interest element in the denial of terminal excise duty benefits, the question of its being arbitrary does not arise. This Court is of the opinion that since the duty refund eligibility was linked to the payment of duty, to offset the competitive additions that imported goods would have over domestically manufactured ones, the parity achieved by another policy compelled the government to amend the Hand Book of Procedures in the manner it did. There is clearly neither any arbitrariness nor violation of doctrine of promissory estoppel - petition dismissed.

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• 2016 (12) TMI 76
  Sale of garment in domestic market - benefit of Customs Notification 21/2002-Cus dated 01.03.2002 - violation of actual user condition of the notification - Held that: - there is no allegation of smuggling though one of the items which was imported by the petitioner under the classification of garment accessories in eight consignments was Zip fasteners. As admitted, the goods were not seized by the DRI nor there is any allegation against the petitioner that they smuggled those goods. The allegation itself is with regard to wrong availment of benefit of the exemption Notification. That apart, the eight consignments have all been together classified as garment accessories said to have contained various items. Thus it would be virtually impossible for the assessing group to separate various items and to cull out only Zip fasteners and treat them under a separate category as it is the goods mentioned under Section 123 of the Customs Act, 1962 - As submitted by the DRI, the petitioner had admitted the entire allegation much prior to the issuance of the show cause notice and in fact, that was precisely the stand taken before the Settlement Commission. Thus, for the above reason and taking note of the pragmatic stand taken by the petitioner, this Court is of the considered view that the matter requires to be considered so as to bring about a finality to the entire litigation - appeal allowed by way of remand.

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• 2016 (12) TMI 75
  Condonation of delay of 570 days - Held that: - no party should be denied access to justice all due to lack of necessary financial support to bear the costs to litigate. In other words, distressful condition in which a litigant is positioned should not come in his way to seek a remedy against injustice caused to him - so long due to delay the opposite parties have not changed their position and if the opposite parties are not going to suffer any prejudice by the condonation of delay, a liberal approach can be adopted in the matter of condonation of such delays. In the instant case the Revenue's interests will not suffer any prejudice by condoning the delay. Normally, very liberal approach is adopted unless the delay itself is so enormous one which is almost as much as a period of limitation that was prescribed for initiating a legal proceedings seeking a similar relief in a civil Court. Wherever delay of certain extent, like in the instant case falls for consideration, the ends of justice would be served better by imposing certain terms on the party seeking condonation of delay so that it will serve the purpose of reminding the parties not to sleep over their right for too longer a period - the ends of justice would be served better if the delay in preferring the appeal by the appellant is condoned, but subject to payment of costs. Hence, the delay of 570 days in preferring both the appeals against the Orders in Original dated 28.02.2013 is condoned subject to payment of costs of ₹ 5000/- (Rupees Five Thousand only) in each of the cases to the Mediation and Conciliation Centre attached to this High Court, on or before 25.11.2016 - delay condoned - appeal allowed.

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• 2016 (12) TMI 74
  Valuation of imported, old and used cranes - confiscation due to mis-declaration of value and consequent penalties - cross-examination - principles of natural justice - Held that: - the adjudicating authority was in error and more so after the law which is settled by the Hon’ble Apex Court in the case of Andaman Timber Industries vs. CCE Kolkata II [2015 (10) TMI 442 - SUPREME COURT]. The Apex Court in the said judgement has categorically held that principles of natural justice are violated if cross-examination of the witnesses are denied and would make the order nullity. In our view, the law as has been settled by the Apex Court needs to be followed by adjudicating authority. We also note that the adjudicating authority has erred in redetermining the value of the old and used cranes by not applying the CBEC Circular in its entirety. In view of this we find that it is better the adjudicating authority reconsider the issue, appreciate the factual matrix and comes to a conclusion after allowing the cross-examination as sought for by appellants. Since the matters are old, we direct adjudicating authority to dispose of the issue preferably within a period of six months from the date of receipt of the certified copy of this order. Needless to state that adjudicating authority will follow the principles of natural justice before arriving at any conclusion - appeal allowed by way of remand.

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• 2016 (12) TMI 73
  Jurisdiction - import of vessel ‘MT Navdhenu Sana’ - smuggled goods - Held that: - We find that in the case of Shipping Corporation of India [2014 (12) TMI 617 - CESTAT MUMBAI] and Samson Maritime Ltd. & anr. v. Commissioner of Customs (Import), Mumbai [2015 (11) TMI 1023 - CESTAT MUMBAI], the issue of duty liability was also considered along with the issue of jurisdiction. So it is here, too, as the appellant has claimed to be a ‘foreign-going vessel’ which, while on foreign run, was compelled to make landfall at Mumbai owing to emergency. Appropriately, the decision of this Tribunal in Shipping Corporation of India v. Commissioner of Customs (Import), Mumbai [2014 (12) TMI 617 - CESTAT MUMBAI], will apply to the present case, where it was held that the vessel could not be considered as ‘dutiable goods’ - if the goods are not dutiable, and there is no prohibition in importing oil tankers to India, the provisions of S`ection 111(f) are not at all attracted. Consequently, the appellant is not liable to any penalty under Section 112(a)/(b) of the Customs Act, 1962 either - appeal allowed - decided in favor of appellant-assessee.

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• 2016 (12) TMI 72
  Demand - time bar - Held that: - The Commissioner (Appeals) has reproduced the grounds alleged by appellant in the impugned order. It is seen that appellants have raised the plea of limitation also. Hence the ground put forward by department that such a plea does not exist is factually wrong. The next contention put forward by department is that Section 11A does not speak the relevant date to be the date of acquiring knowledge by the department, and that Commissioner (Appeals) has erred in computing the period of limitation and holding that the demand is time barred. On bare perusal of sub section (3) of Section 11A, it is seen that the argument of the respondent holds merit. The final assessment of bills of entry having concluded in 7/2006, the demand raised in 6/2008 is definitely time barred - appeal dismissed - decided against Department.

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• 2016 (12) TMI 71
  Project imports - concessional rate of duty under Chapter heading 9801 - Project Import Regulations, 1986 - whether the denial of benefit of concession on the ground that the appellant had not provided the reconciliation statement and had not produced the installation certificate from the project implementing authority, is justified? - principles of natural justice - Held that: - the CBEC’s Customs Manual of instructions indicate as how to treat the goods imported under project imports. The instructions in CBEC needs to be followed by the adjudicating authority while finalizing the bills of entry under project imports. We also find that the adjudicating authority should have considered the factual matrix in its proper perspective before coming to a conclusion. In view of this, without expressing any opinion on the merits of the case, keeping all the issues open, we set aside the impugned order and remand the matter back to the adjudicating authority to reconsider the issue afresh after following the principles of natural justice - appeal allowed by way of remand.

