TMI Tax Updates - e-Newsletter
March 13, 2018

Case Laws in this Newsletter:

GST Income Tax Customs Corporate Laws Service Tax Central Excise Indian Laws

Articles

1. CONCEPT OF INPUT SERVICE DISTRIBUTOR IN GST

   By: Anuj Bansal

2. No Service Tax on reimbursements prior to May 14, 2015 held by SC

   By: Bimal jain

News

1. Government Issues Clarification on Gold Imports Scheme

2. Insolvency and Bankruptcy Board of India signs a Memorandum of Understanding with the Reserve Bank of India

3. National Conference on Counterfeiting & Role of Enforcement Agencies

4. RBI Reference Rate for US $

Notifications

Companies Law

1. F. No. 1/5/2001-CL-V (Part VI)-S.O. 1023(E) - dated 8-3-2018 - Co. Law

Seeks to amend Notification No. S.O. 3118 (E), dated the 3rd October, 2016

2. F. No. 1/19/2013 –CL V - G.S.R. 213(E) - dated 8-3-2018 - Co. Law

Companies (Filing of Documents and Forms in Extensible Business Reporting Language) Amendment Rules, 2018

GST - States

3. G.O.Ms.No.117 - dated 1-3-2018 - Andhra Pradesh SGST

Constitution of the Andhra Pradesh Appellate Authority for Advance Ruling - Appointing of members.

4. G.O.Ms.No.097 - dated 19-2-2018 - Andhra Pradesh SGST

Exemption of Tax Over And Above 2.5% For Public Funded Research Institutes.

5. G.O.Ms.No.095 - dated 19-2-2018 - Andhra Pradesh SGST

Granting Exemptions to Certain Goods

6. G.O.Ms.No.094 - dated 19-2-2018 - Andhra Pradesh SGST

Amendments in the Notification issued in G.O.Ms.No.582, Revenue (CT-II) Dept., Dt.12-12-2017 - Granting Exemptions to Certain Goods.

7. G.O.Ms.No.093 - dated 19-2-2018 - Andhra Pradesh SGST

Amendments in the Notification issued vide G.O.Ms.No.258, Revenue (Commercial Taxes-II), 29th June, 2017 - Changes to rates of tax of certain goods.

8. G.O.Ms.No.092 - dated 19-2-2018 - Andhra Pradesh SGST

Exempting the intra-state supply of services by way of grant of license or lease to explore or mine petroleum crude or natural gas or both.

9. G.O.Ms.No.091 - dated 19-2-2018 - Andhra Pradesh SGST

Arising of liability of payment of tax by certain classes of registered persons in the construction / development activity.

10. G.O.Ms.No.090 - dated 19-2-2018 - Andhra Pradesh SGST

Notifying the Services Which Attract Tax on Reverse Charge Basis

11. G.O.Ms.No.089 - dated 19-2-2018 - Andhra Pradesh SGST

Amendment in the Notification No. G.O.Ms. No.588 Revenue (CT-II) dated 12.12.2017 - Exemptions to certain services.

12. G.O.Ms.No.088 - dated 19-2-2018 - Andhra Pradesh SGST

Amendments in the notification issued in G.O.Ms.No.259, Revenue (CT-II) Dept., Dt. 29-06-2017 - Changes to rates of tax of certain services.

13. 06/2018-State Tax (Rate) - dated 7-3-2018 - Delhi SGST

Seeks to amend Notification No. 1/2017-State Tax (Rate), dated the 30th June, 2017

14. 11/2018 - dated 1-3-2018 - Delhi SGST

Rescind the Notification No. 74/2017 –State Tax dated the 31st January, 2018

15. 05/2018- State Tax (Rate) - dated 1-3-2018 - Delhi SGST

Central Governments share of profit petroleum intra-State supply of services by way of grant of license or lease to explore or mine petroleum crude or natural gas or both

16. SRO 121 - dated 5-3-2018 - Jammu & Kashmir SGST

Modification of Notification SRO 521 dated 21-12-2017

17. SRO 119 - dated 5-3-2018 - Jammu & Kashmir SGST

Modification of Notification SRO 519 dated 21-12-2017

18. SRO GST 32-(Rate) - dated 29-1-2018 - Jammu & Kashmir SGST

Seeks to provide special procedure with respect to payment of tax by registered person supplying service by way of construction against transfer of development right

19. SRO 36 - dated 23-1-2018 - Jammu & Kashmir SGST

Reduction of late fee in case of delayed filing of form GSTR-6

20. SRO 32 - dated 23-1-2018 - Jammu & Kashmir SGST

State Government amend the Jammu and Kashmir Goods and Services Tax Rules, 2017

21. SRO. 538 - dated 29-12-2017 - Jammu & Kashmir SGST

State Government Amend the Jammu and Kashmir Goods and Services Tax Rules, 2017

22. Corrigendum - dated 27-12-2017 - Jammu & Kashmir SGST

Corrigendum to Notification SRO-519 Dated-21-12-2017

23. Corrigendum - dated 27-12-2017 - Jammu & Kashmir SGST

Corrigendum to Notification SRO-521 Dated-21-12-2017

24. 11/2018-State Tax - dated 5-2-2018 - Maharashtra SGST

Postponement of introduction of E-way bill under GST.

25. 09/2018-State Tax (Rate) - dated 25-1-2018 - Maharashtra SGST

Amendment in the Notification No.45/2017-SGST (Rate)

26. 08/2018-State Tax (Rate) - dated 25-1-2018 - Maharashtra SGST

Amendment in the Notification No.1/2017-SGST (Rate).

27. 07/2018-State Tax (Rate) - dated 25-1-2018 - Maharashtra SGST

Amendment in the Notification No.2/2017-SGST (Rate)

28. 06/2018-State Tax (Rate) - dated 25-1-2018 - Maharashtra SGST

Amendment in the Notification No.1/2017-SGST (Rate).

29. 05/2018-State Tax (Rate) - dated 25-1-2018 - Maharashtra SGST

Exemption of Central Government's share of Profit Petroleum from Central tax

30. 04/2018-State Tax (Rate) - dated 25-1-2018 - Maharashtra SGST

Special procedures for payment of tax by Reg. person supplying construction service against transfer of devel. right.

31. 03/2018-State Tax (Rate) - dated 25-1-2018 - Maharashtra SGST

Amendment in the Notification No. 13/2017-ST(R)-RCM on renting of immovable property by Govt./local authorities.

32. 02/2018-State Tax (Rate) - dated 25-1-2018 - Maharashtra SGST

Amendment to Notification No. 12/2017-ST(R)-To exempt certain services as recommended by GST Council.

33. 01/2018-State Tax (Rate) - dated 25-1-2018 - Maharashtra SGST

Amendment in the Notification No. 11/2017- ST(R)- To notify SGST rates of various services as recommended by GST Council.

34. 09/2018-State Tax - dated 24-1-2018 - Maharashtra SGST

Amendment in the Notification No. 4/2017-State Tax dated 19.06.2017 for notifying e-way bill website.

35. 07/2018-State Tax - dated 24-1-2018 - Maharashtra SGST

Reduction of late fee in case of delayed filing of FORM GSTR-6.