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• Corporate Laws

• 2016 (12) TMI 63
  Permission to sell the property - relaxation of condition to enable the Saharas to sell the properties at a price less than the circle rates - Held that:- We direct that the interim arrangement made by our Orders dated 06.05.016 and 11.05.2016 shall continue till 06.02.2017 subject to the Saharas depositing in the Sahara SEBI Refund Account a further amount of ₹ 600,00,00,000/- (Rupees Six hundred crores only). Needless to say, in case the deposit is not made, the contemnors shall be committed to prison as before. We are not for the present inclined to modify the direction already issued by us as to the rate at which the Saharas shall sell their properties. We, however, make it clear that in any given case, if there is a proposal to sell any item at a price less than 90% of the circle rate, the Saharas shall be free to apply for permission of the Court in which event this Court would pass appropriate orders after hearing learned counsel for SEBI. As SEBI submits that the Saharas are permitted to sell the property situate at Bahriach. Applicant in I.A. Nos. 212-214 who happened to be the purchaser of the said property, according to Mr. Datar, had offered to deposit the balance amount of ₹ 20,25,00,000/- towards the sale consideration with SEBI on or before 20.11.2016. He submits that the needful has not been done by the purchaser and that the Saharas ought to deposit the balance amount, if they have received the same or refrain from executing the sale deed. Mr. Sibal seeks time to verify the facts and to take necessary steps for ensuring deposit of the balance sale consideration in the SEBI account. He is given four weeks' time for the purpose. In case the sale deed has not been executed by the Saharas in favour of the purchaser of the Bahriach property, no sale deed shall be executed unless the deposit of the amount is ensured.

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• 2016 (12) TMI 62
  Enhancement of time for liquidating the liability under the fixed deposits accepted but are unable to repay the proceeds on account of acute financial crises - Held that:- The proposal of the petitioner company for enhancement of time for repayment of the matured deposits in a phased manner over a period of 24 months from the due date is being accepted in principle only in view of their past track record. However, it is also subject to their adherence to the schedule submitted in Court. It therefore becomes imperative to review and accord extension quarterly in terms of the above. The petitioners have also undertaken that in addition to the above schedule they would be making provisions of ₹ 60 lacs per quarter towards Hardship cases. The Company Secretary, its V.P. Finance as well as the Counsel for the petitioner shall review the Hardship applications received every three months. The final disbursal of this Hardship cases shall be on approval of this Bench. The compliance report shall be placed before this Bench for review and quarterly extension of time in terms of the proposal accepted by this Bench today. The same shall be annexed with a certified copy of this order. Affidavit of compliance shall be filed within two weeks of expiry of every quarter for further extension giving the names of all depositors whose liability/extent of liability has been extinguished and/or their remaining liability together with the amount of the next/remaining installment due and the next date on which they are likely to receive further installment of their money.

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• Service Tax

• 2016 (12) TMI 103
  Nature of activity - Sharing of expenditure under joint venture agreement - Storage and Warehousing Services - levy of tax on incineration charges - whether the arrangement between GSFC and GACL amounts to providing any services by GSFC to GACL and 50% incineration expenses incurred would constitute charges for providing such services? - Held that: - handling portion and maintenance including incineration facilities is in the nature of joint venture between two of them and the parties have simply agreed to share the expenditure. The payment which is made by GACL to GSFC is the share of GACL which is payable to GSFC. By no stretch of imagination, it can be treated as common 'service' provided by GSFC to GACL for which it is charging GACL - the question of service tax does not arise. In view thereof, it is not necessary to go into the question as to whether receiving of HCN through the said common pipeline in the tank which is setup by the GFSC and GACL amounts to 'storage' or not and we leave the said question open. The demand of 'service tax' made by the respondent is unwarranted and is hereby set aside - appeal allowed - decided against Revenue-respondent.

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• 2016 (12) TMI 102
  Refund claim - reliance placed on the decision of its own case eBIZ. COM Pvt. Ltd. Versus Union Of India & Ors. [2016 (9) TMI 53 - DELHI HIGH COURT] decided on 1.9.2016 where the Court had directed repayment/refund of ₹ 17 Crores to it by the respondents - The respondents urge that the operation of the judgment of this Court has been suspended by the Supreme Court in an appeal by special leave (SLP (C) No.28325/2016) on 27.09.2016; a copy of the said order is placed on the record. A plain reading of the order shows that the Court issued notice to show cause to the respondent, i.e., the petitioner in this case and also directed the stay of operation of the judgment of this Court dated 1.9.2016. It is submitted that the Court in that judgment had recorded findings that the detention of its Managing Director was illegal and consequently the amounts deposited were extracted under coercion. The Court upheld the contention that the detention was illegal and by way of a consequential order directed refund of the amounts - this Court cannot grant the reliefs sought. In case, the petitioner wishes any relief, it is open to it to take appropriate steps available in law including moving a suitable application before the Supreme Court. Writ petition disposed off.

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• 2016 (12) TMI 101
  Levy of interest and penalty - taking credit of tax paid on input services on billed basis instead of payment basis leading to credit having been wrongly taken on tax amount unpaid to the extent of ₹ 2,30,06,772/- as on 31st March 2008 and which was reversed upon the discrepancy being pointed out - Held that: - while holding that interest liability will arise on erroneously taken credit till 17th March 2012 even if such credit is not utilised and that interest liability will arise on insufficient credit available as on date of making payment of taxes for each month arising from failure to reverse the credit of duty paid on capital goods, we remand the matter back to the original authority to ascertain availability of credit on due dates for each month after reversal after disallowing the credit not reversed on capital goods transferred. The adjudicating authority is directed to arrive at a finding of the interest liability by a strict application of rule 14 in relation to credit erroneously taken and section 75 of Finance Act, 1994 in the event of deficit of credit on the date on which tax liability was to be discharged - appeal disposed off by way of remand.

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• 2016 (12) TMI 100
  Exigibility to tax - royalties - section 65(105)(zzr) of Finance Act, 1994 - Held that: - It is apparent from the definition of the taxable service that the liability will arise in relation to intellectual property service provided by the holder of intellectual property right - Thus, while the taxable service stems from the relationship of two entities, the right that is vested in the holder is protected from the rest of the world within the jurisdiction of the law referred to in section 65(55a). To be liable to the tax, the provider must be the holder of the intellectual property right which is one that is enforceable against all others, and not just against the recipient of the service. The right that is transferred is the technical know-how which may be a service but is not in relation to intellectual property service which pertains to intellectual property rights. In the case of ELGI Rubber Products Ltd. [2010 (2) TMI 305 - CESTAT, BANGALORE], the Tribunal was called upon to decide the legality of demand on 'reverse charge basis' on receipt of a service that was volunteered by the recipient as 'intellectual property service' which Revenue sought to tax under a different entry. The ingredients that render the service taxable under section 65(105)(zzr) was not subject to scrutiny by the Tribunal and a reference to technical know-how therein can hardly be adduced as settling the classification of the activity as the taxable service. Per contra, paragraph 9.1 of circular no. B2/8/2004-TRU dated 10th September 2004 of Central Board of Excise & Customs, cited by Learned Counsel for appellant does amplify the object of tax as intellectual property rights under prescribed laws applicable in India - we notice a lack in the impugned order. The demand is without authority of law and we set it aside - appeal allowed - decided in favor of assessee.

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• 2016 (12) TMI 99
  Taxability - club and association service - at the time of issue of notice and at time of receipt of payment for the services, the relevant service was not a taxable service. The liability to pay has been created on or after 16.06.2005 - whether the demand on the ground that one-time fee collected by the club from their lifetime, permanent and corporate members were for the service to be provided in the future and the value of the same is taxable in terms of Section 67 of that of the Finance Act, is justified? - Held that: - It is seen that the show cause notice has been issued for service tax liability on the one-time fee recovered from the members prior to 16.06.2005 under the category of club and association service which became taxable w.e.f. 16.06.2005. The issue of liability of service tax on the club and association service is no longer res integra. It has been held in numerous authoritative judicial pronouncements that an association or club is not providing services to its own members and hence no service tax is imposable. In this regard, reliance is placed on the High Court Judgment in the case of Ranchi Club Vs. Chief Commissioner of Central Excise & Service Tax, Ranchi [2012 (6) TMI 636 - Jharkhand High Court]. Since the liability of service tax on club and association service has itself been quashed, there is no question of levying the same for the period before 16.06.2005 - appeal rejected - decided against appellant-Revenue.

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• 2016 (12) TMI 98
  Levy of tax - amount recovered from sale proceed of auction of unclaimed cargo - Cargo Handling Storage and Warehousing - interpretation of statute - Held that: - the Revenue seek to charge service tax on the sale proceed from auction of abandoned goods though the person who stored the goods does not exist and there is no dealing with the said person. The appellant is selling the goods in open auction and receiving the sale proceed out of such auction, in this process no service recipient is existing. It is the foremost principle for levying service tax is that for provision of any service, provider and service recipient should exist then only the transaction of service can be completed by providing service of service provider and receiving the service by service recipient - In the present case, the service recipient does not exist. The activity is of sale of abandoned goods and the proceed of sale of goods does not attract any service tax. In CBEC's Master Circular No.96/7/2007-ST dated 2-08-2007. in Para 036.03. it has been clarified that "Service tax is not leviable on a transaction treated as sale of goods and subjected to levy of Sales tax/VAT. Whether a given transaction between the service station and the customer is a sale or not, is to he determined taking into account the real nature and material facts of the transaction. Payment of VAT/sales tax on transaction indicates that the said transaction is treated as sale of goods. Thus in an unequivocal terms it is made clear in the instant Circular that value of goods on which VAT is paid is not chargeable to Service Tax and therefore for this reason. I hold that the amount collected by the Noticee towards sales/auction proceeds does not fall under the purview of Service tax. Levy of tax not justified - appeal dismissed - decided against appellant-Revenue.

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• 2016 (12) TMI 97
  CENVAT credit - common services used for output services - proposed to deny corresponding to reverse charge services - renting of immovable property service - various input services - The appellant owns a building with an area of ₹ 2,92,105 sq feet spread over six floors and, admittedly, the building was occupied by tenants, with occupancy rates between 40% and 92%, during this period. Both lower authorities have held that credit availment is permissible only to the extent that input services are used to provide output services - Held that: - The availment of credit is derived from rule 3 of CENVAT Credit Rules, 2004 and, as the taxes have been paid on common services used for property that is not in use by the appellant as recipient of service, availament of CENVAT credit is within the scope of the Rules. CENVAT credit allowed - appeal allowed - decided in favor of appellant.

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• Central Excise

• 2016 (12) TMI 96
  Delayed payment of rebate claim - Section 11-BB of the Central Excise Act, 1944 - Held that: - the liability of the Revenue to pay interest under Section 11-BB of the Act commences from the date of expiry of three months from the date of receipt of application for refund under Section 11-B(1) of the Act and not on the expiry of the said period from the date on which the order of refund is made - the revenue directed to pay interest in accordance with Section 11-BB of the Act of 1944 to the petitioner calculating such interest on and from expiry of three months from the date of making of the application for refund - petition allowed - decided in favor of petitioner-assessee.

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• 2016 (12) TMI 95
  Levy of interest u/s 11 AB - imposition of penalty u/s 11 AC - whether the Revenue was correct in holding that interest and penalty cannot be levied prior to 28.09.1996? - provisions of sec 11AB and 11AC came into effect only on 28.09.1996 - Held that: - The Original Authority itself has held that Section 11 AB and Section 11 AC came into statute only with effect from 28.09.1996 and as such, it cannot be levied prior to 28.09.1996 and since the said findings are content in nature, this Court is not inclined to interfere with the same. Therefore, the substantial questions of law is answered in negative. Appeal dismissed - levy of interest and penalty, not correct - decided against Revenue.

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• 2016 (12) TMI 94
  Demand - short levy - paper tubes - Section 11A of Central Excise Act, 1944 - whether paper tubes to be classified under Heading No.48.22 - Held that: - The Tribunal, vide order dated 10.02.2005 has taken note of the fact that no challenge has been made in Order-in-Appeal No.148/2003. The Revenue also filed review application pointing out that the appeal was filed against the order in A.No.148/2003. However, the Review application came to be dismissed on 27.09.2005. The fact remains as against the order in Appeal No.148/2003(MDU), dated 29.04.2003, the appellant/Revenue filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal, South Zone Bench at Chennai, in E/534/2003 and when the appeal was taken up for hearing, there was no representation on behalf of the respondent/assessee and therefore the Tribunal thought it fit to remand the matter to the lower Appellate Authority for fresh consideration. In the light of the said development, the substantial question raised by the appellant/Revenue, is answered in the affirmative - appeal partly allowed - matter on remand.