36. 06/2018-State Tax - dated 24-1-2018 - Maharashtra SGST

Reduction of late fee in case of delayed filing of FORM GSTR-5A.

37. 05/2018-State Tax - dated 24-1-2018 - Maharashtra SGST

Reduction of late fee in case of delayed filing of FORM GSTR-5.

38. 04/2018-State Tax - dated 24-1-2018 - Maharashtra SGST

Reduction of late fee in case of delayed filing of FORM GSTR-1.

39. 03/2018-State Tax - dated 24-1-2018 - Maharashtra SGST

The Maharashtra Goods and Services Tax (Amendment) Rules, 2018.

40. 08/2018-State Tax - dated 23-1-2018 - Maharashtra SGST

Extension of date for filing the return in FORM GSTR-6.

41. 03A/2018-State Tax - dated 22-1-2018 - Maharashtra SGST

Non applicability of E-way bill rules for period 1st February 2018 to 30th April 2018.

42. 02/2018-State Tax - dated 22-1-2018 - Maharashtra SGST

Extension of the last date for filing FORM GSTR-3B for December, 2017 till 22.01.2018.

Circulars / Instructions / Orders

GST - States

1. 10 T of 2018 - dated 28-2-2018

Online submission of Letter of Undertaking by the taxable person who makes zero-rated supply of goods or services or both without payment of Integrated Tax under IGST Act.

2. 08 T of 2018 - dated 21-2-2018

Manual filing and processing of claim of refund of inverted tax structure and deemed exports.

Customs

3. 32/2018 - dated 7-3-2018

Sub: Procedure for registration of Self Sealing for Electronic Sealing of containerized cargo at factory or warehouse premises – reg.

4. 33/2018 - dated 7-3-2018

Sub: Mandatory declaration of GSTIN, IEC and email address of importer in the Bills of Lading obtained by shipper: reg.

Highlights / Catch Notes

Income Tax

• Income Computation Deemed Factual, Not Legal; Not Previously Contested Before Assessing Officer.

  Case-Laws - AT : The issue raised for the first time with reference to computation of income is not a legal issue, but a pure factual issue, which were never agitated before the A.O - AT
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• Interest Calculation Excludes MAT Credit u/ss 234B and 234C of Income Tax Act for Assessed Tax.

  Case-Laws - AT : Computation of Interest u/s 234B and 234C - MAT credit - along with tax deducted or collected at source, MAT credit u/s 115JAA also to be excluded while calculating assessed tax. - AT
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• Taxpayer's Segregation of Costs for Specific Project Doesn't Alter Nature of Ad Expenditure.

  Case-Laws - AT : Disallowance of advertisement expenditure - Merely because the assessee segregated the cost of expenditure in relation to a particular project and later stage claimed as general advertisement expenditure that may not alter the character of the advertisement expenditure incurred by the assessee. - AT
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• Section 148 cannot be used to review decisions made u/s 143(3); use Section 263 for errors.

  Case-Laws - AT : Validity of reopening u/s 147/148 - provisions of Section 148 cannot be used for reviewing the decision taken by the AO u/s 143(3) - There is a demarcation and separation of jurisdiction even for revision for an order suffering from error and therefore the remedy for such erroneous order is provided u/s 263 - AT
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• Tax Additions Require Corroborative Evidence: Survey Statements Alone Insufficient for Taxpayer Liability.

  Case-Laws - AT : Addition on account of surrender during the course of survey - statement recorded during the course of survey are not sacrosanct and cannot be relied against the assessee for making addition unless supported by corroborative evidence. - AT
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Customs

• Guidelines for Registering Self-Sealing of Cargo at Factories or Warehouses to Comply with Customs Regulations.

  Circulars : Sub: Procedure for registration of Self Sealing for Electronic Sealing of containerized cargo at factory or warehouse premises
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• New Circular Requires GSTIN, IEC, and Email on Bills of Lading for Importers to Streamline Customs Processes.

  Circulars : Sub: Mandatory declaration of GSTIN, IEC and email address of importer in the Bills of Lading obtained by shipper: reg. - Trade Notice
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Service Tax

• VCES Declaration Rejection Overturned Due to Late Show Cause Notice Issuance Beyond Statutory 30-Day Period.

  Case-Laws - AT : Rejection of VCES declaration - The SCN issued after a period of 30 days of declaration filed under VCES is unsustainable - AT
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Central Excise

• Service Tax on Painting Factory Buildings and Machinery Eligible for CENVAT Credit; Credit Denial and Penalties Unwarranted.

  Case-Laws - AT : CENVAT credit - service tax paid on painting of the factory building & machinery - such service falls under the purview of the “input service” for the purpose of availment of cenvat credit - denial of credit and imposition of penalty not sustainable. - AT
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• Relocated Machinery Qualifies New Unit for Area-Based Exemption Under Notification No. 50/2003 CE.

  Case-Laws - AT : Area based exemption - change of assessee - Benefit of N/N. 50/2003 CE dated 10/06/2003 - The benefit of exemption will be available to the new unit provided they are able to satisfy the revenue authorities that it is the same machinery which has been shifted to the new premises. - AT
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Case Laws:

• GST

• 2018 (3) TMI 480
  Validity of Minutes of the Meeting - case of petitioners is that these are not agreed Minutes, but, they are drawn up by the association and they could be at best treated as a representation of the association - Held that: - We record the statement made by the learned Additional Solicitor General, on instructions, that insofar as the grievances of returns without late fees, the petitioner may file their GSTR-3B returns with the late fees first. If that is paid and proof of such payment is produced, that will also be autocredited/refunded in their cash ledger by the CSTN within a period of one week from the date the payment is made. We accept this statement as undertaking to this Court. We expect the competent authority in the Ministry particularly at the State and the Central level to coordinate and resolve the issues which are raised in this petition on or before 24th April, 2018.

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• Income Tax

• 2018 (3) TMI 479
  Entitlement to exemption u/s. 11 - whether assessee has not fulfilled all the requirements of sec. 11(AA) - whether the activity of holding an exhibition IMTEX­-92 by the Assessee would amount to an activity of business? - activity incidental to the attainment of the objects of the Assessee - Held that:- From the statement of case, it is clear that the total receipts from holding the exhibition ­IMTEX­-92 is Rs. 4.76 Crores and the net surplus in Rs. 1.72 Crores. It involves the activity of taking space on hire from Trade Fair Authority of India. Thereafter, it involves setting out the exhibition tariffs (lower rates for SSI Units), premium for prime location, air conditioning surcharge, rentals to be charged from foreign participants, security charges, telephone charges etc., as the statement of case records. Moreover, the statement of case also states that it is not the first time the Assesssee is holding an exhibition­IMTEX­92 (we are informed at the bar, it is held every two years). Authorities under the Act have all found that holding of an exhibition is a well organized activity, making use of its past experience, so as to earn substantial amount of money. The Tribunal held that it is not an activity carried on no­-profit­-no­-loss basis or only for marginal/nominal gain. It therefore, does satisfy the test of business. Thus, on the above facts, the Authorities under the Act have held that holding of exhibition­IMTEX­92 is a business activity. Therefore, covered by the first part of Section 11 (4A) of the Act. The business of holding exhibition ­IMTEX­92 is incidental to the objective of the Trust to share knowledge amongst its members. Benefit of Section 11 of the Act is not available to the Applicant­Assessee as it had not maintained separate books of accounts in respect of its incidental business as mandated by Section 11(4A) of the Act. - Decided against assessee.