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• 2016 (12) TMI 93
  Validity of SCN - issued on presumption and surmises - clandestine removal of the M.S. Ingot - Held that: - there are varieties of report available in the markets, one could not have been chosen by the respondents, arbitrarily, without carrying out the experiment of consumption of electricity for one ton of manufacturing at the noticee's manufacturing unit. This type of experiment is a must by the department, whenever respondents are canvassing the ground of electricity consumption pattern vis-a-vis clandestine removal of finished products. Otherwise, without such experiment, if any one of the aforesaid report relied upon, then it is arbitrariness on the part of the respondents and whenever there is any arbitrariness, there is always violation of Article 14 of the Constitution of India because for few of the noticees such type of reports are not relied upon whereas for rest of the assessee, as per the choice of the respondents, such type of reports will be relied upon and in fact, this has happened in this case. Several Orders- in-Original have been pointed out during the course of arguments by the counsel for the petitioners wherein electricity consumption pattern allegation levelled in show cause notice and ultimately after adjudication, the show cause notice has been dropped. Thus, without experiment is being carried out at the premises of the noticees, use of any of the committee's report for electricity consumption pattern always leads to arbitrariness on the part of the respondent-department. Whenever arbitrariness is present, equality is absent. Equalities and arbitrariness are strong enemies of each other. When equality is present, arbitrariness is absent. The Order-in-Original is based upon mere presumptions and possibilities, and, nothing has been proved at all by the respondents, especially unaccounted manufacturing of M.S. Ingots and the clandestine removal thereof - matter is remanded for adjudication of the show cause notice dated 04.09.2014 and the matter will be decided afresh, keeping in mind the aforesaid principles, especially if the respondents are relying upon Dr. N.K. Batra's report, the experiment shall be carried out at the premises of petitioner no. 1, as stated herein above, for manufacturing of one ton or any such quantity which should be sufficiently large, so as to understand the pattern of consumption of electricity for manufacturing of M.S. Ingots as well as keeping in mind the nature of evidences as referred in para 5(v) may also be collected as far as possible. Petition allowed.

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• 2016 (12) TMI 92
  Refund claims - Rule 5 of Cenvat Credit Rules, 2004 - manufacture of two wheeled motor vehicles - the appellants were engaged in exporting the manufactured goods, and they were not in a position to utilize the Cenvat Credit of duty paid on the inputs - Held that: - The refund claims were admittedly filed in the year 2005-2006 and was laying with the jurisdictional Central Excise authorities till 2008. Prior to April, 2008 no inquiries were made by the jurisdictional Central Excise authorities and no deficiency was pointed out by them. The claims were filed in form A along with statements showing details of ARE -1. Inasmuch as the invoices / export invoices / shipping bills / bills of lading and airways bills and product-wise invoices used and cenvat credit taken on each invoice bill was certified by the Cost Accountant and produced. It is for the first time in April, 2008 that the appellants were directed to submit the fact of showing the dues from the Government in their balance sheet. Apart from the fact that the said reflection of dues from the Government from the balance sheet is not relevant for the purpose of grant of refund, the fact remains that the Revenue slept over the refund claims for the period of two years. Meanwhile the manual provisions referred to by the learned advocate clearly show that the deficiency in papers should be pointed out to the assessee within a period of 15 days. There is no reason shown in the impugned orders as to why the refund claim were not taken up for disposal prior to April, 2008. The provisions of section 11BB of the Central Excise Act are clear and not ambiguous requiring the Revenue to sanction interest if the refund claims were not disposed of within a period of three months from the date of filing. Otherwise also, I find that earlier Tribunal order allowed the assessees appeal with instruction to the Revenue to pay the interest to the assessee. There appeals were allowed and were not remanded to the original adjudicating authority to decide the appellants claim of interest afresh. The said order of the Tribunal having attained the finality, it was not open to the jurisdictional Assistance Commissioner to redecide the issue of interest. He was only expected to quantify the interest and pay the same to the assessee in terms of earlier order of the Tribunal and it was not open to him to redecide the issue of interest - appeal allowed - decided in favor of appellant.

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• 2016 (12) TMI 91
  Valuation - fabrics - job-work - mis-declaration of price - extended period of limitation - Held that: - reliance placed on the decision of the case of Lajya Dyeing & Bleaching [2008 (2) TMI 41 - SUPREME COURT], where the declaration made by the merchant manufacturer was not carried out and the Hon’ble Apex Court in such circumstances held that the extended period cannot be invoked. We find that the sole allegation against the appellant for invoking extended period is that the appellant did not file the price declaration not well. It is not the case of the department that no price declaration was filed. Revenue has not shown any authority which required the job workers to file the price declaration lot wise. Furthermore, the show-cause notice relies on the statement of the merchant manufacturer to assert that there was knowledge of mis-declaration. It can be seen from the statement of the appellant that there was no admission of any suppression on their part - appeal allowed on ground of limitation.

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• 2016 (12) TMI 90
  Recovery of duty - clandestine removal - 100% EOU - fake transactions - opportunity of being heard - Held that: - In confirming the demand against the appellants M/s. Premier Polyspin Pvt. Limited, the adjudicating authority considered evidences mainly in the form of statements, which the appellants claimed to be not reliable and sought cross-examination of Shri Haroon Razaq Chhaya, Shri Irfan Gulam Rasool Saiyed and Shri Rashid Sadatli Saiyed. Also, the grievance of the appellant is that no effective personal hearing was extended to them inasmuch as three consecutive dates of hearing was given by the adjudicating authority without affording time for them to attend the personal hearing and defend their case. Also, the ld. Advocate argued that M/s. Premier Polyspin Pvt. Limited and Shri Rohit Dharamprakash Gupta were neither given the relied upon documents nor un-relied upon documents retrieved from their premises were returned to them so as to prepare their reply to show cause notice and submit before the adjudicating authority. Cumulatively, thus the crux of the argument is, there has been gross violation of principles of natural justice. Therefore, in the interest of justice, I am of the opinion that appellants M/s. Sunshine Overseas, Shri Haroon Razaq Chhaya, Shri Irfan Gulam Rasool Saiyed and Shri Rashid Sadatli Saiyed be allowed e cross-examination of witnesses requested by them except the panch witnesses and M/s. M/s. Premier Polyspin Pvt. Limited and Shri Rohit Dharamprakash Gupta be supplied with the copies of relied upon documents and the un-relied upon documents be returned to them. The ld. Advocate undertakes to furnish reply to the show cause notice within fortnight from the date of receipt of the said documents. At this stage, ld. AR for the Revenue submitted that the matter has been pending for more than a decade, hence a time-frame be fixed for completion of the adjudication proceeding. Appeal allowed by way of remand.