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• 2018 (3) TMI 478
  Re-assessment proceedings initiated u/s 16 of the Gift Tax Act - Whether the period of 12 months or 6 months as prescribed in proviso to Section 15(2) of the Gift Tax Act, 1958, is applicable to re-assessment proceedings initiated? - Held that:- It is quite evident that the assessee’s return in respect of the transaction which occurred in 1983, became the subject matter of the notice by the Gift Tax officials in March, 1987, which resulted in the filing of a return on 16.4.1987. The first round of litigation resulted in finality of one aspect i.e. though, notice u/s 15(2) was issued in terms of the record, it was only served upon the assessee. Such being the case, when the ITAT rendered its findings, limitation prescribed by the amendment had come into force. Even otherwise, the ITAT order dated 13.8.98 meant, in the opinion of this Court, a direction to the GTO to assume a jurisdiction, which he never possessed in the first instance, given that the amendment had come into force. Absence of service of notice meant that, in fact, there was no notice and therefore, no valid assessment. However, proceeding to hold otherwise and sustain the findings of the GTO and the lower appellate authority, the ITAT clearly erred in law. The questions of law framed are therefore, answered in favour of the assessee

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• 2018 (3) TMI 477
  Existence of Permanent establishment (PE) so as to attract the provisions of Section 9 - Income accrued in India - income directly or indirectly attributable to the branches/offices is not taxable in India - DTAA between India and Japan - Held that:- Tribunal has followed its previous decisions of other year [2018 (3) TMI 434 - DELHI HIGH COURT] wherein held Court is unable to be persuaded that the ITAT erred in its conclusion that the evidence produced by the AO does not show that the LOs of the Assessee carried on any activity which was not incidental and auxiliary in nature. ITAT has examined in detail all the materials referred to by the AO in its remand report as well as the order of the CIT (A) and has given detailed reasons why none of these materials establish that the LOs were used by the Assessee to carry on any business or trading activity in India. The said factual finding by the ITAT has not been shown to be perverse. There was no basis for the AO to conclude that the Special Bench of the ITAT had erred in its conclusion in favour of the Assessee that the LOs were not carrying on any activity which was either incidental and auxiliary in nature. With the consistent position in this regard continuing since 1977-78, in the absence of any evidence to suggest a change in the circumstances, there was no warrant for the AO and the CIT (A) to take a different view of the matter. - Decided in favour of assessee.

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• 2018 (3) TMI 476
  Request for waiver of interest made upon the reopening of assessment - Held that:- The petitioner disputed his liability to pay income tax on capital gains. The interest levied giving effect to capital gains based on receipt of compensation would not absolve the petitioner from paying tax on capital gains. Further, the circular is only a guideline and it cannot have an overriding effect on the statutory provision. In such situation, this Court is of the view that there is no merit in the writ petition. The Chief Commissioner of Income Tax has rightly rejected the petitioner's request for waiver of interest.

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• 2018 (3) TMI 475
  Disallowance of advertisement and publicity expenses - Held that:- The genuineness of the expenditure incurred by the assessee has not been disputed by the Revenue. We find that the intention of the assessee doctor in the instant case is apparently to prevent disease in future by making public awareness. Such a proactive measure taken by the person like assessee should be rather welcomed than to criticize. We hold that the expenditure incurred in the sum of Rs. 202014/- deserves to be allowed as business expenditure of the assessee u/s 37(1). Disallowance of purchase of gift items incurred through credit card - Held that:- We find that the purchase of gift items were incurred for handing over to various super specialists who had participated in the seminar organized by the assessee for the purpose of updation of knowledge thereon. This, in our considered opinion, is an expenditure incurred for the purpose of profession of the assessee. We also find that the assessee had given reasonable explanation as to why he had presented gift items to various doctors in lieu of payment of fee. The explanation given is very logical. We hold that the expenditure in the sum of Rs. 90,850/- would have to be allowed as a deduction u/s 37 of the Act Disallowance of Entertainment Expenses - Held that:- We find that the entertainment expenses of Rs. 11,096/- incurred by the assessee were only for the purpose of dinner while holding meetings with his seniors in hotels for skill upgradation. This would be squarely allowable as business expenditure. It is not the case of the ld. AO that the same are not supported by any bills or vouchers. Accordingly, the same is allowed as deduction u/s 37. Disallowance of travelling expenses - Held that:- We find that the assessee has only made oral submissions to justify his claim and had not produced any evidence in support of his claim of visiting U.K., London for the purpose of medical conference and meeting senior doctors thereon in order to get himself updated and improve his skill. Hence, we hold that the revenue had rightly disallowed the said expenditure in the assessment. Disallowance of meeting and seminar expenses - Held that:- It is not in dispute that the assessee is a member of Calcutta Club and Bengal Club. From the details submitted before the ld. AO, it was found that these expenses are incurred towards monthly subscription of club bills and for meager portion towards meeting expenses of doctors on certain occasions. In our considered opinion these expenses are wholly and exclusively meant for the purpose of business and are squarely allowable as deduction u/s 37(1) of the Act. Disallowance of car repair expenses - Held that:- We find that the assessee is a doctor by profession and runs a clinic. It is not in dispute that the assessee maintains three cars to support his profession as well as his clinical establishments. The ld. AO had allowed depreciation on these cars in the assessment and hence in our considered opinion, there is no reason to disbelieve the car maintenance expenses. Admittedly, the assessee has not produced bills and vouchers for the aforesaid maintenance expenses. But the usage of these cars for the purpose of business or profession is not in dispute in the instant case. Hence, in our considered opinion, disallowance of Rs. 80,000/- towards the same would meet the ends of justice.

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• 2018 (3) TMI 474
  Revision u/s 263 - addition u/s 68 towards share capital and share application money - Held that:- We hold that the order passed by the AO by adding a sum of Rs. 2.79 crores towards share capital cannot be termed as one which is prejudicial to the interests of the revenue warranting revisionary jurisdiction u/s 263. Notional loss representing changes in inventories of shares and securities - Held that:- We hold that the order passed by the AO by allowing the changes in inventories of finished goods, WIP and stock in trade as deduction and the same cannot be treated as MTM loss or notional loss and hence cannot be termed as erroneous in as much as it is prejudicial to the interests of the revenue, warranting revisionary jurisdiction u/s 263 of the Act in the facts and circumstances of the case. In view of the aforesaid findings with regard to both the issues of share capital and MTM losses, we hold that the revision order passed by the ld PCIT u/s 263 of the Act deserves to be quashed and is hereby quashed. Accordingly , the Grounds raised by the assessee are allowed. - Decided in favour of assessee.