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• 2016 (12) TMI 89
  Denial of refund claim u/r 5 of Cenvat Credit Rules, 2004 - De-oiled cake of Soyabean falling under Chapter 15 of Central Excise Tariff Act, 1985 attracting Nil rate of duty - product cleared for export under bond - whether the denial of refund on the ground that De-oiled cake of Soyabean attracts nil rate of duty, is justified? - Held that: - I find that the aforesaid issue has been settled by the decision of Hon'ble High Court of Himachal Pradesh in the case of CCE vs. Drish Shoes Limited [2010 (5) TMI 334 - HIMACHAL PRADESH HIGH COURT], where it was held that According to Rule 5 of CENVAT Credit Rules, 2004 that a manufacturer, who exports the final products which are exempt from duty, can claim refund of CENVAT. I do not find any discrepancy in the allowance of refund claim - Accordingly, the same is upheld - appeal dismissed - decided against Revenue.

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• 2016 (12) TMI 88
  Demand - short levy of duty due to claim of benefit in other notification - switchover from N/N. 6/2002-CE dated 01/3/2002 to N/N. 8/2003-CE dated 01/03/2003 and again switching over to N/N. 6/2002-CE dated 01/3/2002 - Held that: - it is to be seen that the appellants have been filing due ER-1 returns on regular basis specifically indicating Notification 6/2003-CE and also showing clearances without payment of duty on such clearances to the Department. Even if bonafide mistake on the part of the appellant could not be believed, the availment of such exemption has been duly notified to the Department in statutory returns. We find the justification for extended period demand as made out by the lower Authorities is not legally tenable. It was observed by the lower Authorities that the ER-1 return was not complete. It is not recorded which aspect of the return is incomplete. It is sufficient to note here that the appellants indicated description of the product, clearances without payment of duty and notification number for such clearances. In such situation, allegation of fraud, suppression etc. cannot be sustained against the appellant for confirmed demand for extended period. Regarding the appellants duty liability, we note that the duty for the normal period of demand is liable to be paid by the appellant as they have not paid any duty while claiming based exemption for clearance in a financial year. However, the appellant's contended that the duty liability should be calculated in terms of the general exemption N/N. 8/2003-CE as they are otherwise eligible for the same. We find force in the contention of the appellant. The demand for normal period has to be reworked after considering the exemption available under Notification 8/2003-CE. - We find that an exemption from duty, if otherwise available on fulfillment of all conditions cannot be denied on the ground that another exemption was wrongly availed by the appellant. In the facts and circumstances of the case, we find the duty liability of the appellant has to be reworked for the normal period after extending the concession under Notification 8/2003-CE. The penalty imposed under Section 11AC is not sustainable. Accordingly, the same is set aside. Penalty imposed under Rule 25 of Central Excise Rules, 2002 is reduced to ₹ 1,00,000/- - appeal disposed off.

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• 2016 (12) TMI 87
  Benefit of Notification No. 18/95-CE dated 16.03.1995 - classification of goods - footwear - classified under entry 4008.11 or entry 4008.19? - Held that: - The matter is covered by Tribunal's decision in appellant's own case [2014 (9) TMI 1074 - CESTAT, NEW DELHI] where it was held that insistence on end use certificate is not warranted when there is no such specific statutory requirement. As such, even in the absence of any evidence showing the actual end use of the goods, the same would be classifiable under heading 4008.21, as long as they are of the kind to be used for soles and heels. The goods are classifiable under heading 4008.11 - the appellants are eligible for the benefit of Notification No. 18/95-CE dated 16.03.1995 - appeal allowed - decided in favor of appellant.

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• 2016 (12) TMI 86
  Manufacture - pickling and annealing - demand of the ineligible cenvat credit availed and also for the refund of the rebates already sanctioned - Held that: - it is undisputed that annealed and pickled stainless steel wire rods were exported on payment of duty under rebate. The exports under rebate are always under the physical control or the approval of the jurisdictional range officers, and the range officers should have objected to such clearances sought to be done by the appellant - it is the avowed principle of the Government of India that when the goods are for export, no taxes/duties need to be included in the value. This avowed principle of the Government of India will go for a toss if the appellant herein is not granted the benefit of cenvat credit on the inputs which he has procured on payment of duty and after undertaking the process of pickling and annealing, exported the goods. In the case of Finolex Cables Ltd. [2006 (11) TMI 62 - CESTAT, MUMBAI], this Tribunal has categorically held that the assessee cannot be prevented from availing benefits available to the merchant exporter for the exports merely because he happens to be a manufacturer. In that case, the petitioner/appellant therein was a manufacturer and had exported the excess of procured raw material to overseas buyers under bond or under claim of rebate which was sought to be denied by the jurisdictional authorities. Credit allowed - appeal allowed - decided in favor of appellant-assessee.

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• 2016 (12) TMI 85
  Classification of manufactured item - Advanced Variable Speed (AVS) Drive Controller - PM-2 Controller - HESG-101 Governor - Cogen-C system - classified under Heading 9032 of the Central Excise Tariff Act, 1985 or Heading 8537.00 - Held that: - The distinguishing feature between Heading 8537 and 9032 is that 8537 is meant for equipment meant for electric control for distribution of electricity. The heading 90.32 covers automatic regulating or controlling instruments and apparatus like, Thermostats and pressure switches etc. It is seen from the tariff description and connected explanatory notes that if the device is meant for electric control or the distribution of electricity does it qualify to be classified under heading 8537. In the instant case the devices are designed for control of speed in case of AVS Drive Controller, control of torque in case of PM2 Soft Start Energy Saving Motor Controller, control of inlet valve for turbines in case of HESG 101and control of steam inlet valve in case of CoGen-C Stytem. It is seen that in these goods are not meant for electric control or the distribution of electricity and therefore these do not qualify to be classified under heading 8537 claimed by the revenue. Appeal allowed - decided in favor of appellant-assessee.

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• 2016 (12) TMI 84
  Demand - Benefit of Notification 203/92 - DEEC licence - availing of input stage credit under Rule 56A or 57A of the erstwhile Central Excise Rules, 1944 - Held that: - The benefit of N/N. 203/92 is eligible to a licence holder, subject to conditions therein, and one of the conditions is that the export obligation is discharged and that input stage credit of the inputs consumed is not availed by the exporter. All the licences which were produced by the appellants before the lower authorities, the exporter had discharged the export obligation and the licences were endorsed as transferable by the concerned authorities. The authorities in these appeals have issued a cyclostyled show cause notice to the appellants directing them to produce evidence, that exporter having not availed the cenvat credit on the inputs under the provisions of Rule 56A and/or 57A of the erstwhile Central Excise Rules, 1944. In our considered view, the appellants and importers herein cannot be called upon to produce evidence in respect of an act to be done by exporter and original licence holder. Appeal allowed - decided in favor of appellant.

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• 2016 (12) TMI 83
  Whether M/s SMV Beverages Pvt. Ltd. (main appellant) is eligible to avail CENVAT Credit of additional Excise duty, which was paid by the Sugar factory or otherwise, and whether the appellant No. 2 i.e. individual is also liable for penalty? - Held that: - The Rule 7(1)(b) of Cenvat Credit Rules, 2002 for the period in question indicate that the supplementary invoices issued by the manufacturer or importer of inputs is to be considered as a document for availment of CENVAT Credit. On reading of the said rule, I find that the additional amount of duty is being raised on the supplementary invoices should be clearly additional duty become payable and should not be the duty which is recoverable from the manufacturer or importer of inputs by invoking the extended period of time - In the case in hand, I find that the supplementary invoices are issued by the registered dealer indicating the payment of AED done by the sugar factory. Undisputedly, sugar factory has issued earlier invoices for the clearance of sugar for the period prior to 1.3.2003. The supplementary invoices which was issued by the registered dealer cannot be a document for availment of CENVAT Credit, as the said supplementary invoices did not indicate that the manufacturer has paid any excise or additional duty but is a invoice issued by the dealer in his capacity as a registered dealer for not issuing proper duty paying documents at the first instance. In my considered view, this supplementary invoice on which credit was availed by the main appellant are not the document on which such Credit can be availed - CENVAT credit not allowed to M/s SMV Beverages Pvt. Ltd. As regards the penalty imposed on the registered dealer, I find that such penalty has been imposed under the provisions of Rule 13 of the Cenvat Credit Rules, 2002. In my view, provisions of Rule 13 of the Cenvat Credit Rules, 2002 does not contemplate imposition of penalty on the registered dealer and that also for issuing of supplementary invoices to the purchaser of goods. In view of this, I set aside the penalty imposed on the appellant No. 2, who is a registered dealer. Appeal disposed off - decided against M/s SMV Beverages Pvt. Ltd. and in favor of individual appellant.

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• 2016 (12) TMI 82
  Imposition of penalty under Rule 209A of Central Excise Rules 1944 - clandestine removal of goods - forged invoices - appellant is involved in issuance of fake gate passes and on the basis of which the fraudulent modvat credit was passed on, whether on this basis penalty u/r 209A is attracted or not? - Held that: - From the plain reading of the Rule 209, the person can be liable for penalty only when he acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under the Act or these Rues. In the facts of the present case, fake gate passes were issued but no excisable goods were supplied, therefore the dealing of the goods, in particular excisable goods is not involved. The appellant has not involved in the act as mentioned under Rule 209A such as transporting, removing, depositing, keeping, concealing, etc. of any excisable goods which are liable for confiscation. Since no goods were involved the question of dealing with the goods and the confiscation thereof is not involved. Under Rule 209A penalty cannot be imposed on the appellant for the offence committed. We observe that in the new Central Excise Rules 2002, Rule 26 is pari materia to Rule 209A, when it was realized by the Government that offence of the similar nature of the present case are also occurring for extending the fraudulent benefit by way of fake documents, the legislators have conciously inserted Sub-rule (2) in Rule 26 to bring the present offence under the ambit of penal provision. Since the provision similar to Sub-Rule (2) of Rule 26 was neither existing in Rule 26(1) nor in Rule 209A of Central Excise Rules 1944, the provision of Sub-Rule (2) cannot be made applicable prior to 1.3.2007 when Sub-Rule (2) was inserted - the penalty imposed under Rule 209A on the appellant is not sustainable, therefore the penalty is set aside - appeal allowed - decided in favor of appellant-assessee.

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• 2016 (12) TMI 81
  Benefit of the exemption Notification No. 10/2002-CE - manufacture of Solid/Hollow Cement Concrete Blocks falling under Chapter Heading No. 6807.90 of Central Excise Tariff Act, 1985 - density of the solid/hollow concrete blocks - product classified as lightweight or not - whether the appellant is entitled for the exemption notification no. 10/2002-CE dated 1-3-2002? - Held that: - the goods entitle for the exemption is lightweight (solid and hollow) concrete building blocks. However, no specification either as per the Indian standard or otherwise was provided alongwith aforesaid entry in the notification. Considering the submission of the Ld. Counsel on perusal of the sample notification, we find IS specifications are mentioned in the exemption entry - reliance placed on the decision of the case of Cannaught Plaza Restaurant [2012 (12) TMI 149 - SUPREME COURT], where it was held that irrespective of any ingredient the classification of the goods has to be preferred as per the name of product known in the market. in the present case irrespective of the specification of the product, it is marketed under the description of lightweight concrete building blocks and buyer is also purchasing the product knowing consciously that it is lightweight concrete building blocks - product represent to description used for the marketing of the goods should be accepted and need not to go to the IS specification particularly for the reason that the entry provided in the exemption notification does not carry any IS specifications. Therefore we hold that appellant is entitle for the exemption notification no. 10/2002-CE dated 1-3-2002(sr. No. 23) Period of limitation - Held that: - The issue is of strict interpretation of the entry given in the notification. In such a case it is settled law that in case of issue involved is of interpretation of law, malafide intention or suppression of fact cannot be alleged therefore the extended period of demand cannot be invoked as provided under proviso to Section 11A of Central Excise Act, 1944. In the present case, the period involved is August, 2002 to February, 2003 whereas show cause notice for the demand during such period was issued on 15-12-2004 i.e. after lapse of almost one year and ten months. Moreover, corrigendum to show cause notice was also issued on 11-8-2005. In this fact, we are of the considered view that the demand is clearly time bar as extended period could not have been invoked. The appellant has rightly claimed the exemption notification no. 10/2002-CE, hence the demand is not sustainable - appeal allowed - decided in favor of assessee.