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• 2018 (3) TMI 473
  Non granting the benefit of brought forward losses of amalgamating company in the hands of the amalgamated company - Held that:- We hold that the accumulated losses of amalgamating companies, comprising of unabsorbed short term capital loss of Rs. 10,26,44,123/- ; unabsorbed long term capital loss of Rs. 6,34,784/- and unabsorbed business loss of Rs. 6,63,574/- , would belong to the amalgamated company pursuant to clause in para 10(iii) of the scheme of amalgamation which was approved by the Hon’ble Calcutta High Court vide order dated 6.10.2010. Since the losses belonged to the amalgamated company i.e the assessee herein, the provisions of section 72 and section 74 of the Act would come into play with respect to set off of the same against the respective incomes of the assessee. The provisions of non-compliance of section 72A of the Act as narrated by the CIT-A does not hold any water. Accordingly, the Grounds 1 & 2 raised by the assessee are allowed. Disallowance of Long Term Capital Loss without Securities Transaction Tax (STT) and not allowing the same to be carried forwarded - Held that:- Hon’ble Supreme Court in the case of K.P.Varghese vs ITO (1981 (9) TMI 1 - SUPREME Court) had held that : “It is a well settled rule of law that the onus of establishing that the conditions of taxability are fulfilled is always on the revenue and the second condition being as much a condition of taxability as the first, the burden lies on the revenue to show that there is an understatement of the consideration and the second condition is fulfilled. (underlining provided by us). To throw the burden of showing that there is no understatement of the consideration, on the assessee would be to cast an almost impossible burden upon him to establish a negative, that he did not receive any consideration beyond that declared by him.” Though this decision was rendered in the context of erstwhile provisions of section 52(2) of the Act which was later omitted from the statute, the ratio decidendi would be applicable to the facts of the instant case. No enquiries whatsoever were conducted in the hands of the purchaser of shares. We find that the entire disallowance of long term capital loss had been made only out of surmises, suspicion and conjectures. Entitled to claim the long term capital loss of Rs. 62,12,753/- and the same would be eligible to be carried forward to subsequent years for set off against long term capital gains u/s 74 of the Act.

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• 2018 (3) TMI 472
  Excess production of sponge iron - clandestine removal of excessively produced sponge iron - Held that:- In the facts and circumstances of the case, we note that other than some documents the AO had no other evidence/material to suggest that the assessee’s Karakolha in Orissa steel plant was using iron ore which had Fe content more than 65%, without doing so, the allegation of suppression of production of sponge iron is merely on the basis of suspicion, surmises and conjectures which cannot stand scrutiny in the eyes of law, when the assessee was able to place on record the Laboratory Report which certified that the assessee’s plant at Karakolha, Orissa used iron ore which had Fe content between 62.79% to 63.23%. The veracity of the Laboratory Report have not been challenged or found to be invalid by the Department. In such a scenario, without finding defect in the books of account or without finding fault with the Laboratory Report that certified the Fe content of the iron ore used by the assessee at Karakolha, Orissa for production of the sponge iron, the allegation of suppression of production of sponge iron cannot stand. There can be no universal and uniformly acceptable standard for consumption of iron ore for production of sponge iron. It has to be appreciated that the various other factors like quality, composition of raw materials, operating conditions etc which contribute to the yield ratio. From the discussions stated above, we note that the yield ratio can vary from plant to plant and even differ from year to year based on the capacity of the plant, the efficiency of the staff, maintenance of the plant, electricity consumption etc. Nothing has been brought on record by the AO directly/indirectly to show that there was clandestine removal of excessively produced sponge iron from its plant. We note that the AO has not found any defect in respect to the quantitative details furnished by the assessee which tallied with the books of account maintained by the assessee in its regular course of its business and without rejecting the books of account and that too as stipulated u/s. 145(3) of the Act, the AO ought not to have estimated the excess production of sponge iron. - Decided against revenue

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• 2018 (3) TMI 471
  Interest on enhanced compensation u/s 28 of the Land Acquisition Act - provisions of section 56(2)(viii) applicability - Held that:- Hon'ble Himanchal Pradesh High Court in the case of CIT vs. Keshwa Devi [2011 (8) TMI 679 - HIMACHAL PRADESH HIGH COURT] which after relying upon the judgment of Hon'ble Supreme Court in the case of Ghanshyam, HUF (2009 (7) TMI 12 - SUPREME COURT) has held that interest received u/s 28 of the Land Acquisition Act on enhanced compensation is not interest u/s 34 but is in the nature of compensation and therefore, was not taxable as interest. - Decided against revenue

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• 2018 (3) TMI 470
  Disallowance of material expenses, labour expenses, vehicle expenses and telephone expenses rejection of books of accounts u/s 145(3) - Held that:- Once the books of accounts are rejected, the AO cannot make a disallowance of expenditure pertaining to the trading account if the estimation of income of assessee is based on GP rate. Even in case of net profit is taken as the basis of estimation, the scope of disallowance of other expenditure is also very limited. Therefore, in these facts and circumstances when the book results are rejected, the income of the assessee is required to be estimated either on the basis of GP or NP rate without allowing further expenditure. The provisions of section 44AD are relevant on this point which provides the estimation of profits from the business of civil contract as of the assessee before us. Thus the provisions of section 44AD can be taken as a guidance for estimation of the income of the assessee from the business of civil contract. Thus income of the assessee shall be computed by taking the NP @ 8% and no further deduction shall be allowed. Addition on account of interest on FDRs - CIT-A directed addition to be deleted and the interest shown by the appellant in the profit and loss account is directed to be treated as Income from other sources - Held that:- CIT (A) has considered the fact that the actual interest accrued during the year on FDRs has already been included in the total income of the assessee. This factual finding of the ld. CIT (A) has not been controverted before us by the department. Hence we do not find any error or illegality in the order of ld. CIT (A) qua this issue. Addition made under section 41(1) - CIT-A deleted the addition - Held that:- It is not disputed that in the books of account the assessee has shown the outstanding amount which is less than amount shown in the settlement letters. Accordingly the remission of liability under section 41(1) has to be considered as per the books of account and not as per the claim of the creditor. Hence we do not find any error or illegality in the order of ld. CIT (A) qua this issue, when the outstanding liability shown in the books of account of the assessee is not in dispute. Disallowance of House Rent Allowance - CIT-A allowed the claim - Held that:- When the nature of expenditure being house rent allowance paid to the employees has not been disputed, then the same is an allowable business expenditure and, therefore, we do not find any error or illegality in the order of ld. CIT (A) qua this issue. Disallowance of PF and ESI - Held that:- The payment was made by the assessee before the due date of filing of return under section 139 of the Act i.e. 31st October, 2010. See CIT vs. State Bank of Bikaner & Jaipur(2014 (5) TMI 222 - RAJASTHAN HIGH COURT) TDS u/s 194A - non deduction of tds on interest to ABN Amro Bank and two other financial institutions - Held that:- As far as the interest to ABN Amro Bank is concerned, there is no dispute that the interest paid is covered under section 194A(3)(iii) of the Act and, therefore, the assessee is not under obligation to deduct TDS against the interest to the bank. TDS u/s 194H - disallowance under section 40(a)(ia) in respect of Bank Guarantee Commission - Held that:- The commission on bank guarantee is not covered by the expression ‘commission or brokerage’ as envisaged in section 194H since the relationship between the assessee and the bank is not of principal- agent. Also, commission on bank guarantee is not covered by the Explanation (i) which gives an inclusive definition of the term ‘commission or brokerage’. Thus it is held that the appellant is not liable to deduct tax at source on commission on bank guarantee as per the provisions of section 194H. See Kotak Securities [2012 (2) TMI 77 - ITAT MUMBAI]

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• 2018 (3) TMI 469
  Estimating the income of the assessee u/s 145(3) - Held that:- Where expenses are unverifiable, and keeping in mind the huge quantum of unverifiable nature of expenses, rejection of the books of accounts was a just and logical conclusion and no fault could be found for invoking Section 145(3) of the Act. As far as the assessment of income of the assessee is concerned, the law is well settled that once the books of accounts of the assessee are rejected the best way to assess the income of the assessee is to go by the past history in the assessee’s own case. CIT(A), in our view, has taken note of the past history in the assessee’s own case and has rightly come to a conclusion that the estimation of profit at 14.5 per cent of the receipts would be just and proper in the facts and circumstances of the case.

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• 2018 (3) TMI 468
  Deduction U/S 80-IB - scope of term 'manufacture' occurring in the context of section 80-IB - profits derived by the Assessee from manufacture and sale of poultry feed - Held that:- As decided in assessee's own case [2017 (4) TMI 1316 - ITAT KOLKATA] in the light of the admitted factual position that the income in question had direct nexus with the business of the assessee, the same was rightly held by CIT(A) to be eligible for the purpose of claiming deduction u/s 80IB(5). We do not find any ground to interfere with the order of CIT(A). Disallowance of expenses u/s.14A r.w.r. 8D(2)(ii) & (iii) - Held that:- As far as disallowance under Rule 8D(2)(iii) is concerned, we are of the view that it is only the investment which yield dividend income that should be considered for the purpose of applying the formula as confirmed in in the case of REI Agro Ltd. [2014 (4) TMI 713 - CALCUTTA HIGH COURT]. As far as investments made in subsidiaries is concerned, such investments made in subsidiaries would fall under the category of strategic investments as they are admittedly made only for the purpose of obtaining controlling interest in the said companies and not for the purpose of earning dividend income which is exempt. Hence they would stand differently from other regular investments. - Decided against revenue

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• 2018 (3) TMI 467
  Denial of exemption u/s 11 - Held that:- As regards the claim of exemption u/s 11, AR has fairly conceded that the issue is covered against the assessee by the judgment in assessee’s own case for A.Ys. 2009-2010 and 2010-2011 [2014 (12) TMI 1314 - KERALA HIGH COURT]. Hence, the grounds relating to the claim of exemption u/s 11 are rejected. Further, we notice that assessee cannot be termed as a local authority, as enumerated in section 10(20) of the I.T.Act, hence benefit under the said section cannot be granted to the assessee. As regards the computation of income, we find that assessee had not raised any grounds on said issue before the CIT(A). Therefore, the issues raised as regards the computation of income does not arise out of the order of the CIT(A). The issues that does not arise out of the order of CIT(A) cannot be subject matter of adjudication by the Tribunal unless it is a pure question of law or issues, which does not require examination of fresh facts. In the instant case, the issue raised for the first time with reference to computation of income is not a legal issue, but a pure factual issue, which were never agitated before the A.O. nor the CIT(A). Therefore, the issue of computation of income cannot be raised for the first time before the Tribunal. Hence, the grounds relating to the computation of income made by the assessee for A.Ys 2011-2012 and 2012-2013 are rejected. - Decided against assessee.

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• 2018 (3) TMI 466
  Disallowance u/s 14A - Held that:- Taking into consideration, the strategic investment, debt oriented general funds (dividend), debt oriented mutual fund (growth option), debt oriented mutual fund, debt oriented fund dividend loan , an amount of Rs. 10,49,770/- disallowed by the assessee on the amount of interest. The AO’s action of deriving satisfaction was thus without any cogent grounds, the AO does not derive any power from section 14A(2) in the absence of any cogent grounds to arrive at a finding that the appellant’s claim of disallowance was not on sound grounds as the investments of more than 90% of the investments are either taxable or strategic investment. Hence, no further disallowance is required to be made by the AO. - Decided against revenue

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• 2018 (3) TMI 465
  Computation of Interest u/s 234B and 234C - MAT credit to be allowed from the assessed tax, and thereafter the interest u/s 234B and C should be computed - AO computed the interest under section 234B and C without considering MAT credit - Held that:- Explanation 1 (v) of sub section 1 of section 234B clearly guides that MAT credit set off should be allowed while computing ‘assessed tax’. Therefore, it is abundantly clear that in the assessee’s case under consideration, the available MAT credit was at Rs. 12,91,616/- up to assessment year 2006-07, and the same should be allowed first, (that is, before computing the interest under section 234B and C of the Act), but, in fact, we note that AO has not allowed this MAT credit to the assessee. We note that Parliament amended Explanation 1 to Section 234B by Finance Act, 2006 w.e.f. 1.4.2007 to provide along with tax deducted or collected at source, MAT credit under Section 115JAA also to be excluded while calculating assessed tax. From the above, it is evident that any tax paid in advance/pre-assessed tax paid can be taken into account in computing the tax payable. Based on the factual position explained above, we direct the assessing officer to allow MAT credit, which is available with the assessee at Rs. 12,91,616/- and , then, interest under section 234B and C, if any, may be charged, that is, after set off of MAT credit, the AO may compute the interest under section 234B and C. - Decided in favour of assessee Also as per assessee while computing ‘assessed tax’ , the AO has allowed TDS claim at Rs. 4,35,927/- whereas as per assessee it should be Rs. 4,36,617/-. We direct the assessing officer to allow the claim of the assessee for the balance amount of Rs. 670/- (Rs.4,36,617/- – Rs. 4,35,927/-), after verification, as per law. - Decided in favour of assessee for statistical purposes.

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• 2018 (3) TMI 464
  Disallowance of advertisement expenditure incurred on the project known as “Atlantis” - Held that:-It is also not in dispute that the assessee developed several projects. One among them is known as “Atlantis”. When the assessee made advertisements, as claimed by the assessee in its written submission, it displayed the name of the concern, name of the projects, brand name, etc. Such advertisements will definitely promote not only the projects developed by the assessee but also the image and goodwill of the assessee-company among the general public. Therefore, the cost of expenditure cannot be related to a particular project which is undertaken by the assessee in a particular year. At the best, it can be relatable to the year in which the advertisement was made. Merely because the assessee segregated the cost of expenditure in relation to a particular project and later stage claimed as general advertisement expenditure that may not alter the character of the advertisement expenditure incurred by the assessee. As long as the expenditure on the advertisement made during the year under consideration is not in dispute, it cannot be disallowed by the Assessing Officer on the ground that no income was disclosed in respect of a particular project known as “Atlantis”. Hence, this Tribunal is of the considered opinion that the CIT(Appeals) has rightly allowed the claim of the assessee - Decided against revenue

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• 2018 (3) TMI 463
  Validity of reopening u/s 147/148 - exemption/deduction claimed u/s 11 allowed by AO - Held that:- The assessee trust is running an Educational Institutions and the objects and activities of the assessee trust were accepted as charitable in nature while granted registration u/s 12AA of the Act vide order dated 04.11.2004. For the year under consideration the assessee filed return of income on 15.10.2010 and declared nil income after claiming the benefit of Section 11 of the Act. The Assessing Officer while completed the assessment u/s 143(3) vide order dated 18.03.2013 has accepted the return income When the Assessing Officer has reopened the assessment by forming the believe an re-appreciation of material already available on record as well as in view of the decision of Hon’ble Jurisdictional High Court in case of CIT vs. Hindustan Zinc (2016 (6) TMI 1045 - RAJASTHAN HIGH COURT), we hold that reopening is not valid as the AO had no jurisdiction to invoke the provision of Section 148 of the Act. We may point out that the provisions of Section 148 cannot be used for reviewing the decision taken by the AO u/s 143(3) of the Act. There is a demarcation and separation of jurisdiction even for revision for an order suffering from error and therefore the remedy for such erroneous order is provided u/s 263 of the Act. Hence, the reopening of the assessment is set aside - Decided in favour of assessee.