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• 2016 (12) TMI 80
  MODVAT credit - Ceramic Balls - Ethyl Alcohol - manufacture of Mono Ethylene Glycol (MEG), Di Ethylene Glycol (DEG) & Tri Ethylene Glycol (TEG) falling under sub-heading 2905.90 of the Central Excise Tariff Act, 1985 - whether the denial of MODVAT credit on the ground that it is not directly used in the manufacture of final product, justified? - Held that: - Ceramic Balls are used for de-sulphurication of feed stock Ethylene viz: to purify the basic raw material. In our view, this process is vital process for further manufacturing of final products. Ethylene without purification cannot be used in the manufacture of final product. Therefore the use of Ceramic Balls for processing of raw material for the manufacture of final products. The processing of manufacture start from of the raw material stage up to the manufacture of final product. It is used for conversion of non-purified Ethylene to purified form. Therefore the Ceramic Balls are used in the manufacturing process - The very same issue has been decided by this Tribunal in favor of the appellant as per the Tribunal decision in the case of Reliance Industries Ltd. [2000 (1) TMI 85 - CEGAT, MUMBAI], where the credit was allowed. As regard Ethyl Alcohol, we find that the same is pumped to MEG plant by vertical pumps at minus 130 degrees and its leakage to atmosphere is extremely hazardous. The Ethyl Alcohol is circulated in the pump seals which act as barrier for preventing leaks of Ethylene. In our considered view this process is part of the manufacturing of final products. Both the inputs i.e. Ceramic Balls and Ethyl Alcohol are used in the manufacturing of final product of the appellant. Therefore the appellant is entitled for the MODVAT credit on the said items - appeal allowed - decided in favor of appellant-assessee.

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• 2016 (12) TMI 79
  MODVAT credit - SAD exemption vide notification No. 22/99-Cus dated 28-2-1999 - whether denial of modvat credit on the ground that appellant had filed declaration in connection with the availment of notification No. 22/99-Cus that this imported goods meant for re-sale, therefore they were not suppose to take credit in respect of these imported goods, justified? - Held that: - I find that entire foundation of the case for denial of modvat credit is that the appellant had filed declaration to the customs as per condition of exemption notification No. 22/99-Cus. As per the said declaration the goods are meant for resale therefore on such goods modvat credit is not available. I find that the declaration was filed in order to avail the exemption from SAD whereas appellant availed modvat credit in respect of CVD which was admittedly paid. The modvat credit rules prevailing at the material time does not bar from the taking credit of CVD if the importer availed exemption notification No. 22/99-Cus or filed any declaration to that effect. I therefore find no reason why the modvat credit on the CVD paid by the appellant should not be allowed. The fact is not under dispute that goods imported by paying CVD has either been used in the manufacture of final product which was cleared on payment of duty and/ or cleared as such on payment of duty in terms of Rule 57 F(3) of Central Excise Rules, 1944. Therefore impugned order is not sustainable - credit allowed - decided in favor of appellant-assessee.

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• 2016 (12) TMI 78
  Refund of CENVAT credit reversed - due to the excisable goods become exempted, the appellant reversed CENVAT credit contained in the finished goods in process and final product. Part of the credit was reversed from CENVAT credit account and partly from PLA - Held that: - at the time of exemption Notification No. 30/2004-CE came into effect, there was no provision for reversal of credit in respect of inputs contained in the said exempted goods or lying as such for the reason that credit was availed prior to issuance of the exemption notification and at the time of availment of credit there was no bar and the CENVAT credit availed was correct and legal. As regards the provision for reversal of CENVAT credit in the aforesaid circumstances, the same was specifically inserted vide Rule 11(3) w.e.f. 01/03/2007, which cannot be applied retrospectively - refund justified - appeal allowed - decided against appellant-Revenue.

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• CST, VAT & Sales Tax

• 2016 (12) TMI 70
  Condonation of delay of 120 days - limitation period prescribed in the proviso to Section 36(1) of the Act - Held that: - As per Section 36(1) of the Act, the limitation period for filing appeal by the Government is 120 days, whereas it is 60 days for others. Therefore, it is clear that within 120 days, the Government should have filed appeal. It is further specified that the Appellate Authority is empowered to admit the appeal presented by the Government, after further period of 120 days, if sufficient cause is given for not filing the appeal within the limitation period. Therefore, it is clear that appellate authority is empowered to condone the delay upto 120 days after the expiry of the limitation period as specified in the proviso to Section 36 of the Act. Since the statute provides for a specific period of limitation, the authority concerned cannot condone the delay beyond the period of 240 days i.e. 120 days of limitation period and 120 days of delay. This clear exclusion renders the appeal filed by the Government beyond the period of 240 days as one barred by limitation. The condonation of delay period is beyond the period prescribed by the statutory provisions and the same is not legally sustainable and therefore, this Court has come to the conclusion that since the second respondent has filed the appeal beyond the period of limitation as prescribed under Section 36(1) of the Act, the impugned order passed by the first respondent/Tribunal is liable to be set aside - delay not condoned - appeal allowed - decided in favor of appellant-assessee.

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• 2016 (12) TMI 69
  Denial of benefit of input tax credit - the Petitioner paid purchase tax under Section 3(2) of KVAT Act on the purchase of sand from unregistered dealers - the petitioner has not filed any revised return either within the prescribed period of 6 months or even thereafter and the claim for input tax credit is made for the first time only after the re-assessment proceedings were concluded - Held that: - the Tribunal has rightly held that as per the provisions of Section 35(4) read with the decision of this Court in the case of CENTUM INDUSTRIES [2015 (10) TMI 47 - KARNATAKA HIGH COURT], no input tax credit would be available as claimed by the assessee - the contention raised that the matter is pending before the Apex Court against the decision of the Centum Industries case and therefore this Court may not conclude on the question of law because the issue is already covered by the decision of this Court and it is not the case of the assessee that the Apex Court has stayed the operation of the decision of this Court. So far as the second contention for claiming tax credit though no reference whatsoever is made by separately showing the amount of tax in the Bills or tax invoice. Petition dismissed - decided in favor of revenue.

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• 2016 (12) TMI 68
  Works contract - commodities of bitumen and jelly - duty chargeable at 4% or 12.5% - Held that: - the Tribunal in the impugned order has considered that the amendment has come into effect from 1st of April 2006. Therefore, for the respective period of 2005 -2006, the amendment did not exist on the statute book. Resonantly, the duty as was prevailing prior to 1.4.2006 for the respective items will be considered for the chargeability. The Tribunal has recorded that for the jelly as well as bitumen which are the material being used, 4% is the duty provided as per the III Schedule vide item No.83 and 11/15 respectively and accordingly, the duty to the extent of 4% is maintained. When the amendment was not on the statute book for specifically providing duty/Tax on works contract, it cannot be said that duty chargeable would fall in the category of residuary item at the rate of 12.5%. The view taken by the Tribunal is that, whatever the items are utilized in execution of the works contract will have to be considered separately for the purpose of chargeability. Of course, the benefit is already gr anted for the Iron and Steel by the First Appellate Authority to the extent of 32.5% of the total amount of the purchase. For the cement, the Tribunal had found that it would be 12.5%, whereas, for jelly, it would be 4% and for bitumen, it would be 4%. The view taken by the Tribunal, more particularly, in the absence of any amendment in the statute book providing for separate chargeability of the works contract cannot be said to be erroneous. Petition dismissed.