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• 2018 (3) TMI 462
  Addition on account of surrender during the course of survey - addition on the basis of statement given by the partner of the assessee firm during the course of survey towards unaccounted purchases - Held that:- It is not disputed that there was no incriminating material found during the course of survey which could substantiate the basis of the alleged addition. We further find that during the course of assessment proceedings the assessee had fully explained the purchase of oil and lubricants. The Assessing Officer has not referred to any corroborative evidence to substantiate that there was in fact any unaccounted purchase of oil and lubricants. It has been consistently been held by Hon'ble Courts that the statement recorded during the course of survey are not sacrosanct and cannot be relied against the assessee for making addition unless supported by corroborative evidence. Addition of Rs. 3.50 lakhs have no legs to stand as it is merely based on the statement given during the course of survey without any supporting incriminating material. - Decided in favour of assessee. Addition on account of difference in the account with Petroleum Service Centre, Sausar - Held that:- Looking to the issue relating to alleged difference in the debit balance of Rs. 73,363/- and the contention of Learned counsel for the assessee for the alleged arithmetical mistake, find it justified to restore the issue raised in this ground to the file of the Assessing Officer to carry out necessary verification and also direct the assessee to produce necessary evidence including the confirmation account and the list of sundry debtors for necessary reconciliation so as to satisfy the AO. - Decided in favour for statistical purposes.

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• Customs

• 2018 (3) TMI 461
  Condonation of delay of 860 days in preferring the appeal - case of appellant is that the delay occurred for the reason that the employee, who was managing the affairs of the company had left the company without informing the details with regard to the receipt of the Order-in-Appeal - Held that: - Though it is submitted that the delay occurred due to the reason that an employee named Shri Sriranjan Deshpande left the office of the appellant, the affidavit does not mention the name of this employee. The name of the employee does not find mention in the application for condonation of delay also. When the Director of the Company is not able to affirm that a particular employee is responsible for the delay, the submission made is not acceptable. It is also noteworthy that the appellant does not have a case that they did not receive the copy of the impugned order that was despatched from the department. There is willful laches and negligence on the part of the appellant in filing appeal before the Tribunal within prescribed time - there is no reason to condone the delay - application for COD dismissed.

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• 2018 (3) TMI 460
  Pre-deposit - the amount that was required to be deposited by the appellant before the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench at Mumbai for non compliance of which the appeal filed by the appellant has been dismissed by the learned Tribunal by order dated 06.04.2015, which dismissal has been affirmed by the High Court in further appeal by order dated 07.08.2017 - the decision in the case of M/s. KCF Impex Pvt. Ltd. Versus The Commissioner of Customs (Import) [2018 (3) TMI 439 - BOMBAY HIGH COURT] referred - Held that: - Having regard to the deposit made, we set aside the orders of the High Court and the learned Tribunal dismissing the appeal(s) and restore the appeal filed by the appellant before the learned Tribunal - appeal restored.

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• Corporate Laws

• 2018 (3) TMI 459
  Winding up petition - Rectification by Central Government of register of charges - Held that:- It is observed by the Court that, the transaction, based upon which the Company Petition was presented, unless screened and declared, the order in respect of winding up of the Company does not deserve to be passed. The foundation of exercise of the discretion shall be, “neglect to pay due and agreed amount”. It is observed that since the Petition raises disputed questions and the writ petitioner i.e. Respondent No.1 is not remedy-less to recover the amount, and as such, the Court refused to entertain the Company Petition. The instant Petition thus, does not deserve to be entertained, since the Respondent Company Law Board/the Regional Director, Western Region was within its rights in registering charge of Respondent No. 1, in pursuance to the Application tendered in that regard, in exercise of Powers under Section 141 of the Companies Act, 1956. The challenge raised by the Petitioner in the instant Petition does not come within the purview of Section 141 of the Act 1956, and it would be open for the Petitioner to raise the challenge relating to the documents, its enforceability, execution or the entitlement of the concerned Respondent to recover the amount from the Petitioner or defence in respect of bar of limitation, before an appropriate forum available in law.

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• Service Tax

• 2018 (3) TMI 457
  Change of cause title - change from Commissioner of Customs, Central Excise and Service Tax, Coimbatore to The Commissioner of GST & Central Excise, Chennai South Commissionerate, MHU Complex, 692, Anna Salai, Nadanam, Chennai-600035 - Held that: - the prayer for amendment of the cause title as also the address for communication of the department needs to be amended in accordance with the change of address/jurisdiction of the department - the miscellaneous applications filed by Revenue for change of cause title allowed - application allowed.

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• 2018 (3) TMI 456
  Change of cause title - change from commissioner of Central Excise, LTU, Chennai to The Commissioner of GST & Central Excise, Chennai South Commissionerate, MHU Complex, 692, Anna Salai, Nadanam, Chennai-600035 - Held that: - the prayer for amendment of the cause title as also the address for communication of the department needs to be amended in accordance with the change of address/jurisdiction of the department - the miscellaneous applications filed by Revenue for change of cause title allowed - application allowed.

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• 2018 (3) TMI 455
  Rejection of VCES declaration - whether the SCN proposing to reject VCES declaration issued after a period 30 days from the date of filing of VCES declaration, is sustainable or not? - Held that: - The Tribunal in the case of Siddhi Vinayaka Enterprises Pvt. Ltd. Vs CST Raipur [2016 (6) TMI 19 - CESTAT NEW DELHI] relied upon Board's Circular No.169/4/2013-ST dt. 13.05.2013 and held that the SCN issued after a period of 30 days is non-est. The SCN issued after a period of 30 days of declaration filed under VCES is unsustainable - appeal allowed - decided in favor of appellant.

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• Central Excise

• 2018 (3) TMI 487
  Clandestine removal of final product - SS flats - assessee s main contention is that the Revenue s case is primarily and mainly based upon the statements recorded during the course of investigations - rejection of cross-examination - principles of Natural Justice - Held that: - As there are contrary views and difference of opinion between the Members, therefore, the matter be placed before the Hon ble president to refer the matter to the third member to resolve the following issues:- Whether in view of the gross violation of principles of natural justice and lack of adherence to the procedure under Section 9D, the matter be remanded back to the adjudicating authority for de no adjudication, as held by member (Technical). Matter referred to Third Member.

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• 2018 (3) TMI 486
  Finalization of provisional assessment - Rule 7 of Central Excise Rules 2002 - Held that: - The Ld. counsel has requested for remand of the matter seeking a further chance to adduce evidence to establish that the duty burden has not been passed on and that appellant would be able to satisfy the test of unjust enrichment - it is deemed fit to grant a further chance to appellant - appeal allowed by way o fremand.

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• 2018 (3) TMI 485
  Valuation - cylinder liners - appellants cleared the said goods in bulk to State Transport Undertakings for being used by them in the maintenance of their fleet - section 4 of the Central Excise Act, 1944 - Held that: - the appellant had cleared the cylinder liners in bulk to State Transport Undertakings for their own consumption. There is no dispute that the goods were not cleared for retail sale. Chapter 2 of Standards of Weights and Measures Act and Rules 1977 provides that the said Rules do not apply when the goods are not intended for retail sale - The exemption provided under Rule 34 is not available to the appellant for the reason that the subject goods are used in the service station / workshop of the Transport Undertakings. The major period involved in these appeals is after 17.7.2006. The demand confirmed on the basis of Rule 34 which is not in existence is unsustainable and requires to be set aside. The demand prior to 17.7.2006 is also unsustainable - appeal allowed - decided in favor of appellant.

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• 2018 (3) TMI 484
  Valuation - includibility - reimbursement expenses - advertisement expenses - Held that: - the said advertisement was on behalf of the local dealers for the promotion of sale of the vehicles. Thus, it is reimbursement and its value cannot be included for the purpose of excise duty. It appears that matter is very old and it has already travelled upto the Hon’ble Supreme Court. The genesis of the dispute was generated three decades before. Now it will not serve any useful purpose if we remand the case further to the adjudicating authority. Appeal allowed - decided in favor of appellant.

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• 2018 (3) TMI 483
  CENVAT credit - Rule 16 of the CCR - returned defective printed corrugated boxes - case of the department is that the corrugated boxes once get defective cannot be repaired and therefore the same cannot be either returned to the same buyer or even to other persons - Held that: - As the said stock is liable for duty but only at the time of removal thereon, before that CENVAT credit cannot be questioned - Even as per Rule 16 also after taking cenvat credit on the duty paid returned goods, the subsequent payment of duty is made only at the time of removal of such returned goods and not during the time it is lying in the factory - demand set aside - appeal allowed - decided in favor of appellant.

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• 2018 (3) TMI 482
  Interest - penalty - It is the case of Revenue that there was illegal availment of CENVAT credit which was liable to be recovered u/r 14 of CCR 2004 and liable to be penalized u/r 15(2) of CCR 2004 - Held that: - the reversal of CENVAT credit is mandatory whenever the value of inputs is written off or provisions made for such in the books of accounts - In the instant dispute, the reversal was made by the appellant and hence there is no call to invoke rule 14 of CCR 2004 - Consequently there is no scope for invoking rule 15 of CCR 2004 - appeal dismissed - decided against Revenue.

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• 2018 (3) TMI 481
  CENVAT credit - denial on the ground that there was no manufacture - Held that: - Revenue is unable to establish any case for ineligibility to avail of CENVAT Credit - Once duty has been collected on the clearance of all the imported items whether as such or after some processing, are deemed to have been manufactured - appeal dismissed - decided against Revenue.

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• 2018 (3) TMI 454
  Condonation of delay - Section 37C of the Central Excise Act, 1944 - whether service can be said to be valid or not and relevance of answer to this question, insofar as prayer for condonation of delay is concerned, arise for adjudication in this appeal? Held that: - merely because proper steps were taken to complete service in terms of Section 37C, that by itself will not be sufficient to reject the prayer for condonation of delay. It will have impact only on length of delay. The questions of law formulated above squarely fall for consideration in present matter. The authority passing impugned order has not looked into relevant aspects having material bearing on answer to these questions. Thus, there is non-application of mind. Application restored on the file of the appellate authority for its fresh consideration preferably within period of six months from today.

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• 2018 (3) TMI 453
  Clandestine removal - excess quantity of scrap and billets - Held that: - The Revenue's entire case being on the basis of production slips, which stand explained by the appellant in their statements, it cannot be held to be a sufficient evidence to discharge the onus placed upon the Revenue to establish the clandestine activities - the respondents have successfully established that they are not having furnace and capital goods for production so huge quantum of the final products - The said plea of the assessee has not been rebutted by the Revenue at any point of time - appeal dismissed - decided against Revenue.

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• 2018 (3) TMI 452
  CENVAT Credit - It is the submission that the jumbo bags were utilised outside the factory premises in the port and hence not eligible for CENVAT credit - Held that: - the CENVAT credit is availed on Jumbo bags which were delivered to C&F agents, taken to port and raw-sugar imported in bulk is packed and brought back to the factory for purification purposes. In the entire case, it is undisputed that the CENVAT credit availed jumbo bags were used for transportation of raw-sugar from the port to the factory premises of the appellant. Revenue has not effectively countered the factual position in order to take a different view than what has been already taken by the adjudicating authority. Appeal dismissed - decided against Revenue.

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• 2018 (3) TMI 451
  CENVAT credit - carry forward of credit - Rule 57 F (17) (b) of CER - Held that: - the credit was not carried forward by the Appellant by complying with Rule 57 F (17) (b) in year 1997. They did not challenge the lapse of such credit thereby accepting the compliance with the said Rule. It is only after 9 years that they availed credit suo moto which is bad in law. When the lapse of the credit was not challenged by them and they accepted the lapse of credit in that case they could not have taken suo moto credit. Therefore they are not entitled for the credit. Interest on unutilized credit - Held that: - the Appellant has utilized the portion of credit which was availed in the year 2006. During the said period the Rule 14 provided for payment of interest in case where the credit was taken or utilized wrongly - appellant liable to pay interest. Appeal dismissed - decided against appellant.

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• 2018 (3) TMI 450
  Penalty u/s 11AC - Short payment of duty - change in classification of goods - payment of differential duty with interest on being pointed out - Held that: - the appellant had disclosed the payment of duty of 10.30% attributable to the product of Chapter 73259910. Thus, malafide cannot be attributed to the appellant, justifying the invocation of the provisions of Section 11 AC of the Act for imposition of equal amount of penalty - penalty cannot be sustained. CENVAT credit - service tax paid on painting of the factory building & machinery - denial on the ground the construction of building or civil structure is falling under the Exclusion Clause contained in the definition of “input service” under Rule 2 (l) of the Rules - Held that: - the services were provided in relation to the painting of the factory building and plant & machinery, which are appropriately classifiable under category of “renovation or repair of the factory” contained in the Inclusive part of the definition of the “input service” - such service falls under the purview of the “input service” for the purpose of availment of cenvat credit - denial of credit and imposition of penalty not sustainable. Appeal allowed - decided in favor of appellant.