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• 2016 (12) TMI 67
  Levy of Turnover tax - composition/exemption fees - Held that: - bare perusal of the Sec. 13A itself makes it explicitly clear when it mentions "whose total turnover in a year exceeds 3 lac rupees" should mean that it has to be computed on the basis of annual turnover and not on the basis of proportionate or part of the turnover or quarterly basis. Admittedly, Notification dt. 12.7.2004 with regard to the assessment of the turnover tax and the exemption fee in lieu of turnover tax had been rescinded, therefore, assessment of the annual turnover or the exemption fee on any part of the same of the assessee for the assessment year 2003-04, could not be made applicable - petition dismissed.

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• 2016 (12) TMI 66
  Whether in the facts and circumstances of the case the Rajasthan Tax Board was justified in law in holding the goods namely "Mobile Cranes wire ropes" liable to tax @ 4% under schedule IV despite of the facts that there is no specific entry of the same and they are liable for tax as per rate prescribed under schedule-V? - Held that: - the user of Wire Ropes being mainly to put in the Mobile Cranes, is certainly integral part of the Mobile Cranes and was entitled to the same rate of tax - petition dismissed - decided against Revenue.

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• 2016 (12) TMI 65
  Printing of currency notes for Government of India - Business or not - petitioner, dealer or not - currency notes, goods or not - Held that: - Petitioner is only engaged in printing and selling of bank notes to the Reserve Bank of India, therefore, there is a sale transaction between petitioner and the Reserve Bank of India and after sale the said goods become Bank Note or currency and before such transaction it is merely goods under the definition of VAT Act, 2002 It is clear that the Union is not exempted from the levy of indirect tax under Article 285 of the Constitution. The applicability of protection under Article 285 of the Constitution of India is also liable to be rejected and the petitioner would not be entitled for the benefit as held by the Apex Court in the case of Karya Palak Engineer, CPWD, Bikaner vs. Rajasthan Taxation Board, Ajmer and others [2004 (8) TMI 114 - SUPREME COURT OF INDIA], where it was held that Union is not exempted from the levy of indirect tax under Article 285 of the Constitution.The levy under the local Act being a single point tax and the appellant having suffered the same when it purchased the material in question and same material cannot be subjected to another levy on its transfer to the contractor. This argument requires consideration of factual matrix of the case concerned, whether the levy in question is a single point tax and material purchased by the appellants had suffered the levy at the point of purchase by appellants or not are matters to be decided by the authorities concerned and if the same is not already decided and has not become final, it will be open to the appellants to urge this question before the appropriate authorities. Petition dismissed - decided in favor of Department.

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• 2016 (12) TMI 64
  Valuation - sale turnover - Section 62(6) of the KVAT Act - cost of the sale of items, other than liquor, would be approximately 50% and accordingly, the tax was assessed and penalty was also imposed at the rate of 10% - jurisdiction of revisional authority - Held that: - The records show that the Assessing Officer assessed at the rate of 50% of the total sales without considering any margin of profit whereas the first appellate authority assessed at 10% by accepting the exempted figure of sales of liquor. Since the judicial scrutiny of the present appeal insofar as this Court is concerned has to be limited to the question of law and the fact finding inquiry cannot be undertaken by this Court. We find that the matter should be relegated to the revisional authority to undertake such exercise as it is the ultimate fact finding authority. Hence, we find it appropriate to interfere with the order of the revisional authority since no proper and satisfactory reasons are recorded to arrive at the factual conclusion as to whether figures arrived at by the assessing officer was correct or not and consequently, the finding recorded is without proper reasons being assigned by the revisional authority - the impugned order passed by the revisional authority is set aside and the matter is remanded to the revisional authority on the limited point of examination about the proportion of sale of food and drink items which is subject to VAT. After the aforesaid exercise is undertaken, the appropriate consequential order may be passed after giving an opportunity of hearing both sides and in accordance with law. Attachment of bank property - Held that: - as such the tax liability is more than the amount recovered, but, on reasonable condition to deposit the amount or to furnish appropriate bank guarantee, the appellant may be permitted to operate the bank account - after the appellant furnishes bank guarantee of ₹ 2,50,000/-, he may be permitted to operate the bank account, subject to final order which may be passed by the revisional authority. Appeal disposed off - decided partly in favor of appellant, only on the issue of attachment of bank property.

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• 2016 (12) TMI 60
  Breach of principles of natural justice - the revised proposition notice was given by the respondent-Assessing Authority only on 19.08.2016 and even though the officer concerned was under transfer, he passed the impugned reassessment order dated 25.08.2016 - the issues regarding sales returns etc. have not been properly appreciated by the respondent-Assessing Authority - Held that: - the petitioner-assessee has an effective alternative remedy of appeal against the impugned reassessment order passed by the respondent-Assessing Authority, these writ petitions are not maintainable and the petitioner-assessee deserves to be relegated back to the Appellate Authority. Applicability of rate of tax on chargers is concerned - Held that: - the mobile battery chargers have been held to be only the accessories of mobile phones and they cannot be treated as part of the mobile phones itself. It will definitely attract a separate rate of tax as in the present case, it is rightly charged at 14.5% and the difference of tax at 9% was demanded by the respondent-Assessing Authority, as the petitioner-assessee had charged and collected the tax only at the rate of 5.5% on the sale of mobile battery chargers. Except the aforesaid issue of rate of tax, the petitioner-assessee is relegated to the Appellate forum - appeal disposed off.

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• Indian Laws

• 2016 (12) TMI 61
  Proceedings under SERFAESI Act - prayer to set aside the notices - Held that:- It is quite clear that the District Magistrate, upon an application being filed by the respondent Bank under Section 14 of the SERFAESI Act, has only issued a notice/summons to the petitioners to remain present on 07th November, 2016 and answer the case. It is this notice which is challenged by the petitioners and it is at this stage that the petitioners have filed this petition. It appears that the petitioners sent letter to the Bank on 14th November, 2016 and requested not to proceed with the hearing. The District Magistrate kept the next date to 21st November, 2016. In the meantime, on 17th November, 2016, the present petition came to be filed. It is entirely incomprehensible as to what was the justification on part of the petitioners not to respond to the notices, but straightway to rush to file the present petition. Thus there was no occasion to invoke the jurisdiction of the writ court at the stage and in the circumstances obtained. The self-convenient act of on part of the petitioners to file present petition seeking to invoke the writ powers of the Court are indeed not well conceived in law and partakes an abuse of process of law, warranting a strict view.

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