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• 2018 (3) TMI 449
  Area based exemption - change of assessee - Benefit of N/N. 50/2003 CE dated 10/06/2003 - Revenue had taken the view that the entire premises was occupied by M/s Mahabir Steel Tubes was leased to M/s Wonder Fibromat Pvt. Ltd and the original unit was not functioning on the date when the same was taken over by the present appellant - Held that: - In the present case, both circumstances co-exist. The present appellant has purchased the unit from M/s Mahabir Steel Tubes and has also transferred the unit to a new site. The reason cited by the revenue for denying the benefit is that the unit was not functional at the original place before it was shifted. From the record available we notice that certain portion of the original factory continued to exist in the name of M/s Mahabir Steel Tubes on the date on which the unit was taken over and subsequently shifted. The benefit of exemption will be available to the new unit provided they are able to satisfy the revenue authorities that it is the same machinery which has been shifted to the new premises. The relevant Chartered Engineer’s Certificate furnished by the appellant does not appear to have been considered and discussed by both the authorities below. The matter remanded to the Original Authority for considering the observations as above and to pass de novo orders on the subject - appeal allowed by way of remand.

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• 2018 (3) TMI 448
  100% EOU - Since, the appellant had availed Cenvat credit of the CVD amount as per the formula prescribed under N/N. 10/2008-C.E., dated 01.03.2008, the department has objected to such availment of credit and confirmed the adjudged demand - Held that: - the appellant cannot plead that the N/N. 48/2008-C.E.(N.T.), dated 05.12.2008, issued subsequently, providing the formula for Cenvat credit will be applicable with retrospective effect. Further, the said notification nowhere prescribed that the same will have the retrospective operation - the law is well settled that in absence of any express provision contained in notification, ordinarily it cannot be presumed that same is retrospective in nature - the formula prescribed in notification dated 05.12.2008 will be effective prospectively, from its date of publication in the Official Gazette. Since the appellant has taken Cenvat credit due to wrong interpretation of the statutory provisions, it cannot be said that it had indulged into the activities of fraud, collusion etc. Therefore, the provisions of Rule 15 of the CCR 2004 cannot be invoked against the appellant for imposition of penalty. Appeal allowed in part.

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• 2018 (3) TMI 447
  Clandestine removal - penalty u/s 11AC of the CEA 1944 - Held that: - It is well settled law that the judicial precedence would be applied in the context of each facts of the case. In the present case, the Assessee is not disputing the demand of duty on clandestine removal of the goods and therefore imposition of penalty u/s 11AC of the Central Excise Act is liable to be invoked - the imposition of penalty on the Assessee is required to be upheld. Appeal dismissed - decided against Revenue.

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• 2018 (3) TMI 446
  CENVAT credit - Duty on depreciated value of capital goods removed - the department was of the view that the capital goods have been removed as such and that the assessee is liable to reverse the credit - Board Circular No.43/34/2002-CX dated 1.7.2002 as well as Circular No.495/16/1993 dated 26.5.1993 - Held that: - As per the Board’s Circular, during the relevant period, the assessees are liable to pay duty on the basis of the depreciated value of the capital goods removed on the credit availed capital goods - the Commissioner (Appeals) has given a very reasoned order by setting aside the confirmation of demand and directed the lower authority to requantify the duty on the basis of the depreciated value of the capital goods - appeal dismissed - decided against Revenue.

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• 2018 (3) TMI 445
  Amendment of cause title - The department is shown in the appeal with jurisdiction of Commissioner of Service Tax, Chennai, whereas now the same has been changed as The Commissioner of GST and Central Excise, Chennai South Commissionerate, MHU Complex, 692, Anna Salai, Nandanam, Chennai-600035 - Held that: - the prayer for amendment of the cause title as also the address for communication of the department needs to be amended in accordance with the change of address/jurisdiction of the department - application allowed.

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• 2018 (3) TMI 444
  Change of cause title - change from Commissioner of Central Excise, Chennai – II to the principal Commissioner of GST and Central Excise, Chennai North Commissionerate consequent upon the introduction of GST and the resultant change in the jurisdiction - Held that: - the miscellaneous applications for change of cause title allowed - application allowed.

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• 2018 (3) TMI 443
  CENVAT credit - it was alleged that assessee has not reversed the credit when the capital goods / inputs were transferred from API unit to the Formulation Unit - violation of Rule 3(5) of CCR - Held that: - taking into consideration, the subsequent event that both the units have merged into one single unit, the remanding the matter for reconsideration by the authorities below would be a futile exercise - the whole situation is revenue neutral one - appeal allowed - decided in favor of appellant.

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• 2018 (3) TMI 442
  Amendment of cause title - The department is shown in the appeal with jurisdiction of commissioner of Central Excise, Puducherry, whereas now the same has been changed as The Commissioner of GST and Central Excise, No.1, Williams Road, Cantonment, Trichy – 620 001 - Held that: - the prayer for amendment of the cause title as also the address for communication of the department needs to be amended in accordance with the change of address/jurisdiction of the department - application allowed.

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• 2018 (3) TMI 441
  Penalty u/s 11AC - CENVAT credit - it was alleged that the appellant had transferred the capital goods/inputs without raising invoices and without reversing the credit - Rule 3(5) of CCR 2004 - Held that: - The credit was reversed even prior to the visit by the officers. The double credit availed was reversed immediately on being pointed out. Taking the facts into consideration, the facts do not disclose any intention on the part of the appellant to evade payment of duty. Therefore, the imposition of penalty is unjustified and requires to be set aside - appeal allowed in part.

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• 2018 (3) TMI 440
  Benefit of N/N. 4/2006 and 4/2007 - Cement - The department was of the view that appellants have to discharge the duty on the clearances of cement for own use or for such buyers will not fall under the category of institutional consumers - Held that: - The issue whether assessee / respondent is eligible for concessional rate of duty under Notification No.4/2006 is settled by the decision in the case of ACC Ltd. Vs. Commissioner of Central Excise, Coimbatore [2017 (8) TMI 1168 - CESTAT CHENNAI], where it was held that the provisions applicable to packages intended for retail sale in Chapter II of the said rules, will not apply to the clearances of cement by the appellant to its Industrial or Institutional consumers. - appeal dismissed - decided against Revenue.

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• Indian Laws

• 2018 (3) TMI 458
  Jurisdiction - assessments made by the Income-­Tax Officer Trust-­cum­-Estate Duty Circle - Whether, the Income­-Tax Officer, Trust­-cum-Estate Duty Circle appointed by the Government to perform the duties under the Estate Duty Act was competent to frame an assessment under the Estate Duty Act? - Whether the Appellate Tribunal was correct in holding that the order passed by the Income­-Tax Officer, Trust-cum­-Estate Duty Circle was non­-est and null and void? - Whether the Appellate Tribunal was justified in permitting the Accountable Person to raise the issue questioning the legality of the assessment made by the Income­-Tax Officer, Trust­-cum­-Estate Duty Circle? Held that: - the power to appoint the Controllers for the purposes of the Estate Duty Act, is with the Central Government only. By notification dated 03.05.1976, the Board directed Income­-Tax Officers, Trust Circle, Nagpur, to perform those functions in relation to a specific category of estate. This act of Board, therefore, shows that these Income­-Tax Officers, Trust Office, Nagpur, were not already Controllers. Section 15 of General Clauses Act, 1897, has no bearing on this issue as that section presupposes appointment by an authority empowered by the statute to make it. Appeal allowed in part - decided partly in favor of Revenue and partly in favor of assessee.

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